[2006] FamCA 1265
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF4195 of 2003
BETWEEN:
RELATIONSHIPS AUSTRALIA (QLD)
Applicant
AND:
M
Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE CARMODY
Dates of Hearing: 6 October 2006
Date of Judgment: 22 November 2006 in Chambers
Appearances: Ms Laylee, Solicitor with O’Reilly Lillicrap, Solicitors of Brisbane, appeared on behalf of the APPLICANT
Mr Williams of Counsel, instructed by Hirst and Company, Solicitors of Brisbane, appeared on behalf of the RESPONDENT
CATCHWORDS:
FAMILY LAW – COSTS - SUBPOENA
The application
This is a contested application by Relationships Australia (Queensland) (RA) for the costs of complying with a subpoena requiring one of its family and child counsellors to give evidence at a final Pt VII hearing.
The substantive question is whether the costs thrown away due to the last minute settlement of the case should be met by RA on behalf of the subpoenaed witness or by the respondent as the issuing party.
The application is opposed on two grounds. First, that the Form 2 was filed outside the period allowed by the rules, and therefore, the application should not be heard. Second that there is nothing to suggest that the subpoena was wrongly issued.
The context
The matter was argued on the basis of the following agreed or non-contentious facts:
· RA is a voluntary government-funded not for profit organisation approved under s13A of the Act to offer family and child counselling.
· The subpoena in question was issued by the respondent on 1 February 2006. The subpoenaed witness, Ms P, is a qualified family and child counsellor within the meaning of s4(1) employed by RA.
· At all material times, Ms P was bound by the terms of a r 58 oath not to disclose communications or admissions made to her in an official capacity except in specified circumstances.
· Lawyers acting on behalf of RA objected to the subpoena by letter dated 8th February 2006 on the basis of statutory privilege and asked for Ms P to be released from the obligation to comply.
· The respondents replied on 14th February 2006 insisting on strict compliance.
· A formal notice of objection was filed on 20th February 2006.
· The parties’ lawyers agreed – in line with customary practice – to argue RA’s objection to the subpoena at the beginning of the trial and the personal attendance of Ms P was dispensed with by arrangement between the parties.
· Counsel for RA appeared on 6th March 2006 with instructions to have the subpoena to be set aside with costs.
· The application was adjourned to the next day.
· Overnight negotiations resulted in consent orders being filed. This obviated the need for Ms P to testify and meant that RA’s objection to the subpoena was left unresolved.
Should leave to apply be granted?
Assuming (without deciding) that it applies here, rule 19.08(2)(b) allows a party 28…
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CaseChat Overview and Summary
The primary legal issue before the court was whether RAQ had demonstrated sufficient interest in the proceedings to warrant its joinder as a respondent. This involved considering the nature of RAQ's involvement with the child and M, and whether this involvement gave rise to a legal right or interest that would be directly affected by the court's orders regarding the child's care and protection. The court had to balance RAQ's asserted interest against the potential impact of joinder on the existing parties and the efficient conduct of the proceedings.
Carmody J applied the principles governing the joinder of parties in court proceedings, which require an applicant to show a sufficient interest in the subject matter of the litigation. His Honour considered the evidence of RAQ's therapeutic and support services provided to M and the child, and the potential for the court's decisions to impact the continuation or nature of these services. The court determined that while RAQ had a significant professional interest, it did not possess a direct legal interest in the care and protection orders themselves that would justify its joinder as a respondent.
Consequently, the application by Relationships Australia (Qld) to be joined as a respondent was dismissed.
Orders
Orders of the court
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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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