Cao & Trong

Case •

[2021] FedCFamC1F 228

•

23 November 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cao & Trong [2021] FedCFamC1F 228

File number(s): MLC 2555 of 2016
Judgment of: WILSON J
Date of judgment: 23 November 2021
Catchwords: FAMILY LAW – EVIDENCE – leave to adduce evidence – leave refused.
Legislation: Evidence Act 2008 (Cth) s 49  
Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448

Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59
Division: Division 1 First Instance
Number of paragraphs: 6
Date of hearing: 23 November 2021
Place: Melbourne
Counsel for the Applicant: Dr R. Ingleby
Solicitor for the Applicant: Westminster Lawyers Pty Ltd
Counsel for the Respondent: A. Smith
Solicitor for the Respondent: JK Lawyers
Senior Counsel for the First Intervenor: Mr P. Sest QC with
Junior Counsel for the First Intervenor: Mr H. Mazloum
Counsel for the First Intervenor: Australian Government Solicitor
Counsel for the Second Intervenor: Mr J. Grant
Solicitor for the Second Intervenor: Hunt & Hunt

ORDERS

MLC 2555 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CAO

Applicant
AND:

MS TRONG

Respondent

DEPUTY COMMISSIONER OF TAXATION

First Intervenor

CHILD SUPPORT REGISTRAR

Second Intervenor

ORDER MADE BY:

WILSON J

DATE OF ORDER:

23 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Leave to adduce the letter dated 16 November 2021 and attachments into evidence is refused.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

  1. Objection is taken to the tendering in re-examination of Mr Cao of a letter dated 16 November 2021 together with certain attachments. During debate this morning Dr R. Ingleby, counsel for the applicant, conceded that certain other attachments were not appropriately tendered.  After lunch today, a handwritten modification of the letter was produced by Dr Ingleby.  Mr Smith, counsel for the respondent, objected to the tender of the letter contending that it was hearsay.  

  2. Through re-examination this morning Dr Ingleby obtained an array of admissions given viva voce by Mr Cao to the effect that the documents sought to be tendered supported matters the subject of the admissions.  In many instances, the documents the subject of today’s tender proposal address issues tending to respond to a substantial criticism of Mr Cao, namely that he has been derelict in his disclosure obligations.

  3. Mr Cao’s viva voce evidence was his response to that criticism.  Whether his evidence as most recently given by him is ultimately accepted remains to be seen.  But it could not be said that Mr Cao has been denied the opportunity of responding to the criticisms levelled against him about deficiencies in disclosure.  Further, certain attachments that Dr Ingleby wished to tender were untranslated documents in a foreign language.  

  4. It is meaningless in its current form.  

  5. At first blush, the letter also appears contrary to s 49 of the Evidence Act.  It could not be said that the documents are business records even recognising the observations by other judges of superior courts in cases such as Matthews v SPI Electricity Pty Ltd (Ruling No 35)[1] and Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1).[2] 

    [1] [2014] VSC 59.

    [2] (2012) 207 FCR 448.

  6. In my view, the letter and attachments in respect of which Dr Ingleby seeks the tender should not be received into evidence.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       23 November 2021


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