Benedict & Peake
[2013] FCCA 332
•23 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENEDICT & PEAKE | [2013] FCCA 332 |
| Catchwords: FAMILY LAW – Practice and procedure – Elias principle – admissibility of evidence – whether evidence of the Applicant that is contrary to her prior assertions to Centrelink and the Australian Taxation Office should be excluded – evidence admitted. |
| Legislation: Evidence Act 1995 (Cth), ss.135, 136, 140 |
| Elias and Elias (1997) FLC 90-267 Tinker v Tinker (1970) 2 WLR 331 Gascoigne v Gascoigne (1918) 1 KB 223 Jordan & Jordan (1997) FLC 92-736 Crandall & Crandall [2009] FamCAFC 120 H v H [2002] FMCAfam 381 Gissing & Sheffield [2012] FMCAfam 1111 Dandridge & Barron [2012] FMCA fam 141 Christofis & Zorbas [2011] FMCAfam 571 Cestaro (23 December 1994, unreported, cited in Jordan) Dawes (1990) FLC 92-108 Jools and McConnell (unreported, S7891 of 1985, Ellis J, 14 December 1990) Rice v Asplund (1979) FCL 90-725 Briginshaw v Briginshaw (1938) 60 CLR 336 Brady & Harris [2012] FamCA 420 Trustee of the property of Sandor (Bankrupt) v Ramirez S147/1999 [2000] HCA TRANS 114 (17 March 2000) O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257 Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 |
| Applicant: | MS BENEDICT |
| Respondent: | MR PEAKE |
| File Number: | PAC 736 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 2 May 2013 |
| Date of Last Submission: | 2 May 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 23 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Autore & Associates |
| Counsel for the Respondent: | Mr Frakes |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
I decline to exclude, on the basis of “Elias principle” (as asserted), the evidence of the Applicant.
I decline to restrain the Applicant from leading or presenting evidence contrary to or at variance with evidence she has previously submitted, by way of declaration or otherwise, to Centrelink and/ or the Australian Taxation Office.
I confirm the further hearing dates for these proceedings to continue with and determine the Application for declaration pursuant to section 90RD and namely 17 and 18 June 2013.
IT IS NOTED that publication of this judgment under the pseudonym Benedict & Peake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 736 of 2011
| MS BENEDICT |
Applicant
And
| MR PEAKE |
Respondent
REASONS FOR JUDGMENT
These proceedings are commenced by an Application filed on 21 February 2011 by Ms Benedict, hereinafter referred to as the Applicant.
On 25 July 2011 a Response was filed by the Respondent, Mr Peake.
The Application of Ms Benedict seeks a declaration, pursuant to Section 90RD, as to the existence of a de facto relationship commencing September 1992 and concluding 18 February 2010. Consequential orders for property adjustment pursuant to Section 90SM are then sought with respect to certain property held by the parties or either of them.
By his Response filed 25 July 2011, Mr Peake sought orders and/or declarations in the alternative that:
a)A de facto relationship never existed; or
b)That a de facto relationship had existed but had ceased in 2006 and proceedings are thus out of time.[1]
[1] Section 44(5).
As will be apparent from the above, these proceedings have been before the Court for in excess of two years. The matter is yet to reach any finality and, subject to this determination, will either conclude (due to want of jurisdiction or, more correctly as is conceded by
Ms Benedict’s Counsel, absence of evidence that would establish jurisdiction) or will proceed to further hearing in two stages, being:
a)Conclusion of a two day hearing to determine whether a declaration is to be made pursuant to section 90RD (both to determine the existence of a de facto relationship, and, if a relationship is found to have existed, its duration and conclusion) and, subject to declarations being made;
b)The determination of the substantive proceedings (at adjourned dates).
The proceedings were initially listed for hearing on 27 January 2012 but did not proceed (and for reasons which are not entirely clear). The matter was then adjourned for further hearing to 13 and 14 December 2012. The hearing on those dates also did not proceed and the matter was then listed for hearing on 2 and 3 May 2013.
When the matter was called on 2 May 2013 for the first day of hearing a number of objections were raised with respect to the Applicant’s material. Principal amongst these were objections, which had been set out in correspondence from the Respondent’s attorneys to the Applicant’s attorneys, was an objection to material which had been filed late.
