Taha and Taha & Anor

[2016] FamCA 749

FAMILY COURT OF AUSTRALIA

TAHA & TAHA AND ANOR [2016] FamCA 749

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoenas – Where two subpoenas were issued by the wife seeking documents in relation to the husband’s employment with those companies –Where service of the subpoenas was not effected in accordance with the Family Law Rules 2004 (Cth) – Subpoenas struck out.

FAMILY LAW – COSTS – Where the second respondent sought indemnity costs against the wife, her current solicitor as well as her previous counsel and solicitor – Where the wife withdrew her proceedings against the second respondent – Where no evidence was provided that the application had been served on the wife’s previous counsel or solicitor – Where the wife does not have the financial means to meet such an order – Where the wife’s current solicitor cannot be held responsible for costs incurred prior to her acting for the wife – Where the wife’s current solicitor gave timely and proper advice to the wife – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 15.17(4), 15.22

APPLICANT: Ms Taha

1^ST RESPONDENT: Mr Taha

2^ND RESPONDENT: Ms B Taha

FILE NUMBER: SYC 3809 of 2015

DATE DELIVERED: 5 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 24 - 25 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: Steven Stefanou & Co.

COUNSEL FOR THE RESPONDENTS: Ms Mahony

SOLICITOR FOR THE RESPONDENTS: P Lawyers

Orders

(1.1)The subpoenas issued by the wife to C Pty Ltd are struck out.

(1.2)The application for an order that the wife pay the costs incurred by the recipients of such subpoenas is dismissed.

1. The application of the second respondent for an order that the wife, Mr D, Ms E and Ms F jointly and severally pay her costs of these proceedings is dismissed.

2. Otherwise, all outstanding applications and responses by which interim orders are sought by any party are dismissed.

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 Taha & Taha and Anor 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 SYDNEY

FILE NUMBER: SYC 3809  of 2015

Ms Taha

Applicant

And

Mr Taha

1^st Respondent

And

Ms B Taha

2^nd Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting and financial issues between the husband, Mr Taha, and the wife, Ms Taha.  The New South Wales Commissioner of Police is an intervener in the proceedings, due to witness protection issues which need not be identified for present purposes.  The husband’s mother, Ms B Taha, has been joined as second respondent to the proceedings by the wife.

2. A number of interim issues were listed for determination on 24 and 25 August 2016.  All of the matters in which the Police Commissioner had an interest were resolved by way of consent orders and his lawyers were granted leave to withdraw on the morning on 24 August 2016.  There remained for determination the following issues:

   a)the application of the second respondent for a dismissal of the proceedings brought against her by the wife;

   b)interim parenting arrangements; and

   c)objections to subpoenas issued by the wife to Ms B Taha, Taha Pty Ltd, the husband and C Pty Ltd.

3. The interim parenting issues were resolved and I made orders by consent.  The wife withdrew her proceedings against the second respondent

   
   

   Ms B Taha, leaving only an issue of the latter’s costs.  The wife withdrew her subpoenas issued to the husband and the second respondent and pressed only those to C Pty Ltd and Taha Pty Ltd.

Background

1. The husband and the wife, who are aged 33 and 32 respectively, married in a religious ceremony at the home of his parents in 2003.  This ceremony was not recognised for the purposes of Australian law.  They separated in approximately April 2005 but reconciled in 2006.  The husband and wife married in a legally recognised ceremony in 2006.  They finally separated on 23 June 2015.

2. The parties have two daughters:

   ·G born in 2007 (9) and

   ·H born in 2010 (6).

3. The children remained in the care of the mother after the separation.  They spent time with the father on an informal basis until September 2015, when the wife unilaterally terminated this arrangement.  The children then spent time with the husband at their school until December 2015, at which point the wife unilaterally terminated this arrangement.

4. On 24 August 2016 the parties consented to interim orders, which provided that they have equal shared parental responsibility and that the children live with the mother.  The orders provided further that the children spend time with the father in each alternate week from the conclusion of school on Friday until the commencement of school on Monday and every other Thursday afternoon;  for alternate weeks in the Christmas school holidays and for one week in the short school holidays.  The orders provided further that the children spend time with each of their parents on special occasions.

