Trinley and Ors and Trinley and Anor

[2009] FamCA 383

FAMILY COURT OF AUSTRALIA

TRINLEY AND ORS & TRINLEY AND ANOR [2009] FamCA 383

FAMILY LAW – REVIEW OF REGISTRAR’S ORDER –setting aside a subpoena – reference to the apparent relevance test – application of the principles – lack of apparent relevance – wide terms of the subpoena
FAMILY LAW – COSTS – exercise of discretion to make an order

Family Law Act 1975 (Cth) ss 117 (2), 117 (2A)

In the Marriage of Tormsen (1993) FLC 92-392
Gallo v Dawson (1990) 93 ALR 479
Hatton v Attorney-General (Cth) & Ors (2000) 158 FLR 31
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Penfold v Penfold (1980) FLC 90-800

APPLICANT: Mr and Mrs Trinley (Snr)

2^nd APPLICANT: E Pty Limited

3^rd APPLICANT: Trinley Holdings Pty Limited

4^th APPLICANT: Trinley Management Pty Limited

1^st RESPONDENT: Ms Trinley

2^nd RESPONDENT: Mr Trinley

FILE NUMBER: SYC 3153 of 2008

DATE DELIVERED: 11 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 11 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	A. Givney
SOLICITOR FOR THE APPLICANTS:	Shaddicks Legal Pty Limited

SOLICITOR FOR THE 1^ST RESPONDENT: Barkus Doolan Kelly

COUNSEL FOR THE 2ND RESPONDENT:	P. Batey
SOLICITOR FOR THE 2ND RESPONDENT:	Paul & Paul Lawyers

Orders

1. That leave is granted to the Applicants to seek orders in accordance with the Application filed 18 February 2009 for extension of time to rely upon their Application for Review which is also contained in the same application.

2. That the Subpoena issued 4 August 2008 on behalf of the wife to the Proper Officer Westpac Banking Corporation, Legal Department, is set aside save and except for:-

   i)The documents that are called for in relation to dealings with Westpac Banking Corporation by Mr Trinley (Snr) and/or Mrs Trinley (Snr) jointly or solely with the Trinley Family Trust for the stated period;

   ii)In terms of paragraph 2, the documents called for in relation to loans made by Westpac Banking Corporation to the Trinley Family Trust for the stated period.

3. All documents produced by the bank which are not documents relating to the subpoena which has been preserved pursuant to these Orders and the judgment given shall be returned forthwith to the bank.

4. That the wife pay half of the costs incurred by the Applicants and the husband on a party-party basis including the preparation of their cases having regard to the Application filed 19 February 2009 and preparation and attendance at court for the hearing which took place and concluded on 11 May 2009.

5. That the costs the subject of Order 4 be as assessed and agreed upon, or failing agreement as taxed.

6. That there be a stay of execution of Orders 4 and 5 pending further order.

IT IS NOTED that publication of this judgment under the pseudonym Trinley and Ors & Trinley and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3153 of 2008

MR AND MRS TRINLEY (SNR)

Applicant

E PTY LTD

Second Applicant

TRINLEY HOLDINGS PTY LTD

Third Applicant

TRINLEY MANAGEMENT PTY LTD

Fourth Applicant

And

MS TRINLEY

Respondent

MR TRINLEY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings an Application in a Case filed 19 February 2009 was filed on behalf of various third parties to the substantive proceedings.   Amongst the orders sought is an order that leave be granted to extend the time for the third parties to file that application seeking a review of an order made by a Registrar on 16 January 2009.

2. It is conceded that the application is approximately 24 days out of time.  The evidence in support of leave being granted is set out in the affidavit of the third parties’ solicitor Donald John Shaddick sworn 17 February 2009 filed 19 February 2009.

3. In essence, he says that the filing of the application was delayed due to advice being sought from senior counsel who, for a period of relevant time was unavailable, the need to then obtain instructions in the light of that advice and then attending to filing of the application.

4. The principles upon which leave to file an application out of time are set forth by the Full Court in Tormsen[1].  In that judgment the Full Court followed the approach of McHugh J in Gallo v Dawson[2] in that rather than consider every relevant step that had to be taken and met, so far as an extension of time being granted, the Court should consider the matter in a global sense in terms of meeting the justice of the case and the administration of justice, including the prejudice, if any, which might flow from leave being refused or alternatively being visited upon a respondent.

   [1] In the Marriage of Tormsen (1993) FLC 92-392

   [2] Gallo v Dawson (1990) 93 ALR 479

5. I have determined that an extension of time will be granted for the following reasons.

6. The applicants, through their solicitor, have taken all reasonable steps to ensure that the application was filed.  The delay was through no fault of the applicants.    Indeed, the reasons given are acceptable in view of the briefing of senior counsel, the need to obtain his advice and acting upon it, including obtaining instructions.

