Ruisa and Ruisa and Ors

[2009] FamCA 638

FAMILY COURT OF AUSTRALIA

RUISA & RUISA AND ORS [2009] FamCA 638

FAMILY LAW – SUBPOENAE – Contempt – Warrant for arrest

Family Law Act 1975 (Cth)

APPLICANT: Ms Ruisa

RESPONDENT: Mr Ruisa

SECOND RESPONDENT Mr Lusso

THIRD RESPONDENT: H Pty Ltd (As trustee of the H Unit Trust)

FILE NUMBER: MLC 2341 of 2007

DATE DELIVERED: 13 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 July 2009

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Mr Berger

SOLICITOR FOR THE RESPONDENT: Berger Kordos

Orders

1. That the issue of the subpoena be adjourned to Thursday 16 July 2009 at 9.30 am before me.

2. That, pursuant to rule 15.36, a warrant issue for the apprehension of Mr W of …, be brought before the court for failing to comply with a subpoena issued on 7 April and served on 9 April.

3. That the said warrant lie with the registrar of the Court until 9.30 am on Thursday 16 July, to be subject to any further order of the court.

4. In the event that Mr W fails to appear personally at 9.30 am on 16 July 2009 with all documents required under the subpoena, the warrant will issue without further notice.

5. That upon the apprehension of the said Mr W, he not be released, but be brought before this court at the first available opportunity to be further dealt with according to law.

6. That the costs of this day be fixed in the sum of $350 to be reserved.

7. That my reasons this day be transcribed.

8. That the solicitor for the husband forthwith serve upon Mr W by fax at number 03 … a letter informing him of these orders, and upon receipt of this order, such order be also served by fax upon the said Mr W.

9. Upon the matter coming before the court on 16 July 2009, the warrant shall issue upon the registrar being satisfied that the requirements of paragraph 8 of this order have been satisfied.

IT IS NOTED that publication of this judgment under the pseudonym Ruisa & Ruisa and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2341 of 2007

MS RUISA

Applicant

And

MR RUISA

Respondent

MR LUSSO
Second Respondent

H PTY LTD
As Trustee of the H Unit Trust
Third Respondent

REASONS FOR JUDGMENT

1. On the basis of a letter written by the Registry Manager of the Court on 26 June 2009 to all parties in the proceedings, together with Mr W of PO Box …, indicating the issue of an unanswered subpoena would be listed for hearing before me, it has been heard today, at 9 am. 

2. This is a property matter which is listed later in the year.  On 7 April 2009, a subpoena was issued addressed to Mr W.  That subpoena was returnable on 17 April. 

3. I have an affidavit of service by a Mr S, who deposes that he served the subpoena together with conduct money on Mr W by hand, on 9 April 2009 at … T Street, T.  On the return date, 17 April 2009, no documents were produced and the subpoena was adjourned to 30 April;  again, no documents were produced, and I take it from that that Mr W had also not appeared. 

4. On 30 April, the subpoena hearing was adjourned to 11 May.  On the court file, there is a letter, unsigned, but dated 8 May 2009, on a letterhead which reads “[W]”. 

5. At the bottom of that letter is a reference to Mr W being a registered building practitioner, along with some communication details, including fax number and address.  I note the address is PO Box ….  In the letter dated 8 May 2009, Mr W says that he had been unable to have the documents required by the subpoena before the adjourned date of 11 May.  He said there was a list of documentation required, and it was taking some time to locate and collate them. 

6. He then says, “Unfortunately, the arbitrary timeframes given in previous correspondence are simply not long enough for me to achieve the subpoenaed requirements.  I estimate that I will need a further 10 weeks to furnish the documentation, which will then be ready for lodgement.  I understand this will give the parties involved a further 12 weeks to review the documents before their trial date sometime in October 2009.  This timeframe is the best that I can do, as I am a self-employed sole provider of a family of six people.  However, I believe it will achieve a result that will enable all parties to be privy to the information in plenty of time for the trial.” 

7. Whilst those sentiments might be the way a registered building practitioner might go about organising his affairs, that is not an appropriate response to an order of the court. 

8. Notwithstanding this is an inter partes issue between the parties, the subpoena is an order of the court, and Mr W seems to have recognised that by writing the letter on 8 May to the Family Court of Australia. 