When the matter was not reached on 13 December 2012 a direction was made that both parties file and serve further any additional material “by no later than close of business on 1 February 2013”.
Objection was initially taken to the admission of the two additional Affidavits filed by the Applicant (professing to be consolidated Affidavits replacing Affidavits previously filed and relied upon but which are conceded to have added to the Applicant’s case), being a substantial Affidavit (some 56 pages and several hundreds of pages of annexures in two ring binders) filed and/or served 28 February 2013 together with a further Affidavit filed 7 March 2013. As indicated the objection was initially put on the basis of late filing.
Whilst those issues were being explored in submissions by Counsel for each of the parties, an additional issue arose with respect to the evidence relied upon by the applicant. At that point a written submission was filed in Court, on the Respondent’s behalf, being a submission of some four pages, which sought to agitate the exclusion of substantial portions of the Applicant’s evidence by reference to the “Elias principle”.
As a consequence of the above, the first day of allocated trial was devoted entirely to submissions with respect to that issue. Judgement was reserved, and is now delivered herein.
The Elias Principle
The issue listed for trial before the Court on 2 and 3 May 2013 relates solely to an Application for a declaration about the existence (or non-existence) of a de facto relationship sufficient to enliven the Court’s jurisdiction and provide foundation for the Applicant’s claim (section 90RD).
As a consequence of disclosure undertaken between the parties a significant volume of documents have been disclosed and produced by the Applicant to the Respondent in the nature of income tax returns, assessment notices, and applications to, and correspondence from, Centrelink. Those documents are tendered (by the Respondent) in their entirety and are marked Exhibits “R1” and “R2”.
The Centrelink documents, the subject of the above tender, represent periods commencing as early as July 1995 and concluding as late as February 2012.
The material produced with respect to the Australian Taxation Office comprises material from the 1995 tax year through to the 2010 tax year (being the years ending 30 June in each year respectively).
In each of the tendered and exhibited documents the Applicant has asserted or held out (or perhaps more correctly declared) that she is single and specifically:
a)In the case of the Centrelink documents Ms Benedict asserts that she is single and not in a relationship; and
b)As regards income tax returns Ms Benedict has not sought to claim any benefit on the basis of being in a relationship and states that she is “single”.
The written submission of the Respondent asserts, in essence, that as a consequence of and in reliance upon the “Elias principle” that all evidence of the Applicant which seeks to assert a proposition contrary to that asserted and held out by her to Centrelink and the Australian Taxation Office, ought be rejected and found inadmissible.
Significant reliance is placed by the Respondent upon the original decision of Goldstein J (as he then was) in Elias and Elias (1997) FLC 90-267, together with cases preceding and proceeding same including:
a)Tinker v Tinker (1970) 2 WLR 331;
b)Gascoigne v Gascoigne (1918) 1 KB 223;
c)Jordan & Jordan (1997) FLC 92-736;
d)Crandall & Crandall [2009] FamCAFC 120;
e)H v H [2002] FMCAfam 381;
f)Gissing & Sheffield [2012] FMCAfam 1111;
g)Dandridge & Barron [2012] FMCA fam 141;
h)Christofis & Zorbas [2011] FMCAfam 571;
i)Cestaro (23 December 1994, unreported, cited in Jordan);
j)Dawes (1990) FLC 92-108.
Each of the submissions put by the Respondent asserts that the “Elias principle”, as a rule of law, would have the effect of excluding evidence by the Applicant that is contrary to her prior assertions to Centrelink and the Australian Taxation Office.
The Respondent concedes, throughout his submissions, that the principle is not mandatory, is subject to exceptions, and that the Court can exercise individual discretion, having regard to particular circumstances of any case.
Principally it is submitted that the “Elias principle” is “a rule about admissibility, not credibility, and as explained in Dawes and other cases has a firm basis in public policy”.
It is further submitted that:
…its application in the context of s.4AA ought to be that it operates as a rule that such evidence will be deemed inadmissible unless there are compelling reasons of justice and equity to decide otherwise. This reflects its strong expression in Dawes and its explanation in Cestaro as a rule of public policy.
