Burke and Carrow
[2011] FMCAfam 286
•29 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURKE & CARROW | [2011] FMCAfam 286 |
| FAMILY LAW – Children – interim application – application to vacate earlier injunctive orders – voir dire – earlier Family Reports – reasons for decision of earlier hearing – admissibility of evidence. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F, 110G Evidence Act 1995 (Cth), ss.135, 136, 137 Family Law Act 1975 (Cth), ss.62G, 69ZU |
| Carrow & Burke [2010] FMCAfam 1071 Hayman v Hayman (1976) 90-140; 2 Fam LR 11588 Houston v Sedorkin (1979) 90-699 Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 Minister for Immigration & Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 Rice v Asplund (1979) 90-725 |
| Applicant: | MR BURKE |
| Respondent: | MS CARROW |
| File Number: | SYC 1187 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Carlisle |
| Solicitors for the Applicant: | Carlisle Attorneys |
| Counsel for the Respondent: | Mr Schonell SC |
| Solicitors for the Respondent: | Barkus Doolan Kelly Family Lawyers |
ORDERS
The Application to vacate Orders 1 and 2 made on 15 October 2010 is dismissed.
The Father is permitted to tender into evidence in this proceeding copies of Family Reports prepared on 14 July 2008 and 7 May 2009 by Family Consultant Ms M on condition that:
(a)the Father calls the said Family Consultant to give oral evidence in this proceeding; and
(b)the Father provides to the Mother’s solicitors at his expense a copy of the Transcript of the oral evidence given by the said Family Consultant at the hearing on 12 and 13 May 2009 no later than five (5) working days prior to the date on which the Family consultant gives oral evidence as set out in Order (2)(a) above.
The Father is permitted to tender into evidence the Reasons for Judgment delivered by Altobelli FM on 25 June 2009.
Applicant’s costs of today are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Burke & Carrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1187 of 2008
| MR BURKE |
Applicant
And
| MS CARROW |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father, who is the Respondent in the substantive proceedings.
He is, of course, the Applicant in this application and will be so referred to but in the substantive proceedings he is the Respondent and the Mother is the Applicant. This is so notwithstanding the somewhat confusing documents that have been filed in the substantive application on 22nd of last month and 4th of this month. On that occasion the Father filed a document entitled “Amended Initiating Application” in which he sets out the orders which he is now seeking, presumably on a final basis.
The Mother on 4th March 2011 filed a document headed “Amended Response to Initiating Application” in which she sets out final orders which she seeks. Notwithstanding the rather misleading headings to those documents, the Mother remains the Applicant, and the Father remains the Respondent to the substantive matter.
In this matter however where the Father is the Applicant he seeks these orders:
a)An order that leave be granted to file and serve short notice of this application that the application be listed before the Court on 29 March 2011.
b)An order that orders made in terms of paragraphs 1 and 2 made 15 October, 2010 be vacated.
c)An order that the Father be permitted to tender into evidence on the hearing of any proceedings concerning the application of the Mother for relocation or change in care arrangements for the children, [X] born [in] 2001 and [Y] born [in] 2005:
i)copies of any reports prepared by Ms M appointed pursuant to order made by the Court in proceedings number SYC1187 of 2008,
ii)the reasons for judgment delivered by Altobelli FM on 25 June, 2009;
d)Such further or other order as the Court deems fit;
e)An order that the Mother pay the Father’s costs of and incidental to the filing and hearing of this application if she defends it.
The orders sought are opposed by the Mother.
Background
The background to this matter is that on 12th and 13th May 2009 Altobelli FM heard evidence in respect of the substantive parenting application.
The application was in fact an application by the Mother to relocate the children’s residence to a town in northern New South Wales which is opposed by the Father. His Honour, on 25th June, 2009 released his reasons for judgment. However, his Honour did not make final orders resolving the matter at the time that he released the reasons for judgment.
Instead his Honour made the following orders:
a)that the solicitors for the Applicant and the Respondent provide to my associate within 21 days an agreed document which represents the current contact arrangements for [X] born [in] 2001 and [Y] born [in] 2005;
b)The parties have leave to relist this matter before Altobelli FM on 21 days notice with regards any dispute over the formulation of the agreed document in order 1.
Regrettably, the parties did not agree.