9. On 11 May, which was the return date referred to in the letter, the Court adjourned the matter for six weeks.  Again, that would mean that Mr W did not get entirely what he wanted, but, by that stage, it was not far off what he was anticipating in the first place.

10. In any event, he did not file any documents by 16 June, either.  When the matter came on for hearing on 16 June, no orders were made, presumably on the basis that the registrar had said, “Enough was enough.”  That, then, led to the letter of 26 June, to which I have referred. 

11. On 19 June 2009, a letter was apparently written by the husband’s solicitors warning Mr W that, as he had not complied with the subpoena, he was on notice that they were having the matter listed before me to seek to have a warrant issued, pursuant to rule 15.36 of the Family Law Rules.  He was then warned about not only the prospect of arrest, by also the prospect of costs being awarded against him.

12. I am satisfied, in this case, that, on the evidence of the process server, acknowledged by Mr W in his letter, he has been properly served and has received the requisite amount of conduct money.  Interestingly enough, Mr W did not file any objection to the subpoena.  I presume, therefore, that he has no objections on the grounds that might otherwise be argued, and I have no reason to believe that he cannot comply with the subpoena.  There is no suggestion that it does not suggest that the documents are difficult to ascertain and collate, but rather, it is just a large exercise. 

13. Mr W does not have the luxury of deciding if and when he will comply with the orders of the Court.

14. Whilst I might have some sympathy with his position about the financial obligations he has to his family, those obligations will suffer substantially if he is in custody. 

15. When the matter came on for hearing today, no one appeared, other than Mr Berger, on behalf of the subpoenaing party.  Rule 15.25 sets out that a subpoena remains in force until the subpoena is complied with, or the issuing party releases the person named in the subpoena from complying with it, or, ultimately, when the hearing or the trial is conducted.

16. I am satisfied that notwithstanding on the last occasion, no order was made, the subpoena is still alive.  That means that Mr W has an obligation to comply with it.  It does not mean that Mr W can decide when he will comply with it. 

17. Rule 15.36 provides that a named person who does not comply with the subpoena in circumstances where they are served and given conduct money, faces the prospect that the Court may issue a warrant for their arrest as well as make an order that the person pay any costs caused by the non-compliance.  There is a notation to the bottom of that particular rule that also refers to the fact that, pursuant to s 112AP, a person who is found to have failed to comply with a court order may be guilty of contempt of court.

18. Contempt of court, under s 112AP, carries imprisonment of up to 12 months.  I take this issue very seriously.  I do not know what impact this is having on the conduct of the husband’s case. 

19. It is all very well for Mr W to say that, when he complies, the parties will have sufficient time to look at the documents.  That is not a matter for him to decide.  His obligation is, as with all citizens, to comply with an order of the court.  I am satisfied, in this case, that Mr W has little regard for his obligations to the law.  Rather than simply issue the warrant today, on the basis that Mr W may be somehow ignorant of his obligations, I intend to give him until Thursday morning of this week, at 9.30.

20. However, at 9.30 on Thursday of this week, he will have to appear personally.  I am not particularly troubled as to whether or not he complies with the subpoena in the meantime, but he will need to be here on Thursday morning, because he will need to explain to me why I should not deal with him for contempt of court.  In addition, he will face the prospect that he will be asked to show cause why he should not pay all of the costs thrown away as a result of this exercise.  I intend to fix the costs of the husband in the sum of $350 for today’s exercise.  That should give Mr W some indication of the costs that he will be facing in the event that he fails to comply in the ongoing position.

21. In addition, I make clear that those costs of $350 are not to be paid as yet, but they are simply reserved, and I will determine the matter in more detail on the next return date.  I am proposing to give Mr W an opportunity to not only comply with the subpoena, which he will do by Thursday morning, but also to be here to explain his conduct.  If he fails to do either of those things, then, at 9.30 on Thursday morning, the warrant will issue for his arrest.  I propose to make an order as a contingent situation for that to indicate that, upon Mr W being apprehended, he is not to be released, but to be brought before the court at the first available opportunity to be further dealt with according to law.

22. In addition, I propose that if he does not attend on Thursday morning at 9.30, although the matter will be listed before me, upon the registrar being satisfied by way of an affidavit that the orders that I am about to make have been complied with, then the warrant will issue without further notice.

I certify that the preceding 22 (Twenty Two) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 July 2009