Ryder and Lee - [2008] FamCA 1187

FAMILY COURT OF AUSTRALIA

RYDER & LEE

[2008] FamCA 1187

FAMILY LAW – PRACTICE AND PROCEDURE – Wife issued subpoena to father’s solicitors in civil proceedings seeking information regarding costs incurred and by whom they were paid – objection to subpoena filed by father’s solicitors – no express provision in Family Law Rules for setting aside a subpoena but the power of the Court to do so is accepted or assumed – the father’s child support income is in issue therefore records of payments made by father to his lawyers in civil proceedings are relevant – privilege does not attach to entries in a solicitor’s trust account ledger unless the entries record communications themselves or costs agreements – professional privilege does not attach to information regarding costs incurred and paid and by whom those costs were paid – a claim of confidentiality usually dealt with by the Court restricting access to and use of documents produced pursuant to subpoena, not generally a ground for setting aside subpoena – no basis in any of the grounds of objection

Family Law Rules 2004, r 15.26, r 15.27, r 15.33

Hatton v Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038
Woley & Humboldt [2008] FamCA 699
Lau & Davis & Child Support Registrar [2004] FamCA 523
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
B and B and Anor [2006] FamCA 929
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1
Stamp and Stamp (2007) FLC 93-314
Macquarie Bank Pty Lty & B & Anor (2006) FLC 93-290
Packer v Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242
Cook v Pasminco Ltd (No 2) [2000] FCA 1819
Apache Northwest Pty Ltd and Others v Western Power Corporation (1998) 19 WAR 350

Heydon JD, Cross on Evidence, at [25225]

APPLICANT:

Ms Ryder

RESPONDENT:

Mr Lee

INTERVENOR:

F Barristers and Solicitors

FILE NUMBER:

ADF

5495

1989

DATE DELIVERED:

23 December 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Burr J

HEARING DATE:

2 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

David Fidler

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Georgiadis Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Kidman

SOLICITOR FOR THE INTERVENOR:

F Barristers and Solicitors

Orders

That the Notice of Objection to subpoena filed by F Barristers and Solicitors on 28 November 2008 in relation to the subpoena to produce documents directed to them and issued by the mother on 6 November 2008 is hereby dismissed.
That the time for compliance by F Barristers and Solicitors to produce the documents pursuant to the aforesaid subpoena be extended to on or before 4.00 pm on Friday 30 January 2009.
That leave be granted to the parties to inspect and copy the documents produced pursuant to the aforesaid subpoena.

IT IS NOTED that publication of this judgment under…

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 Ryder and Lee

Details

AGLC: Ryder and Lee [2008] FamCA 1187
Case: [2008] FamCA 1187
Decision Date: 23 December 2008

CaseChat Overview and Summary

In the matter of *Ryder and Lee*, Burr J of the Supreme Court of New South Wales was required to determine an objection to a subpoena issued by the mother in family law proceedings. The subpoena was directed to F Barristers and Solicitors, seeking the production of documents. The objection was filed by F Barristers and Solicitors.

The central legal issue before the Court was whether the objection to the subpoena was valid and should be upheld, or whether the subpoena should be enforced. This involved considering the principles governing the issuance and challenging of subpoenas in family law proceedings, particularly in relation to legal professional privilege and the relevance of the documents sought.

Burr J dismissed the Notice of Objection to the subpoena. The Court reasoned that the documents sought by the mother were relevant to the proceedings and that any claims of privilege had not been sufficiently established to warrant setting aside the subpoena. The Court extended the time for compliance with the subpoena and granted leave for the parties to inspect and copy the produced documents.

Orders

Orders of the court

That the Notice of Objection to subpoena filed by F Barristers and Solicitors on 28 November 2008 in relation to the subpoena to produce documents directed to them and issued by the mother on 6 November 2008 is hereby dismissed.

That the time for compliance by F Barristers and Solicitors to produce the documents pursuant to the aforesaid subpoena be extended to on or before 4.00 pm on Friday 30 January 2009.

That leave be granted to the parties to inspect and copy the documents produced pursuant to the aforesaid subpoena.

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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