The matter came back before his Honour, who was informed that the parties had not agreed and the circumstances are set out in an affidavit affirmed by the Father on 24th March, 2011. Annexed to that affidavit are copies of relevant orders made by the Court. What happened on 25th November, 2009 is that submissions were put to his Honour that he should disqualify himself from further hearing of the matter because of the fact that he had made findings as to the credit of the Mother.
His Honour then made the following orders:
(1) I disqualify myself from further hearing this matter.
(2) I note that the Father’s application filed 16 November, 2009 is listed before Scarlett FM on 9 February, 2010.
(3) I note that I requested both parents to consent to an order that they attend a Child Dispute Conference, that the Father accepted but the Mother declined same.
The matter then came into my docket and a variety of interlocutory orders were made. The orders that are the subject of this application were made on 15th October, 2010. However, the subject matter of the orders had been the subject of submissions on two earlier dates. I have been very helpfully provided with copies of transcripts of the earlier proceedings, the first of which was on Friday 6th August in which the Father appeared in person and Ms Morozov, solicitor, appeared for the Mother. On that occasion submissions were put to me about the making of an order for a fresh report. At that stage it was discussed that such a report be prepared by Associate Professor Q. I indicated that I was not prepared to make that order on that day.
There were also discussions about an appeal against a decision of the Social Securities Appeal Tribunal and whether a stay of certain orders should be made. That is not relevant to the matter that the Court has to hear today.
On Monday 20th September 2010 the matter was back before the Court. Mr Schonell of counsel appeared for the Mother. The Father appeared for himself and I heard submissions in respect of orders sought by the Mother. I indicated that I was not prepared to make those orders on an ex-tempore basis. I reserved my decision until 15th October 2010.
It was relevant that the Father had filed a written submission on the earlier occasion which had not initially reached me. In any event it was not until 15th October 2010 that I made these orders and those orders were as follows:
(1) that the Mother and the Father be restrained by injunction from providing to the family consultant appointed by order of this Court on 6 August, 2010 copies of any of the reports prepared by Ms M in proceedings SYC1187 of 2008 or the reasons for judgment delivered by Altobelli FM on 25 June, 2009;
(2) that the family consultant be restrained by injunction from reading any of the reports prepared by Ms M in proceedings SYC1187 of 2008 or the reasons for judgment delivered by Altobelli FM on 25 June, 2009.
I made further orders of an ancillary nature relating to parties advising each other of which documents they considered appropriate for the family consultant to see bearing in mind the injunctive orders made in Orders 1 and 2 and I also stayed the operation of the decision made by the Social Security Appeals Tribunal on 31st March, 2010 pending the hearing of the appeal by the Applicant of that decision.[1]
[1] Carrow & Burke [2010] FMCAfam 1071
As to the proceedings before the Social Security Appeals Tribunal which have been brought to my attention in argument today the appeal was subsequently heard, the decision was reserved and it will be handed down in the near future but at the moment it remains reserved.
The Mother opposes the orders that are sought in this application. The Mother did not seek to lead any evidence or rely on any particular evidence but her counsel made submissions.
Mr Carlisle, solicitor, who appears for the Father pointed out that the Court was seeking to discharge the interlocutory orders as, in his submission, the Court had the power to do because, as injunctive orders, they were indeed interlocutory and it was open to the Court to discharge them.
In his opening remarks Mr Carlisle referred the Court to ss.135 to 137 of the Evidence Act 1995 and submitted that those matters had not been considered and that as a result of the failure by the parties to bring those particular sections of the Evidence Act to the attention of the Court that the balancing act required by section 135 had not taken place. Further it was submitted that the apparent proceeding by way of the substantive application is not a hearing de novo as such because it is not indeed an appeal against the decision of Altobelli FM. It is a continuation of the hearing including the taking of fresh evidence by way of a reopening of the case.
It is a continuation because the hearing was never concluded. It would have been concluded by the making of final orders but those final orders were never made so the situation arose that the reasons for decision were handed down. The reasons for judgment were handed down indicating the orders that his Honour proposed to make or considered appropriate to make but were not in fact made. Thus his Honour in the circumstances by disqualifying himself took no further part in the proceedings and it was necessary for the matter to continue under the hearing of a different judicial officer.
