Minn and Sayles & Ors

[2020] FamCA 685

FAMILY COURT OF AUSTRALIA

MINN & SAYLES AND ORS [2020] FamCA 685

FAMILY LAW – PRACTICE AND PROCEDURE – objection to subpoena – where it is difficult to assess the concerns of the objections until the parameters of the dispute are more clearly delineated – where the objection hearing would be best conducted after pleadings – application adjourned

Federal Circuit Court Rules 2001 r 8.02

APPLICANT: Ms Minn

FIRST RESPONDENT: Mr Sayles

SECOND RESPONDENT: Mr B Sayles

THIRD RESPONDENT: Mr C Sayles

FOURTH RESPONDENT: Ms D Sayles

FIFTH RESPONDENT: F Pty Ltd

FILE NUMBER: TVC 748 of 2019

DATE DELIVERED: 19 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 6 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Bailey

Wallace & Wallace Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr M Fellows

SOLICITOR FOR THE FIRST RESPONDENT: Macrossan & Amiet Solicitors

COUNSEL FOR THE SECOND THROUGH TO FIFTH RESPONDENTS: Mr A Collins

SOLICITOR FOR THE SECOND THROUGH TO FIFTH RESPONDENTS: Statewide Family Law

Orders

1. That the hearing and further determination of the objections to subpoena be adjourned until 9.30am on 8 December 2020 in the Family Court of Australia.

2. That the Application in a Case filed by the Second Respondent on 23 January 2020 and the Contravention Application filed 28 January 2020 be adjourned to the same Case Management Hearing date, for directions only.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Minn & Sayles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 748 of 2019

Ms Minn

Applicant

And

Mr Sayles

First Respondent

And

Mr B Sayles

Second Respondent

And

Mr C Sayles

Third Respondent

And

Ms D Sayles

Fourth Respondent

And

F Pty Ltd

Fifth Respondent

REASONS FOR JUDGMENT

Introduction 

1. In the midst of contested property proceedings between the Applicant wife Ms Minn and the Respondent husband Mr Sayles, commenced on 27 June 2019 in the Federal Circuit Court of Australia, the husband on 7 January 2020 filed subpoena directed to the following entities:

   a)G Accountants;

   b)K Company; and

   c)L Solicitors.

2. At the time these subpoenae were filed, Mr B Sayles (the husband’s brother) and Mr C Sayles and Ms D Sayles (the husband’s parents) had, by an Order made 23 July 2019 by a Federal Circuit Court of Australia Judge, been given leave to be “joined as third parties”.

3. I raised with Counsel who appeared before me, the curiosity arising from the order to join these parties where there does not appear to have been any application by the husband or wife to join these parties or any application by the parties to intervene. Nonetheless, it is now plainly obvious from the reasons that follow that these individuals should be engaged in the proceedings. For completeness, the husband has joined the company F Pty Ltd as a party (via an amended Response filed 18 March 2020).

4. On 22 April 2020, the Federal Circuit Court of Australia properly transferred all proceedings (it seems) to the Family Court of Australia because her Honour Judge Demack deemed the property proceedings to be complex. At least at that time, the applications pending which probably constituted the “proceedings” transferred pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001 were:

   d)the substantive proceedings in respect of property proceedings and parenting proceedings;

   e)the objections filed to the subpoenae earlier referred to;

   f)an Application in a Case filed by Mr B Sayles on 23 January 2020, seeking injunctive relief against the husband; and

   g)a Contravention Application filed on 28 January 2020 charging the husband with a failure to comply with Orders 7 and 8 made 14 November 2019, to produce certain documents by way of discovery. Why it was deemed appropriate for a Contravention Application to be filed (considering the sanctions available by that process) is uncertain.

5. On 6 August 2020, I heard oral submissions and was referred to filed written submissions relied upon by Mr Fellows of Counsel (for the husband); Mr Collins of Counsel (for the other parties) and Mr Bailey for the wife, limited to the issue of the objections filed to the subpoenae.

6. In short, the subpoenae are directed to seeking documentation broadly said to be in the possession of the parties to whom the subpoenae are directed, relating to Estate and/or business succession planing undertaken by the husband’s parents, including any wills made by them.

7. At the time the subpoenae issued and when objections to production had been lodged by the various entities, the state of the “pleadings” was, in my view, totally unsatisfactory.

8. The fact that when “joined” as parties no order was made for them to file any response might be explained by the fact that until the husband filed his amended Response on 18 March 2020 (which attached helpfully a “Statement of Facts, Contentions and Claims of the Respondent”), the other Respondents might not have been clearly aware of the basis upon which relief is now sought against them.

9. This Court, by Orders made 6 August 2020, has directed the Second through to Fifth Respondents to file and serve a Response by 18 September 2020.

10. It follows clearly, in my view, that until the parameters of the dispute between the husband and the other members of his family relating to a range of family commercial enterprises is more clearly delineated, the concerns of the objectors to the various subpoenae generally about “relevance” and/or whether in effect the subpoenae are merely a “fishing exercise” are difficult to assess.

11. I indicated, during the course of submissions, my preliminary view that the “objection hearing” would be best conducted, if required, after the completion of pleadings when the boundaries of the inter family dispute between the husband and his brother and parents are more defined. Certainly, Mr Bailey for the wife, is content to support the husband’s position and offers evidence to seek to support the husband’s claims. If the husband were ultimately successful, the value and interests of the divisible marital pool of assets is likely to be significantly different.

12. My preliminary view, despite reading the well prepared and considered written submissions of Counsel, was also in part shaped by the decision of the parties to:

    a)support the engagement of a single forensic accountant to value a number of entitles – identified in an email after the hearing – from the solicitors for the wife. The report dated 9 July 2020, not yet filed, includes an opinion about the partnership of trusts, and a number of the trading entities including the Fifth Respondent F Pty Ltd; and

    b)the intention to undertake a private mediation in the month of November 2020 as referred to in Order 6 of my Order made 24 July 2020.

13. For the reasons expressed, I will order that the hearing and further determination of the objections to subpoena be adjourned until 9.30am on 8 December 2020. By that date, the pleadings will have been filed, and the private mediation undertaken – successfully or otherwise.

14. For completeness, I will adjourn the Application in a Case filed by Mr B Sayles on 23 January 2020 and the Contravention Application filed 28 January 2020, to the same Case Management Hearing date, for directions only.

15. I make the orders which appear at the commencement of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 August 2020.

Associate: 

Date:  19 August 2020