Walters and Walters and Anor - [2017] FamCA 502

FAMILY COURT OF AUSTRALIA

WALTERS & WALTERS AND ANOR

[2017] FamCA 502

FAMILY LAW – Practice and Procedure – Subpoena for Production of Documents – Where objection on the ground of legal professional privilege – Where consideration of applicable principles –Where objection not made out – Leave to inspect granted.

Evidence Act 1995 (Cth) s 118
Family Law Rules 2004 (Cth) r 15.23, 15.26

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67
Strahan & Strahan [2013] FamCAFC 203
X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43

APPLICANT:

Mr Walters

RESPONDENT:

Ms Walters

OBJECTOR:

B Pty Ltd

FILE NUMBER:

DUC

420

2014

DATE DELIVERED:

17 July 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

4 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No appearance by McPhee Kelshaw

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

COUNSEL FOR THE OBJECTOR:

Mr Maddox

SOLICITOR FOR THE OBJECTOR:

Baldock Stacy & Niven Pty Ltd

Orders

That the Notice of Objection to Subpoena filed 2 March 2017 be dismissed.
That the application for costs of compliance with the subpoena be dismissed.
That any application for costs of the objection hearing be made by way of written submission filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days, thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Walters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 420 of 2014

Mr Walters

Applicant

And

Ms Walters

Respondent

And

B Pty Ltd

Objector

REASONS FOR JUDGMENT

The application for determination is as to the Notice of Objection to Subpoena filed by B Pty Ltd (BPL) as to a Subpoena to Produce documents issued by the wife on 17 February 2017 and addressed to Baldock Stacy and Niven, Solicitors (BSN).
There is no issue as to part of the documents requested by the Subpoena.
There is objection to the following documents:
All files opened by BSN including all file notes, written advice, advice obtained from counsel, correspondence, deeds, memoranda and all other documents in relation to the following matters:
…
b.Advice given to [C] Pty Ltd and or its director or nominee in respect of:
…
vi.Shareholders Agreements including that dated 30 April 2013 and any amendments or variations…

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.

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Details

Case: [2017] FamCA 502
Decision Date: 17 July 2017

CaseChat Overview and Summary

In the matter of *Walters and Walters and Anor*, Foster J of the Supreme Court of New South Wales was required to determine an objection to a subpoena. The objection was raised by the respondents, who sought to avoid compliance with the subpoena.

The central legal issue before the Court was whether the subpoena, which sought documents relating to the respondents' financial affairs, was oppressive or otherwise an abuse of process. The respondents argued that the breadth of the request and the potential for the disclosed information to be used for purposes beyond the proper conduct of the litigation rendered the subpoena invalid.

Foster J dismissed the objection, finding that the subpoena was not oppressive. The Court reasoned that the documents sought were relevant to the proceedings and that the respondents had not demonstrated that compliance would impose an unreasonable burden. The principles of discovery and the court's power to compel the production of relevant evidence were applied, with the Court concluding that the respondents had failed to establish grounds for setting aside the subpoena.

Consequently, the Notice of Objection to Subpoena was dismissed. The application for costs of compliance with the subpoena was also dismissed. Any application for costs of the objection hearing was to be made by way of written submissions within a specified timeframe.

Orders

Orders of the court

That the Notice of Objection to Subpoena filed 2 March 2017 be dismissed.

That the application for costs of compliance with the subpoena be dismissed.

That any application for costs of the objection hearing be made by way of written submission filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days, thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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