Owners - Strata Plan No 84716 v Purcell, in the matter of Purcell
[2024] FedCFamC2G 1281
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Owners - Strata Plan No 84716 v Purcell, in the matter of Purcell [2024] FedCFamC2G 1281
File number(s): SYG 1586 of 2023 Judgment of: JUDGE STREET Date of judgment: 22 November 2024 Catchwords: BANKRUPTCY –Subpoena to produce documents and to give evidence- No documents produced under subpoena – no questions to be asked of the subpoenaed person – no conduct money was provided at the time of the service of the subpoena to give evidence - subpoena set aside Legislation: Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 5 Date of hearing: 22 November 2024 Place: Sydney Solicitor for the Applicant: Mr G Doyle of Bugden Allen Graham Lawyers Solicitor for the Other: Mr A Majstorovic of Slf Lawyers For the Respondent: The Respondent appeared via audio-link ORDERS
SYG 1586 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF DELMONT ELEANOR PURCELL, BANKRUPT
BETWEEN: THE OWNERS - STRATA PLAN NO 84716
Applicant
AND: DELMONT ELEANOR PURCELL
Respondent
BRETT RICHARD GEOFFREY HARRISON
Other
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 16.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Subpoena to give evidence filed on 26 April 2024 is set aside.
THE COURT NOTES THAT:
A.In answer to the subpoena dated 26 April 2024 to Mr Doyle nothing is produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are bankruptcy proceedings that were commenced on 6 October 2023, and on 4 April 2023, a Registrar made a sequestration order. The applicant has applied for a review of the sequestration order. That has been for fixed for hearing on 6 December 2024. There is a subpoena to produce documents and to give evidence that was filed on 26 April 2024. That subpoena is one in respect of which Mr Doyle, the recipient of the subpoena, has filed an affidavit and made an answer to the subpoena, that no documents are produced. Mr Doyle is also the solicitor with the carriage of this matter on behalf of the petitioning creditor. The Court has noted the answer to the subpoena so far as it requires the production of documents and records that no documents have been produced.
Ms Purcell indicated that if no documents were produced, she did not wish to ask Mr Doyle any questions. The subpoena to give evidence, on its face, is one that has other difficulties because no conduct money was provided in relation to the subpoena to give evidence. The Court has power to set aside the subpoena to give evidence under r16.08 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (“the FCFCOA rules”). In circumstances where there is to be no evidence taken from Mr Doyle, it is appropriate that the subpoena be set aside under r 16.08 of the FCFCOA rules. Ms Purcell contended it was unfair to do so.
Ms Purcell also noted that she thought it was unfair to set aside the subpoena and did not wish to have the subpoena to give evidence set aside. In circumstances where the subpoena would otherwise mandatorily require the attendance of Mr Doyle to give evidence, it is appropriate to set aside that subpoena in circumstances where there are no questions to be asked of him. No relevant issue of fact upon which oral evidence should adduced was identified by Ms Purcell. In these circumstances it is not unfair to set aside the subpoena to give evidence and it should be set aside.
It is further the case on the material before the Court that no conduct money was provided at the time of the service of the subpoena to give evidence. On that further ground, in terms of non-compliance of the r 16.06 of the FCFCOA rules, it would be appropriate to set aside the subpoena under r 16.08 of the FCOCA rules.
For these reasons, the subpoena to give evidence filed on 26 April 2024 is set aside pursuant to r 16.08 of the FCFCOA rules.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 4 December 2024
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