Woley & Humboldt (Costs)

[2008] FamCA 743

FAMILY COURT OF AUSTRALIA

WOLEY & HUMBOLDT (COSTS OF PARTIES) [2008] FamCA 743

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – costs of husband’s objections to wife’s subpoenae as between husband and wife – whether wife was wholly successful in her application for production and inspection of subpoenaed material – where the wife had not enunciated the basis on which the subpoenaed material might be relevant until the hearing – exercise of discretion – wife’s application for costs dismissed.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: MS WOLEY

RESPONDENT: MR HUMBOLDT

FILE NUMBER: MLF 1685 of 2005

DATE DELIVERED: 25 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 25 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St John SC, with Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: Mr B.R. Geddes QC, with Ms K.M. MacMillan

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

Orders

1. The wife's oral application for costs in relation to the issue of subpoenae be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1685 of 2005

MS WOLEY

Applicant

And

MR HUMBOLDT

Respondent

REASONS FOR JUDGMENT

1. On 19 August 2008, this court determined that various subpoenae issued at the behest of the wife, should not be set aside, despite objections from the husband and other third parties.  At that time, senior counsel for the wife sought costs against the husband. Senior counsel for the husband declined to make submissions on that issue until he had had an opportunity to peruse the reasons for judgment which were distributed to the parties the following day, and the matter was listed for mention today for determination of costs as between the husband and wife in relation to the release, production and inspection of the subpoenaed documents.

2. The subpoenae were directed to various medical institutions requiring production of medical records of the husband's mother.  Six subpoenae had been issued at the behest of the wife, but it was conceded that one institution indicated that it had no documents of the kind sort.  Of the remaining five, only one of the institutions, K Private Hospital, objected to the production of documents and was represented at each of the associated hearings.

3. Upon the determination of this issue, an order for production and inspection was made. Although the hospital's objection was not upheld, the hospital sought an order for its costs and I will deal with that issue in a separate judgment.

4. This judgment disposes solely of the issue of costs as between the husband and the wife.  The wife seeks an order for costs on the basis that she was wholly successful, in that the subpoenae were found to have been appropriately issued and there was an order for production and inspection of the documents.  Counsel for the husband primarily submits that the question of costs should be reserved on the basis that at this stage, although the subpoenae have been released, the current relevance will not really be ascertainable until the hearing.

5. I do not intend to reserve the question of costs.  It seems to me that this is a discrete matter that should be dealt with today and I intend to do so. 

6. The court has a wide discretion to order or not order, as the case may be, costs. However, the Family Law Act provides a framework for considering costs orders under section 117(2A).

7. In considering what order should be made under section 117(2A), the Court is required to take into account a number of facts insofar as they are relevant.  Most of them can be disposed of fairly shortly and have no relevance to this particular matter.  

8. First, the financial circumstances of each of the parties to the proceedings.  It is conceded by the wife and I think it is obvious from the subject matter of these proceedings that both of the parties have significant financial resources and the question of their circumstances does not bear upon whether costs should or should not be ordered in this case.  Neither party is in receipt of assistance by way of legal aid.

9. The proceedings were not necessitated by the failure of a party to comply with previous orders, nor was there any allegation in relation to the conduct of the proceedings themselves as described in subsection (c) of section 117(2A).  Neither party had made an offer in writing to the other. 

10. That really leaves the question of whether one or other party has been wholly successful.  That is the narrow issue on which the question of costs falls to be determined.  As I have indicated, the wife's counsel asserts that she has been wholly successful in the proceedings.  That of course, however, is not the end of the matter as the court retains the discretion to order or not order costs in a particular case.

11. It is true, as counsel for the wife says, that it could be said that as a result of my decision, the subpoenae were appropriately filed, but it seems to me that that is not really the point.  The point is really whether objection was appropriately or unreasonably taken.  It has to be remembered that the subpoenae were issued to a third party and not a party to the proceedings, that is, in this case, the husband's mother.  The objection was one of apparent relevance.

12. An affidavit was filed by the wife in support of the release, production and inspection of the subpoenaed documents, but as I said in the reasons for judgment delivered in the substantive matter relating to the subpoenae, that affidavit did not advance the matter because it asserted without any evidentiary basis that the husband controlled various entities.  I found that there was no evidence, at this point of the preparation of the case at least, to support that contention.

13. In the end, the issue of the subpoenae was determined on a very narrow basis, that is, that having regard to the evidence, it might be established, if the husband’s mother suffered from a legal incapacity, that the husband was or would inevitably become, upon her death, the controller of various trusts. That would then be a matter relevant for consideration under section 75(2) of the Act, namely, whether there were financial resources controlled by the husband to which the Court would have regard in making an order that was just and equitable as between the parties.  What happens at the end of the hearing when further evidence has been filed remains to be seen, but the subpoenae question was determined upon a narrow basis of relevance as a potential financial resource.

14. The issue of the relevance of the trusts (assuming legal incapacity was established) as a financial resource was not advanced on behalf of the wife until the matter commenced before me.  Indeed, even then it was suggested that the legal incapacity issue would lead to some more direct inclusion of property the subject of the trusts.  So it was really not until the matter was argued before me that the basis on which I ultimately determined the relevance issue was clearly enunciated.  Having regard to that, in my view, it would not be appropriate to make an order for costs against the husband.

15. The subpoenae, as it turned out, had been appropriately issued and were relevant on a narrow ground, but the ground was not properly identified prior to the hearing and I do not think that the objections that were taken to them were unreasonable and accordingly, I propose to dismiss the application for costs by the wife.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate: 

Date:  28 August 2008