5. In 2012 the husband purchased vacant land at I Street, Suburb J for $196,000.  The parties took out a joint mortgage with the Commonwealth Bank and caused a house to be constructed on the land.

6. The husband sold the former matrimonial home for $875,000, with settlement taking place on 27 May 2015.  The husband deposited the net proceeds of $414,945 into a Commonwealth Bank account in the joint names of himself and the second respondent on 28 May 2015.  By 26 June 2015 the husband had dissipated all but $2,020 of these funds.

7. In an affidavit sworn on 27 July 2015 the husband deposed that he gambled and lost $405,390 from the proceeds of sale of the former matrimonial home.  The husband deposed that he spent the balance on the purchase of a quadbike for H at a price of $2,395 and in repayment of a debt of $15,500 to the wife’s sister. This affidavit was not relied upon by the husband but was rather annexed to an affidavit of the second respondent. No objection was taken by the wife.

8. The husband maintained that, since about 2009, he has had a gambling addiction which he kept secret from his family and all but two of his friends.  Obviously, this evidence is as yet untested and no doubt the fate of the sale proceeds for the former matrimonial home will be a significant issue at trial.

9. The second respondent deposed that she opened the Commonwealth Bank account jointly with the husband in approximately 1998, because he was a minor and could not operate banking facilities in any other way.  She claimed that she has never operated this account.  The second respondent maintained that she received no part of the proceeds of sale of the former matrimonial home.

10. The second respondent deposed that she was the sole registered proprietor of a property at K Street, Suburb L from 2009 until 2015.  She deposed that she decided to sell the K Street property early in 2015 and purchase another home in the same area.  She claimed that her son, Mr M Taha, agreed to sell to her and her husband a newly built property at N Street, Suburb O.  Mr M Taha is the director of the company Taha Pty Ltd.

11. The property N Street, Suburb O was transferred to the second respondent and her husband Mr Taha on 12 May 2015.  A sum of $687,253 was transferred to Taha Pty Ltd on 13 May 2015.  This sum consisted of the net proceeds of sale of the K Street property.

12. On 15 June 2015 the wife filed an Initiating Application and an Application in a Case, to which she joined Ms B Taha as a second respondent.  In her Application in a Case the wife sought, inter alia, orders to restrain the husband and Ms B Taha from accessing the funds in their joint Commonwealth Bank account.  I made the requested orders on 22 June 2015, on an ex parte basis, and adjourned the proceedings to 29 July 2015.  The husband was served with these ex parte orders on 25 June 2015.  On 29 July 2015 I ordered, inter alia, that the husband and the second respondent do all things necessary to cause payment to the wife of a sum of $2,020.56, that sum being all that then remained of the balance of the proceeds of sale of the former matrimonial home.

13. During December 2015 the wife’s solicitor, Ms F received instructions to lodge a caveat on the title to the property N Street, Suburb O.  This caveat was registered on 27 January 2016.

The costs of the second respondent Ms B Taha

1. By a Further Amended Application in a Case filed on 7 April 2016 the first and second respondents sought the following order, inter alia:

   38.That pursuant to Rule 19.10 of the Rules the Wife, [Mr D] of [D Associates], [Ms F] of [P Lawyers] and [Ms E] of previous Counsel for the wife shall jointly or severally pay the Second Respondent’s costs of and incidental to this Application on an indemnity basis.

   Mr D is a solicitor who has previously held instructions from the wife and Ms E is a barrister who appeared for her on at least one occasion.

2. No evidence was proffered by the respondents to the effect that Ms D or Ms E had been served with this application.  There is no reason to suppose that they have any idea whatsoever that the second respondent pursues costs against them.

3. The solicitor for the second respondent (and the husband), Mr P, deposed in his affidavit of 24 March 2016 as follows:

   43.In the event that [Ms B Taha] may be awarded an Order for the payment of her legal costs from [Ms Taha], I hold very real concerns that [Ms Taha] would not have the funds to satisfy such order due to her limited financial circumstances.

   44.To the best of my knowledge and belief, [Ms Taha] is not gainfully employed and she is the recipient of the Disability Support Pension.

   45.[Ms Taha] does not appear to own any significant assets apart from a motor vehicle.

   46.The vast majority of assets in this marital pool have already been depleted by [Mr Taha] and the resultant pool of assets which currently exists is insufficient to satisfy any potential Order for legal costs awarded for [Ms B Taha] against [Ms Taha].

