Malloy & Anor and Stopford Malloy

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.