Somner and Somner

[2010] FamCA 881

FAMILY COURT OF AUSTRALIA

SOMNER & SOMNER [2010] FamCA 881

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objections

APPLICANT: Ms Somner

RESPONDENT: Mr Somner

OBJECTING PARTY: Mr N of Deloitte Touche Tohmatsu

OBJECTING PARTY: L Pty Limited

FILE NUMBER: SYC 5776 of 2007

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 6 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Manning

SOLICITOR FOR THE APPLICANT: Aitken Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

COUNSEL FOR MR N OF DELOITTE TOUCHE TOHMATSU: Mr El-Hage

SOLICITOR FOR MR N OF DELOITTE TOUCHE TOHMATSU: Anthony Lee
Deloitte Touche Tohmatsu

COUNSEL FOR L PTY LIMITED: Mr Henry

SOLICITOR FOR L PTY LIMITED: Minter Ellison Lawyers

Orders

1. That this matter is adjourned to the docket judge to whom it is allocated.

2. That leave is granted to the subjects of the subpoena as well as to the husband to relist the matter before a judge before the matter has been allocated to a docket judge in the event that the wife:

   a)withdraws the subpoenas currently relied on subject to dispute; or

   b)seeks discovery in lieu of the said subpoenas

   for the purpose of seeking dismissal of the said subpoenas in the event that the wife does not withdraw them and/or for an order for costs.

3. All costs reserved

4. That this matter is stood-over to the docket judge to be allocated.

Notation:

A.       None of the orders of the Registrar have been varied by the above orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5776 of 2007

MS SOMNER

Applicant

And

MR SOMNER

Respondent

And

MR N OF DELOITTE TOUCHE TOHMATSU

Objecting Party

And

L PTY LIMITED

Objecting Party

REASONS FOR JUDGMENT

1. In these proceedings, the wife, who is the person seeking the review of a Deputy Registrar’s decision, now seeks an adjournment.  The proceedings that are listed before me relate to some orders made by a Registrar relating to subpoenas.  In the case of two of those subpoenas, the subjects of the subpoenas have objected to production.  The husband also objects to the production. He says the application by the wife, rather than be adjourned, should be dismissed.  The wife says that she seeks to adjourn the matter because she seeks to get advice or get further advice on whether or not it would be more appropriate to issue interrogatories or the like rather than try to enforce the subpoenas. 

2. It seems to me that because the Court does not have time to hear the matter today and the matter will take, in my assessment, more than a day, this matter cannot be dealt with today anyway, so there will be an inevitable adjournment for a significant time.

3. Because of the nature of the matter it seems also that this really is a matter which should be managed by the judge in whose docket it falls.  There is no allocation to any judge’s docket yet.  That is a reason why each of those appearing today, other than the wife, seek to have the matter heard early and dismissed.  Both the husband and the two subjects of the subpoena seek that the matter be dismissed by me today because the wife is not prepared to proceed today.  As I will not be in a position to have time to hear the matter on the merits, I am not prepared to hear any application to dismiss the matter. I take the view that no harm of any substance can be done by adjourning this matter to the docket judge who will eventually have control of it.

4. This really is a matter that appears to me to need the management of a judge who remains familiar with it rather than management by a Deputy Registrar where it is highly likely, in my assessment, that any decision of such a Registrar will be appealed from.

5. In the circumstances, I shall adjourn the matter to be heard by the judge to whom the matter is allocated ultimately.  I shall reserve all costs, but I shall give leave to the subjects of the subpoena as well as the husband to bring the matter back before the Court; that is, other than before its docket judge, in the event that the wife withdraws the subpoenas currently relied upon, seeks to interrogate or the like or seeks discovery in lieu of those subpoenas, for the purpose of seeking costs or seeking the dismissal of the subpoenas, in the event that the wife does not withdraw them, and costs.

6. I shall adjourn this matter to be heard before the docket judge unless the conditions that I have otherwise imposed can be applied.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 6 September 2010.

Associate:     

Date:              1 October 2010