Martin & Martin and Anor (No. 2)

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR (NO. 2) [2014] FamCA 232

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae objection – relevance, oppression and fishing – objection rejected.
FAMILY LAW – EVIDENCE – Expert evidence – Should the third party creditor by the wife be allowed to adduce evidence about the parties’ assets? – permission to file granted.
FAMILY LAW – LEGAL PRACTITIONERS – Client privilege – implied waiver – Can a solicitor unilaterally ignore the privilege based on an assertion of, or anticipating of, a finding of implied waiver?

Family Law Act 1975 (Cth)

Alister v R [1984] HCA 85; (1984) 154 CLR 404
Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500
Mann v Carnell (1999) 201 CLR 1
Martin and Martin (2012) 49 Fam LR 76
Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683
Spincode Pty Ltd v Look Software Pty Ltd [2001] 4 VCR 501
Woley and Humboldt (No 3) [2009] FamCA 546

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

INTERVENOR: X Firm

FILE NUMBER: MLC 9829 of 2007

DATE DELIVERED: 9 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT: Mr Glick SC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE INTERVENOR: Mr Kirkham QC With Dr Ingleby

SOLICITOR FOR THE INTERVENOR: Nedovic & Co

Orders

1. That all material produced under subpoenae by J Firm and K Accountants is released for inspection and copying. 

2. That the third party X Firm has leave to file the affidavit of Mr I.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

REASONS FOR JUDGMENT

1. There were two issues in this interlocutory hearing which require determination prior to the matter proceeding to a final trial.  They are:

   (a)The husband’s objections to the release of information provided pursuant to subpoenae issued by the Court at the request of X Firm who are the interveners in the proceedings; and

   (b)Whether X Firm should be permitted to lead evidence from a valuer in relation to a business conducted by the husband through a variety of corporate entities.

2. The first of the two issues arises because of the husband’s objection to the release of the subpoenaed material upon which a ruling is required. 

3. Before dealing with those two matters, there is also a third (and perhaps underlying) issue which relates to whether or not evidence of the principal solicitor of X Firm should be allowed into evidence at all.  The wife asserted, and the husband joined with her in submitting, that the acceptance of the affidavit into evidence…