7. The prejudice to the applicants outweighs any prejudice to the respondents.

8. The applicants have a case of substance to be brought.

9. The submissions for the respondent wife is that prejudice would be suffered because the application is rendered nugatory as documents produced have been inspected.

10. However, I am not concerned with the inspection of documents.  I am only concerned with whether or not the orders made by the Registrar on 16 January 2009 should be set aside having regard to the subpoena issued on 4 August 2008 by the wife’s solicitor on her behalf to the Proper Officer of Westpac Banking Corporation, Legal Department.  The principles that arise in relation to that application do not depend upon whether or not documents have been inspected.

11. Consequently, leave is granted to the applicants to rely upon their Application filed 19 February 2009 in which a review is sought of the orders made by the Registrar on 16 January 2009.

The relevant subpoena

1. The subpoena to Westpac issued on 4 August 2008 (“the subpoena”) is in the following terms:

   “1.      Originals or copies of all applications for an records of loans, managers’ diary notes, reports, application forms, statements of financial circumstances, property and chattel valuations and other documents in writing in respect of dealings with the Westpac Banking Corporation by [Mr Trinley (Snr) (born […] 1938) and/or [Mrs Trinley (Snr) (born 20 […] 1941) in their personal capacity and jointly or solely with any other entities including but not limited to:

   a.[E] Pty Limited;

   b.The [Trinley] Family Trust; and

   c.The Trustee of the [Trinley] Family Trust,

   as at and from 1 January 2008 up to an including the date of this Subpoena.

   2.Originals or copies of bank statements respecting loans made by Westpac Banking Corporation to [Mr Trinley (Snr)], [Mrs Trinley (Snr)] and/or [E Pty Ltd] and/or the [Trinley] Family Trust for the period 1 January 2008, together with documents evidencing source of funds applied to meet interest and capital repayments of the loan(s) up to and including the date of this Subpoena.”

2. Paragraph one of the subpoena calls for the production of the documents described in respect of dealings with Westpac Banking Corporation by Mr Trinley (Snr) and/or Mrs Trinley (Snr) in their personal capacity and jointly or solely with particular entities that are described in that paragraph.  Those entities include E Pty Limited, The Trinley Family Trust and the Trustee of the Trinley Family Trust for the period 1 January 2008 to the date of the subpoena.

3. An ordinary reading of that paragraph demonstrates that the documents called for relate to the dealings by the husband’s parents either carried out on a personal basis or, jointly or solely by both or either of them with one or more of the entities so described.

4. As was held in Hatton v Attorney-General(Cth)& Ors[3], a test to be applied, so far as the possible setting aside of the subpoena or part of it, is the “apparent relevance test”.  This Court, not being a Court of pleadings, means that the issues have to be ascertained from affidavits or other evidence before the Court.  That approach was also the subject of approval in Hatton.

   [3]Hatton v Attorney-General(Cth)& Ors (2000) 158 FLR 31

5. I was referred to various affidavits and exhibits by the legal representatives for the parties which I have read.  I have concluded that there is no issue that arises as to the dealings with Westpac Banking Corporation, whether by way of loans or otherwise by the husband’s parents for the relevant period.  There is no issue, and indeed it is conceded, that the husband obtained a loan from his parents.  There is no issue, and it is also conceded by the husband, that he was directed by his parents to vary his loan agreement with them by instead of making repayments direct to them, but to make payments to Westpac Banking Corporation in relation to a finance facility of E Pty Limited.

6. Unfortunately paragraph 1 is not limited to any dealings that the husband’s parents had with Westpac Corporation on the basis of a loan facility being repaid by the husband being a loan facility afforded by the bank to E Pty Ltd.  Rather, it is much wider in its terms and covers all applications for and records of loans, managers’ diary notes, reports, application forms, statements of financial circumstances, property and travel valuations and documents in writing in respect of the dealings to which I have referred.

7. It would have been an easy matter for the drafting of this subpoena to be limited to the particular financial transaction to which I refer.  Unfortunately, that was not the case.  The drafting of paragraph1 encompasses all of the dealings to which I have referred by third parties and in respect of their range of dealings, whatever they may have been.

8. I was not referred to any issue that arises in the affidavits that, on an ordinary reading, would attract favourably in favour of the wife, the test of apparent reasonableness with one exception.

9. It is conceded that the Trinley Family Trust is an entity which is indeed relevant and that the dealings that the husband’s parents may have had with the bank in relation to that entity do satisfy the test.

