FAMILY COURT OF AUSTRALIA
Theodore & Theodore (No. 2) [2021] FamCA 347
File number(s): PAC 5789 of 2014 Judgment of: FOSTER J Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – COSTS – SUBPOENA OBJECTION BY THIRD PARTY – where objection to subpoena upheld and subpoena struck out – where application for costs – where consideration of applicable principles – where order for costs in favour of objecting party made. Legislation: Family Law Act 1975 (Cth) s 117, 117(2A)
Family Law Rules 2004 (Cth) r 19.18(1)
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93 748
Number of paragraphs: 24 Date of last submission/s: 24 February 2021 Date of hearing: 27 January 2021 Place: Parramatta Counsel for the Applicants: Mr Todd Solicitor for the Applicants: Williamson & Learmonth Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Madison Marcus Law Firm ORDERS
PAC 5789 of 2014 BETWEEN: MR STAVROU
First ApplicantAA PTY LTD
Second ApplicantAND: MR THEODORE
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1.Within one month from this date the husband pay the costs of AA Pty Ltd and Mr Stavrou of and incidental to the Notices of Objection to Subpoena filed in these proceedings in the total sum of $5,000 with such sum to be paid to the solicitors for the Objectors or as such solicitors may otherwise direct in writing.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theodore & Theodore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 27 January 2021, on the application of AA Pty Ltd and Mr Stavrou, a subpoena for production of documents that was issued by the husband in the primary proceedings directed to the Proper Officer, BB Company, CC Street, Suburb DD was struck out as a consequence of a Notice of Objection filed by those third parties.
Reasons for judgment in relation to the objection to subpoena were delivered concurrently with reasons for judgment in the primary proceedings on 21 May 2021.
Those reasons for judgment include the following:
44It is readily apparent that the subject matter of the impugned Subpoena has no apparent relevance…
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CaseChat Overview and Summary
The central legal issue before Foster J was whether the Applicant should be ordered to pay the costs incurred by the Objectors in successfully challenging the subpoenas. This required the court to consider the principles governing costs in family law proceedings, particularly in circumstances where a third party successfully resists a subpoena.
Foster J applied the general principle that costs follow the event, meaning the unsuccessful party typically bears the costs of the successful party. The court found that the Applicant's objection to the subpoenas had been upheld, and the subpoenas were struck out. Consequently, the court determined that it was appropriate to make an order for costs in favour of the Objectors.
The court ordered that the husband pay the costs of AA Pty Ltd and Mr Stavrou of and incidental to their Notices of Objection to Subpoena in the total sum of $5,000. This sum was to be paid to the solicitors for the Objectors within one month of the date of the order.
Orders
Orders of the court
PAC 5789 of 2014
BETWEEN:
MR STAVROU
First Applicant
AA PTY LTD
Second Applicant
AND:
MR THEODORE
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1. Within one month from this date the husband pay the costs of AA Pty Ltd and Mr Stavrou of and incidental to the Notices of Objection to Subpoena filed in these proceedings in the total sum of $5,000 with such sum to be paid to the solicitors for the Objectors or as such solicitors may otherwise direct in writing.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
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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