Warin & Warin

Case [2020] FamCA 796

FAMILY COURT OF AUSTRALIA

WARIN & WARIN [2020] FamCA 796
FAMILY LAW – SUBPOENA – objection to responding – whether valid basis given – none given – authorities on apparent relevance test.
Family Law Act 1975 (Cth) ss 79, 117(1)
Alister v R (1984) 154 CLR 404
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 1599
Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212
Beckert & Beckert [2018] FCCA 3847
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Dupont v Chief Commissioner of Police (2015) 53 Fam LR 278
Hatton v Attorney-General (Cth) (2000) 26 Fam LR 570
In the Marriage of Epstein (1993) 16 Fam LR 588
National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648
Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160
R v Saleam (1989) 16 NSWLR 14
Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306
Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Wingecarribee Shire Council v Lehman Brothers Australia Ltd (No. 4) [2010] FCA 1128
Wong v Sklavos [2014] FCAFC 120
Harold H. Glass, Seminars on Evidence (Law Book Co of Australasia, 1970)
APPLICANT: Ms Warin
RESPONDENT: Mr Warin
FIRST SUBPOENA OBJECTOR: Ms Inston
SECOND SUBPOENA OBJECTOR: Mr Winsor
FILE NUMBER: MLC 7368 of 2020
DATE DELIVERED: 23 September 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Wilson J
HEARING DATE: 18 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr R. Ingleby
SOLICITOR FOR THE APPLICANT: Vadarlis & Associates
COUNSEL FOR THE RESPONDENT: Not applicable
SOLICITOR FOR THE RESPONDENT: Sebastian Rubera & Associates
COUNSEL FOR THE FIRST SUBPOENA OBJECTOR: Not applicable
SOLICITOR FOR THE FIRST SUBPOENA OBJECTOR: Sebastian Rubera & Associates
COUNSEL FOR THE SECOND SUBPOENA OBJECTOR: Mr S. Thomas
SOLICITOR FOR THE SECOND SUBPOENA OBJECTOR: Rothwell Lawyers Pty Ltd

Orders

  1. I dismiss the application made by the objector Mr Winsor for an order that his costs of complying with the subpoena dated 15 July 2020 issued by the wife be paid by the wife;

  2. I dismiss the objections raised by Ms Inston and order her to comply with the subpoena directed to her by 4pm on 8 October 2020;

  3. I grant leave to the wife to issue a further subpoena to Mr Winsor on or before 1 October 2020;

  4. by 4pm on 2 October 2020 the respondent must file and serve a statement of claim to his response, fully particularised, setting out all legal and equitable claims he advances in this case to a standard appropriate to pleadings in a proceeding in the Federal Court of Australia;

  5. I make an order for the joinder of the first respondent’s trustee-in-bankruptcy as a party to this proceeding…

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Details
AGLC
Warin & Warin [2020] FamCA 796
Case
[2020] FamCA 796
Decision Date

CaseChat Overview and Summary

In the matter of *Warin & Warin*, the applicant wife issued a subpoena to Mr Winsor, who objected to complying with it. The wife also sought to issue a further subpoena to Mr Winsor, and the respondent husband was ordered to file a fully particularised statement of claim. The court also made orders concerning the joinder of the respondent's trustee-in-bankruptcy and costs.

The primary legal issues before the court were the validity of Mr Winsor's objections to the subpoena, the wife's entitlement to issue a further subpoena, and the adequacy of the respondent's pleadings. The court was required to consider the principles governing the issuance and objection to subpoenas in family law proceedings, particularly the test for apparent relevance.

Justice Wilson dismissed Mr Winsor's application for costs of complying with the subpoena and ordered him to comply. The court also dismissed objections raised by Ms Inston and ordered her to comply with the subpoena. Leave was granted to the wife to issue a further subpoena to Mr Winsor. The respondent was directed to file a detailed statement of claim outlining all his legal and equitable claims. Furthermore, the respondent's trustee-in-bankruptcy was joined as a party to the proceeding, and directions were given for service of the reasons. Costs were to be provided for under section 117(1) of the *Family Law Act*.

Orders

Orders of the court

1.

I dismiss the application made by the objector Mr Winsor for an order that his costs of complying with the subpoena dated 15 July 2020 issued by the wife be paid by the wife;

2.

I dismiss the objections raised by Ms Inston and order her to comply with the subpoena directed to her by 4pm on 8 October 2020;

3.

I grant leave to the wife to issue a further subpoena to Mr Winsor on or before 1 October 2020;

4.

by 4pm on 2 October 2020 the respondent must file and serve a statement of claim to his response, fully particularised, setting out all legal and equitable claims he advances in this case to a standard appropriate to pleadings in a proceeding in the Federal Court of Australia;

5.

I make an order for the joinder of the first respondent’s trustee-in-bankruptcy as a party to this proceeding and I direct that the applicant’s solicitors serve a copy of these reasons upon the trustee-in-bankruptcy forthwith; and

6.

All parties’ costs of and incidental to this application are provided for by s 117(1) of the Family Law Act.

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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