Walford and Walford

[2009] FamCA 671

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD [2009] FamCA 671

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae

Evidence and Procedure Act 1994 (New Zealand)
Family Law Act 1975 (Cth)

APPLICANT: Ms Walford

RESPONDENT: Mr Walford

FILE NUMBER: MLF 6901 of 2002

DATE DELIVERED: 16 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 July 2009

REPRESENTATION

THE APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT: Mr Coleman

SOLICITOR FOR THE RESPONDENT: COLEMAN LAWYERS

Orders

1. That all outstanding applications relating to child support be adjourned before me part-heard to commence as the fourth case in the list commencing on 6 August 2009 as a one day matter but not before Monday 17 August 2009.

2. That the wife have leave to issue the subpoenae to produce documents referred to hereafter returnable at 9.00am on 4 August 2009 before me, such subpoenae to be issued no later than Friday 24 July 2009.

3. That the wife have leave pursuant to s 9 of the Evidence and Procedure (New Zealand) Act 1994, to issue a subpoena directed to Mr WY of Auckland, New Zealand to produce documents.

4. That the wife have leave to issue subpoenae to produce documents to D Pty Ltd, Mr G Trading as GI Company, M Walford, V Pty Ltd, JP. Pty Ltd, AP and Co (if such entity exists), Mr VW as the Manager of P Group, Deutsche Bank of Newcastle and HSBC Melbourne.

5. That without determining the issue of whether or not the wife can reopen her case to call further evidence, the wife have leave to issue subpoenae to give evidence to Ms Z and Mr RL such subpoenae to be returnable at 10.00am on 6 August 2009 or such other time thereafter as the wife advises the recipient of the subpoena that they will be required to give evidence.

6. That the wife attend at the offices of Anthony Coleman, Solicitor at 1.00pm on 23 July 2009 unless otherwise agreed for the purposes of inspecting the following documents:

   (a)all bank statements for the financial years 2005-2006 and 2007-2008 for

   ·C Pty Ltd as the trustee of the Walford Discretionary Trust;

   ·The cash management account of the husband; and

   ·The Visa Card for the husband.

   (b)all BAS statements for the financial years 2005/6, 2006/7, 2007/8 and 2008 to date for C Pty Ltd in its capacity as the trustee of the Walford Discretionary Trust.

   (c)any bank statements in the possession of the husband for IW Pty Ltd for the period from 1 July 2003 to now;

   (d)all invoices in the husband’s possession for the financial year 2006/2007 for which payment has been made by C Pty Ltd as the trustee of the Walford Discretionary Trust.

7. That my reasons for judgment this day be transcribed and be made available to the parties.

8. That the husband’s costs of the day be fixed in the sum of $1157.40 and be reserved to be determined at the final hearing.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6901 of 2002

MS WALFORD

Applicant

And

MR WALFORD

Respondent

REASONS FOR JUDGMENT

1. This is the fourth day of the child support proceedings between Mr and Ms Walford.  Day one, in fairness, was probably not really commenced until late in the afternoon.  At the conclusion of the second day, the matter had to be adjourned because of illness of the wife.  Unfortunately, because of my schedule, that meant the matter had to be adjourned for a considerable period of time.  When the matter started on Wednesday 15 July, the wife, as the applicant, closed her case.  She then cross-examined the husband for most of the fourth day, yesterday, and it transpires that much of what she wanted to ask about related to old matters, and it is only today that it has become apparent that she says that she is bereft of many documents.  She also wants to call one, if not two, extra witnesses, bearing in mind that her case has already closed. 

2. I am proposing to allow her to issue subpoenae to two witnesses to give evidence, but without deciding the question of whether or not I will grant her leave to call those witnesses.  The reason I do that is that because the matter is part heard, it needs to have some certainty about its future.  The only way I would contemplate allowing leave to call those witnesses would be if the wife could convince me that they have some evidence to give, which may have some impact on the ultimate outcome of these proceedings.  That is difficult to determine at this stage, because the wife concedes not only that she does not know what these two witnesses might say, but, on all accounts, they might be quite hostile towards her - hostile in the legal sense.  The wife needs to contemplate that situation as to whether or not it is going to be worth her while to serve a subpoena pursuant to the court orders that I am about to make, without knowing whether or not those witnesses will be able to be giving evidence. 

3. I have made it clear that, even if leave is granted, it does not mean that she can simply cross-examine her own witness.  There are exceptions to the rule but the wife will need to get some advice about all of that.  The wife’s case revolves around three specific periods of time.  The first is the period 2006-2007;  the second is the current child support period;  and the third is the period up until the year 2015.  In respect of the first of those three periods, the cross-examination yesterday was along the lines that the husband has assets that he has not declared or, alternatively, that he has created untrue deductions in the profit and loss statement of his corporate entity, such that the contractor payments were not made and therefore, the income in his hands would have been higher than otherwise declared for tax purposes and, therefore higher for the purposes of the child support assessment. 

4. None of that evidence so far has come out clearly.  Today, the wife has conceded that her case is not prepared and therefore she needs an adjournment.  She needs an adjournment to endeavour to investigate all of these matters.  That means issuing subpoenae because the husband says he has complied with all of the discovery orders to date and provided whatever documents he has that might solve the problem but the wife does not accept what he says. 

5. The problem of adjourning a case part heard gives rise to a question of costs.  I propose to make an order fixing the husband’s costs at $1157.40, which is six hours on the scale at $192.50.  I am conscious of the fact that the husband is subject to a cost agreement which exceeds the scale, but I propose only, at this stage, to fix the costs according to the scale and to reserve the payment of them until the ultimate determination. 

