Sadek and Ors & Hall and Anor - [2015] FamCAFC 23

FAMILY COURT OF AUSTRALIA

SADEK AND ORS & HALL AND ANOR

[2015] FamCAFC 23

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Practice and procedure – Subpoenas – Where appellants seek leave to appeal against orders refusing to set aside subpoenas – Where the subpoenas to produce documents are in relation to the wife’s deceased father’s will and estate – Where the appellants argue that the subpoenas were oppressive and constituted a “fishing” exercise – Where the appellants argue that the production of the documents was not necessary – Whether service of an affidavit disclosing part of the contents of the documents rendered production unnecessary – Where the appellants argue the documents required under subpoena are subject to client legal privilege, confidential and inadmissible in these proceedings – Where there is an injunction in place to protect the privacy of the parties and third parties – Section 121 of the Family Law Act 1975 (Cth) – Where leave to appeal is refused.

Family Law Act 1975 (Cth), s 94AA(1), s 114, s 121
Family Law Rules 2004 (Cth), r 15.27

Bruce F McLaren Holdings Pty Ltd and Ors & McLaren & McLaren (2000) FLC 93-030
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Harris Scarfe Limited (Receivers and Managers Appointed) (in liq) v Ernst & Young (No 10) (2006) 204 FLR 165
Hatton v The Attorney-General(Cth) (2000) FLC 93-038
Hearne v Street (2008) 235 CLR 125
Rutherford & Rutherford (1991) FLC 92-255

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Sitwell & Sitwell (2014) 51 Fam LR 159

APPELLANTS:

Mr F Sadek, Mr C Sadek, Mr E Sadek and Ms D Sadek

1ST RESPONDENT:

Mr Hall

2ND RESPONDENT:

Ms Hall

FILE NUMBER:

ADC

3671

2013

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

20 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Thackray, Strickland & Aldridge JJ

HEARING DATE:

13 November 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2014

LOWER COURT MNC:

[2014] FamCA 407

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Whitington QC and Mr Doyle

SOLICITOR FOR THE APPELLANTS:

Shaw Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr O'Shannessy

SOLICITOR FOR THE 1ST RESPONDENT:

Kennedy Partners

COUNSEL FOR THE 2ND RESPONDENT:

Ms Kari

SOLICITOR FOR THE 2ND RESPONDENT:

Barnes Brinsley Shaw

Orders

The application for leave to appeal filed 11 July 2014 be dismissed.
The interim order made on 13 November 2014 be discharged.
The appellants pay the first respondent’s and second respondent’s costs of and incidental to the appeal as agreed or in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadek and Ors & Hall and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 41 of 2014
File Number:…

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

Case: [2015] FamCAFC 23
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the case of Sadek and Ors & Hall and Anor, the applicants, Sadek and others, sought leave to appeal against an interim order made by the Supreme Court of Victoria in relation to a family law matter. The applicants were challenging the interim order on the grounds that it was made without proper consideration of their circumstances and was therefore unfair. The respondents, Hall and another, opposed the application for leave to appeal and sought costs in relation to the appeal.

The primary legal issue before the court was whether the applicants had demonstrated sufficient grounds to justify leave to appeal the interim order. The court needed to consider whether the applicants had identified errors of law or fact that warranted the granting of leave to appeal, and whether the appeal had a reasonable chance of success. The court also needed to consider the appropriate costs orders in relation to the appeal.

The court found that the applicants had not demonstrated sufficient grounds for leave to appeal. The applicants had not identified any errors of law or fact that warranted the granting of leave to appeal, and the court was not satisfied that the appeal had a reasonable chance of success. The court therefore dismissed the application for leave to appeal and discharged the interim order. The court also made orders for the applicants to pay the respondents' costs of and incidental to the appeal as agreed or in default of agreement, as assessed.

In summary, the applicants were unsuccessful in their application for leave to appeal and the interim order was discharged. The applicants were also ordered to pay the respondents' costs of and incidental to the appeal.

Orders

Orders of the court

1. The application for leave to appeal filed 11 July 2014 be dismissed.

2. The interim order made on 13 November 2014 be discharged.

3. The appellants pay the first respondent’s and second respondent’s costs of and incidental to the appeal as agreed or in default of agreement, as assessed.

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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