Mr Carlisle drew the Court’s attention to the provisions of section 135 of the Evidence Act which relates to the power of a judge to exclude evidence of probative value. He submitted that there could be exclusion of evidence if it unfair to a witness but the Court must undertake a balancing process. Evidence of probative value should be admitted if it is relevant. He submitted that the two family reports prepared by order of Altobelli FM for the earlier hearing of the trial by family consultant Ms M were of probative value and invited the Court to read those two reports for the purpose of deciding this application.
This procedure was consented to by counsel for the Mother. Similarly Mr Carlisle invited the Court to read the reasons for judgment of Altobelli FM for the purpose of deciding this application and again senior counsel for the Mother consented to that taking place.
Mr Carlisle further submitted that when the matter was before the Court on 6th August, 2010 when an oral application was made which led to the orders of 15th October 2010 no evidence was given as to why those reports prepared by Ms M were prejudicial but the situation remained when the matter was further argued or argued in greater detail on 20th September. Mr Carlisle’s submission is that the two reports by Ms M are particularly probative in respect of the question of the children’s schooling bearing in mind that this is a relocation matter.
True it is that it is a relocation within the state of New South Wales and the children will remain within the same education system but that of course, and I think quite fairly, does not indicate that there would be no effect on the children’s schooling. Mr Carlisle submitted also that the reasons for judgment of Altobelli FM gives an analysis of the conflicting evidence given before his Honour and it would follow that that would be of value to this Court in deciding the matter.
It was also raised in argument that the Court had heard but had not yet to decide an appeal by the Mother against a decision of the Social Security Appeals Tribunal. The relevance in that is that at paragraphs 10 and 61 to 66 of the Social Security Appeals Tribunal decision there are findings made which go to the Mother’s credit. Thus it is submitted that the Court has already been made aware of findings critical of the Mother’s credit and a reading therefore of the reasons for judgment of his Honour and the use of such document in the trial of the substantive application would create no further prejudice to the Mother.
I indicated at the time that I was not of the belief that the appeal against the decision of the Social Security Appeals Tribunal was an exact parallel to the matter that is currently before the Court. Senior counsel for the Mother, Mr Schonell submitted that the application, the submissions from the Father were confusing, that before Altobelli FM the Father had brought an application to reopen the proceeding but now sought to narrow the focus of the reopening and invited the Court to look at the Father’s outline of the case. What he is submitting is that the Respondent in referring to affidavits goes right back to 2008.
Clearly the Mother was seeking to relocate the children to [B] in northern New South Wales. The application, present application, he submitted was an attempt to obfuscate and delay the hearing of this trial and the Father was in fact seeking to rely on affidavits which sought to respond to affidavits which were not relevant to the hearing of this Court.
Indeed the application to vacate orders 1 and 2 made on 15th October was irrelevant because the purpose of those orders was merely to seek to preserve the integrity of the current family report because it is a fact that I ordered a further family report which was prepared by a different family consultant. That report has been released to the parties.
Counsel for the Mother submitted that it was noteworthy that the Father did not seek to appeal the orders that were made on 15th October and he submitted also that the orders made did not seek to restrict the admission into evidence in these proceedings of that material.
He also queried the relevance of order number 3 and referred the Court to the Father’s application, as it is confusingly titled, of 22nd February, 2011. In addition, Mr Schonell drew the Court’s attention to the provisions of section 69ZU of the Family Law Act 1975 which noted that if a party sought to rely on the opinions of a family consultant that that must be given as sworn evidence. He submitted that there would be a need therefore to put the family consultant on affidavit and call her to give evidence to be cross-examined on that material. He also submitted that if the Court were minded to make such an order that one condition would have to be that a transcript of the family consultant’s evidence before Altobelli FM should be obtained and that it should be obtained at the Father’s expense.
He particularly referred to the late notice of this application which is indeed taking place on the first day of the three days allocated for the final hearing. Further, it was submitted that the reasons for judgment of Altobelli FM were irrelevant to the task of the Court. The reference to the well-known authority of Rice v Asplund[2] also was not of assistance. It was further submitted that the findings of the Social Security Appeals Tribunal were not binding upon this Court. Indeed as the application was the subject of an appeal, if the appeal were successful then the findings would be of no relevance whatsoever.