10. So far as paragraph 2 is concerned, it calls for bank statements in respect of, loans made by Westpac Banking Corporation to Mr Trinley (Snr), Mrs Trinley (Snr) and/or E Pty Ltd and/or the Trinley Family Trust for the stated period.

11. A similar difficulty arises in relation to the application of the relevant principles as to whether or not this subpoena calling for those documents should be set aside.  It is conceded that no point can be taken in relation to the documents called for in terms of loans made by Westpac Banking Corporation to the Trinley Family Trust.  As to the remainder of the documents called for, they call for records relating to loans, whatever loans they might be and for whatever purpose made by Westpac Banking Corporation to the persons to whom I have described, as well as E Pty Ltd.

12. It is submitted on behalf of the wife that the affidavit evidence demonstrates that the husband was directed by his parents to make repayments of a loan that they had made to him by payments to Westpac Banking Corporation in relation to a finance facility which that bank had provided to E Pty Ltd in lieu of payments being made direct by the husband to his parents.

13. Unfortunately paragraph 2 is not drafted to capture in clear terms the documents relating to that transaction.  The fact that documents produced by Westpac Banking Corporation may include such a loan amongst documents relating to other loans does not attract the test.  Indeed, on that approach, it truly is what is referred to in Commissioner of Railways v Small[4] as nothing other than a “fishing expedition”.  It would have been a relatively simple matter for paragraph 2 to be drafted in terms which would capture the loan repayments made by the husband or payments made by him to Westpac Banking Corporation by way of repayments of a loan facility which that bank had afforded to E Pty LTd.  Unfortunately, that has not been the case.

    [4] Commissioner of Railways v Small (1938) 38 SR (NSW) 564

Oral application for costs

1. The applicants and the husband seek an order for costs against the wife. 

2. The applicants seek an order that the wife pay half of their costs of and incidental to the proceedings as from 12 August 2008 on a party/party basis.

3. The husband, by his counsel, seeks an order that all of his costs be paid implicitly from 12 August 2008. 

4. The general principle in terms of costs in this Court is that each party bears his or her own legal costs. 

5. However, should a circumstance be established which may make an order for costs a proper one to be made having regard to section 117 (2) and 117 (2A) then the Court has a wide discretion to make an order[5]. 

   [5] Penfold v Penfold (1980) FLC 90-800

6. I have concluded that there is a circumstance which may make an order for costs proper.  That circumstance is that, with a minor exception, the terms of the subpoena have been set aside.  I am limited in terms of relevant matters to be taken into account under section 117(2).  I do not have up-to-date Financial Statements for the husband and wife.  I am also limited as to the financial circumstances of the applicants, save and except that the affidavit material to which I have referred demonstrates that they either directly or indirectly own, control and operate a substantial farming enterprise. 

7. Neither of the parties has a grant of legal aid as far as I am aware. 

8. The wife’s financial circumstances on the summary provided to me by her solicitor, which I accept, is that her sole sources of income are interim spousal maintenance and government benefits.  Her only significant property to which she can access is represented by funds which approximately a year ago were of the order of about $23,000.  On the other hand, the wife had received funds of about $100,000 pursuant to either previous arrangements between the parties or Court orders and it is in respect of that amount that the bank account to which I have referred contains funds.  Otherwise, the balance, I am informed, has been utilised meeting legal costs that have been incurred.

Conclusion

1. These proceedings have a convoluted background.  It appears that notwithstanding that an objection was taken to the subpoena or the inspection of documents pursuant to the subpoena, inspection was still permitted, in part due to an agreement apparently between the parties.

2. The normal approach that is taken is that once an objection has been made then the objection must be ruled on before any party can inspect documents that are produced on subpoena. Ultimately, the order that was made was that on 16 January 2009, the subject of the review application.

3. I have concluded that there will be a costs order made in favour of the applicants and the husband, being limited to the Application of the applicants filed on 19 February 2009 and the hearing of the proceedings before me today.

4. The background to the issues raised in the proceedings did not follow the conventional approach in accordance with established legal principle.  There may have been good reasons for the approach taken.  I am not in a position to make any determination in that regard.  The drafting of the subpoena was clearly too wide to possibly attract the apparent relevance test, save and except for the reference to the Trinley Family Trust.

5. I am concerned as to the ability of the wife to meet an order for costs.  Consequently, because I do not have up to date evidence of her financial circumstances and indeed those of the husband, there not being any real issue raised in terms of any financial impecuniosity of the applicants, I will make an order that the execution of the order for costs be stayed pending further order or written agreement between the parties.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:  P. Casbarra

Date: