Waverley and Peake

[2008] FamCA 1249

FAMILY COURT OF AUSTRALIA

WAVERLEY & PEAKE [2008] FamCA 1249

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision
FAMILY LAW – PROPERTY
FAMILY LAW – COSTS

APPLICANT: Ms Waverley

RESPONDENT: Mr Peake

INTERVENOR: Subpoenaed parties

FILE NUMBER: MLF 2957 of 2005

DATE DELIVERED: 15 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Mushin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.G. Levine

SOLICITOR FOR THE APPLICANT: Issac Brott & Company

COUNSEL FOR THE RESPONDENT: Mr R.N. Hoult

SOLICITOR FOR THE RESPONDENT: Grice & Grice

COUNSEL FOR THE SUBPOENAED PARTIES: Mr J. Melilli

SOLICITORS FOR THE SUBPOENAED PARTIES: Lander & Rogers

Orders

1. The application of the wife on Form 2 file 31 July 2008 be dismissed.

2. The wife have leave to file and serve a subpoena to the husband’s solicitors in similar terms to the subpoena by the husband directed to the wife’s solicitor.

3. The wife pay the subpoenaed parties costs of this application fixed in the sum of $2,500 with a stay of 3 months.

4. The wife pay the husband’s costs of this application fixed in the sum of $1,750 with a stay of 3 months.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2957 of 2005

MS WAVERLEY

Applicant

And

MR PEAKE

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife to review orders of Registrar Lethbridge made on 24 July 2008 with regard to certain subpoenas addressed to various third parties in these property proceedings filed on behalf of the wife to the proceedings.

2. The substantive proceedings are for alteration of property interests pursuant to section 79 of the Family Law Act 1975 and insofar as they are relevant to the present matters, involve questions of the husband's interests and/or rights, if any, in various identities allegedly connected with the husband through his father. 

3. The subpoenas are addressed to a number of entities and because the Registrar dealt with each of those subpoenas seriatim, I will take the same course for the sake of convenience.  The relevant orders are the various subparagraphs of paragraph 4, the subject of the review, and I address myself to those matters.

4. Dealing first with subparagraph (4)(i) of the order and in particular the subpoena addressed to JP Company, the subpoena seeks the production of documents in three categories.  The third of those categories was approved by the Registrar and that is not challenged before me.  There is a challenge to paragraphs 1 and 2 of the subpoena.  Paragraph 1 seeks:

   Financial statements, tax returns, MYOB ledgers or the equivalent, general ledger, bank statements, chequebooks, drawings and loan accounts for the past three years.

5. Paragraph 2 seeks:

   Documents that evidence the sale of the business or transfer of the business, or any chattel of the business (which expressly excludes the sale of any motor vehicles) business name, trading name, leasehold, freehold that occurred within the last three years.

6. By way of contrast, paragraph 3 of this subpoena seeks:

   Evidence of all payments, fringe benefits, including the use of a company vehicle, credit card payments, company credit cards/expense account used for or by [the husband] and any other expenses paid to or for [the husband], that have been made during the last three years.

7. I note, as I have previously referred, that paragraph 3 was maintained as being appropriate by the Registrar.  The difference between paragraph 3 on the one hand and paragraphs 1 and 2 on the other hand is the fundamental issue before me in respect of all these subpoenas and I will adapt what I am about to say mutatis mutandis to the other subpoenas.

8. Paragraph 3 specifies that the document sought to be produced is specifically in respect of Mr Peake, that is, the husband in these proceedings.

9. Paragraphs 1 and 2 do not read down the documents which are sought in that way and to that extent they are vexatious and fishing.

10. Counsel for the wife relied on a decision of Treyvaud J, In the Marriage of J (1988) 12 FLR 836. At page 840, his Honour found with regard to the documents which were required to be produced by the third party in similar circumstances to this matter that the subpoenaing party was entitled to trust deeds to establish the relevant family trusts, memorandum of articles of association of the trustee of the relevant family trust and a number of documents of either trust or company, namely:

    (a) the balance sheets and records or minutes of distributions made by either trust or company to any beneficiary of the trust or shareholder of the company;

    (b) any explanatory notes or memoranda accompanying any documents specified in (a) which have been prepared by the accountants for such company or trust.

    (3) the following documents of any of the following companies:  (a) any loan account in the name of the husband and/or wife; (b) the mortgage over [a named property] in the name of the husband and wife.

11. The whole intent of the law relating to the production of documents by third parties in proceedings such as these proceedings is to protect the privacy and at times commercial-in-confidence dealings of third parties who are not relevant to these proceedings and who do not have any matter of such relevance to produce.

12. The whole difficulty with paragraphs 1 and 2 of the subpoena is that it seeks, first, "financial statements" and secondly, it is not read down to refer specifically to the husband.  Financial statements can include profit and loss statements which counsel for the wife has conceded are excluded by Treyvaud J in the decision referred to above.

13. In my view, the Registrar was correct in striking out paragraphs 1 and 2 of the subpoena and to that extent, I dismiss the review.

14. I adapt the findings which I have just made to the other decisions of the Registrar.  The subpoena addressed to JP Pty Ltd which was dealt with by her in subparagraph (4)(2) of the order resulted in the release of documents in paragraphs 2, 3, 4 and 5 but not agreeing to a release of documents in paragraph 1.  Paragraph 1 seeks the release of "financial statements and tax returns for the past five years".  That is to be struck down on the same basis as I have already held and accordingly, in respect of paragraph 4(2), I dismiss the review.

15. The next subparagraph concerns an entity referred to by the Registrar as C Company.  It is in fact C Company Pty Ltd and the subpoena in this regard is again in two paragraphs.  The learned Registrar released the documents in paragraph 2 and declined to release the documents in paragraph 1.  I adapt mutatis mutandis my findings in respect of the other matters and again dismiss the review in respect of subparagraph (4)(iii) of the order.

16. Turning to the next subpoena, that is, the subpoena addressed to P Pty Ltd, the Registrar declined to release any of the material sought in that subpoena.  Again, the subpoena offends in that it seeks financial statements without restriction and does not limit the documents sought to relevant matters in these proceedings, that is, in respect of the husband.  Again, I dismiss the review in respect of that subpoena.

17. Subparagraph (4)(v) deals with a subpoena to Mr Peake snr, that is, the father of the husband.  The Registrar ordered the release of all those documents and that is not challenged on behalf of the wife, therefore the review is not in respect of subparagraph (4)(v).  Likewise, subparagraph (4)(vi) addressed to Mills Oakley, again that is not relevant for present purposes.

18. Accordingly, I hold that the application of the wife on form 2, filed on 31 July 2008, be dismissed. 

DISCUSSION

1. Having delivered the substantive judgment on the question of subpoenas which I have just done, I now have an application on behalf of both the third parties the subject of the subpoenas and the husband to the proceedings for costs.  In considering the question of costs, I am bound by the provisions of section 117 of the Act to which I now turn.

2. The initial provision is that in proceedings under the Act, each party pays his or her costs of the proceedings.  However, I may make such order as to costs, including costs in respect of a third party, as I deem just.  In considering whether it is just to make such an order, I must have regard to the various matters in subsection (2A) of the section.

3. I must in the first instance deal with questions of the financial position of each of the parties and the question of whether there is any legal aid involved.  There is no legal aid in these proceedings.  The wife shows an income of approximately $3800 per week in her financial statement.  In addition to that, the wife has been wholly unsuccessful in this application and the application has been brought by third parties who are, as the authorities say, in a particular position with regard to costs over and above the position of the parties.

4. In the circumstances, it is appropriate that the wife pay the costs of both the husband and of the third parties.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  May 2009