[2] (1979) FLC 90-725
As I said, it was conceded on behalf of the Mother that the two reports prepared by Ms M and the reasons for judgment of Altobelli FM should in fact be read by the Court for the purpose of deciding the application.
In reply, Mr Carlisle referred the Court to the Father’s amended initiating application, as it is confusingly called, and said that it sets out the relief that the Father is seeking before the Court in the substantive application today. He referred the Court to the Father’s affidavit of the 8th of this month. He referred the Court to a number of authorities, in particular the 1976 decision of Hayman & Hayman[3], the 1979 decision of Houston & Sedorkin[4], and the more recent 2008 decision of Miller & Harrington.[5]
[3] (1976) 90-140
[4] (1979) FLC 90-699
[5] (2008) FLC 90-383
Mr Carlisle opposed the conditions that counsel for the Mother submitted were appropriate and told the Court that his client consented to an order that he would in fact provide a transcript of the evidence of the family consultant but could not indicate when that would be made as the transcript was not yet available and there was no idea as to what it would cost. That then is the background to this particular matter.
It is important in my view to look at the decision that was made on 15th October, 2010 when these orders now under contention were made. The matter is entitled Carrow & Burke and has a citation [2010] FMCAfam 1071. I have already set out the substance of the orders that were in contention. It is perhaps informative to read paragraph [1] of the reasons for judgment where I said:
This application is about
(a) directions for preparation of a family report for the purpose of the hearing of a parenting application and
(b) the Father’s application to set aside the order made on 13 July, 2010 staying the operation of the decision made by the Social Security Appeals Tribunal on 31 March, 2010 pending the hearing of the applicant mother’s appeal against that decision.
The matters relating to the stay are not relevant but were in fact set out in some detail in the reasons for decision. I indicated at paragraph 18 that I was satisfied that a further family report should be ordered under the provisions of section 62G of the Family Law Act and I made orders to that effect on 6th August, 2010. I then heard submissions about why the injunctive orders were sought and the directions that should be made in respect of parenting orders. I said at paragraph 38:
The parenting matters are being considered afresh. The Father has filed an application to reopen the proceedings. Altobelli FM has disqualified himself from further hearing the matter so his Honour’s reasons are not relevant to the decision that I have to make. The obligation on me in hearing the matter is to form my own view of the evidence and of the parties.
That, in my view, is the task that is before this Court. It is not a case in my view to which the well-known decision of Rice v Asplund applies. I have read the authorities to which I have been referred, in particular Hayman v Hayman, Houston v Sedorkin and Miller & Harrington[6]. In my view they can be distinguished on their facts as they do not apply to this particular situation.
[6] All supra
The unusual circumstances of this case are reminiscent to matters with which a number of my colleagues and I are familiar in another jurisdiction. It is not uncommon in this Court’s migration jurisdiction where it conducts judicial review of decisions of the Refugee Review Tribunal or the Migration Review Tribunal to have a situation where jurisdictional error is found in the Tribunal decision and orders by way of Constitutional writs are made, particularly orders in the nature of certiorari and mandamus so that the decision is quashed and the matter is referred back to the Tribunal to be determined according to law.
It is the usual practice that the Tribunal will be reconstituted by another Tribunal Member and a further hearing take place. However, it does not constitute a separate hearing. It is the one hearing but it is incumbent on the Tribunal to consider the evidence afresh. It is not a situation where the Tribunal would ignore the previous evidence but it is incumbent on the Tribunal in making its determination to make its own determination according to law.
The situation can be found in fact in the Court’s decisions or the Court’s jurisdiction in dealing with appeals against decisions of the Social Security Appeals Tribunal. The powers of the Court in this regard are set out in Division 3, Subdivision B of the Child Support(Registration and Collection) Act 1988. Section 110B says that a party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act on a question of law from any decision of the SSAT in that proceeding. Of course that is what this Court is doing in respect of the mother’s appeal.
The powers of the Court are set out in section 110F of that Act and under subsection (2) the powers include:
a)an order affirming or setting aside the decision of the SSAT; or
b)an order remitting the case to be heard and decided again either with or without the hearing of further evidence by the SSAT in accordance with the directions of the Court.
