Sully and Sully - [2018] FamCA 786

FAMILY COURT OF AUSTRALIA

SULLY & SULLY

[2018] FamCA 786

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – where a party issues wide-ranging subpoenae to various banks without serving interested persons – Discussion about the difficulty in determining who is an interested person – Discussion about the need for lawyers to communicate with one another rather than just issue subpoenae.

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Cahill & Cahill & Anor [2013] FamCA 176
Emhill Pty Ltd v Bonsoc Pty Ltd [2004] VSC 322

APPLICANT:

Mr Sully

RESPONDENT:

Ms Sully

FILE NUMBER:

MLC

2232

2016

DATE DELIVERED:

2 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Nehmy

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

That the application in a case filed 17 September 2018 and the response filed 19 September 2018 are adjourned to 10:00am on 12 October 2018 for further determination.
That the injunction as to the release of materials produced under subpoenae continue until further order.
That the costs of all parties of these discrete proceedings are reserved to the return date.
That to the extent the parties resolve their dispute, they have leave to approach the chambers of the Honourable Justice Cronin to make consent orders including any orders as to how any costs dispute should be determined.

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 Court under the pseudonym Sully & Sully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2232 of 2016

Mr Sully

Applicant

And

Ms Sully

Respondent

REASONS FOR JUDGMENT

There is an impending final property settlement hearing on 29 October 2018 between Mr Sully (the husband) and Ms Sully (the wife). That was set down months ago and this interlocutory dispute relating to objections to subpoenae has been brought on quickly.
As needs no restatement, the financial disclosure obligations of all parties to a financial dispute are wide and absolute. This case is no different.
The immediate dispute arises out of the rejection by a registrar of the husband’s objections to four subpoenae issued by the court addressed to several banks. They sought documents relating to the finances and personal data of persons including the husband and the parties’ children but on my interpretation, also on persons unconnected with the parties to this marriage.
The registrar gave…

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: [2018] FamCA 786
Decision Date: 2 October 2018

CaseChat Overview and Summary

In the matter of Sully and Sully, Justice Cronin of the Supreme Court of Victoria considered an application filed on 17 September 2018 and a response filed on 19 September 2018. The precise nature of the dispute between the parties is not detailed, but the proceedings involved an application and a response, indicating a contested matter before the Court.

The primary legal issues before the Court concerned the continuation of an injunction relating to the release of materials produced under subpoenae, and the determination of costs associated with these discrete proceedings. The Court also had to consider the possibility of the parties resolving their dispute and the procedure for making consent orders.

Justice Cronin ordered that the application and response be adjourned for further determination on 12 October 2018. Crucially, the injunction preventing the release of subpoenaed materials was continued until further order. The costs of these discrete proceedings were reserved to the return date, and the parties were granted leave to approach the Court to make consent orders, including any arrangements for the resolution of costs disputes, should they reach an agreement.

Orders

Orders of the court

That the application in a case filed 17 September 2018 and the response filed 19 September 2018 are adjourned to 10:00am on 12 October 2018 for further determination.

That the injunction as to the release of materials produced under subpoenae continue until further order.

That the costs of all parties of these discrete proceedings are reserved to the return date.

That to the extent the parties resolve their dispute, they have leave to approach the chambers of the Honourable Justice Cronin to make consent orders including any orders as to how any costs dispute should be determined.

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

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