Shen & Hillman
[2022] FedCFamC1F 202
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shen & Hillman [2022] FedCFamC1F 202
File number(s): BRC 1750 of 2016 Judgment of: BAUMANN J Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – COSTS – Where the objector to subpoena seeks costs against a party in substantive property proceedings – Application dismissed Legislation: Family Law Act 1975 (Cth), s 117 Cases cited: Hillman & Hillman [2020] FamCA 630 Division: Division 1 First Instance Number of paragraphs: 22 Date of last submission/s: 28 January 2019 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Bruce Dulley Family Lawyers Respondent: Litigant in person ORDERS
BRC 1750 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHEN
Applicant
AND: MR HILLMAN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS:
1.That the Application in a Case filed 12 December 2018 by Mr Shen be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shen & Hillman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
During contested property proceedings commenced against Mr Hillman (“the husband”) in February 2016 by his former wife Ms Hillman, the husband caused a subpoena to issue on 14 September 2018 against Mr Shen to produce documents.
The documents that Mr Shen was ordered by the subpoena to produce were described as follows:
1.A copy of this subpoena
2.For all records and transaction related to WW Pty Ltd, for the period from 03rd February 2016 to the current date.
3.For all correspondences relating to WW Pty Ltd, including but not limited to correspondences with Ms Hillman, also known as Ms Hillman 1 or Ms Hillman 2 and Mr C from E Company.
4.For all BAS Statements from 1st of July 2016 to the current date.
5.For all employment records, pay slips and Group Certificates relating to Ms Hillman.
(As per original)
It was clearly the intention of the unrepresented husband that the documents to be produced were directed towards an entity of the wife that was created post separation, namely WW Pty Ltd. The relevance of this entity is apparent from the published Reasons for Judgment delivered 18 September 2020 (see Hillman & Hillman [2020] FamCA 630) at [52]; [68]; [114(d)] and [127].
The subpoena required production of documents or a Notice of Objection pursuant to the Rules (see Rule 15.31 of the Family Law Rules 2004 as it then applied), to be filed by Mr Shen by 5 October 2018. Mr Shen did neither.
On 12 November 2018, the husband filed an Application seeking to enforce the subpoena. It appears clear that on 14 November 2018 AV Pty Ltd (a company associated with Mr Shen) sought to file a Notice of Objection, and the company was informed by the Registry that apart from some defects with the Objection, the Objection was out of time.
On 18 December 2018, the husband’s Application to enforce was returnable before the Court for a procedural hearing.
On 12 December 2018, Mr Shen (having engaged solicitors and Counsel – who made written submissions), filed an Application in a Case seeking the following orders:
1.To the extent the application in a case filed by the Husband on 12 November 2018 applies to Mr Shen and AV Pty Ltd, the application be dismissed.
2.Within 7 days, the husband pay $25 conduct money for the documents already provided to the Court by AV Pty Ltd.
3.That paragraphs 3 and 4 of the Subpoena issued to Mr Shen of AV Pty Ltd dated 14 September 2018 (“the subpoena”) be discharged.
4.In the alternative to 3:
(a)AV Pty Ltd is not required to comply with the subpoena until the husband pays $3,600 conduct money for the documents sought in paragraph 3 of the subpoena;
(b)Paragraph 4 of the subpoena be discharged.
5.The husband pay the applicant’s costs of and incidental to this application on an indemnity basis as agreed or as assessed within 28 days.
6.Certification under rule 19.50 that it was reasonable to engage counsel to attend for this application.
(As per original)
After hearing argument and considering written submissions, on 18 December 2018 I made the following Orders:
1.That in respect of the subpoena filed by the husband on 14 September 2018, the request for documents at 3 and 4 are struck out.
2.That AV Pty Ltd shall provide within twenty eight (28) days of the date of this Order, an estimate of costs on both an indemnity and party/party basis under the Family Law Rules 2004 for responding to the husband’s Application for enforcement of subpoena, together with submissions as to why the Court ought certify the application today was sufficiently complex for Counsel.
3.That within twenty eight days after service of the submissions pursuant to Order 2 hereof, the husband file and serve any written submissions in reply.
Submissions as to costs and the quantification of those costs were made by the “objector” on 16 January 2019 – seeking costs of $11,285 on an indemnity basis in accordance with a bill of costs (being annexure BSD-1 to the affidavit of Bruce Dulley sworn 16 January 2019), plus certification for Counsel. Relevantly, Mr Dulley says that his instructions were first received after the time for filing an Objection had passed and after his client had been served with the husband’s Application to enforce filed 12 November 2018.
On 28 January 2019, the husband filed his written submissions. All submissions have been considered and the fact that every submission is not referred to in these Reasons should not be construed as not having done so.
DISCUSSION
The written submissions of Mr Shen assert that as the husband did not provide conduct money on the service of the subpoena, they had no obligation to comply. I do not agree that non-payment of $25 conduct money relieved the objector from filing an Objection as required by the Rules.
In the circumstances, Mr Hillman was entitled to bring an application for enforcement. It is clear by so doing, this caused the objector to take advice. It was patently clear from the terms of the subpoena that the objector had rights to object and that consequences could flow if the subpoena was not complied with promptly (including sanctions).
The application by the objector was only seemingly filed after service of the husband’s Application for enforcement – a relevant consideration under s 117(2A)(d).
The Orders made on 18 December 2018 reflect that only part of the subpoena was “struck out”. As the oral Reasons at the time made clear, I regarded the request for documents at 3 and 4 as “fishing” expeditions, and struck them out. I did not however strike out paragraphs 2 and 5.
As a result, neither the husband or the objector could be said to have been wholly unsuccessful (s 1172A)(e)).
When considering whether there is any other relevant circumstance to justify an order for costs, I take into account that although Mr Shen and his entity AV Pty Ltd were clearly not parties to the marriage between the husband and the wife, the issue that was relevant in the property alteration proceedings were commercial transactions post separation between the wife and Mr Shen. The wife resisted exploration of many of these transactions, including the extent to which she continued (either personally or through her entity WW Pty Ltd) to operate a business relating to AV Pty Ltd services.
In the letter of 3 December 2018 from the solicitors for the objectors to the husband, it was said, in compliance presumably with the subpoena, “the documents described in paragraphs 1, 2, and, 5 above have been delivered to the Court”.
In the circumstances where the husband did not succeed in persuading the Court that the class of documents in paragraph 3 (which would have been voluminous) and paragraph 4 (not relevant) there was partial success by the objector.
However, if the objector had complied with the Rules the issue of the objection (ultimately allowed in part) could have been dealt with quickly and efficiently.
I am not satisfied that highly experienced Counsel in the form of Mr Hackett was necessary, and in his case will not certify for Counsel.
CONCLUSION
On balance I do not propose to make any order for costs.
If I am found to be wrong in that respect, then I would observe that I agree that the husband should not be obliged to pay costs, estimated on an indemnity basis, of $11,285 (which included Counsel’s fees of $3,300). No exceptional circumstances has been demonstrated to justify costs on an indemnity basis in this matter.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 31 March 2022
0