Woley & Humboldt (No. 2)

[2009] FamCA 166

FAMILY COURT OF AUSTRALIA

WOLEY & HUMBOLDT (NO. 2) [2009] FamCA 166

FAMILY LAW – RULING

Family Law Act 1975 (Cth)

APPLICANT: Ms Woley

RESPONDENT: Mr Humboldt

FILE NUMBER: MLF 1685 of 2005

DATE DELIVERED: 6 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 March 2009

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

IT IS NOTED that publication of this ruling under the pseudonym Woley & Humboldt 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

RULING

1. There are two issues in this particular ruling.  The first relates to the question of whether a subpoena has been served and whether or not that makes any difference and the second is the question of the husband's right of standing in relation to an argument about the relevance of the material to be produced.

2. The question of service of a subpoena only becomes relevant in any case when the question of whether or not either appropriate conduct money has been provided or a warrant is sought for the non-attendance of the person subpoenaed.  In this case, the point was not taken yesterday about service.  Some documents appear to have been provided.  Under those circumstances, there is no merit in the argument about the fact that service has not been properly proved.

3. The second issue relates to a more interesting question.  Under the rules and specifically rule 15.26, a named person - in other words, the person who receive the subpoena - or a person having sufficient interest in a subpoena has a right to object.  The rules do not set out the basis upon which an objection can be made.

4. One of the fundamental things that must be contemplated is rule 1 which sets out the main purposes of the rule.  The main purpose of the rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and to the Court that is reasonable in the circumstances of the case.  That has many implications in this case; the rules use of the words "just", "timely", "reasonable" concern both the parties and the court.

5. Rule 107 sets out that achieving the main purpose of the rule enables the court to deal with each case fairly, justly and in a timely manner.  What each party has put to me is that which is diametrically opposite to one another.  What the husband says is it would be a nonsense if a party could not object.  The wife's position is that the husband has absolutely no interest in these documents because they relate to the non-admitted entities in the proceedings.

6. In my view, this is a case where I have to find that the husband has a sufficient interest in the subpoena on the basis that otherwise, there would be a potential for an abuse of process.  The very issue that started this argument was the question of relevance.  If the husband cannot argue the question of relevance, then one wonders why the documents would be subpoenaed in the first place.

7. In those circumstances, my view is that rule 15.26, using the words "a person having sufficient interest in the subpoena" must of itself mean a party to the proceedings.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  11 March 2009