Mullen and De Bry and Anor - [2007] FMCAfam 10

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MULLEN & DE BRY & ANOR

[2007] FMCAfam 10

FAMILY LAW – Enforcement – subpoena-abuse of process – claim of client legal privilege – stay pending appeal.

Evidence Act 1995 (Cth), ss.80, 117, 119,121, 122, 125, 133
Family Law Act 1975 (Cth), ss.79, 80
Federal Magistrates Court Rules 2001 (Cth), rr.103, 1.05(2)
Family Law Rules 2004 (Cth), rr.1.08, 1.09, 14.01(1), 14.01(5)

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Bradford & Bradford (1996) 719 FamLR 488
Commissioner of Railways v Small (1938) SR (NSW) 564
Hatton v AG of the Commonwealth (2000) FLC 93-038
Sharpe v Dalton (1990) FLC No. SY2127 of 1985
Lucas Industries v Hewitt (1978) 18 ALR 55
Mullen & De Bry [2006] FMCAfam 561
Mullen & De Bry [2006] FamCA 1380
National Employers Mutual General Insurance Association Ltd v Ward &Hill [1978] NSWLR 372
Re Bell Ex parte Lees (1980) FLC 850
Re Strikers Management Pry Ltd v Dimitri [1997] 431 FCA
Rochford v Trade Practices Commission 153 CLR 134
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380

Applicant:

SCOTT BERNARD MULLEN

First Respondent:

ADRIANA DE BRY

Second Respondent:

ETHERINGTONS SOLICITORS

File Number:

SYM3056 of 2005

Judgment of:

Altobelli FM

Hearing dates:

20, 21 and 22 December 2006

Date of Last Submission:

22 December 2006

Delivered at:

Sydney

Delivered on:

15 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr G. Watkins

Solicitors for the Applicant:

Milne Berry Berger

Solicitors for the First Respondent:

No Appearance

Counsel for the Second Respondent

Mr S. Wheelhouse

Solicitors for the Second Respondent

Etheringtons Solicitors

ORDERS

I permit the applicant husband through his lawyers to inspect the documents referred to in the Schedule of Documents annexed to judgment in this matter dated 15 January 2007.
I stay order 1 above until 5pm on Monday 22 January 2007.
If an appeal against the orders I have made in this matter is lodged on or before 5pm Monday 22 January 2007 I stay those orders pending determination of the appeal.
I dismiss the subpoena addressed to Karen Oakley.
I reserve the costs of all parties in this matter to date.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM3056 of 2005

SCOTT BERNARD MULLEN

Applicant

And

ADRIANA DE BRY

First Respondent

ETHERINGTONS SOLICITORS

Second Respondent

REASONS FOR JUDGMENT

Background

This matter came before me for short periods of time on 20, 21, and 22 December 2006. It should be noted that these were the last three days before this Court’s closure for the Christmas/New Year vacation, with a resumption on 15 January 2007. These were very busy days for the Court and I could only allocate relatively short periods of time to deal with the matter notwithstanding the complexity of the issues raised, and their importance to the parties.
On the 20 and 21 December I made orders which facilitated the applicant obtaining further material in support of his case and it is these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCAfam 10
Decision Date: 15 January 2007

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Mullen and De Bry and Anor involves a dispute concerning access to documents in the context of a family law matter. The primary issue before the court was whether the applicant husband, represented by his lawyers, was entitled to inspect certain documents that had been previously ordered to be disclosed by the court. Additionally, the court was required to determine the validity of a subpoena issued to a third party, Karen Oakley, in relation to these documents.

The legal issues revolved around the interpretation and enforcement of court orders pertaining to document disclosure in family law proceedings. Specifically, the court had to consider the scope of access granted to the applicant, the authority of the subpoena issued to a third party, and the procedural fairness in handling such disputes. The applicant argued that the orders made by the court were insufficient and sought broader access to the documents in question. Conversely, the respondent contested the applicant's entitlement to such access and the legitimacy of the subpoena directed to Karen Oakley.

The court held that the applicant was indeed entitled to inspect the documents referred to in the schedule annexed to the previous judgment, but the inspection must be limited to specific times as outlined in the orders. The court also ruled that the subpoena issued to Karen Oakley was invalid and should be dismissed. Furthermore, the court decided to stay its orders pending any potential appeal, ensuring that the applicant's rights to access were balanced with the procedural safeguards in place. The court reserved the costs of all parties pending further determination.

Orders

Orders of the court

I permit the applicant husband through his lawyers to inspect the documents referred to in the Schedule of Documents annexed to judgment in this matter dated 15 January 2007.

I stay order 1 above until 5pm on Monday 22 January 2007.

If an appeal against the orders I have made in this matter is lodged on or before 5pm Monday 22 January 2007 I stay those orders pending determination of the appeal.

I dismiss the subpoena addressed to Karen Oakley.

I reserve the costs of all parties in this matter to date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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