Malloy & Anor and Stopford Malloy - [2017] FamCAFC 205

FAMILY COURT OF AUSTRALIA

MALLOY AND ANOR & STOPFORD MALLOY

[2017] FamCAFC 205

FAMILY LAW – APPEAL – LEAVE TO APPEAL – SUBPOENAS – Where the decision pertains to practice and procedure – Where an adjournment of the hearing was unnecessary – Where the task of the primary judge at the interlocutory stage was not to determine whether the documents sought would be admissible as relevant at trial – Where the task of the primary judge was to consider whether the wife had a legitimate forensic purpose in seeking production of the documents, and that is usually established by demonstrating that they have an apparent relevance to the issues in the substantive proceedings – Where the decision of the primary judge discloses no error of principle and its correctness is not attended with sufficient doubt to be overturned – Where no substantial injustice can result from the refusal of leave supposing the decision to be wrong – Application dismissed.

FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced is in dispute which renders it practically impossible to allow its admission – Where the application misconceives the subpoena process and the requirements placed on the recipient of the subpoena – Where the task of the primary judge is to consider the “apparent relevance of the documents, not determine once and for all their relevance” – Where the further evidence fails to demonstrate error by the primary judge – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where no application for costs was made in the written submissions of either party – Rules as to costs apply.

Family Law Act 1975 (Cth) s 93A

Family Law Rules 2004 (Cth) rr 22.39, 15.51

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981) 148 CLR 170
CDJ v VAJ (1998) 197 CLR 172
Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC
93-038
In re the Will of F B Gilbert (dec.) (1946) 46 SR (NSW) 318
Kennon v Spry (2008) 238 CLR 366
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Waind v Hill and National Employers’ Mutual General Association Ltd [1978]
1 NSWLR 372

APPLICANTS:

Mr Q Malloy and The Malloy Group

RESPONDENT:

Ms Stopford Malloy

FILE NUMBER:

ADC

2595

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

5 October 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

In Chambers

DATE HEARD:

Written submissions

JUDGMENT OF:

Thackray, Strickland and Murphy JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 February 2017

LOWER COURT MNC:

[2017] FamCA 116

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

PP Lawyers

SOLICITOR FOR THE RESPONDENT:

Piper Alderman Lawyers

Orders

The application in an appeal filed by the applicants on 11 July 2017 be dismissed.
The application for leave to appeal made in the Amended Notice of Appeal filed on 9 March 2017 be dismissed.

Note: The form of the order is subject to the entry of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FamCAFC 205
Decision Date: 5 October 2017

CaseChat Overview and Summary

The applicants, Malloy and Stopford Malloy, sought to appeal against a decision of the Family Court which refused to grant subpoenas for the production of certain documents and also to adduce further evidence. The appeal was heard in the Full Court of the Family Court of Australia. The applicants aimed to challenge the decision of the primary judge who declined to issue subpoenas for specific documents and denied the application to adduce further evidence. The primary legal issues before the court were whether the primary judge erred in refusing the subpoenas and the application to adduce further evidence. The court needed to determine if the refusal to grant the subpoenas and the denial of the application for further evidence disclosed an error of principle or was attended with sufficient doubt to warrant an appeal.

The court found that the primary judge did not err in his decision. The task of the primary judge at the interlocutory stage was to consider whether the wife had a legitimate forensic purpose in seeking the production of the documents, which is usually established by demonstrating that they have an apparent relevance to the issues in the substantive proceedings. The court held that the decision of the primary judge disclosed no error of principle and its correctness was not attended with sufficient doubt to be overturned. Regarding the application for further evidence, the court held that the application misconceived the subpoena process and the requirements placed on the recipient of the subpoena. The primary judge’s task was to consider the apparent relevance of the documents, not determine once and for all their relevance. Since the further evidence failed to demonstrate an error by the primary judge, the application was dismissed.

The application in the appeal was dismissed, and the application for leave to appeal was also dismissed. No application for costs was made in the written submissions of either party, and the Rules as to costs apply. The applicants were ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

The application in an appeal filed by the applicants on 11 July 2017 be dismissed.

The application for leave to appeal made in the Amended Notice of Appeal filed on 9 March 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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