Zova & Elliott and Anor - [2008] FamCA 166

FAMILY COURT OF AUSTRALIA

ZOVA & ELLIOTT AND ANOR

[2008] FamCA 166

FAMILY LAW – PRACTICE & PROCEDURE – SUBPOENA - WITNESS EXPENSES – Claim by legal practitioner for witness expenses – Claim for “substantial loss or expense” – Claim assessed

FAMILY LAW – PRACTICE & PROCEDURE – SUBPOENA – WITNESS EXPENSES – Unusual circumstances where subpoena issued by wife’s solicitors but served by husband’s solicitors pursuant to Court order – Question whether issuing party or serving party or both or neither should pay the witness’s substantial loss and expense – Exercise of discretion – Determination that the issuing party should be responsible to reimburse the witness his substantial loss and expense

Family Law Rules 2004 r 15.23(3), r 15.26, r 15.36, r 15.14(2) and (3)

G & D [2005] FamCA 1429
Wheeler v Philip Morris (1989) 97 ALR 282

APPLICANT:

Mr Zova

FIRST RESPONDENT:

Ms Elliott

SECOND RESPONDENT:

Mr Elliott

FILE NUMBER:

BRF

747

2005

DATE DELIVERED:

14 March 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

7 and 12 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Westbrook of Counsel

SOLICITOR FOR THE APPLICANT:

Simonidis Shoebridge

THE RESPONDENT WIFE:

In person

SOLICITOR FOR THE RESPONDENT

HUSBAND:

Mr Foster, Hemming & Hart

Orders

In relation to the orders made by Registrar Gassner on 19 April 2007:
(a)in order 2 the words “at the expense of the Applicant” are set aside; and
(b)orders 4 and 7 are set aside.
The wife is to pay to Mr Zova within 60 days $10,255.89 for his substantial loss and expense incurred in complying with the subpoena issued on 30 March 2007 and of his application to set aside the subpoena and to seek the recovery of his substantial loss and expense.
Mr Zova’s alternative applications that the husband pay his substantial loss and expense, or the wife and the husband pay his substantial loss and expense in such proportions as the Court may consider appropriate, are dismissed.
The husband’s application that the wife pay his costs of and related to Mr Zova’s application against the husband is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 747 of 2005

Mr ZOVA

Applicant

Ms ELLIOTT

First Respondent

And

Mr ELLIOTT

Second Respondent

REASONS FOR JUDGMENT

Application

Mr Zova, solicitor, conducts a sole practice. He seeks under Rule 15.23(3) of the Family Law Rules 2004 (the Rules) the reimbursement to him of substantial loss and expense incurred in complying with a subpoena issued to him on 30 March 2007 in s 79 proceedings between the wife and the husband.
His claim is made against the wife, or alternatively the husband, or alternatively both in such proportions as the Court may consider appropriate.
The subpoena, although issued by the wife’s solicitors, unusually was served by the husband’s…

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: [2008] FamCA 166
Decision Date: 14 March 2008

CaseChat Overview and Summary

In the matter of *Zova & Elliott and Anor*, O'Reilly J of the Family Court of Australia considered a dispute concerning the recovery of substantial loss and expense incurred by a witness, Mr Zova, in complying with a subpoena. The subpoena had been issued by the wife's solicitors but served by the husband's solicitors pursuant to a court order. Mr Zova sought reimbursement for his losses, raising the question of which party, if any, should bear this cost.

The central legal issue before the court was the proper exercise of discretion regarding the payment of a witness's substantial loss and expense when a subpoena is issued by one party's legal representatives but served by another's, particularly in circumstances where the witness seeks to recover these costs and potentially set aside the subpoena. The court was required to determine whether the issuing party, the serving party, or both, should be held responsible for reimbursing Mr Zova for the significant financial impact of complying with the court's process.

O'Reilly J reasoned that the responsibility for reimbursing Mr Zova's substantial loss and expense should lie with the party who initiated the process that led to the witness's involvement. Applying this principle, the court determined that the wife, through her solicitors who issued the subpoena, was ultimately responsible for Mr Zova's substantial loss and expense. Consequently, the court ordered that the wife pay Mr Zova $10,255.89 within 60 days for his incurred losses and expenses related to complying with the subpoena and his subsequent applications. The court also set aside certain prior orders and dismissed alternative applications by Mr Zova and the husband concerning the allocation of these costs.

Orders

Orders of the court

In relation to the orders made by Registrar Gassner on 19 April 2007:

(a) in order 2 the words “at the expense of the Applicant” are set aside; and

(b) orders 4 and 7 are set aside.

The wife is to pay to Mr Zova within 60 days $10,255.89 for his substantial loss and expense incurred in complying with the subpoena issued on 30 March 2007 and of his application to set aside the subpoena and to seek the recovery of his substantial loss and expense.

Mr Zova’s alternative applications that the husband pay his substantial loss and expense, or the wife and the husband pay his substantial loss and expense in such proportions as the Court may consider appropriate, are dismissed.

The husband’s application that the wife pay his costs of and related to Mr Zova’s application against the husband is dismissed.

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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