6. In my view, there has been no justification for the lack of preparedness thus far, for two reasons.  First, when the proceedings were adjourned in March, the husband’s position was clear, not only because of the fact that he had filed an affidavit, but also because of the cross-examination by Mr Coleman.  The wife then conceded that she had no evidence to support her view that the husband was either hiding funds or had doctored the books in some way.  The second point is that the wife has told me that she has had both legal advice and two accountants to tell her about all of this, some of which was indicative from her cross-examination yesterday.  If that is the case, then the sort of exercise that I am being asked to adjourn to allow her to embark upon should have been done a long time ago. 

7. The wife complains about the fact that the husband did not comply with her requests to produce documents subsequent to March, but the matter has at no stage been listed before me, nor has any application for enforcement or discovery been undertaken before me or, for that matter, any registrar that I am aware of, subsequent to March.  On that basis, the adjournment is being caused by the wife not being adequately prepared.  In those circumstances, although I am not deciding the question of whether or not the husband ought to have his costs paid to him, I intend to at least fix the costs and I will determine the question of the payment at the conclusion. 

8. That, then, leads to what happens to the case.  The first question is the return date of subpoenas.  The normal course of action would be that the subpoenas would be returnable before a registrar, but I propose to bring them back before me, having regard to the prospect of objections and/or other arguments. 

9. That will occur at 9 o’clock on 4 August.  I propose to otherwise bring the case back as a part heard matter as the fourth case in the list commencing on 6 August.  The list commencing on 6 August runs for a period of approximately two weeks.  The parties will need to be on standby during that entire period of time and they are at liberty to contact my associate to see what the movement of the list is between now and 6 August.  I make abundantly clear, because of the comment raised by the wife yesterday:  it is not what the court tells her as to the listing date that is relevant, because the court lists cases according to the start of the sitting period.  The appropriate person to find out is either the list manager, or my associate.  Either of those people can indicate exactly what the state of the list is. 

10. I turn, then, to the question of the subpoenas that the wife wishes to issue. 

11. The normal rule is the parties can only issue five subpoenae in a defended matter without leave of the court.  Normally, a party would not be permitted to issue subpoenas on what is unashamedly a fishing expedition.  I have serious reservations about all of this and it may all come to nought, but the wife faces the problem of having to not only pay the conduct money and whatever expenses might arise, but also may face the prospect of difficulties in service.  In respect of subpoenae to produce documents, they will all be returnable on 4 August at 9.00 am.  The wife will be permitted leave to issue against D Proprietary Limited, GI Company, which is a trading name of Mr G, Mr M Walford, V Pty Ltd, JP Proprietary Limited, AP & Co, if that entity still exists, Mr VW, Deutsche Bank and HSBC. 

12. Those particular entities and individuals will have a subpoena served upon them, if service can be effected, to produce various documents for various periods that the wife has indicated.  I propose to direct the registrar not to trouble herself or himself about the wording of the subpoenas.  I have spent sufficient time with the wife this afternoon to indicate the problems she faces if the subpoena is vague or oppressive.  Any person who is a recipient of these subpoenas and who appears before me on 4 August with an objection on the grounds of oppression or vagueness is likely to succeed and get their costs.  The wife is therefore on notice that she will need to be precise about the nature of the documents she is pursuing.  That leaves me with P Group.  P Group is either a corporate entity or it is a trading name. 

13. The wife wants to issue a subpoena to a Mr WY who is the manager, apparently, of G Group, but he is in Auckland.  Subpoenas out of this court can only be issued outside of Australia in very limited circumstances.  The Australian Government has reached agreement with the New Zealand Government and there is a common piece of legislation.  In Australia it is the Evidence and Procedure (New Zealand) Act 1994. Section 9 of that Act is the governing provision that says that:

    If the proceeding is in a superior court, the subpoena must not be served in New Zealand without leave of the judge of the court.

14. The provision goes on to say that:

    Without limiting the matters that the judge may take into account in deciding whether to give leave, the judge is to take into account:

    (a)the significance of the evidence to be given, or the document or thing to be produced by the person named; and

    (b)whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience to the person named.

15. I express serious reservations about what is about to occur on the basis that, first, the husband says there is no money or indication of any asset in New Zealand.  Secondly, the wife has no evidence that she can specifically point to, to indicate that that asset or document still exists.  Whilst there may be something in the past that indicates that is the case, my concern is that the relevance of anything in New Zealand must only really apply to what is there now.  The husband, having said there is no such document and because of the nature of these proceedings in which the wife is highly suspicious of what has occurred, I propose to take a more liberal approach than I think the Act normally intended.  It seems to me that the significance of the evidence is high, having regard to the fact that it either exists or it does not.  If it exists and shows that the husband has assets, then it makes a significant difference to the second and third of the three issues to which I have earlier referred. 

16. The second leg of subsection (3) relates to whether or not the evidence, document or thing could be obtained with less inconvenience and without significantly greater expense.  The normal course of action would be that the husband would be expected to provide the documents.  He says they do not exist.  It seems to me that there is no way that this issue can be resolved other than by issuing of a subpoena.  The wife faces the prospect that when the subpoena arrives in New Zealand, she will have to have it served according to the rules.  That may very well be a very expensive exercise, but that is something that she will have to take into account.  In the circumstances, I think that this is a case where I ought to exercise the discretion and give her leave to issue the subpoena outside of Australia.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 July 2009