Cao and Trong (No 2) - [2021] FamCA 369

FAMILY COURT OF AUSTRALIA

CAO & TRONG (NO. 2)

[2021] FamCA 369

FAMILY LAW – EVIDENCE – re-examination – permissible boundaries of re-examination – respondent in reality seeking to adduce evidence-in-chief under the guise of re-examination – common law rule on re-examination – s 39 of the Evidence Act – whether leave required to adduce new evidence in re-examination – elements of s 192 of the Evidence Act – held, this was new evidence for which leave should not be given – extensive review of authorities on point.

Evidence Act 1995 (Cth), ss 39, 192

Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765
International Relief and Development Inc v Ladu [2013] FCA 1216
Prince v Samo [1838] 112 ER 606
The Queen’s Case [1820] 129 ER 976
Wentworth v Rogers (No. 9) (1987) 8 NSWLR 388
Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398
Wojcic v Incorporated Nominal Defendant [1969] VR 323

APPLICANT:

Mr Cao

RESPONDENT:

Ms Trong

INTERVENOR:

Deputy Commissioner of Taxation

FILE NUMBER:

MLC

2555

2016

DATE DELIVERED:

3 June 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

16, 17 March 2020, 24, 25, 26, 27, 31 May 2021 & 1, 2, 3 June 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr R. Ingleby

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr W. Smith

SOLICITOR FOR THE RESPONDENT:

JK Lawyers

COUNSEL FOR THE INTERVENOR:

Mr P. Sest QC with Mr H. Mazloum

SOLICITOR FOR THE INTERVENOR:

Australian Government Solicitor

Orders

I refuse leave to the respondent to adduce further evidence and re-examine about the eight page document dated 29 April 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2555 of 2016

Mr Cao

Applicant

And

Ms Trong

Respondent

And

Deputy Commission of Taxation

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

Introduction

At the conclusion of the respondent’s cross-examination Mr Smith of counsel announced his intention to re-examine the respondent. Mr Smith circulated six documents that he said he wanted to tender as part of the respondent’s case. Five of those documents were received as exhibits without protest by counsel for the applicant and by counsel for the ATO. The sixth document was the subject of trenchant opposition.
This ruling addresses the reception into evidence or the rejection of that sixth document.
For the reasons that follow I refuse the application to re-examine on that document.

The…

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.

Keep reading for free

Create a free CaseChat account to read Cao and Trong (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FamCA 369
Decision Date

CaseChat Overview and Summary

In *Cao and Trong (No 2)*, the Family Court of Australia considered an application by the respondent, Ms. Trong, to adduce an eight-page email document dated 29 April 2019 into evidence during re-examination. The applicant, Mr. Cao, and the intervenor, the Deputy Commissioner of Taxation, opposed the tender of this document. The core of the dispute revolved around whether the proposed re-examination and tender of the document fell within the permissible scope of re-examination under the *Evidence Act 1995* (Cth) or constituted an attempt to introduce new evidence-in-chief.

The legal issues before the Court were whether the proposed re-examination related to matters arising out of the respondent's cross-examination, and if not, whether leave should be granted under section 39(b) of the *Evidence Act 1995* (Cth) to adduce the document as new evidence, considering the criteria in section 192(2) of the Act. The Court was required to determine if the document served to explain or qualify evidence given in cross-examination, or if it was essentially new evidence that should have been presented earlier in the proceedings.

The Court reasoned that the proposed re-examination and the tender of the document did not arise from the respondent's cross-examination. The document had not been discovered, exhibited to any affidavit, or put to the applicant during his cross-examination. Furthermore, the document itself was complex, requiring explanation regarding its creation, purpose, and the meaning of its abbreviations and symbols, and it did not clarify or explain any answers given by the respondent in cross-examination. The Court concluded that the proposal was, in reality, an attempt to adduce new evidence-in-chief, which is not the function of re-examination. Applying the principles from cases such as *Wojcic v Incorporated Nominal Defendant* and *Wentworth v Rogers (No. 10)*, the Court found that the document did not serve to explain away or qualify facts elicited in cross-examination.

Consequently, the Court refused leave to the respondent to adduce the eight-page document dated 29 April 2019 and to re-examine on it. The Court found that granting leave would be unfair, as the respondent had ample opportunity to present this evidence earlier in the proceedings, and its late introduction would cause hardship to the applicant and the ATO. The Court determined that the document was new evidence for which leave should not be granted.

Orders