Armet v CFC Consolidated Pty Ltd (No 4) - [2023] FedCFamC2G 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325

File number(s): PEG 52 of 2021

Judgment of: JUDGE LUCEV

Date of judgment: 28 April 2023

Catchwords:
EVIDENCE – practice and procedure – objections to affidavit material – power to rule on objections – international treaties, conventions and recommendations

PRACTICE AND PROCEDURE – Evidence – objections to affidavit material – power to rule on objections

Legislation:
Evidence Act 1995 (Cth) ss 56, 59, 76, 84, 85, 89, 91, 97, 98, 114, 115, 134

Family Law Act 1975 (Cth) s 60B

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 15.16

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 217

Cases cited:
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; (2011) 85 ALJR 694; (2011) 9 DDCR 25

Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Others [2004] HCA 52; (2004) 219 CLR 165; (2004) 79 ALJR 129; (2004) 1 BFRA 280

Articles: CL Montz, Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials, 29 Pepp L Rev Iss 2 (2002)

Division: Division 2 General Federal Law

Number of paragraphs: 14

Date of hearing: 17, 20 and 21 February 2023

Place: Perth

Applicant: In person

Counsel for the Respondent: Mr R French

Solicitor for the Respondent: Barry Nilsson Lawyers
REASONS FOR JUDGMENT
JUDGE LUCEV

During almost the first day and a half of the hearing of this matter the Court dealt with the numerous objections by the respondent, CFC Consolidated Pty Ltd (“CFC”) to the voluminous affidavit material filed by the applicant, Stephane Armet (“Mr Armet”).
OBJECTIONS – REASONS
Objections to evidence do not ordinarily require written or detailed reasons to be given, although whether they are given may depend on the importance of the point involved and its likely effect on the outcome of the case: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh JA (“many questions concerning the admissibility of evidence may require nothing more than a ruling”); Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 at [33] per Meagher JA (“not necessary nor practicable that every ruling about the admissibility of evidence be accompanied by reasons”).
Where an objection to admissibility is made it should be ruled upon as soon as possible, and certainly before the party who tenders the disputed evidence closes it case: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; (2011) 85 ALJR 694; (2011) 9 DDCR 25 at [19] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In this case, the Court indicated at hearing that it may prepare a schedule of objections and their outcome: Transcript Day…

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: [2023] FedCFamC2G 325
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a matter between Stephane Armet, the applicant, and CFC Consolidated Pty Ltd, the respondent, concerning numerous objections to affidavit material filed by Mr Armet. The Court ultimately struck out a considerable volume of Mr Armet's affidavit material, including three entire affidavits. The Court indicated that it would prepare a schedule of objections and their outcomes. The Schedule sets out the relevant affidavit, the material objected to, the basis of the objection, and the outcome of the objection. The Court upheld objections to the material on the basis that it was irrelevant, hearsay, argumentative, or unqualified opinion, and thus fell within r 15.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Court held that the purpose of objections is to prevent the introduction or consideration of inadmissible information, and that the uncritical reception of inadmissible evidence is to be strongly discouraged. The Court also held that international treaties, conventions and recommendations should be cited from the Australian Treaty Series or Australian Treaties Library, or from an appropriate source if they are from elsewhere.

Orders