Sargood and Winters

[2007] FamCA 1105

FAMILY COURT OF AUSTRALIA

SARGOOD & WINTERS [2007] FamCA 1105

FAMILY LAW - PROCEDURE – Failure by a third party to comply with subpoena to produce documents - Order made for production together with costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Sargood

RESPONDENT: Ms Winters

FILE NUMBER: MLF 1492 of 2004

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snyder

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: Mr Halfpenny

SOLICITOR FOR THE RESPONDENT: Michael V Stapleton

Orders

1. That the husband’s mother of [address] do produce within fourteen days of this date to the Subpoena Officer, Family Court of Australia (Melbourne Registry) copies of the following documents:

   S Pty Ltd

   1.Trust Deed for V Unit Trust

   2.Unit holding Register for V Family Trust

   H Investments Pty Ltd

   1.Constitution of the Company

   E Trading Pty Ltd

   1.Profit and Loss Account for year ending 30 June 1999

   2.Balance Sheet for 30 June 1999 (including notes to accounts)

   E Industries Pty Ltd

   1.Income tax returns 1998-2006 inclusive

   2.Profit and Loss Accounts for 1998-2006 inclusive

   3.Balance Sheets for 1998-2006 inclusive (including notes to accounts)

   4.Incomplete Shareholder Register

   E Management Pty Ltd

   1.Constitution of the Company

   2.Shareholder Register

2. That the wife’s costs of and incidental to non-compliance with the subpoenas be fixed in the sum of $2,200 and responsibility for payment of same be determined by the trial Judge.

3. That the wife’s solicitor do forthwith cause to be personally served upon the said husband’s mother a sealed copy of the orders made this day.

IT IS CERTIFIED

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1492 of 2004

MR SARGOOD

Applicant

And

MS WINTERS

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List.  Mr Halfpenny of counsel appears for the respondent wife to the proceedings but is the applicant before me.  Ms Snyder appears on behalf of the applicant husband. 

2. The issue concerns production of documents arising from subpoenas filed and served on S PTY LTD, H INVESTMENTS PTY LTD, E MANAGEMENT PTY LTD, E TRADING PTY LTD and E INDUSTRIES PTY LTD.  I will refer to those companies generically as “the five companies”.

3. I was advantaged with helpful discussion this morning from Ms Snyder and Mr Halfpenny and it appears to me that, having viewed a number of further documents tendered by Mr Halfpenny, that it is the husband's mother who has been seized with the problem that has arisen concerning the production of documents required by the five companies pursuant to the subpoenas.  It is both clear and plain that Ms Snyder appears for the husband this day and I take her role as one of courtesy and also to protect her client’s interests.

4. The matter was called over this morning and following preliminary discussion it was learned that the documents required to be produced by the five companies pursuant to the subpoenas had been delivered to the registry.  I released the documents for inspection by the professional representatives under the usual terms and conditions.  The matter was stood down and during the interim, Mr Halfpenny inspected the documents.

5. The matter resumed this afternoon and Mr Halfpenny has helpfully produced a document styled “Missing Subpoenaed Documents” as at 30 August 2007.  I have marked that document Exhibit “A”.  I have been assured by Mr Halfpenny that the documents referred to in Exhibit “A” were documents required for production pursuant to the subpoenas served on each of the five companies and that they were in fact missing.  That submission I unreservedly accept as did Ms Snyder. 

6. Accordingly, albeit that the husband’s mother is not before the court, for the purposes of the proceedings this day I propose to order that she produce the documents that are missing and styled in Exhibit “A”. 

7. I am informed that the subpoenas were addressed to the directors of the five companies at what I assume to be the registered address.  The husband’s mother was not isolated out as the recipient of the subpoena, albeit that she is a director of each of the five companies.  However, it was the husband’s mother that responded on behalf of the five companies and others under letter dated 12 July 2007, and which letter I marked Exhibit “B”.  I direct that exhibits remain on the court file.  It is plain from that letter that it is the husband’s mother, as a director that has seized administration of the matter and continued so to do.

8. I have before me a letter from Mr Stapleton, the wife's solicitor to the husband’s mother and dated 31 July 2007 which I have marked Exhibit “C”.  That letter responds by forwarding to the husband’s mother a cheque in the sum of $1163.50 required for photocopy charges.  I have been informed by Mr Halfpenny, and which I accept, that the cheque was cleared on 3 August 2008.  Payment was thus made and accepted.

9. Furthermore, I have before me another letter from Mr Stapleton addressed to the husband’s mother and dated 28 August 2007, which I have marked Exhibit “D”.  That letter refers to the letter of 12 July 2007 regarding the subpoenas addressed to the five companies and notes that:

   You have failed to comply with the subpoenas and I advise that the matter has now been listed for hearing before a judge of the Family Court of Australia at Melbourne on Thursday, 30 August 2007.

10. In the course of that letter, the wife's solicitor advised the husband’s mother that at the hearing the wife would be seeking enforcement orders against her as a result of her failure to comply with the subpoenas.  It was noted that all associated costs requested for photocopying had been paid. 

11. As a result of what I have been advised by Mr Halfpenny, the costs incurred and for the appearances on 7 August 2007 before Registrar Lethbridge, on 28 August 2007 before Registrar Hunt and this day total $2200.  I might also add that it was on 28 August 2007 that Registrar Hunt referred the issue of non-compliance for determination by me this day.

12. It seems to me that it is appropriate to fix the costs.  However, as the husband’s mother is not before the court and she may or may not have some form of explanation.  In those circumstances, what I propose to do is fix the wife's costs of and incidental to the subpoenas at $2200 and order that liability for payment of same be dealt with at trial by the trial Judge.  I will certify for both practitioners this day.   

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  19 September 2007.