Cao and Trong (No 2)

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.