Stopford Malloy and Malloy - [2017] FamCA 116

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY

[2017] FamCA 116

FAMILY LAW – DISCLOSURE – Objection to subpoena – Where the recipient of the subpoena issued by the wife produced documents, but redacted them in such a way that the only visibly entities related to the husband and his siblings – The recipient contended the wife’s demand for the redacted information was a fishing expedition – Decided the wife demonstrated an objectively reasonable basis for seeking the information, given the alleged deterioration in the husband’s financial circumstances – Where the recipient is the trustee of the family trust – Where the husband is a beneficiary of the family trust – The rights the husband enjoys as a beneficiary to the trust amount to property and are amenable to property settlement orders – Concluded production of the redacted copy documents was not sufficient compliance with the subpoena

Evidence Act 1995 (Cth), ss 78, 79

Kennon v Spry (2008) 238 CLR 366

APPLICANT:

Ms Stopford Malloy

FIRST RESPONDENT:

Mr Malloy

SECOND RESPONDENT:

Mr Q Malloy

THIRD RESPONDENT:

The Malloy Group

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

7 February 2017

PLACE DELIVERED:

Newcastle/Adelaide

PLACE HEARD:

Newcastle/Adelaide

JUDGMENT OF:

Austin J

HEARING DATE:

6 & 7 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC & Mr McGinn

SOLICITOR FOR THE APPLICANT:

Piper Alderman

COUNSEL FOR THE FIRST, SECOND & THIRD RESPONDENTS:

Not Applicable

SOLICITOR FOR THE FIRST, SECOND & THIRD RESPONDENTS:

Not Applicable

COUNSEL FOR DD PTY LTD AND OO PTY LTD:

Mr Harris QC & Ms Kari

SOLICITOR FOR DD PTY LTD AND OO PTY LTD:

Not Applicable

Orders

IT IS ORDERED THAT

The Notice of Objection filed by DD Pty Ltd on 14 December 2016 is partly dismissed and DD Pty Ltd is ordered to forthwith produce to the Court all documents in answer to Classes 2, 3 and 5 within the schedule to the subpoena issued to it on 14 November 2016.
Leave is granted to the husband and wife to inspect the documents produced by DD Pty Ltd pursuant to that subpoena.
The Notice of Objection filed by OO Pty Ltd on 20 December 2016 is dismissed and OO Pty Ltd is ordered to forthwith produce to the Court all documents in answer to Classes 2 to 5 inclusive within the schedule to the subpoena issued to it on 29 November 2016.
Leave is granted to the husband and wife to inspect the documents produced by OO Pty Ltd in answer to that subpoena.

BY CONSENT, IT IS FURTHER ORDERED THAT

No order as to costs as between the wife and DD Pty Ltd in respect of the Notice of Objection filed by DD Pty Ltd on 14 December 2016.

IT IS FURTHER ORDERED THAT

OO Pty Ltd shall pay the wife’s costs of and incidental to the determination of the Notice of Objection filed by OO Pty Ltd on 20 December 2016 (including the failed adjournment application) on a party/party basis in the…

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: [2017] FamCA 116
Decision Date: 7 February 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Austin J considered objections raised by DD Pty Ltd and OO Pty Ltd to subpoenas issued in proceedings between a husband and wife. The dispute concerned the production of documents by these third parties in response to subpoenas served upon them.

The primary legal issues before the court were whether the objections to the subpoenas were valid and, consequently, whether DD Pty Ltd and OO Pty Ltd should be compelled to produce the documents requested in the respective schedules to the subpoenas. The court was required to determine the scope of the subpoenas and the extent to which the objecting parties were entitled to resist production.

Austin J reasoned that the objections were not entirely successful. The court ordered DD Pty Ltd to produce documents in response to Classes 2, 3, and 5 of the subpoena issued to it, while partly dismissing its Notice of Objection. Similarly, the court dismissed the Notice of Objection filed by OO Pty Ltd and ordered it to produce documents in answer to Classes 2 to 5 inclusive of the subpoena issued to it. Leave was granted to the husband and wife to inspect the documents produced by both third parties.

By consent, no order was made as to costs between the wife and DD Pty Ltd regarding its objection. However, OO Pty Ltd was ordered to pay the wife’s costs of and incidental to the determination of its Notice of Objection on a party/party basis, with certification for junior counsel.

Orders

Orders of the court

IT IS ORDERED THAT

The Notice of Objection filed by DD Pty Ltd on 14 December 2016 is partly dismissed and DD Pty Ltd is ordered to forthwith produce to the Court all documents in answer to Classes 2, 3 and 5 within the schedule to the subpoena issued to it on 14 November 2016.

Leave is granted to the husband and wife to inspect the documents produced by DD Pty Ltd pursuant to that subpoena.

The Notice of Objection filed by OO Pty Ltd on 20 December 2016 is dismissed and OO Pty Ltd is ordered to forthwith produce to the Court all documents in answer to Classes 2 to 5 inclusive within the schedule to the subpoena issued to it on 29 November 2016.

Leave is granted to the husband and wife to inspect the documents produced by OO Pty Ltd in answer to that subpoena.

BY CONSENT, IT IS FURTHER ORDERED THAT

No order as to costs as between the wife and DD Pty Ltd in respect of the Notice of Objection filed by DD Pty Ltd on 14 December 2016.

IT IS FURTHER ORDERED THAT

OO Pty Ltd shall pay the wife’s costs of and incidental to the determination of the Notice of Objection filed by OO Pty Ltd on 20 December 2016 (including the failed adjournment application) on a party/party basis in the sum agreed or assessed.

For the purposes of implementation of Order 6 hereof, pursuant to Rule 19.50 of the Family Law Rules, junior counsel, but not senior counsel are certified

NOTATION

A. The parties do not require the publication of Reasons for Orders 6 and 7 hereof.

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

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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