   It is thus puzzling that the second respondent pursued her application for costs against the wife.

4. I am also mystified as to how the wife’s current solicitor, Ms F, could be held “jointly and severally” liable for costs which the second respondent incurred before she received instructions and came into the proceedings.  Ms F filed a Notice of Address for Service on 4 December 2015.

5. The second respondent swore an affidavit on 22 October 2015, in which she provided limited information concerning the Commonwealth Bank account which she held jointly with the husband and the sale proceeds of the former matrimonial home.  She referred to a transfer to herself and her husband of the N Street property by Taha Pty Ltd on 12 May 2015.  The second respondent was silent in relation to the sale of the property in K Street, Suburb O.  She annexed to her affidavit a copy of the transfer from Taha Pty Ltd to herself and “Mr Taha” of the N Street property.  She provided no additional documents relating to the purchase of this property and the sale of the K Street home.

6. On 22 February 2016 the husband and the second respondent provided a number of documents to Ms F.  The matter next came before the Court on 24 February 2016 when the wife and her lawyers were provided with a copy of an affidavit sworn by the second respondent on 15 February 2016.  This affidavit set out a comprehensive account of the sale of the K Street property and purchase of the home in N Street.  This affidavit consisted of 60 paragraphs and 213 pages of annexures, which related to the sale of the K Street property and the purchase of the home in N Street, Suburb O.

7. Ms F deposed that, once these documents were reviewed, she and the wife decided to remove the caveat from the title to the second respondent’s property.  She deposed that this decision to remove the caveat was reached on 17 March 2016 and the necessary steps were taken on 21 March 2016.

8. Ms F deposed further that, on 2 March 2016, she wrote to Mr P and advised that arrangements were in progress to remove the caveat.  She advised further that the second respondent’s continuing involvement in the proceedings was under consideration.  On 24 March 2016 Ms F wrote to Mr P and advised that, subject to disclosure of the source of funds applied to pay the stamp duty for the purchase of the N Street property, she would submit a Minute of Order designed to remove Ms B Taha as a respondent.

9. On 24 March 2016 Ms F submitted to Mr P a Minute which read: “That leave be granted to the second respondent, Ms B Taha, to withdraw from the proceedings”.  By letter dated 24 March 2016 Mr P merely replied that the wife was in possession of sufficient information in July 2015 to warrant a discontinuance against Ms B Taha.

10. Counsel for the wife referred to her Financial Statement of 28 April 2016 which showed that she has no income other than government benefits.  The wife has only meagre assets and, on his case, the husband has dissipated the proceeds of sale of the former matrimonial home.  As noted, the solicitor for the second respondent conceded that there would be no utility in a costs order against the wife.  In these circumstances, I consider that the second respondent’s application for an order for costs against the wife warrants no further consideration.

11. As noted, there was no evidence that Mr D or Ms E have been served with the application by the second respondent that they pay her costs.  In these circumstances, I am not prepared to give this application any further consideration.

12. There thus remains the issue whether there is any merit in the application that Ms F pay the costs of the second respondent on an indemnity basis.  As noted, I am at a loss to understand how Ms F could possibly be held responsible for costs which the second respondent incurred before she began to act for the wife.  Ms F came onto the record on 4 December 2015 and she could conceivably be held liable only for the costs of the second respondent from that date.

13. I do not accept the contention of Mr P in his letter of 24 March 2016 that, since July 2015, the wife was in possession of sufficient information to warrant a discontinuance against the second respondent.  On the contrary, in July 2015 the wife knew only that the net proceeds of sale of the former matrimonial home had disappeared from a joint account in the names of the husband and the second respondent.

14. A full account of the transactions involving the K Street and N Street properties was placed before the Court by the second respondent only in February 2016.  The second respondent elected to provide to the wife and the Court a limited account of her acquisition of the N Street property and alleged conversations with the husband concerning the net proceeds of sale in the joint account in her affidavit of 22 October 2015.  That affidavit was silent in relation to the sale of the K Street property prior to the purchase of the home in N Street.  In my view, only in February 2016 did the wife receive all of the information necessary to enable her and Ms F to make an informed decision as to the continued joinder of the second respondent to the proceedings.

