PENCIOUS & SEARLE - [2015] FamCA 504

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE

[2015] FamCA 504

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Application to strike out a subpoena to the wife to produce documents and the notice to produce the same documents – where wife objected on the basis of relevance – where the wife objected on the basis of client legal privilege – subpoena and notice to produce struck out.

FAMILY LAW – PRACTICE AND PROCEDURE – NOTICE TO PRODUCE – Abuse of process – struck out.

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Searle

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

22 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

5 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Guthry

SOLICITOR FOR THE APPLICANT:

Tasiopoulos Lambros & Co

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

The subpoena issued 17 March 2015 addressed to the wife to produce letter from Adrian Abrahams Family Lawyers to Mr Wood of Counsel dated 15 October 2010 be struck out.
The Notice to Produce filed by the husband on 17 April 2015 requiring the wife to produce the letter referred to as Item 201 in the itemised bill of costs of Adrian Abrahams Family Lawyers dated 20 October 2012 and the facsimile transmission referred to as Item 202 in said itemised bill of costs be struck out.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

This matter was listed for hearing before me in the Judicial Duty List on 5 May 2015. The applications before me that day were the husband’s application in a case filed 24 March 2015 in which he sought a stay of the orders of Cronin J made 5 April 2012 and orders with respect to the assessment of costs pursuant to those orders. On 24 April 2015 the wife filed an application in a case in which she sought various orders including a vexatious proceedings order pursuant to s 102Q of the Family Law Act 1975 (Cth). That application was also returnable in the Judicial Duty List on 5 May 2015.
The proceedings before Cronin J concerned the husband’s application to have Adrian Abrahams Family Lawyers restrained from acting on behalf of the wife in parenting and property proceedings before this Court (“the substantive proceedings”). That application was dismissed as a consequence of which the husband was ordered to pay the wife’s costs.
The matters in relation to which the husband sought orders in the hearing before me were the subject of proceedings before Strickland J in the Appeals Division of the Court the following day. They include the following applications:
·Application in an Appeal seeking an extension of time to appeal against a decision made by Cronin J on 20 July 2010, prior to the completion of the proceedings with respect to the husband’s application seeking to restrain Adrian Abrahams Family Lawyers acting on behalf of the wife;
·Application in an Appeal against the decision of Cronin J made 5 April 2012 that the husband pay the wife’s costs of his unsuccessful application to have Adrian Abrahams Family Lawyers restrained from acting on behalf of the wife;
·Application in an Appeal seeking a review of the decision of the Appeals Registrar not to allow the husband to lodge a new appeal against the orders of Cronin J made 28 February 2012 dismissing the substantive proceedings.
The husband has also sought leave to appeal to the High Court of Australia for special leave to appeal against the orders of Strickland J on 13 January 2015 dismissing his application for leave out of time to reinstate an abandoned appeal against the decision of Cronin J on 28 February 2012 in the substantive proceedings.
In my view it was not appropriate to deal with the husband’s application pending the outcome of the proceedings before Strickland J. Neither the husband or the wife opposed the adjournment of the husband’s application until after the hearing of the applications before Strickland J. Notwithstanding the proposed adjournment of the husband’s application in a case, and the fact that at least part of the wife’s complaint that the proceedings instituted by the husband were vexatious was in relation to the proceedings before Strickland J, the wife wished to proceed with her application for a vexatious proceedings order.
That being the case, the husband sought to make an oral application to restrain Mr Wood of counsel appearing on behalf of the wife. He said he had brought his objection to the attention of Mr Wood’s instructing solicitor on 24 April 2015, when he says he received notice that Mr Wood of counsel would be appearing in the appeal proceedings. Before the wife’s application for a vexatious proceedings order could proceed it was necessary for the Court to deal with the husband’s objection to Mr Wood of counsel appearing on behalf of the wife.
