Brown and Murdoch

[2014] FamCA 617

FAMILY COURT OF AUSTRALIA

BROWN & MURDOCH [2014] FamCA 617

FAMILY LAW – PRACTICE AND PROCEDURE – Objections – Ruling

Family Law Act 1975 (Cth)

APPLICANT: Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

RESPONDENT: Ms Murdoch

FILE NUMBER: MLC 9886 of 2010

DATE DELIVERED: 16 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Davis

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Murdoch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9886 of 2010

Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

Applicant

And

Ms Murdoch

Respondent

REASONS FOR JUDGMENT

1. This is a ruling in the middle of the trial in relation to objections to evidence.  I have a list of objections in front of me which has been addressed by both sides.  Paragraph 13 and 46 are objected to on the basis of hearsay.  Both of those statements seem to me to be admissible on the basis that the evidence is the evidence of the deceased which indeed was before the court prior to his death, and therefore the executors are not relying upon those as to the truth of the statement, but to the fact that the statements were made. 

2. Each of those statements can be tested in evidence, and any weight – notwithstanding the absence of the deceased the weight can be argued about.  In my view both of those statements can stay in as admissible.  It is agreed that paragraph 84 should be struck out.  Paragraphs 85, 86, 87 and 169 are all statements by an accountant admittedly without any significant foundation for the statements, but in my view they are all statements of fact, and could all be tested in cross-examination particularly having regard to the fact that the witness is the accountant as well as the executor.  So paragraphs 85, 86, 87 and 169 can stay in as can paragraph 170.  Paragraph 132 goes out as does paragraph 93 by agreement.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 June 2014.

Associate: 

Date:  4 August 2014