Versace & Versace & Ors

[2012] FamCA 838

FAMILY COURT OF AUSTRALIA

VERSACE & VERSACE AND ORS [2012] FamCA 838

FAMILY LAW – PRACTICE AND PROCEDURE – where the wife has issued subpoena seeking records in relation to a company – notices of objection to the subpoenas filed by the company – where the wife alleges that the company is the alter ego of the husband – where it was argued that the information sought by the wife could be obtained by other means – where the Court was satisfied that the material was relevant – where the Court was not satisfied that the objections to the production or the inspection of documents produced under subpoena have been established – where it was noted that the parties to the proceedings are under an obligation not to use the information for any purpose other than for the purposes of these proceedings – leave given to the parties to copy and inspect documents.

Family Law Act 1975 (Cth)

APPLICANT: Ms Versace

FIRST RESPONDENT: Mr Versace

SECOND RESPONDENT: Mr Nicoli

THIRD RESPONDENT: Z Pty Ltd

INTERESTED PERSON: C Pty Ltd

FILE NUMBER: ADC 4576 of 2008

DATE DELIVERED: 24 September 2012

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 24 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman, SC

SOLICITOR FOR THE APPLICANT: Tindall Gask & Bentley

COUNSEL FOR THE FIRST RESPONDENT: N/A

SOLICITOR FOR THE FIRST RESPONDENT: In Person

COUNSEL FOR THE SECOND RESPONDENT: Mr Starke

SOLICITOR FOR THE SECOND

RESPONDENT:

Starke Lawyers

COUNSEL FOR THE THIRD RESPONDENT N/A

SOLICITOR FOR THE THIRD RESPONDENT N/A

COUNSEL FOR THE INTERESTED PERSON Mr Tredrea

SOLICITOR FOR THE INTERESTED PERSON SRG Lawyers

Orders

1. Leave is given to the parties to inspect and if necessary copy documents produced pursuant to subpoenas issued to:

   (a)      ANZ Bank; 

   (b)      Commonwealth Bank of Australia;

   (c)      American Express;  and

   (d)      Qantas Airways

1. The question of the wife’s costs in relation to the objection of the subpoenas is reserved for argument to the trial Judge.

1. The final orders application is referred to the Docket Registrar on the understanding that the matter not be listed for directions to prepare the matter for final hearing before January 2013 and to include consideration of arrangements for a settlement conference UPON NOTING the parties can make private arrangements for mediation before that date (if suitable) and such settlement conference is recommended by the Court.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: ADC 4576 of 2008

Ms Versace

Applicant

And

Mr Versace

First Respondent

And

Mr Nicoli

Second Respondent

And

Z Pty Ltd

Third Respondent

And

C Pty Ltd
Interested Person

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me the affidavit filed on 27 April 2012.  Mr Berman, SC not only acknowledged that it had been served, but made particular reference to items 15 and 16 of that affidavit of the husband. 

2. The matter before me today relates to the notices of objections to subpoenas issued on behalf of the wife;  the subpoenas issued to Qantas Airways, the ANZ Bank, Commonwealth Bank of Australia, Australian Taxation Office and American Express.  Court records apparently indicate that all of those subpoenas have been the subject of compliance, save and except the Australian Taxation Office.

3. I am told that the subpoena to the Australian Taxation Office has been discharged. 

4. Before me this morning the wife, who issued the subpoenas, is represented by senior counsel, Mr Berman, SC.  The husband appears in person, unrepresented.  Mr Starke appears for Mr Nicoli, one of the other parties to the proceedings.  Mr Tredrea appears on behalf of C Pty Ltd, who are the subject of some parts of each of the subpoenas. 

5. The objection filed on 24 July 2012 reads:

   I give notice that I object to production of some or all of the documents to the Court and object to the inspection/copying of some or all of the documents produced for the following reasons:  our company is not a party and the orders sought are too wide and disclose our confidential information.

6. That is the terms of each of the objections to the subpoena filed by C Pty Ltd.  Counsel for the C Pty Ltd, Mr Tredrea, has appropriately conceded that it would appear that there is an adequate evidentiary purpose and, therefore, a legitimate purpose for the issue of the subpoenas in general terms, based upon the affidavit of the wife, which is before the Court and was filed on 21 September 2012.

7. Counsel also suggested that there would be other means of getting what he describes as the relevant information, such as the employment records of the husband with C Pty Ltd and other processes which should be undertaken, pursuant to the rules before the issue of the subpoena. 

8. The rules do not provide those conditions as conditions in relation to subpoenas. 

9. In relation to this matter, the context of the history of the matter and the basis upon which the wife has maintained the subpoenaed information are relevant considerations.

10. In particular, as is pointed out in the affidavit of the wife and as emphasised by counsel for the wife, it is not simply an allegation that the husband has been or is employed by C Pty Ltd, but it is, as set out in the affidavit, an allegation that the company is the alter ego of the husband and “he is in effective control of their affairs and that property held in those entities is property of the parties for the purpose of these proceedings.”  (I am quoting from paragraph 29 of the affidavit of the wife).

11. Annexed to the affidavit of the wife are documents which clearly show the previous connection between the husband and various entities, including the previous connection between the husband and C Pty Ltd. 

12. Counsel for the wife also referred to the affidavit of the husband in these proceedings, filed on 27 April 2012, in which he provides disclosure of documents, which include a Power of Attorney from C Pty Ltd to the husband dated 14 April 2009 and a Power of Attorney from the husband’s brother to the husband dated 14 April 2009.

13. The affidavit of the wife indicates that according to the records annexed to the documents, the husband was, until March 2009, the only shareholder in C Pty Ltd and thereafter, his brother took over the role of Director/Secretary and sole shareholder. 

14. The relevance is, therefore, clearly established as a matter which will need to be determined in the proceedings currently to be listed for determination in this matter.  The persons to whom the subpoena were directed have not opposed the subpoena and I understand that they are all available for inspection (save and except the Australian Taxation Office subpoena, which was discharged).

15. The question of confidentiality was also not relied on to a large extent by counsel for C Pty Ltd.  In any event, the parties and counsel would be well aware of the provisions of the rules, which require that there be no disclosure of information obtained from subpoenaed documents, other than for the purpose of these proceedings and, indeed, the law, which provides that no information or details provided in the documents or obtained from the documents are to be used for any other purpose, and that the use for any other purpose may well involve serious consequences if found to be contempt of Court.

16. I am satisfied that the material is relevant.  I am satisfied that in the circumstances of this matter, it is appropriate to allow inspection and necessary copying of the material rather than require the wife’s solicitors to go through other steps, such as requesting information from C Pty Ltd or from subpoenaing C Pty Ltd or awaiting further discovery by the husband. 

17. In those circumstances, therefore, I am satisfied that the objections to the production or inspection of the documents produced under subpoena have not been made out.

18. On the clear understanding that all of the parties to the proceedings are under an obligation not to use the information or divulge the information to anyone other than for the purposes of these proceedings within the Family Court of Australia, I give leave to the parties to inspect and, if necessary, copy documents produced, pursuant to the subpoenas to the ANZ Bank, the Commonwealth Bank, American Express and Qantas Airways.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe on 24 September 2012.

Associate: 

Date:  2 October 2012