15. I accept that the wife and Ms F would have required a reasonable time to digest and consider the implications of all of the material contained in the affidavit of the second respondent sworn on 15 February 2016, together with the material supplied under cover of the letter of Mr P dated 22 February 2016.  I accept that they received the affidavit of the second respondent of 15 February 2016 only at Court on 24 February 2016.  That affidavit consisted of 60 paragraphs and some 213 pages of annexures.  In my view, it would be unreasonable that the wife, her solicitor and counsel could reasonably be expected to decide at Court on 24 February 2016 to discontinue the proceedings against the second respondent.

16. As noted, Ms F wrote to Mr P on 2 March 2016 and advised that the continuation of proceedings against the second respondent was under consideration.  Further, Ms F submitted a Minute of Order which could have seen an end to the involvement of the second respondent on 24 March 2016.  The second respondent chose not to execute this Minute and thus extended her involvement in the proceedings by some five months.

17. In my view, the only inference which can be drawn from the failure of the second respondent to execute this Minute was that she intended to pursue her costs against all persons named in paragraph 38 of her Further Amended Application in a Case filed on 7 April 2016.  There was no evidence before me that the second respondent ever requested payment of her costs from any person, let alone that she ever suggested a quantum.

18. Awards of costs are made pursuant to section 117 of the Family Law Act 1975 (Cth), which provides as follows:

    (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

    (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

    (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)such other matters as the court considers relevant.

19. It is my view that Ms F gave timely and proper advice to the wife in relation to the caveat and the continuing joinder of the second respondent.  She cannot possibly be held responsible for the failure of the second respondent to provide a full account of her real estate transactions, at the time of the sale of the former matrimonial home and dissipation of the proceeds.

20. Having regard to all of those matters, I am not satisfied that there are circumstances which justify an order for costs in favour of the second respondent. For more abundant caution, I will now consider the matters set out in section 117(2A).

21. It was common ground that the wife has no income, with the exception of government benefits, and no assets of any substance.  The second respondent and her husband have savings of about $14,000 and own an unencumbered home and a car.  The income of the second respondent consists solely of a disability benefit.  Obviously, there was no evidence of the financial circumstances of Ms F.

1. It seems to me that the wife began to receive sound and constructive legal advice when Ms F came into this matter.  She took quick action to cause the removal of the caveat and advised a discontinuance of proceedings against the second respondent within three months.  That period included the Christmas break.

2. It seems to me that the second respondent could have provided full information to the wife at a much earlier stage of the proceedings than February 2016.  The relevant information contained in and annexed to her affidavit of 15 February 2016 was available to her from the time when she was joined as a respondent.

3. Additionally, the second respondent could have executed the Minute of Order in March 2016 and been removed as a party at that stage.  She could have pursued her costs as a part of that exercise, rather than continue her involvement in the proceedings for a further five months.

4. No party failed to comply with previous orders of the Court.  No party was in receipt of a grant of legal aid.  No party made an offer in writing to settle the proceedings, aside from the wife’s submission of the Minute of Order on 24 March 2016.

5. It may be considered that the wife was wholly unsuccessful in her proceedings against the second respondent.  On the other hand, she had good reason for suspicion as to the involvement of the second respondent in the disappearance of the proceeds of sale of the former matrimonial home.  I am satisfied that the wife was justified in harbouring suspicions as to an involvement on the part of the second respondent in the disappearance of the sale proceeds of the former matrimonial home until March 2016.

6. In all of these circumstances, I decline to make any order for costs against the wife, Mr D, Ms E or Ms F.

The disputed subpoenas

1. The wife issued subpoenas to produce documents to the Proper Officers of

   
   

   C Pty Ltd and Taha Pty Ltd.  Objection was taken to both of these subpoenas, under the hand of the husband’s brother Mr M Taha.  He styled himself “Director of Taha Pty Ltd” and stated that he “does not hold any official or formal office with the named party” in relation to C Pty Ltd.

2. The subpoena to C Pty Ltd read as follows:

   Things you must produce to the Court:

   1.    A copy of this subpoena.

   2.    All employment and personnel records relating to
   Mr Taha, date of birth … 1983, including wage records, time sheets, copy of any enterprise agreement or contract of employment, group certificates, attendance records, medical certificates, medical reports, applications for employment and leave, and any other documents relating to employment of the plaintiff by your organisation.