The Court in limited circumstances may make findings of fact and they are set out in section 110G of the Act. However, paragraph 110G(1)(a) allows the Court to make findings of fact if the findings of fact are not inconsistent with findings of fact made by the SSAT other than findings made by the SSAT as a result of an error of law. What that means for this particular application is that any findings of fact made by the social security appeals tribunal in the decision currently under review are not binding on this Court at all, because the Court under section 110B is looking at the matter on a question of law. It would only make findings of fact if they were not inconsistent with findings of fact made by the SSAT.
As I discussed with the parties’ representatives during the course of the hearing, it is quite common for any judicial officer hearing a matter to consider evidence which may be prejudicial to a party, and make a decision that it should not be admitted into evidence. It is done all the time. At no time in the orders made on 15th October 2010 did the Court ever set out to exclude evidence from the substantive application. That is not what the Court intended to do, and in my view, that is quite clear from the orders made and the reasons. What it set out to do was, as submitted by counsel for the mother, preserve the integrity of the fresh family report, which was considered to be appropriate in the circumstances.
Thus, I can see, with respect, no utility in vacating orders 1 and 2 made on 15th October, which injuncted the parties and the family consultant from providing or reading the earlier family reports. To reverse that decision at this stage, after the family report has been prepared and released would have the effect of requiring the family consultant to prepare a fresh report, and for what purpose? I do not propose to vacate those orders.
It was never the situation that the Court heard argument about or made orders about the exclusion of evidence from the trial of the substantive application. It is always open to a party to seek to tender documents in evidence. Indeed, counsel for the Mother has questioned the necessity of order number 3 sought by the Father, where he seeks to tender into evidence family reports and the reasons for judgment of Altobelli FM.
It is important, when looking at the tender of evidence, to ask the question of what is the purpose of this evidence is clearly the thread running through the Evidence Act 1995, that if material was relevant, it should be normally be admitted admissible but the Court will decide what weight is to be given to it. As I said I have, at the request of and the concurrence of the parties, read the two reports. The first one is dated 14th July 2008. The second is dated 7th May 2009. The family consultant prepared reports in which she set out the accounts of her interviews with the parties and with the children. She then made a series of findings under the heading Evaluation and then made recommendations. Because of the application made to this Court today, it is appropriate to consider the admissibility of these documents which the Father wishes to have admitted into evidence. The proceedings are, in effect, a voir dire in respect of their admissibility.
In my view, there is a considerable difference in a family report from the family consultant’s description of factual matters, such as the accounts given to her by the parties and by the children on the one hand and the evaluation by that family consultant of that information and recommendations made as a result of the evaluation on the other hand. They are separate things and quite clearly, it may be the case that the Court would consider, as relevant, what the parties said to the family consultant at the date when the interviews were taken place and the interviews took place.
It is another matter for the Court to consider the evaluation made by the family consultant of what the parties said and what she observed and what she recommended and, of course, that is where section 69ZU of the Act comes in. Section 69ZU of the Act is very brief and says this:
The Court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant unless the consultant gave the opinion as sworn evidence.
In my view, there are parts of the reports, particularly under the heading Evaluation and under the heading Recommendation, which can only be described as an opinion. That is why the Court must have regard to section 69ZU and consider whether that opinion was expressed, having been given as sworn evidence. That is why too it has been sought that a transcript of the evidence of the family consultant to Altobelli FM should be made available and that too is why it is sought that if the Father wishes to rely on these reports, that the family consultant must be made available for cross-examination because the opinion must be given as sworn evidence, unless the parties consent and clearly the parties do not consent.
I propose to allow the tender of the two earlier family reports but it will be conditional upon the family consultant giving sworn evidence. I think in the circumstances she can give evidence on affirmation if she so desired without breaching the Act but I do consider it appropriate that a transcript of the evidence given before my learned brother Altobelli should be provided and it should be provided at the expense of the Father.
I am mindful of the fact that this application has been brought very late in the day and indeed it has occupied the first day of what was to be a three-day trial. I fear that Mr Carlisle’s gloomy prognosis of the matter was unlikely to be completed within three days is likely to come true. In fact, I think it cannot be avoided in the circumstances.
Should there be an affidavit by the family consultant? Mr Schonell of counsel submits that there should. Mr Carlisle considers that it is not necessary.
