Vang & Chung - [2022] FedCFamC2F 1364

Federal Circuit and Family Court of Australia
(DIVISION 2)
Vang & Chung [2022] FedCFamC2F 1364

File number(s): SYC 1433 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 12 August 2022

Catchwords: FAMILY LAW – subpoenas – two non-party entities subpoenaed – schedule to subpoenas to each entity an abuse of process.

Legislation:
Family Law Act 1975 (Cth) s 79.

Federal Circuit and Family Court of Australia Rules 2021 (Cth) pt 6.5, r 6.38.

Cases cited:
Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Hatton v Attorney-General (Cth) and Ors (2000) 158 FLR 31

In the Marriage of Epstein (1993) 110 FLR 133

In the Marriage of Mallet; Commonwealth Savings Bank of Australia and Ors (1981) 63 FLR 352

In the Marriage of Scheibner-Grover (now Grossman) and Ryan [1987] FamCA 15

In the Marriage of Sharpe (1990) 100 FLR 115

Waind v National Employers’ Mutual General Insurance Association Limited (1978) 1 NSWLR 372

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: 4 August 2022

Place: Sydney

Solicitor for the Applicant: Litigant in person

Counsel for the Objectors: Ms Granger

Solicitor for the Objectors: Clayton Utz

ORDERS

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VANG

Applicant

and:
MR CHUNG
Respondent

MR V

Objector

Y PTY LTD

Objector

order made by:

JUDGE MORLEY

DATE OF ORDER:

12 AUGUST 2022

THE COURT ORDERS THAT:
1.The subpoena issued by the Court at the request of the Applicant Wife to Mr V dated 23 March 2022 is struck out.
2.The subpoena issued by the Court at the request of the Applicant Wife to Y Pty Ltd dated 23 March 2022 is struck out.
3.The Application in a Proceeding filed on 9 June 2022 by Mr V is otherwise dismissed.
4.The Application in a Proceeding filed on 9 June 2022 by Y Pty Ltd is otherwise dismissed.

Costs Application
THE COURT NOTES THAT:
A.The subpoenaed parties Mr V and Y Pty Ltd made an application for costs at the conclusion of the hearing on 4 August 2022.

THE COURT FURTHER ORDERS THAT:
5.The Applicants to the costs application are to file any written submissions by no later than 4:00PM on 19 August 2022.
6.The Wife, Respondent to the costs application, is to file and serve any written submissions in relation to the costs application by no later than 4:00PM on 2 September 2022.
7.The Applicants to the costs application may file and serve (if they so choose) any written submissions in reply by no later than 4:00PM 9 September 2022.
8.Upon compliance with these orders for the filing and serving of written submissions, the matter will be considered and orders made in Chambers.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021

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 Vang & Chung

Details

AGLC: Vang & Chung [2022] FedCFamC2F 1364
Case: [2022] FedCFamC2F 1364
Decision Date

CaseChat Overview and Summary

In this family law matter, Ms Vang, the Applicant Wife, sought to subpoena two non-party entities, Mr V and Y Pty Ltd, to produce certain documents. Both entities objected to the subpoenas, arguing that the schedules attached to them were overly broad and oppressive, amounting to an abuse of process. The Husband did not join in the hearing of the objections. The key legal issues before the court were whether the subpoenas were valid and whether the schedules attached to them were overly broad and oppressive, amounting to an abuse of process.

The court found that the schedules to the subpoenas were indeed overly broad and oppressive, amounting to an abuse of process. The schedules required the subpoenaed entities to search through their entire records to identify documents that may fall within the terms of the schedules, which is not the proper use of a subpoena. The court noted that it is not the function of the subpoenaed entities or the court to repair the defects in the schedules. The court found that the schedules in the original subpoenas were an abuse of process and upheld the objections to both subpoenas. The court struck out the subpoenas issued to Mr V and Y Pty Ltd.

The court further noted that the Wife's proposed alternate schedules also suffered from the same defects as the original schedules. The court found that it was not the function of the subpoenaed entities to repair the defects in the schedules and that it was not the function of the court to do the work of repairing the schedules where virtually the whole of the schedules were infected with the objectionable matter.

The court dismissed the applications in a proceeding filed by Mr V and Y Pty Ltd but otherwise. The court ordered that the subpoenaed parties, Mr V and Y Pty Ltd, were to file any written submissions by no later than 4:00 PM on 19 August 2022. The Wife was to file and serve any written submissions in relation to the costs application by no later than 4:00 PM on 2 September 2022. The Applicants to the costs application may file and serve (if they so choose) any written submissions in reply by no later than 4:00 PM 9 September 2022. Upon compliance with these orders for the filing and serving of written submissions, the matter will be considered and orders made in Chambers.

Orders