It is sought to assert that the principle or rule would have stronger expression with regards to declaration proceedings pursuant to section 90RD (based upon the definition of such relationships in section 4AA), on the following basis:
… the context in s.4AA is different from s.79 where a broad range of factors need to be considered in the exercise of discretion to alter property interests. In the context of a s.4AA determination, the Court is being called upon to decide whether a de facto relationship exists, and this is a decision about a fact (based upon examination of a range of circumstances). A person who repeatedly makes a declaration of fact to the relevant authorities for financial gain ought not to be able to assert to a court that it should find the facts to be different than he or she has repeatedly claimed them to be. A formulation of the rule in those clear terms is consistent with broader principles of the general law that people should not profit from their own wrongs, or should come to equity with clean hands.
In conclusion it is submitted that the facts and circumstance of this case fall squarely within the “Elias principle” and that this should, thus, result in the Applicant’s evidence, as contained in her Affidavit material (and which is contrary to prior assertions and declarations made to the Authorities (Centrelink and the Australian Taxation Office)), being excluded and with the additional prayer that the Applicant:
…should not be permitted to adduce evidence which contradicts her repeated statements, for financial advantage, to the authorities in these circumstances.
Significant reference is made in the Respondent’s case (and in each of the cases subsequent thereto) to the decision of his Honour Justice Chisholm in Jordan & Jordan. This is explicable noting the comprehensive and erudite examination by his Honour of the development of the principle to that time. Indeed it is observed that the Full Court had adopted his Honour’s discussion of the principle with some approval in Crandell referring to his Honour’s “scholarly dissertation”. I do not cavil with that description of his Honour’s discussion.
The Respondent asserts (and it is accepted by me) that the “Elias principle”, with respect to the admissibility of evidence, represents a rule of law rather than a rule or presumption relating to evidence or credit. However, as it is a rule of law, it is subject to exception, application to specific facts and circumstances and, over all, equity and the overall interests of justice.
Considering the basis for the rule his Honour Justice Chisholm explored the possible bases for the principle arising from the Family Law Act 1975. It is of some assistance to consider each of the three factors identified by his Honour as potentially forming the basis for same:
There seem three possible ways in which the Elias principle could be derived from the Family Law Act. The first is the reference in s. 79(2) to making orders that are "just and equitable". The second is the well established principle that parties must make full and complete disclosure of their financial affairs. The third is s 75(2)(o), providing that the court should have regard to any other matters that the justice of the case requires.
Whichever of these provisions, or combination of them, is seen as providing the basis for the rule, it seems to me that the rule involves an element of discretion. There seems no legislative justification for an absolute exclusionary rule. Similarly, if the rule is sought to be derived from the principle that people should not profit from their own wrongs, or should come to equity with clean hands, then it would appear that rather than there being a rigid rule the court would have some obligation to consider the question whether applying the rule in the circumstances of the case would be just and equitable. Admittedly, in cases falling squarely within the Elias principle, as stated in particular in Dawes, the authorities appear to lay down a firm rule [being a sentence quoted in the Respondent’s submission]. However in cases such as the present, which falls outside those authoritative formulations, in my view it would be wrong to conclude that there is an inflexible rule as contended for by the husband.
There is authority for the view that there is some flexibility in the matter…
His Honour then provided a summary of his conclusions. Germanely, his Honour concluded, in considering whether to apply the “Elias principle” in the case before him:
The facts of the present case are very different from those in Elias and similar cases. To apply the Elias principle to the present case would involve the creation of the principle formulated above [being one expressly rejected by his Honour, namely there is a rule of family law that when people make representations of fact to third parties and gain advantage from doing so, that they cannot in subsequent proceedings under s.79 of the Family Law Act, lead evidence which contradicts those representations], and such a principle would involve a radical development of the law. The question whether this extension should be made is difficult. On one hand, the statements of principle in Elias and other authorities do not provide any obvious basis on which to distinguish the present case. On the other hand, the extension of the principle in the way suggested by the husband would take the principle even further from any recognisable principle of estoppel; would have no firm foundation in the Family Law Act; and would be capable of producing injustice. Further, there is authority, in Jools[2], for a more flexible approach.
[2] Jools and McConnell (unreported, S7891 of 1985, Ellis J, 14 December 1990).
His Honour ultimately concluded (by reference to the facts before him) that:
Having regard to these matters, in my view the highest that the husband's case can be put is that it is open to me to reject the evidence as to the higher value of the property, having regard to the implicit representation of the lower value in the transfer between the wife and the father. Thus I accept the written submission advanced by Mr Stewart, junior counsel for the wife, that the Elias principle ‘is a principle which a trial judge may use in circumstances where A and B are married, where B has made representations to C which B now seeks relief from in circumstances where B does not have clean hands’.
In declining to apply the principle or rule of law his Honour specified that such action was taken on bases that:
a)There was no reliance by the Husband on the representation;
b)There was, at best, a single representation;
c)The penalty to the wife in preventing her from leading the evidence might well be disproportionate to the advantage she gained from the prior inconsistent representations;
d)The evidence did not satisfy his Honour that the wife was sufficiently aware of facts such as to satisfy his Honour that she had made a knowingly false declaration; and
e)If some breach of revenue law had occurred, appropriate action could have been taken by the authorities to seek to recover the funds.
The issue dealt with by his Honour was one of fact, that is, the value of a particular property at a point in time. The question I am called upon to ultimately adduce, (on the basis of such evidence as is before the Court), is one of fact – albeit a more complex issue than the value of a single property at a single point in time.
In the circumstances of this case I am similarly satisfied that the “Elias principle”, thus described in the Respondent’s submission, does not exclude the Applicant’s evidence or preclude the Applicant from leading evidence contrary to statements made by her in documents submitted to Centrelink and the Australian Taxation Office.
In expressing this view I have considered and am satisfied that:
a)I must take the Applicant’s case (untested as it is) at its highest (by reference to and analogous to the approach to be adopted in Rice v Asplund (1979) FCL 90-725 and authorities reaffirming that principle since the 2006 amendments);
b)The Applicant’s case, taken at its highest, is that she has, with the full knowledge of the Respondent, made statements to Centrelink and the Australian Taxation Office (and more germanely Centrelink) which are false;
c)Taken at its highest, the Applicant’s evidence would potentially, subject to the exclusion of evidence as argued, establish the existence of a de facto relationship of some 17 years duration;
d)To the extent that it might be asserted that the Applicant has previously made a “representation of fact to third parties” from which she has gained advantage, it would appear, (again taking the Applicant’s case at its highest), that she is not the only one who has so gained advantage. The Applicant’s case (taken at its highest) is that the Respondent has been aware of representations made to those agencies and aware that they are false and such that the parties were, for some or all of the periods for which the representation was false, in a relationship together, and thus both parties have gained inappropriate financial advantage from the representation and not only one;
e)I am not satisfied that there is any distinction to be drawn as to the weight to be attached to the principle or to the force with which it might be asserted on the basis that these proceedings relate to a declaration pursuant to section 90RD and proceedings under Part VIIIAB, rather than proceedings under Part VIII. In this regard:
i)“A broad range of factors” needs to be considered in the exercise of discretion in both PartVIII and Part VIIIAB proceedings;
ii)Findings of fact are inherent in the exercise of discretion in both applications under each Part of the Act;
iii)The finding of fact/facts that is called for by an application for a declaration pursuant to section 90RD is no broader nor more limited than the findings of fact that would be required in determining Part VIII proceedings (with the solitary distinction that Part VIII jurisdiction is founded in marriage and, thus, the proof of that fact can be corroborated through external, independent documentation in the form of a marriage certificate);
iv)Ultimately a fact is a fact and a finding of fact is a finding of fact. I am not satisfied that a Briggenshaw[3] like approach can or should be taken so as to differentiate between findings of fact or applications of rules (whether of law or evidence) in different contexts or for different purposes. Certainly there is nothing in the authorities to which I have been referred to support such a differentiation and it is not my role and nor am I prepared to affect such an extension;
f)I am not satisfied (as indeed his Honour Justice Chisholm was not) that the principle can be formulated as asserted or as highly as is asserted in the Respondent’s case;
g)Whilst accepting that the “Elias principle” may well represent a rule of law to be applied within and specific to the operation of proceedings under the Family Law Act 1975, it must, as with all rules of law, be applied with discretion to the facts and circumstance of each individual case;
h)The Court must be particularly conscious to ensure that both the determination and the process of arriving at the determination is, and is perceived as, “just and equitable”. To apply the rule arbitrarily would be to equate law to justice and to treat them as equal and synonymous or one and the same. They are not. The law is a means by which justice is attained or sought to be attained not justice itself.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336. See now s.140 of the Evidence Act 1995 (Cth).
Whilst there is much force (both in the Respondent’s case and through prior authorities) in reliance upon the equitable principle that “those whom come to equity must come with clean hands” in support of the rule, one must also be conscious of the general principle that “justice must not only be done but must be seen to be done”.
It is conceded in all the authorities, and particularly emphasised in the decision of Justice Chisholm in Jordan, that the principle or rule of law is not founded in and does not equate to the expression of a form of estoppel. If the principle or rule were to be applied arbitrarily and so as to exclude evidence in each case in which a false representation (or series of false representations) were found, then the rule would, in the absence of discretionary application by reference to the facts and circumstance of each case and the justice and equity of each case, be elevated to or, as his Honour observed in Jordan, beyond, estoppel.
By reference to the Applicant’s assertion that her statements to relevant government agencies were made with the knowledge if not encouragement and support or assistance of the Respondent (perhaps stopping short of a circumstance that could fairly be described as a common purpose) I am not satisfied that I should express or apply the rule as I am urged to in the Respondent’s submissions, namely:
A person who repeatedly makes a declaration of fact to the relevant authorities for financial gain ought not to be able to assert to a court that it should find the facts to be different than he or she has repeatedly claimed them to be. A formulation of the rule in those clear terms is consistent with broader principles of the general law that people should not profit from their own wrongs, or should come to equity with clean hands.
Without intending to accept or suggest acceptance of collusion or “common purpose”, what is asserted by the Applicant in her evidence is that she and the Respondent gained financial advantage and knowingly so from the previous assertions by the Applicant.
In circumstances whereby the Applicant suggests knowledge of the statements at the time they are being made and were by the parties jointly (again taking the Applicants evidence at its highest for present purposes) the exclusion of that evidence would have far greater potential for injustice, inequity and offence of public policy than its admission.
To allow the admission of the evidence does not then preclude the testing of the Applicant’s evidence and her credibility, and if her assertions (especially as to knowledge of her actions, assistance in them and ultimately financial gain for the parties (plural) jointly and severally) are found wanting, rejection of that evidence and adverse determination of the judiciable controversy including with appropriate orders for costs.
In that regard I make clear that I do not accept and have not considered the Applicant’s evidence other than at its highest, in its untested form, and conscious of the Respondent’s denial of same. I have not accepted the Applicant’s evidence for the purpose of arriving at findings but merely to establish the issues at large and to determine whether that material will come before the Court. The Respondent shall have a full and proper opportunity to challenge and test that evidence.
If in circumstances such as these, wherein knowledge of the prior false statement (if not, at least as alleged in one instance, active assistance and, in another instance, encouragement) is alleged together with joint financial benefit derived there from, I accept that the potential for grave injustice, indeed, potentially, “the strong crushing the weak” (as submitted by Counsel for the Applicant) arises and outweighs the considerations referred to in the authorities relied upon by the Respondent.
The Applicant asserts that both parties have gained financial benefit from a statement made by the Applicant but with the knowledge of and at least acquiescence by the Respondent. The Applicant has disclosed the statements and has produced the documents in which such statements or declarations are made.
Those circumstances, and especially the frank disclosures of the Applicant and the assertions and allegations by her that each party has had knowledge of the statements and has each benefited from the statements (at least to the extent of income thus derived) both:
a)Place the matter within exceptions to the rule as discussed above; and
b)Distinguish the facts of this case from the earlier authorities[4].
[4] Those cases dealing with assertions as to legal ownership, intent of transactions, value and the like. In none of the authorities to which I have been referred is mutual knowledge and/or mutual benefit suggested.
Whilst it does not arise in this case, the natural extension of that alleged by the Applicant in this case might be a suggestion of threat or coercion by one party to the other to cause or compel them to claim or to continue to claim benefits for which there is no lawful entitlement and, in such circumstances, I cannot accept that their Honours as quoted in the authorities relied upon by the Respondent would have intended the exclusion of such evidence nor countenance the exclusion of evidence or prejudice to the maker of such statements.
The Applicant has also referred me to a number of authorities and specifically to a decision of deputy Chief Justice Faulks in Brady & Harris [2012] FamCA 420.
In that case his Honour was called upon to deal with an issue relating to the admission of evidence in circumstances whereby false declarations to Centrelink (potentially contrary to evidence in the proceedings) were identified. At paragraphs 76 to 83 inclusive his Honour discussed that issue. However, his Honour would not appear to have been directed to, nor given any consideration to, Elias or the body of case law following and applying same.
His Honour would appear to have accepted and admitted the evidence and to have expressed (at paragraph 83) “I am not prepared to make a general finding of credit against the applicant based on his false declarations to Centrelink”.
It is clear from that passage (if not the totality of the portion of the Judgement dealing with the issue) that his Honour did not give any specific consideration to the existence nor formulation of the principle or rule. Thus, the Authority has been of little assistance to me, other than as an instance whereby a learned and senior jurist within the jurisdiction has, whether specifically directed to the issue by Counsel or otherwise, not applied the principle.
The Applicant has also referred me to a decision of the Supreme Court of NSW and Court of Appeal thereafter, together with a rejection to the application for special leave to appear to the High Court in the Trustee of the property of Sandor (Bankrupt) v Ramirez S147/1999 [2000] HCA TRANS 114 (17 March 2000). In that case and in a somewhat oblique reference to a discussion of the “Elias principle” his Honour Justice Kirby opined:
…Essentially it seems to be a bit of an obstacle to the court's duty to get at the truth if, in fact, there has been a false statement. Why should there be some estoppel or any principle that prevents the particular court with a duty to hear, then determine the case, getting at the truth of the case?
Whilst the above portion of his Honour’s dicta is relied upon by the Applicant, the discourse between his Honour Justice Kirby and Counsel for the Trustee (Mr Broun) continues in the following term:
Mr Broun: Your Honour, I suppose it comes back to the question of why does a court go in to assist or to even entertain an application for somebody's benefit when that witness was perfectly prepared to lie and to cause other people to lie, even to statutorily declare lies in the past for their advantage.
Kirby J: But there may be reasons of experience in the Family Court that have led to the formulation of this rule. We are not asked to pass on that now but in so far as you are seeking to import it as a general principle of evidentiary estoppel applicable to bankruptcy, I must say I am doubtful of it.
Mr Broun had previously submitted to his Honour (and CJ Gleeson), by reference to the “Elias principle” as follows:
… this is a case where there is an opportunity to look at, in a general context, a principle which is developed in the other jurisdiction which constantly has this problem of things being told to a taxation authority, a revenue authority, a bank, a lender on the one hand, and then in court years later an entirely different story is told.
It occurs basically in two areas, in insolvency law and practice and in family law, and the Family Court has developed a series of principles about it derived from a case called Elias where they have effectively said, with certainly a vast number of qualifications, that if somebody swears one thing one time or represents a fact to a taxation authority, stamp duties or a bank on one hand, then there has to be a pretty sound reason for letting him say something else to another court.
Now, this is a sort of evidentiary estoppel question but it is something that has occurred so often and has been the subject of such comment in so many judges in cases that it seems to have developed into a sort of principle. Now, your Honours, if that one that occurs so often in family law is transferred into bankruptcy law - - -
GLEESON CJ: What exactly is the principle?
MR BROUN: I have tried to set it out in our summary of argument that if a witness has advanced, for his own advantage, to a revenue authority or other authority, typically banks and taxation office are the usual two, then he cannot be heard later to say that was all false and the facts are otherwise.
Taking the discourse between their Honours, Gleeson CJ and Kirby J, and Mr Broun at its highest:
a)Their Honours did not appear to have a clear or precise delineation of the principle or rule of law before them;
b)To the extent that a discussion of the principle occurred, it was prefaced upon an erroneous reference to its basis being found in equitable estoppel (which clearly is not consistent with the authorities submitted by the Applicant and which I accept);
c)The highest any discussion of the principle of the High Court reaches is Kirby J’s “Wonder” as to whether such a position could be maintained.
It is also germane to note that his Honour Justice Kirby makes clear that he is not called upon to, and thus does not comment upon, the application of the principle in Family Law. Further, and perhaps more germanely, his Honour (or their Honours) were not called upon to comment upon the issue in the specific context of the case (being bankruptcy).
Having regard to the above I do not accept that the High Court could be, by the passage quoted or the transcript of the Judgement, taken in its totality, to expressly disavow the “Elias principle” as either a relevant principle or rule of law.
I do, however, adopt his Honour Justice Kirby’s statement that:
Why should there be some estoppel or any principle that prevents the particular court with a duty to hear, then determine the case, getting at the truth of the case?
In submissions in reply the Respondent has taken me to a number of authorities discussing common law and equitable estoppels, election and waiver and the Scottish principals of approbation and reprobation. I am satisfied that the application of those authorities is outside of the “Elias principle” to which I am directed by the Respondent’s Counsel, of little if any application to the circumstances before me and does not dissuade me from the view expressed above.
To the extent that the fundamental principles suggested to arise from the authorities quoted by the Respondent’s Counsel is encapsulated in the passage “[s]ince the days of the Year Books it has been recognised that you cannot have the egg and the halfpenny too”[5] I note that:
a)The statements and declarations made by the Applicant, if made with the knowledge, encouragement, assistance and/or acquiescence of the Respondent makes the Respondent at least complicit if not partly culpable for the statement[6];
b)The existence of sole parents benefits and the circumstances surrounding their receipt, including financial benefit to the person lodging a false claim and, if found to be so, their partner, were not and could not have been contemplated by such decisions. Indeed, the very nature of such “welfare fraud” (if the Applicant’s case is taken at its highest for present purposes) obviates against the maker of the statement being the sole deriver of benefit.
[5] Jordan CK in O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257 and as quoted by Gummow, Hayne and Keifel JJ in Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [58].
[6] Again taking the Applicant’s case at its highest, the Respondent has had the opportunity to report any suggested false statement to Centrelink including, specifically, when he was contacted by that Agency. Further, the Applicant suggests that the Respondent has been aware of the claims made by the Applicant and statements made to Centrelink by the Applicant and has encouraged and assisted her to do so (for example, by producing a false “rent receipt”) and, importantly, is suggested to have received the direct benefit of the funds received whether as joint household income or otherwise.
The Applicant’s evidence, taken at its highest, asserts that the Respondent had knowledge or some knowledge at different times of the Applicant’s claims to receive and her actual receipt of Centrelink benefits. Counsel for the Applicant has taken the Court to specific portions of the Applicant’s Affidavit (being that filed 26 February 2013) which directly suggests or infers such knowledge[7]. Whilst those portions of the evidence are far from determinative of the issue (both as to the Respondent’s knowledge and complicity in statements made by the Applicant to Centrelink whether before or after the event) they are not inconsistent with that asserted by the Applicant as evidencing the existence of the relationship.
[7] At paragraphs 19(v), 44, 58, 60, 93 and 192 to 198 (inclusive).
The most compelling portion of the evidence (supported by Annexure MBBD1 at page 320 of the Applicant’s Affidavit) relates to this suggested direct knowledge, acquiescence and complicity in a false claim of Centrelink benefits by the Applicant whilst the Applicant and Respondent were alleged (by the Applicant) to be living together. The evidence comprises the provision of a rental receipt by the Respondent (or a company controlled by him) to the Applicant with respect to accommodation in which they both resided and were, in fact, each registered proprieties.
The Respondent’s evidence does not address that issue nor provide any contrary suggestion as to how the receipt came into existence, nor can one be inferred.
Whilst it is suggested that Chisholm J had posited a particular formulation of the “Elias principle” (at 83, 925), I am not satisfied that it was his Honour’s intention to adopt the formulation set out by him at that point.[8] Instead his Honour immediately posed the question “Does this principle represent the law?” and observed the formulation suggested was much wider then the equitable doctrine of estoppel and that a formulation in those terms, with its wide application, “would be a remarkable result, and one not obviously conducive to producing justice and equity”.
[8] “There is a rule of family law that when people make representations of fact to third parties and gain advantage from so doing, they cannot in subsequent proceedings under s 79 of the Family Law Act lead evidence which contradicts those representations”.
The parties clearly will be engaged in judiciable controversy, whether under the Family Law Act 1975 or otherwise. In this regard the basis of jurisdiction by reference to section 90RD is not restricted to the existence of a relationship of any particular duration (that is, two years) but also includes grounds (which may be relied upon exclusive of other grounds) such as “there is a child of the de facto relationship” or where “one of the parties to the de facto relationship made substantial contributions”.
On the above basis there is a clear distinction between a declaration as to the existence of a de facto relationship for a particular period, such as to warrant jurisdiction on that ground alone, and other circumstances. However, all bases alleged to attract jurisdiction must find their basis within the definition of a de facto relationship within section 4AA. All of those are factual matters which might be impacted by evidence as to intention (by one or both parties, and thus whether a singular or common intent) and other matters as referred to in section 4AA.
The codification of rules of evidence contained within the Evidence Act 1995 (Cth) would not appear to provide support for exclusion of the evidence of the Applicant. Whilst the provisions of the Evidence Act are separate and distinct from the rule of law suggested to arise from Elias (and other cases) it is relevant to note that, whilst they provide general grounds to refuse to admit evidence or limit evidence, those provisions would not have application or find favour for the exclusion of the Applicant’s evidence in these circumstances.[9]
[9] See sections 135 and 136 of the Evidence Act.
I am not satisfied that anything by my brothers O’Sullivan, McGuire, and Roberts, in their decisions referred to, is contrary with the findings made by me that (whether accepted as a principle, rule of law or otherwise) the rule is flexible and would permit, by reference to justice and equity, the admission of evidence in appropriate circumstances of which I am satisfied this is one.
This is particularly so as, if again taken at its highest, the Applicant’s evidence would suggest (subject to its proper testing in due course) that both the Applicant and Respondent were fully aware that statements made to Centrelink were contrary with asserted reality (at least from the Applicant’s perspective) and that each acted or failed to act, aware of and content to and with the affect of receiving financial advantage (potentially to which they were clearly not entitled if, in due course, the Applicant’s evidence is accepted).
Summary
Overall I am satisfied that the interests of justice (and the perception of justice being done) would obviate against the exclusion of the Applicant’s evidence by reference to the above considerations.
I am satisfied that the Respondent can properly and fully test the Applicant’s evidence, both as to its accuracy and veracity, and present his case contrary to the Applicant’s evidence, and allow a determination of fact by the tribunal of fact, that is, the Court.
To the extent that a fraud may well be suggested to have been perpetrated upon the Australian Taxation Office and/or Centrelink by the Applicant, again:
a)The Applicant asserts that she has made or is in the process of making recompense through disclosure of “true circumstances” to those agencies;
b)The Applicant has been warned, through her Counsel, of the Court’s ability to, and probability that the Court will, make a referral of the papers upon the conclusion of all evidence in proceedings (and irrespective of the outcome of same) to enable consideration to be given to such action by those agencies as they believe warranted;
c)Taken at its highest, the Applicant asserts knowledge by the Respondent (which is yet to be tested and is thus not accepted other than for the purpose of this consideration) of dealings with the above agencies and asserts, further, some coercion and coopting by the Respondent (albeit a majority of such evidence being inferential rather than direct) which obviates against, as a matter of equity, exclusion of the evidence;
d)To the extent that it is asserted that the rule or principle would apply more vigorously in the context of these proceedings, being a section 90RD declaration (erroneously referred to in the submission as a section 4AA determination), I am not satisfied that there is substance to that position. Findings of fact are inherent in all proceedings whether under Part VIII or Part VIIIAB and whether addressed to the existence of a relationship, findings of contribution, future need or otherwise.
If one accepts the Applicant’s evidence, on face value for present circumstances, then both parties have potentially derived financial advantage from any representation asserted now to be false. Thus I am satisfied it would represent a departure or exemption from the application of any general principle, no matter how wide same might be asserted to be, to exclude that evidence.
No basis is identified for the exclusion of that evidence by reference to the Evidence Act.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 23 May 2013
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