O'Hara & O'Hara & Ors - [2007] FamCA 1346

FAMILY COURT OF AUSTRALIA

O'HARA & O'HARA & ORS

[2007] FamCA 1346

FAMILY LAW – PRACTICE AND PROCEDURE - Subpoena – production of documents – objection – relevance

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Hatton v Attorney General (2000) FLC 93-038, 26 Fam LR 570
National Employers’ Mutual General Association Limited v Waind & Hill [1978] 1 NSWLR

APPLICANT:

Mrs O’Hara

1st RESPONDENT:

Mr O’Hara

2nd RESPONDENT:

Mr O’Hara (Snr)

3rd RESPONDENT:

Mrs O’Hara (Snr)

4th RESPONDENT:

Trustee in Bankruptcy

INTERVENOR:

O'Hara Investments Pty Ltd and A Pty Ltd
(non-parties - recipients of subpoenae)

FILE NUMBER:

SYF

305

2003

DATE DELIVERED:

16 November 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cronin J

HEARING DATE:

22 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Kells the Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Thomas

SOLICITOR FOR THE INTERVENOR:

Gregory Watkins Barrister

Orders

(1)That the order made by Registrar Cameron on 3 August 2007 in relation to the subpoenae to A Pty Ltd and O’Hara Investments Pty Ltd concerning those parts that have been struck out, is discharged.
(2)That the proper officer of each of the said companies produce the documents required pursuant to the subpoenae to the Registrar of this Court no later than 4.00pm on 10 December 2007.
(3)That the wife serve a copy of these orders upon A Pty Ltd and O’Hara Investments Pty Ltd by pre-paid registered post to the registered offices of the said companies and a further copy be sent by facsimilie transmission to M & A Solicitors and that a copy of the reasons for judgment arising out of these orders accompany each of the said orders.
(4)That a sealed copy of these orders be forwarded in the usual way by the solicitors for the wife to all other parties in the proceedings together with a copy of the reasons for judgment arising out of those orders.
(5)That the application in a case filed by the wife on 9 August 2007 be otherwise dismissed and that application be removed from the list of cases awaiting a hearing.
(6)That the file be referred to the case management judge of the Sydney Registry for consideration of the appointment of a case manager for the proceedings if a trial judge has not already been allocated for the purposes of the determination of any objection by O’Hara Investments Pty Ltd and A Pty Ltd to the release, inspection and copying of any material produced under subpoenae pursuant to these orders

AND THE COURT NOTES it was agreed between counsel that the question of the relevance of some of the requested documents to the ultimate proceedings is a matter still to be determined and that it may be appropriate for the trial judge to take that issue as a matter for determination prior to the commencement of the final hearing.

IT IS NOTED that publication…

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.

Continue reading O'Hara & O'Hara & Ors

Details

AGLC: O'Hara & O'Hara & Ors [2007] FamCA 1346
Case: [2007] FamCA 1346
Decision Date: 16 November 2007

CaseChat Overview and Summary

In the matter of *O'Hara & O'Hara & Ors*, Cronin J of the Supreme Court of New South Wales considered an application concerning subpoenas issued to A Pty Ltd and O’Hara Investments Pty Ltd. The dispute centred on the production of documents pursuant to these subpoenas, with certain parts having been struck out by a Registrar.

The primary legal issue before the Court was whether the Registrar's order regarding the subpoenas should be upheld or discharged, and consequently, what documents, if any, were to be produced by the companies. The Court also had to consider the implications of the parties' agreement regarding the relevance of some of the requested documents to the ultimate proceedings.

Cronin J reasoned that the Registrar's order should be discharged. The Court ordered that the proper officers of A Pty Ltd and O’Hara Investments Pty Ltd were to produce the documents required by the subpoenas to the Registrar of the Court by a specified date. The Court further noted an agreement between counsel that the question of the relevance of some of the requested documents remained to be determined and could be a matter for the trial judge. The wife was directed to serve copies of the orders and reasons for judgment on the companies and their solicitors. An application filed by the wife was otherwise dismissed, and the file was to be referred for case management consideration.

Orders

Orders of the court

(1) That the order made by Registrar Cameron on 3 August 2007 in relation to the subpoenae to A Pty Ltd and O’Hara Investments Pty Ltd concerning those parts that have been struck out, is discharged.

(2) That the proper officer of each of the said companies produce the documents required pursuant to the subpoenae to the Registrar of this Court no later than 4.00pm on 10 December 2007.

(3) That the wife serve a copy of these orders upon A Pty Ltd and O’Hara Investments Pty Ltd by pre-paid registered post to the registered offices of the said companies and a further copy be sent by facsimilie transmission to M & A Solicitors and that a copy of the reasons for judgment arising out of these orders accompany each of the said orders.

(4) That a sealed copy of these orders be forwarded in the usual way by the solicitors for the wife to all other parties in the proceedings together with a copy of the reasons for judgment arising out of those orders.

(5) That the application in a case filed by the wife on 9 August 2007 be otherwise dismissed and that application be removed from the list of cases awaiting a hearing.

(6) That the file be referred to the case management judge of the Sydney Registry for consideration of the appointment of a case manager for the proceedings if a trial judge has not already been allocated for the purposes of the determination of any objection by O’Hara Investments Pty Ltd and A Pty Ltd to the release, inspection and copying of any material produced under subpoenae pursuant to these orders

AND THE COURT NOTES it was agreed between counsel that the question of the relevance of some of the requested documents to the ultimate proceedings is a matter still to be determined and that it may be appropriate for the trial judge to take that issue as a matter for determination prior to the commencement of the final hearing.

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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