Pfenning & Anor and Snow - [2014] FamCA 736

FAMILY COURT OF AUSTRALIA

PFENNING AND ANOR & SNOW

[2014] FamCA 736

FAMILY LAW – PRACTICE & PROCEDURE – where a third party objector to a subpoena seeks costs of compliance – consideration of rule 15.23 – consideration of distinction between rule 15.23 and section 117 – where the objector asserts she incurred substantial loss or expense in complying – where the objection was substantially sustained – whether the costs of compliance were reasonable – where limited costs of compliance awarded – where costs of objection also awarded.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 15.23

Bank of New South Wales v Withers (1981) 35 ALR 21
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D Costs (No 2) (2010) FLC 93-435
Fuelexpress Ltd v Ericsson Pty Ltd (1987) 75 ALR 284
G & D & D [2005] FamCA 1429
Hadid v Lenfest Communications Inc (1996) 65 FCR 350
Kohan & Kohan (1993) FLC 92-340
Lavell & Lavell [2012] FamCA 34
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Lucas Industries v Hewitt (1978) 18 ALR 555
Moriarty & Moriarty (2009) 41 Fam LR 336
Markovska & Markovska [2011] FamCA 833

NAMED PERSON/OBJECTOR:

Ms D Pfenning

APPLICANT:

Ms S Pfenning

RESPONDENT:

Mr Snow

FILE NUMBER:

BRC

8784

2013

DATE DELIVERED:

5 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

25 August 2014

REPRESENTATION

SOLICITOR FOR THE NAMED PERSON/ OBJECTOR:	Hopgood Ganim
SOLICITOR FOR THE APPLICANT:	Barry Nilsson
COUNSEL FOR THE RESPONDENT:	Dr Brasch
SOLICITOR FOR THE RESPONDENT:	Phillips Family Law

Orders

That, in full and final satisfaction of the claim for the losses and expenses associated with her compliance with the subpoena filed 19 November 2013, the Respondent pay Ms D Pfenning the sum of $165.00 by 4.00 pm on 12 September 2014.
That by way of costs, the Respondent pay Ms D Pfenning her costs of and incidental to the Notice of Objection – subpoena filed 10 January 2014 with such costs to be assessed on a party and party basis and to be paid in an amount agreed between the parties or, failing agreement, as assessed.
That there be no order as to the costs of Ms D Pfenning and the Respondent of and incidental to the appearance on Monday 25 August 2014.
All extant applications in respect of the costs or expenses of the subpoena filed 19 November 2013 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pfenning and Anor & Snow 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 BRISBANE

FILE NUMBER: BRC 8784 of 2013

Ms D Pfenning

Named Person/Objector

And

Ms S Pfenning

Applicant

And

Mr Snow

Respondent

REASONS FOR JUDGMENT

The Applicant and Respondent are parties to a property settlement proceeding. In the course of that proceeding, the Respondent filed a subpoena[1]…

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 Pfenning & Anor and Snow

Details

AGLC: Pfenning & Anor and Snow [2014] FamCA 736
Case: [2014] FamCA 736
Decision Date: 5 September 2014

CaseChat Overview and Summary

In the matter of *Pfenning & Anor and Snow*, Hogan J of the Supreme Court of Victoria considered a dispute concerning the costs and expenses associated with a subpoena. The proceedings involved Ms D Pfenning as the respondent and an applicant referred to as Snow.

The central legal issues before the Court were the quantum of losses and expenses incurred by Ms Pfenning in complying with a subpoena issued on 19 November 2013, and the appropriate orders for the costs associated with a Notice of Objection to that subpoena filed on 10 January 2014. The Court also had to determine the costs of an appearance on 25 August 2014 and any other outstanding applications relating to the subpoena's costs.

Hogan J ordered that the applicant pay Ms Pfenning $165.00 in full and final satisfaction of her claim for losses and expenses related to the subpoena. Furthermore, the applicant was ordered to pay Ms Pfenning's costs of and incidental to the Notice of Objection, to be assessed by agreement or by the Court. No order was made as to the costs of the appearance on 25 August 2014, and all other extant applications concerning the subpoena's costs were dismissed.

Orders

Orders of the court

That, in full and final satisfaction of the claim for the losses and expenses associated with her compliance with the subpoena filed 19 November 2013, the Respondent pay Ms D Pfenning the sum of $165.00 by 4.00 pm on 12 September 2014.

That by way of costs, the Respondent pay Ms D Pfenning her costs of and incidental to the Notice of Objection – subpoena filed 10 January 2014 with such costs to be assessed on a party and party basis and to be paid in an amount agreed between the parties or, failing agreement, as assessed.

That there be no order as to the costs of Ms D Pfenning and the Respondent of and incidental to the appearance on Monday 25 August 2014.

All extant applications in respect of the costs or expenses of the subpoena filed 19 November 2013 are otherwise dismissed.

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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