Shand and Sharrock and Anor - [2016] FCCA 2234

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAND & SHARROCK & ANOR

[2016] FCCA 2234

Catchwords:
FAMILY LAW – Subpoena directed to SAPOL – subpoena seeks production of police incident reports and criminal history – SAPOL policy to charge fixes fee in respect of particular categories of document – whether costs of production reasonable – application of Federal Circuit Court Rules – will costs of complying with subpoena create substantial loss or expense – notice given – application of South Australian regulation – conflict of laws.

Legislation:

Family Law Act 1975 (Cth), ss.65E, 69ZW

Police Act 1998 (SA), s.5
Police Regulations 2014 (SA)
Judiciary Act 1903 (Cth), ss.79(1), 80
The Constitution, s.109
Community Welfare Act (NT), s.97(3)
Federal Circuit Court Rules 2001 (Cth), r.15A

Cases cited:
McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785
Oatsheen Pty Ltd v The Deputy Registrar of Child Support (1998) FLC 93-001
Moriarty & Moriarty [2009] FamCA 369
Northern Territory v GPAO (1999) 196 CLR 533

Applicant:

MS SHAND

First Respondent:

MR SHARROCK

Second Respondent:

COMMISSIONER OF SOUTH AUSTRALIAN POLICE

File Number:

ADC 1763 of 2010

Judgment of:

Judge Brown

Hearing date:

26 July 2016

Date of Last Submission:

26 July 2016

Delivered at:

Adelaide

Delivered on:

5 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr M Anderson

Solicitors for the Applicant:

Northside Lawyers

Counsel for the First Respondent:

Mr P Doube

Solicitors for the First Respondent:

Paul Doube Lawyers

Counsel for the Second Respondent:

Mr S O'Flaherty

Solicitors for the Second Respondent:

Crown Solicitor’s Office

ORDERS

The application in a case filed on 9 June 2016 is dismissed.
Ms Shand pay the costs of the Commissioner of the South Australian Police incurred by the Commissioner in respect of supplying documents to the court pursuant to a subpoena issued on her behalf fixed in the sum of $1,970.50.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1763 of 2010

MS SHAND

Applicant

And

MR SHARROCK

First Respondent

And

COMMISSIONER OF SOUTH AUSTRALIAN POLICE

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to a subpoena addressed to the Commissioner of the South Australian Police (SAPOL), requesting details of the criminal record and previous involvement with police of a person who is a party to proceedings under the Family Law Act 1975. Issues have arisen about the costs involved in producing these documents to the court and whether those expenses are reasonable.
The proponent of the subpoena is Ms Shand. She and Mr Sharrock, whose police involvement is the subject of the subpoena, have been involved in contentious proceedings regarding the care of their children – X born (omitted) 2008; Y born (omitted) 2009; and more recently Z, born (omitted) 2014; – since mid-2011, in three distinct sets of proceedings before the court.
On 25 February 2016, solicitors for Ms Shand issued a subpoena,…

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: [2016] FCCA 2234
Decision Date: 5 September 2016

CaseChat Overview and Summary

The Supreme Court of South Australia, in a decision by Judge Brown, considered an application filed by Ms Shand. The application concerned a dispute involving the Commissioner of the South Australian Police.

The primary legal issue before the Court was whether to grant Ms Shand's application. The Court was also required to determine the appropriate costs order, specifically in relation to the Commissioner's expenses incurred in responding to a subpoena issued at Ms Shand's request.

Judge Brown dismissed Ms Shand's application. The Court ordered Ms Shand to pay the costs of the Commissioner of the South Australian Police, totalling $1,970.50, for documents supplied to the court pursuant to a subpoena issued on Ms Shand's behalf.

Orders

Orders of the court

The application in a case filed on 9 June 2016 is dismissed.

Ms Shand pay the costs of the Commissioner of the South Australian Police incurred by the Commissioner in respect of supplying documents to the court pursuant to a subpoena issued on her behalf fixed in the sum of $1,970.50.

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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