   3.    Copies of all books of account, records, bank books, bank statements and all other documents or records held in your name relating to any business conducted by you or properties owned by you for the period 2012 to 2015.

   4.    A list of all your employees, contractors, secretaries, directors, trustees, and beneficiaries including their date of birth and current addresses for the period 2012 to 2015.

3. The objection to this subpoena read as follows:

   1.This Subpoena was required to be served by special service by hand in accordance with Rules 7.03 and 15.22(1) of the Family Law Rules 2004. Accordingly, compliance with this Subpoena is not required pursuant to Rule 15.24 of the Family Law Rules 2004;

   2.Special service on a legal representative for the named party has not been effected because no such consent was given by said legal representative;

   3.The mandatory prescribed brochure entitled ‘Subpoena: Information for named person or other person (served with a Subpoena or a copy of Subpoena)’ was not hand served in accordance with Rule 15.28(1)(a)(ii) of the Family Law Rules 2004;

   4.Proof of service has not been proven because the issuing party has not filed or caused to be filed an Affidavit of Service from the process server in accordance with Rule 7.13 of the Family Law Rules 2004.  The named party therefore objects that service had been effected;

   5.The named party objects to the sum of $20.00 given for conduct money on the basis that it is insufficient compliance costs in accordance with Rule 15.23(1)(a) of the Family Law Rules 2004. Therefore, the named party does not have to comply with the Subpoena in accordance with Rule 15.24(1)(b) of the Family Law Rules 2004.  The named party is not obliged to accept an assurance or undertaking that these expenses will be paid and is justified in incurring legal costs to attend court to seek an Order for expenses;

   6.This Subpoena has not been properly addressed to the actual
   ‘The Proper Officer’ of C Proprietary Limited in accordance with Rule 15.17(4) of the Family Law Rules 2004.  Mr M Taha does not hold any official or formal office with the named party and as such, any purported service on him cannot constitute valid service nor can Mr M Taha be in any position to comply with this Subpoena; and

   7.Categories 2, 3, and 4 of documents requested for production are too broad, oppressive, fishing and irrelevant to the matters currently before this Honourable Court.

4. In her written submissions counsel for the wife conceded that service of the subpoena to C Pty Ltd had not been effected in accordance with the Rules.  This subpoena should have been served by hand in accordance with Rule 15.22.  Further, the brochure prescribed by Rule 15.22(1)(b) did not accompany the subpoena.

5. The uncontradicted evidence of the wife’s solicitor Ms F was that the prescribed brochure was delivered by Registered Post on 10 February 2016, along with another copy of the subpoena and additional conduct money.  The subpoena had earlier been delivered by Registered Post on 23 December 2015.  Accordingly, I place no weight on the initial failure to deliver this brochure.

6. It was submitted on behalf of the subpoena recipient that $20 was clearly an insufficient amount of conduct money.  The wife withdrew paragraphs 3 and 4 of the subpoena on 29 April 2016 but the recipient would have been unaware of this change in her position on 10 February 2016.

7. The written submissions on behalf of the husband and/or Mr M Taha stated as follows:

   In respect of paragraph 2 of the Subpoena, [Mr Taha] has given evidence in his Affidavit sworn on 15 February 2016 at paragraphs 177, 181 and 182 that he has not been employed by [C] but is a sub-contractor.  He attached the invoices issued to [C] at MT 69.  In paragraph 178 he set out his taxable income for the years 2012 to 2015, reaching $26,344.00 in 2015.  The parties did not separate until May 2015.

   I am instructed that [C] do not have any other documents apart from the documents referred to in the paragraph immediately above and which have already been disclosed by [Mr Taha] in his affidavit sworn on 15 February 2016.

8. If the evidence of the husband is correct, it would seem that C Pty Ltd would have had very few documents to produce in response to the subpoena.  That being so, the conduct money tendered would appear to be sufficient to facilitate their production of these documents.

9. Mr M Taha lodged an objection on behalf of the company, on the basis that the subpoena “has not been properly addressed to the actual ‘The Proper Officer’ ... in accordance with Rule 15.17(4).” This Rule requires identification of the intended recipient of a subpoena. Long experience demonstrates, however, that subpoenas are routinely directed to “The Proper Officer” of various corporations. Accordingly I see no substance in this objection.

