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…

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

AGLC: PENCIOUS & SEARLE [2015] FamCA 504
Case: [2015] FamCA 504
Decision Date: 22 May 2015

CaseChat Overview and Summary

In the matter of *Pencious & Searle*, heard before Macmillan J, the dispute concerned a subpoena and a notice to produce issued by the husband, seeking the production of certain documents from the wife. Specifically, the husband sought a letter dated 15 October 2010 from Adrian Abrahams Family Lawyers to Mr Wood of Counsel, and a further letter and facsimile transmission identified in an itemised bill of costs from the same firm dated 20 October 2012.

The central legal issue before the court was whether the subpoena and the notice to produce, as issued, were appropriate and should be upheld, or whether they should be struck out. This involved an assessment of the relevance and necessity of the documents sought in the context of the ongoing proceedings.

Macmillan J determined that the subpoena and the notice to produce should be struck out. The reasoning for this decision, though not fully elaborated in the provided text, indicates that the court found the documents sought to be either irrelevant to the proceedings or that the method of seeking their production was improper. The court's orders reflect a decision to quash the husband's attempts to obtain these specific documents through the contested processes.

Consequently, the court ordered that the subpoena issued on 17 March 2015, addressed to the wife for the production of the letter from Adrian Abrahams Family Lawyers to Mr Wood of Counsel dated 15 October 2010, be struck out. Furthermore, the Notice to Produce filed by the husband on 17 April 2015, requiring the wife to produce the letter and facsimile transmission identified as Items 201 and 202 in the itemised bill of costs of Adrian Abrahams Family Lawyers dated 20 October 2012, was also struck out.

Orders

Orders of the court

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.

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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