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 |
| 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
That all material produced under subpoenae by J Firm and K Accountants is released for inspection and copying.
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
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.
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.
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…
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- Case
- [2014] FamCA 232
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether objections to subpoenas issued to J Firm and K Accountants should be upheld on grounds of relevance, oppression, or "fishing," and whether the third party, X Firm, should be permitted to adduce expert evidence regarding the value of the parties' assets. Additionally, the court considered whether a solicitor could unilaterally disregard client privilege based on an assertion or anticipation of implied waiver.
Cronin J reasoned that the rules governing expert evidence, particularly Chapter 15 of the *Family Law Rules 2004*, emphasise the need to confine litigation without compromising the interests of justice. The court expressed concern that without expert evidence on asset valuation, the court might not have comprehensive information to determine the interests of justice, especially given X Firm's claim. Therefore, the court determined that the evidence could at least be filed, with its admissibility to be tested at the hearing if its relevance to the causes of action could be demonstrated. The objections to the subpoenas were rejected, and X Firm was granted leave to file its affidavit.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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