10. Mr M Taha took the same objections in relation to the subpoena issued to Taha Pty Ltd.  This subpoena read as follows:

    Things you must produce to the Court:

    1.    A copy of this subpoena.

    2.    All employment and personnel records relating to Mr Taha, date of birth … 1983, including wage records, time sheets, copy of any enterprise agreement or contract of employment, group certificates, attendance records, medical certificates, medical reports, applications for employment and leave, and any other documents relating to employment of the plaintiff by your organisation.

    3.    Copies of all books of account, records, bank books, bank statements and all other documents or records held in your name relating to any business conducted by you or properties owned by you for the period 2012 to 2015.

    4.    A list of all your employees, contractors, secretaries, directors, trustees, and beneficiaries including their date of birth and current addresses for the period 2012 to 2015.

11. The Notice of Objection to this subpoena read as follows:

    1.This Subpoena was required to be served by special service by hand in accordance with Rules 7.03 and 15.22(1) of the Family Law Rules 2004. Accordingly, compliance with this Subpoena is not required pursuant to Rule 15.24 of the Family Law Rules 2004;

    2.Special service on a legal representative for the named party has not been effected because no such consent was given by said legal representative;

    3.The mandatory prescribed brochure entitled ‘Subpoena: Information for named person or other person (served with a Subpoena or a copy of Subpoena)’ was not hand served in accordance with Rule 15.28(1)(a)(ii) of the Family Law Rules 2004;

    4.Proof of service has not been proven because the issuing party has not filed or caused to be filed an Affidavit of Service from the process server in accordance with Rule 7.13 of the Family Law Rules 2004.  The named party therefore objects that service had been effected;

    5.The named party objects to the sum of $20.00 given for conduct money on the basis that it is insufficient for compliance costs in accordance with Rule 15.23(1)(a) of the Family Law Rules 2004. Therefore, the named party does not have to comply with the Subpoena in accordance with Rule 15.24(1)(b) of the Family Law Rules 2004.  The named party is not obliged to accept an assurance or undertaking that these expenses will be paid and is justified in incurring legal costs to attend court to seek an Order for expenses;

    6.Categories 2, 3, and 4 of documents requested for production are too broad, oppressive, fishing and irrelevant to the matters currently before this Honourable Court.

12. The wife withdrew her call for production of documents identified in paragraphs 3 and 4 of the subpoena to Taha Pty Ltd.  Again, Mr M Taha would have been unaware of this change in her position on 10 February 2016.

13. Again, the written submissions of counsel for the husband and/or Mr M Taha pointed to his evidence in paragraphs 177, 181 and 182 of his affidavit.  This evidence was to the effect that he has not been employed by Taha nor carries out any work for this entity.  The written submissions pointed out that the husband attached invoices issued to C Pty Ltd in his affidavit and set out his taxable income for the years 2012 to 2015.  The written submissions stated “I am further instructed that Taha do not have any documents in respect of [Mr Taha] which are sought in paragraph 2 of the subpoena”.  If this evidence of the husband is correct, conduct money of $20 would appear to be adequate to allow compliance with the subpoena.

14. It is my view that service of subpoenas to C Pty Ltd and Taha Pty Ltd should be effected in accordance with the Rules.  These companies are entitled to proper compliance with the Rules in relation to service.  In any event, if these subpoenas are struck out there is nothing to prevent the wife from attempting to obtain documents from these two companies by proper means.

Conclusion

1. All applications and responses, by which interim orders were sought, were fixed for hearing on 24 and 25 August 2016.  I made a number of orders by consent and I will strike out the subpoenas to C Pty Ltd and Taha Pty Ltd.  I will dismiss the application of the second respondent for her costs of the proceedings.  I will otherwise dismiss all outstanding applications and responses, by which interim orders are sought by any party.

2. The written submissions of counsel for the husband purported to seek an order that the wife pay the costs incurred in relation to these subpoenas.  There was no suggestion as to a quantum of such costs.  In any event, as indicated above, I am satisfied that the wife has no capacity to meet an order for costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 5 September 2016.

Associate: 

Date:  5 September 2016