The fact is that family consultants give evidence in this Court and in the Family Court of Australia on a regular basis. It is not normally the case that they do so by going on affidavit but they do so on the basis of the family report. It is a different situation here to some extent, in that this Court has ordered a family report which is being prepared by another family consultant. The family reports referred to here are sought to be relied on by one party.
However, in my view, there is little utility in requiring the family consultant to be the deponent to an affidavit. What her evidence will be will clearly arise from the two family reports and from the transcript of her evidence in the proceedings of 12th and 13th May 2009 before Altobelli FM and from the transcript of her evidence in the proceedings of 12th and 13th May 2009 before Altobelli FM. There is no utility in an affidavit being prepared, and whilst the rules of this Court normally require an affidavit, it is open to the court to dispense with the rules and, in my view, no practical injustice would arise. And I refer to the decision of the High Court of Australia in Minister for Immigration & Citizenship v SZIZO[7].
[7] [2009] HCA 37; (2009) 238 CLR 627
That then leaves the question of the reasons for judgment of Altobelli FM. In my view, the claims that are made, not as to the relevance but as to the persuasiveness of his Honour’s reasons for judgment, with the very greatest respect to my learned colleague, are perhaps overdone.
It is important to consider what is contained in a Court’s reasons for judgment. Now, this may be trite law, but what a Court does, certainly what this Court does, is set out a background, set out facts, consider the applicable law, consider the evidence that is tendered and consider submissions. None of this is controversial. But what the Court must then do is make orders arising for that and the Court is required to make, to give its reasons for making those orders, its reasons for judgment. Now, the entire document is usually called the “Reasons for Judgment” or just “The judgment”. But only a part of it sets out the reasons in the sense of the specific reasoning of the judge who decides it.
A large part of such document consists, as I said, of a recitation of the material that is considered which is usually unexceptional. Of course, what his Honour has done here is set out clearly, and I have, of course, read the decision as I was invited to do, various matters under the headings, “Introduction”, “Background”, “The Issues”, “The Applicable Law”, all of which is uncontroversial. I’m not sure that the parties really consider it necessary for me to consider what his Honour considered to be the applicable law. I am quite sure that I will hear submissions on that very point and it may be that I have some knowledge of my own as to what law applies in parenting proceedings.
His Honour goes on to deal with some academic material that was tendered under the heading, “Significance of Time”, “Parental conflict and Shared Parenting”, “Relocation”, submissions about freedom of movement and the weight to be given to the evidence of the family consultant.
In my view, whilst the earlier examination of the evidence and of the submissions made is uncontroversial, the weight to be given to the evidence of the family consultant consists of an examination or an analysis by his Honour of evidence given in those proceedings before him. In my view the difference is very clear.
It is not appropriate for the Court to give any weight to that analysis. The decision contains, in fact, discussions headed, “Conclusion about Evidence of Family Consultant”. It is not appropriate for this Court to give weight to such conclusions. The Court may consider and will consider evidence that has previously been given. For instance, no affidavit that has been admitted into evidence would be found to be inadmissible in the proceedings before me because I am rehearing the matter. But as far as the final orders are concerned, the buck stops here. There is only one judicial officer who analyses the evidence as opposed to the conclusions and makes the final orders. That is my task.
My view is that if the Father wishes to tender the entire document headed, “Reasons for Judgment”, made by Altobelli FM, he is at liberty to do so. However, there are significant parts of that document going to the analysis, conclusion and reasoning rather than the recitations of fact or of law that will not, to my mind, be matters to which this Court can give any weight and, indeed, a question mark would arise as to the admissibility of those parts of the document at all. The submissions on that can wait until another day. But it is important to distinguish between facts and conclusions. They are different things. So that then gives some guidance as to where the matter is going.
I would indicate, as I said, that the decisions to which I have been referred in my view can be distinguished. The reference to the particular sections of the Evidence Act, sections 135 through to 137 inclusive, to my mind are misconceived, particularly s.137 which refers to criminal proceedings. These are not criminal proceedings.
As I said, discussions as to weight and admissibility of parts of those documents that are in contention will be the subject of some submissions to the Court if and when such documents are sought to be tendered. A copy of the orders that I have made will be released to the parties today.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 April 2011
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