Pasquale and Pasquale and Ors

[2012] FamCA 895

FAMILY COURT OF AUSTRALIA

PASQUALE & PASQUALE AND ORS [2012] FamCA 895

FAMILY LAW – REVIEW – Objection to Subpoena – Where Registrar has dismissed the objection
FAMILY LAW – COSTS – Where one party was wholly unsuccessful

Family Law Act 1975 (Cth)

Hatton vs Attorney General (Cth) and Others [2000] FamCA 892

APPLICANT: Ms Pasquale

RESPONDENT: Mr Pasquale

2^nd RESPONDENT: D Pty Ltd

3^rd RESPONDENT: B Pty Ltd

4^th RESPONDENT: Ms C

FILE NUMBER: SYC 4248 of 2011

DATE DELIVERED:

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Coutts Solicitors

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Paltos Briggs Family Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

SOLICITOR FOR THE 3^RD RESPONDENT:

COUNSEL FOR THE 4^TH RESPONDENT: Ms Druitt

SOLICITOR FOR THE 4^TH RESPONDENT: Kacir Safi & Halligan Lawyers

ORDERS

IT IS ORDERED

1. That the Application in a Case filed on behalf of the 4^th Respondent on 2 August 2012 be dismissed.

2. That there be no order in relation to costs.

3. That the documents produced in accordance with the subpoenas referred to as S1, S2, S4, S5, S8, S9, S10, S11 and S17 be inspected by legal representatives only.

4. That prior to any inspection the legal representatives shall enter into a confidentiality agreement in relation to the contents of the documents.

5. That there be no dissemination of any material produced on subpoena without leave of the Court.

6. The matter is otherwise adjourned to the return date of the wife’s Amended Application in a Case filed on 4 October 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pasquale & Pasquale 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 SYDNEY

FILE NUMBER: SYC 4248  of 2011

Ms Pasquale

Applicant

And

Mr Pasquale

Respondent

And

D Pty Ltd

2^nd Respondent

And

B Pty Ltd

3^rd Respondent

And

Ms C

4^th Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court arise from the marriage of Ms Pasquale (“the wife”) and Mr Pasquale (“the husband”), who separated in 2010.  The husband asserts that he is in a de facto relationship with Ms C.

2. On behalf of the wife, subpoenas were issued seeking the production of documents relating to the financial affairs of Ms C and of a number of corporations through which she conducts her affairs, namely E Pty Ltd, F Pty Ltd, G Pty Ltd, H Pty Ltd, I Pty Ltd, J Pty Ltd and K Pty Ltd.

3. Ms C, on her own behalf and on behalf of the corporations, filed a Notice of Objection in relation to those subpoenas and that matter was determined by Registrar Campbell on 1 August 2012.  Registrar Campbell dismissed the objections and granted leave to inspect and copy documents produced pursuant to these subpoenas.

4. By an Application in a Case filed 2 August 2012 Ms C sought the review of the decision of Registrar Campbell.

5. At the time that Application was filed, Ms C was not a party to the proceedings between the wife and the husband.

6. The Application for Review was listed for hearing before me on 5 October 2012.  On 4 October 2012 the wife filed an Amended Application in which she named Ms C as the fourth respondent and sought orders, inter alia, that Ms C return to the entities formally owned and controlled by the husband and the wife, monies which had been paid by the those entities to Ms C or by entities controlled by her. 

7. The second and third respondents did not appear. Counsel for Ms C had formerly been instructed to appear for them in relation to the subpoena argument was not instructed to appear for them before me. In circumstances where they had been served with the wife’s Amended Application only the day before the hearing, that is entirely understandable, and it was agreed that the matter would proceed only in relation to the subpoenas that related to Ms C and her related entities.

8. On behalf of Ms C it was submitted:

   a.that the evidence contained in the documents sought to be produced are not relevant to the wife’s case before the Court;

   b.that the material sought to be produced is wide, intrusive, oppressive and an abuse of process (although that assertion was not seriously argued before me);

   c.that the documents which were sought were commercially sensitive; and

   d.that the information which the wife sought in relation to any payments which had been made to Ms C could be obtained by her from documents produced by the companies in which the parties have an interest and that it was not necessary for her to examine documents relating to Ms C and her entities.

9. On behalf of the wife it was submitted that the mere fact that Ms C was the husband’s new partner was sufficient, having regard to the provisions of section 75(2)(m) of the Family law Act 1975 (Cth), to make her financial position, her assets and her resources, relevant in the proceedings between the husband and the wife.

10. Counsel for Ms C referred the Court to the decision of the Full Court of the Family Court in Hatton vs Attorney General (Cth) and Others [2000] FamCA 892 where their Honours considered the circumstances in which a subpoena can be set aside. The authorities are well known and I do not propose to set them out here.

11. It is sufficient to say that I accept the submission on behalf of the wife, that the financial circumstances of the husband’s new partner are relevant to the section 79 proceedings, and this is particularly so in circumstances where her finances and those of the entities through which she trades are intermingled with the finances of the entities through which the husband conducts his business.

12. I therefore dismiss the application for review of the decision of Registrar Campbell.

13. Counsel for Ms C sought costs of the application.  It was submitted on her behalf that, had she earlier been joined as a respondent to the proceedings, she would not have maintained her objections and that she ought not to have been put to the trouble of appearing in Court in those circumstances.  I note however that counsel for Ms C did not concede the application but argued that the decision of the Registrar should be set aside.

14. On behalf of the wife it was argued that Ms C should have been advised that as the husband’s partner her finances were a relevant matter in the section 79 proceedings and should not have filed the Notice of Objection or the Application in a Case seeking to review the decision of the registrar.

15. The application falls to be determined pursuant to the provisions of section 117(2A) of the Family Law Act.

16. Before me it was conceded by both counsel for the wife and counsel for Ms C that there was a capacity to pay any order for costs having regard to the quantum of the assets of the parties.  Neither of the parties was in receipt of legal aid.

17. I do not consider that the fact that the wife’s amended application was only served upon Ms C the day before the hearing is a matter which should give rise to an order for costs.  Ms C’s financial circumstances were relevant to the section 79 proceedings whether or not she was a party to the proceedings.

18. Ms C has been entirely unsuccessful in the application to review the decision of Registrar Campbell and in those circumstances I do not propose to make an order for costs.

19. The parties have agreed that there should be arrangements put in place to preserve the confidentiality and commercial sensitivity of documents and I will make those orders by consent.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 October 2012.

Associate:

Date:  5 October 2012