The matter was further complicated by the fact that on 17 March 2015 the husband had issued a subpoena directed to the wife requiring her to produce copies of a letter dated 15 October 2010 written by her former solicitor Adrian Abrahams Family Lawyers to Mr Wood of counsel (“the subpoena”). The wife sought an order setting aside the subpoena as an abuse of process pursuant to r 15.26 (1)(a) of the Family Law Rules 2004 (Cth). The wife objected to the production of the letter on the basis that it was protected from production by legal professional privilege and that the letter was not relevant to any matter currently before the Court. The wife sought leave to file a further affidavit sworn by the wife that day in support of her application that the subpoena be struck out. I refused leave to the wife to file that affidavit on the basis that it would not be fair to the husband to allow the wife to file an affidavit at such late notice. Counsel for the wife also sought to rely upon written submissions in support of his application. Although the application to rely upon his written submissions was also made after the proceedings had already commenced I gave leave to the wife to rely upon those submissions subject to the husband having some time to consider them on the basis that it would assist the husband in understanding the case he was being asked to meet and he would not be taken by surprise as he might be if counsel for the wife made oral submissions.
Having heard the parties’ submissions I indicated that I proposed to accede to the mother’s application to strike out the subpoena and the notice to produce, that I would in due course deliver reasons and otherwise adjourned the further hearing of the father’s oral application to restrain Mr Wood of counsel from acting on behalf of the wife to 22 May 2015. These are my reasons with respect to the striking out of the subpoena.
It is for the husband to demonstrate the apparent relevance of the letter produced pursuant to the subpoena to the particular proceedings, in this case the preliminary application that Mr Wood of counsel be restrained from acting on behalf of the wife. This matter was somewhat unusual in that the husband was aware of the contents of the letter produced pursuant to the subpoena as it had been shown to him, the wife would say notwithstanding her objection as to privilege, for the purposes of the costs assessment. It was the wife’s case that she had not waived her privilege with respect to the letter. Both the husband and counsel for the wife agreed that in order to determine the relevance of the letter in question I should read the letter.
The husband’s case as to the apparent relevance of the letter was not always easy to glean or to understand from his submissions. Doing the best I can, what he appeared to be submitting was that Mr Wood of counsel might be a witness in future proceedings and therefore should be restrained from acting on behalf of the wife and that the letter would be relevant for the purposes of those further proceedings and demonstrate the relevance of Mr Wood’s evidence in those proceedings.
Even if either the High Court of Australia were to grant leave to the father to appeal and that appeal were to succeed, or the father were to be granted leave by Strickland J to lodge a new appeal or to appeal against the order for costs made by Cronin J on 5 April 2012 and those appeals were to be allowed, there are a number of possible scenarios. The orders made by Cronin J in the substantive proceedings and/ or the order for costs might be overturned, the Full Court of the Family Court might exercise its own discretion or alternatively remit the matter for rehearing. Without intending to pre-empt the outcome of the husband’s applications or any appeal, the question of whether Adrian Abrahams Family Lawyers should be restrained from acting is somewhat moot. Firstly Adrian Abrahams Family Lawyers no longer act on behalf of the wife and secondly the proceedings in relation to which the husband sought to restrain Adrian Abrahams Family Lawyers from acting have been heard and determined and the husband’s appeal in relation to those proceedings has been dismissed.
That there may be proceedings in the future in relation to which Mr Wood of counsel might be required to give evidence is speculative to say the least. There are presently no proceedings before the Court in relation to which Mr Wood of counsel might be required to give evidence and on that basis it cannot be said that the letter has apparent relevance to any issue in dispute. On that basis the subpoena is an abuse of process and I propose to strike it out. Although the wife also objected to the subpoena on the grounds of privilege as I have found that the subpoena has not apparent relevance I do not need to decide that point.
The husband also served a notice to produce dated 17 April 2015 upon the wife requiring her to produce the letter in question and I propose to similarly strike out the notice to produce. I am satisfied that the notice to produce is similarly an abuse of process and should be struck out.

I certify that he preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 22 May 2015.

Associate:

Date: 22 May 2015