Martin & Martin & Anor (No 5)

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR (NO 5) [2014] FamCA 954

FAMILY LAW – Subpoena process – application to set aside – Where in interlocutory proceedings subpoena to give evidence was issued – appropriateness of registrar exercising discretion – Where the issue after evidence had begun concerned both the question of the existence of documents but also other questions about the substantive proceedings – Can counsel cross-examine own witness? – Can a witness be challenged about both the existence of documents but also credit in such an interlocutory process? – Application to set aside subpoenae refused – Where the court was asked to refuse to admit evidence obtained in that interrogative process at trial – Application refused on the basis that its admission and use was a matter for the trial judge.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

AG Australia Holdings Ltd v Burton and Another [2002] NSWSC 170

Faden and Faden (No 3) [2011] FamCA 897
Hexiva Pty Ltd v Lederer [2006] NSWSC 561
Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541
Ishac and David Securities Pty Ltd; Ishac v David Securities Pty Ltd (No 6) (unreported decisions of the Supreme Court of NSW, Young J, (1991); (1992)
Kennedy v Wallace [2004] FCA 636
Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242
Khanna v Lovell White Durrant (a firm) [1995] 1 WLR 121
Lewis v Nortex Pty Ltd (in liquidation); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064
LGM and CAM [2008] FamCA 185
Lucas Industries Limited v Hewitt [1978] 45 FLR 174
Luigi Iacullo v Remley Pty Ltd & Ors [2010] NSWSC 980
Martin and Martin [2012] FamCA 689
Martin and Martin and Anor (No 2) [2014] FamCA 232
Martin and Martin and Anor (No 3) [2014] FamCA 402
Martin and Martin and Anor (No 4) [2014] FamCA 442
Northern Territory and GPAO (1999) CLR 553
Penn-Texas Corporation v Murat Anstalt and Ors (No 2) [1964] 2 QB 647
Quach v Vu and Ors [2009] NSWSC 131
Re Z (1996) 20 Fam LR 651
Rogers v R (1994) 181 CLR 251
Trade Practices Commission v Arnotts Limited and Ors (No 2) [1989] 21 FCR 306

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

INTERVENOR: X Firm

FILE NUMBER: MLC 9829 of 2007

DATE HEARD: 4 September 2014

DATE DELIVERED: 7 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

SOLICITOR FOR THE INTERVENER: X Firm

SOLICITOR FOR MR O: Bowman & Knox

Orders

1. The applications to set aside the subpoenae to Mr O and Mr HH Martin are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (No 5) 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