Theodore & Theodore (No. 2) - [2021] FamCA 347

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

Penfold v Penfold (1980) 144 CLR 311

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 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).
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…

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 Theodore & Theodore (No. 2)

Details

AGLC: Theodore & Theodore (No. 2) [2021] FamCA 347
Case: [2021] FamCA 347
Decision Date: 28 May 2021

CaseChat Overview and Summary

In the matter of PAC 5789 of 2014, Mr Stavrou and AA Pty Ltd (the Objectors) sought costs following their successful objection to subpoenas issued by Mr Theodore (the Applicant). The dispute concerned the Applicant's attempt to obtain documents from the Objectors, who were third parties to the primary family law proceedings.

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

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.

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 Penfold v Penfold (1980) 144 CLR 311
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

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	28 MAY 2021