Salmon and Howard

[2013] FamCA 1149

FAMILY COURT OF AUSTRALIA

SALMON & HOWARD [2013] FamCA 1149

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – whether subpoena to give evidence necessary where no inquiries have been made of potential witnesses’ availability

Family Law Act 1975 (Cth)

APPLICANT: Mr Salmon

RESPONDENT: Ms Howard

FILE NUMBER: MLC 1990 of 2011

DATE DELIVERED: 3 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Woolfe

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Yianoulatos

SOLICITOR FOR THE RESPONDENT: James Harris Lawyers

Orders

IT IS ORDERED THAT

1. The wife have leave to issue subpoenas to Dr E and Dr F to give evidence at trial.

2. The wife have leave to issue a subpoena to the Medical Director of the K Hospital to produce all medical records including but not limited to procedures, notes, observations, symptoms and prognosis relating to the birth of B on … 2007 and that subpoena to be returnable by 8 May 2013.

3. By 4:00pm on 8 May 2013 the wife file and serve upon the solicitors for the husband an unsealed copy of any affidavit of Dr L upon which she proposes to rely and seeks leave to file.

4. The husband’s costs of this day be reserved for determination at trial. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmon & Howard 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 MELBOURNE

FILE NUMBER: MLC 1990 of 2011

Mr Salmon

Applicant

And

Mr Howard

Respondent

REASONS

1. In this matter, the solicitor for the husband seeks an order that I reserve his client’s costs of today for determination at the trial.  That is opposed.  He submits, that the subpoenas directed to Dr E and Dr F are not necessary.  They are witnesses to be relied upon at trial by the wife and it should be in those circumstances not necessary to subpoena them given that, at this point of time at least, no inquiries have even been made as to their availability.

2. The solicitor for the husband further points out that the subpoena proposed to be issued directed to Dr L is for the doctor to give evidence, yet he is not in fact a witness relied upon by the wife.  That certainly is correct and I note that, of course, trial in this Court is by way of affidavit.  If he is to be called as a witness he needs to be on affidavit, and I am in fact making an order requiring an unsealed copy of any affidavit of Dr L which is sought to relied upon by to be served upon the husband’s solicitors so that they can consider and respond to any application for leave to file and rely upon that affidavit.

3. The final subpoena is a subpoena addressed to the Medical Director of K Hospital to give evidence and produce documents.  I have made it clear that I have very real concerns about why subpoenas have been issued at this late stage of the proceedings, particularly for something as fundamental as the medical records of the wife, when this issue has been central to the case for some time.  I am also concerned about subpoenaing the Medical Director of K Hospital to give evidence in circumstances where it is not even clear whether that evidence will firstly be relevant or whether, as suggested might be the case, it needs to be interpreted by a medically qualified witness.  On that basis, I am giving leave to issue a subpoena to produce the documents, but at this stage I am not prepared to issue a subpoena requiring the Medical Director of K Hospital to come to Court for the hearing until I am satisfied that that evidence will actually be relevant to the issues in dispute in this trial.

4. I do not agree at all with the proposition that it is normal in this Court to subpoena witnesses to give evidence.  That is contrary to my experience and, whilst it might be necessary on occasions to subpoena witnesses who have sworn affidavits in the proceedings to ensure their attendance at court, perhaps a first step would be to ask them whether they are available and to make arrangements for them to attend.  I am, in all of the circumstances and given that I am not even being asked to make an order for costs and there will be an opportunity to address these issues once it is clear what their evidence will be, prepared and satisfied that I should reserve the husband’s costs of this day for determination at the trial.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 May 2013.

Associate:     

Date:  22 July 2013