(WA) INC and H - [2004] FCWA 152

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION:	PERTH
CITATION:	AUSTRALIAN MEDICAL ASSOCIATION

(WA) INC and H [2004] FCWA 152

CORAM

: PENNY J

HEARD

:	18 OCTOBER 2004

DELIVERED

:	22 NOVEMBER 2004

FILE NO/S

:	PT 7193 of 2001

BETWEEN

: AUSTRALIAN MEDICAL ASSOCIATION

(WA) INC
Applicant
AND
H
Respondent

Catchwords:

Practice and procedure - inherent jurisdiction of court to set aside orders - application to vary orders pursuant to Rule 1.11 - application dismissed

Legislation:
Family Law Act 1975 - s 117
Family Court Rules - r 1.11

Category: Not Reportable

Representation:
Counsel:

Applicant	:	Mr R Hooker
Respondent	:
Mr D Garnsworthy

Solicitors:

Applicant	:	Deacons
Respondent	:	Clairs Keeley

Case(s) referred to in judgment(s):

Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) PTY

Ltd (1993) 117 ALR 253

DJL v The Central Authority [2000] HCA 17

Lewandowski and Ors v Lovell (unreported FCt SCt WA; library No

960310, 14 June 1996).

Stowe v Stowe (unreported FCt SCt of WA; library No 950556, 16

October 1995)
1 The matter for determination by me is the Form 2 application filed by the Australian Medical Association Western Australia Incorporated (hereinafter referred to as the “AMA”) on 28 June 2004, to recover indemnity costs, from the respondent, Mr H, resulting from compliance with a subpoena issued by the Family Court of Western Australia on 29 August 2002. Mr H opposes the application.

History and Background

2 Proceedings between the husband and wife in relation to property settlement were instituted in January 2002. The wife, is a past President of the AMA and also involved in other committees associated with that body. As a result, the husband issued a subpoena to the AMA.
3 The subpoena was directed to the “Proper Officer”, AMA and was returnable before the Court of Petty Sessions on 23 September 2002. The subpoena was prepared and filed by the husband’s then solicitors Messrs Butlers.
4 The subpoena required the AMA to produce the following
documents:
“All files, documents, forms, memoranda, notes, records of
interviews, correspondence and other documents relating to:
1. R C
2. R C-H
3. R H
4. R C Pty Ltd (CAN 099 586 071)
5. C Family Trust
6. [Suburb] Medical Practice
7. G R H

For the period from 1 January 2001 to date.”

5 On 16 September 2002, solicitors for the AMA wrote a letter to the husband’s solicitors, seeking that they “redefine” the extent of the subpoena to prevent the incurring of “unnecessary costs”. The husband’s solicitors did not respond. A follow up letter was sent on 18 September, confirming that if the AMA received no response, the husband’s solicitors would be required to prepare for the hearing in relation to the return of the subpoena on 23 September 2002.
6 The husband’s solicitors replied in a facsimile on 18 September asking the AMA to “provide us with a list of all books, documents and things the AMA has in its possession,…

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 (WA) INC and H

Details

AGLC: (WA) INC and H [2004] FCWA 152
Case: [2004] FCWA 152
Decision Date: 22 NOVEMBER 2004

CaseChat Overview and Summary

In the case of (WA) INC and H, the dispute arose within the Western Australian court system, involving an application to vary existing orders. The applicants sought to amend previous court orders under Rule 1.11 of the relevant procedural rules. The court's inherent jurisdiction to set aside orders and the procedural correctness of the application were the primary legal issues at hand. Specifically, the court needed to determine whether the applicants had grounds to justify varying the existing orders and whether the application was made in accordance with the procedural requirements.

The court examined the inherent jurisdiction to ensure that the orders could indeed be varied and the procedural correctness of the application, including whether the applicants had followed the appropriate rules and provided sufficient reasons. It assessed whether the application met the threshold for setting aside the original orders and whether the applicants had demonstrated a compelling reason for the variation. The court also considered the impact of the proposed variation on the existing orders and any potential prejudice to the other party.

Upon reviewing the application, the court found that the applicants had not demonstrated sufficient grounds to warrant a variation of the existing orders. The court held that the application did not meet the necessary criteria for setting aside the orders, and the procedural requirements were not adequately met. Consequently, the application was dismissed. The court's decision emphasised the stringent requirements for varying court orders and the importance of following procedural rules when making such applications.

Orders