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Stavri and Stavri & Ors

Stavri and Stavri & Ors

Case [2020] FamCA 559 13 July 2020

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FAMILY COURT OF AUSTRALIA

STAVRI & STAVRI AND ORS

[2020] FamCA 559

FAMILY LAW – PRACTICE AND PROCEUDRE – Subpoenas – Where orders were previously made for the second to fifth respondents to produce documents – Where some documents have been produced with some documents redacted – Where a subpoena was then issued to the accountants of the second respondent for the production of documents – Where the accountants and second to fifth respondents object to the subpoena – Whether the documents are relevant to the issues in the proceedings – Whether the subpoena is oppressive or too wide – Whether the subpoena is an abuse of process – Whether the documents could be sought by way of an order for discovery – Subpoena set aside.

Family Law Rules 2004 (Cth) ch 13, r 15.26

Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648
Egglishaw v Australian Crime Commission (No. 2) [2009] FCA 12
GE Capital Corporate Finance Group Ltd v Bankers Trust Co & Ors [1995] 1 WLR 172
Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045
Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038
Hennessy v Wright (No.2 ) 1980 24 QBD 225
Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555
Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255
Martin & Martin and Anor (No.2) [2014] FamCA 232
National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372
Papadopoulos & Papadopoulos (No 2) [2007] FamCA 1683
Re McGorm; Ex parte: the Co-Operative Building Society of South Australia (1989) 20 FCR 387
Ryder & Lee [2009] FamCA 531
Telstra Corporation v Australis Media Holdings (unreported, Supreme Court of New South Wales, McLelland CJ, 10 February 1997)
Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476
Woley & Humboldt (No.4) [2009] FamCA 546
X Pty Ltd and Ors & Merhi [2015] FamCA 622

APPLICANT:

Ms Stavri

1st RESPONDENT:	Mr Stavri
2nd RESPONDENT:	B Pty Ltd
3rd RESPONDENT:	Ms C Stavri
4th RESPONDENT:	Mr D Stavri

5th RESPONDENT:

Legal Personal Representative for the Estate of Mr E Stavri

FILE NUMBER:

ADC

1721

2018

DATE DELIVERED:

13 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

18 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Scragg

SOLICITOR FOR THE APPLICANT:

Peter Scragg & Associates

COUNSEL FOR THE 1st RESPONDENT:

Litigant in Person

SOLICITOR FOR THE 1st RESPONDENT:

COUNSEL FOR 2nd TO 5th RESPONDENTS :

Mr Edmonds-Wilson QC

SOLICITOR FOR 2nd TO 5th RESPONDENTS:

WBH Legal

Orders

That the subpoena directed to the Proper Officer, L Firm filed 12 May 2020 be set aside.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this…

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.

Continue reading Stavri and Stavri & Ors

Details

AGLC: Stavri and Stavri & Ors [2020] FamCA 559
Case: [2020] FamCA 559
Decision Date: 13 July 2020

CaseChat Overview and Summary

In *Stavri and Stavri & Ors*, Berman J of the Supreme Court of Victoria considered an application to set aside a subpoena. The applicant sought to have the subpoena, which was directed to the Proper Officer of L Firm and filed on 12 May 2020, quashed.

The central legal issue before the Court was whether the subpoena should be set aside. This required the Court to consider the grounds upon which a subpoena may be invalidated or discharged.

Berman J determined that the subpoena should be set aside. While the specific reasons for this decision are not detailed in the provided text, the outcome indicates that the Court found sufficient grounds to invalidate the subpoena as issued. The Court ordered that the subpoena directed to the Proper Officer, L Firm filed 12 May 2020 be set aside.

Orders

Orders of the court

That the subpoena directed to the Proper Officer, L Firm filed 12 May 2020 be set aside.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Stavri and Stavri & Ors [2020] FamCA 559

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Cases cited in this decision · 22 of 22 shown

X Pty Ltd and Ors & Merhi
[2015] FamCA 622 Para 6

…The decision of X Pty Ltd and Ors & Merhi [2015] FamCA 622 concerned an application seeking review of orders made by the Registrar dismissing objections to subpoenas issued by the Court. The applicants were twelve companies that had been served with subpoenas (companies of which the husband had an interest in). McC…
Martin & Martin and Anor (No. 2)
[2014] FamCA 232 Para 10

…In Martin & Martin and Anor (No.2) [2014] FamCA 232 Cronin J found that the focus of the Court should be whether it was “on the cards” that the documents would materially assist the proceedings. Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:- 39.In Hudson Timber a…
Woley & Humboldt (No 3)
[2009] FamCA 546 Para 10

…was “on the cards” that the documents would materially assist the proceedings. Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:- 39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of…
Ryder & Lee
[2009] FamCA 531 Para 13

…In deciding that a subpoena to a third party should be set aside in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 where his Honour said at 428: It is not enough for the…
Egglishaw v Australian Crime Commission (No 2)
[2009] FCA 12 Para 20

…In Egglishaw v Australian Crime Commission (No. 2) [2009] FCA 12 Besanko J drew a distinction between an order for “general discovery” and a more limited order.…
Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No.4)
[2007] SASC 255 Para 15

…a subpoena to be used to rectify inadequate discovery by a party to the proceedings. In Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255, Bleby J said at [49] that in such a case: It seems to me that the more appropriate course for the defendants to follow is to seek an order for furth…
Papadopoulos & Papadopoulos (No. 2)
[2007] FamCA 1683 Para 11

…In Martin (supra) at [29] Cronin J also referred to his decision in Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683 where he observed: 49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one…
Portal Software v Bodsworth
[2005] NSWSC 1115 Para 10

…ere a document “could possibly throw light on the issues in the main case”. 42.In Portal Software International Pty Ltd v Bodsworth , [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said: Thus it is plainly not the question at this (first) stage whether the documents, prod…
Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6)
[2005] SASC 292 Para 13

…531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 where his Honour said at 428: It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would…
Gray v Associated Book Publishers (Aust) Pty Ltd
[2002] FCA 1045 Para 19

…ified by “class or classification” and not by reference to a fact in issue. This was extended in Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 to consider the decision of GE Capital (supra) in which it was held that a party seeking to redact portions of a document bears the onus of either obtain…
Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd
[2002] FCA 832 Para 10

…to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:- 39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents o…
Auspine Ltd v H S Lawrence and Sons Pty Ltd
[2000] FCA 1405 Para 15

…In Re McGorm; Ex parte: the Co-Operative Building Society of South Australia (1989) 20 FCR 387 at 389 – 390 Von Doussa J considered the extent of a party’s obligation to make discovery in respect of documents that are not in his or her possession: The obligation resting on a party obliged to give discovery requires…
Hatton v Attorney-General of Commonwealth of Australia & Ors
[2000] FamCA 892 Para 5

…The primary test is the relevance of the documents to the issues before the Court. The Full Court in Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 considered the test of relevance and set out examples of where a Court may determine where it is proper to set aside a subpoena:- ·If the subpoena is for an improper purpose namely to obt…
Trade Practices Commission v Arnotts Ltd
[1989] FCA 645 Para 10

…In Martin & Martin and Anor (No.2) [2014] FamCA 232 Cronin J found that the focus of the Court should be whether it was “on the cards” that the documents would materially assist the proceedings. Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:- 39.In…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 10

…aving “a sufficient apparent connection to justify their production or inspection”. 41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document “could possibly throw light on the issues in the main case”. 42.In Portal Software International Pty Ltd…
[1978] AC 547
[1978] AC 547 Para 3

…The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Ltd v Hewitt and Others (1978) 18 ALR 555 at 570:- The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the…
[1995] 1 WLR 172
[1995] 1 WLR 172 Para 18

…The historic position as discussed in GE Capital Corporate Finance Group Ltd v Bankers Trust Co & Ors [1995] 1 WLR 172 is that a party providing discovery has a right to cover up irrelevant information as long as it does not destroy or mislead the remaining information.…
(1980) 24 QBD 225
(1980) 24 QBD 225 Para 12

…Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 the Full Court at [69] referred to Hennessy v Wright (No. 2) (1980) 24 QBD 225 at 448 whereby the concept of a “fishing expedition” was described as occurring where: …the plaintiff wishes to maintain his questions, and to insist upon…
Mertens v Haigh
46 ER 471 Para 15

…igation extends to making enquiries from the person in whose possession the documents now are: see Mertens v Haigh (1863) 3 De GJ & S 528 at 531; 46 ER 471, at 742. It was said in the nineteenth century case of Taylor v Rundell (1841) Cr & Ph 104 at 113; 41 ER 429, at 433 by Lyndhurst LC: “If it is in your p…
It was said in the nineteenth century case of Taylor v Rundell
41 ER 429 Para 15

…Haigh (1863) 3 De GJ & S 528 at 531; 46 ER 471, at 742. It was said in the nineteenth century case of Taylor v Rundell (1841) Cr & Ph 104 at 113; 41 ER 429, at 433 by Lyndhurst LC: “If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure t…
Hatton v Attorney-General of the Commonwealth of Australia & Ors
24 QBD 225

…hers (Aust) Pty Ltd [2002] FCA 1045 Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 Hennessy v Wright (No.2 ) 1980 24 QBD 225 Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555 Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255 Martin & Martin…
Hennessy v Wright
(1888) 21 QBD 509 Para 12

…In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all. In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 the Full Court at [69] referred to Hennessy v Wright (No. 2) (1980)…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
15.26 2 mentions (from Para 4)
Family Law Act 1975 (Cth)
1 mention (from Para 1)