Fowles & Fowles (No 3)

[2022] FedCFamC1F 386

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fowles & Fowles (No 3) [2022] FedCFamC1F 386

File number(s):

MLC 8587 of 2015

Judgment of:

BENNETT J

Date of judgment:

30 May 2022

Catchwords:

FAMILY LAW – EVIDENCE – where 54 documents were marked as exhibits subject to identification in the course of the trial on the basis that the wife said that she would render such documents admissible in the proceedings absolutely at the conclusion of the case.

FAMILY LAW – EVIDENCE – Where husband was not prepared to accept the wife’s evidence as to how the documents came into her possession. 

FAMILY LAW – EVIDENCE – Where the wife ultimately addressed the admissibility of the documents in global, general submissions rather than addressing each document individually.

FAMILY LAW – EVIDENCE – Where the wife identifies 10 facts in issue but fails to satisfy the court that admitting the 54 documents (or any one of them) into evidence was capable of rationally effecting the assessment of the probability of a fact in issue.

FAMILY LAW – EVIDENCE – Where wife asserts that, alternatively, documents constituted admissions by the husband within the meaning of s 87 of the Evidence Act 1995 (Cth) and are therefore admissible absolutely- where court finds that contention is a misapprehension of the operation of s 87.

FAMILY LAW – EVIDENCE – Where wife asserts that, alternatively, documents are admissible by virtue of s 48 of the Evidence Act 1995 (Cth) – where the court finds that contention is a misapprehension of the operation of s 48.

FAMILY LAW – EVIDENCE – Where Counsel for the wife indicated an intention to rely on s 43 of the Evidence Act 1995 (Cth) to have the 54 documents marked subject to identification admitted into evidence as prior inconsistent statements- where the court finds that the contention would be a misapprehension of the operation of s 43.

FAMILY LAW – EVIDENCE – Where none of the documents were permitted to be received into evidence absolutely and are required to be removed from the bundle of exhibits.

FAMILY LAW – COSTS – where any party who wishes to make an application as to costs may do so in accordance with the Rules of Court.

Legislation:

Evidence Act 1995 (Cth) ss 43, 48, 55, 56, 67, 69, 87, 88, 144, 167

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited (No.1) (2012) FCA 1355; [2012] 207 FCR 448

Capital Securities XV Pty Ltd v Callega [2018] NSWCA 26

Commissioner of Taxation v Cassantiti (2018) 266 FCR 385; [2018] FCAFC 212

Fowles & Fowles (No. 2) (2018) 58 Fam LR 511; [2018] FamCA 498

Re Wollongong Coal Ltd (formerly known as Gujarat NRE Coking Coal Limited ) [2014] NSWSC 1952

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

Division:

Division 1 First Instance

Number of paragraphs:

95

Date of last submission/s:

12 October 2021

Date of hearing:

7-10 September 2021

Place:

Melbourne (heard via MS Teams)

Counsel for the Applicant:

Mr Sheales

Solicitor for the Applicant:

Landers And Rogers

Counsel for the Respondent:

Mr North SC and Mr Salamanca

Solicitor for the Respondent:

Pullos Lawyers

ORDERS

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FOWLES

Applicant

AND:

MR FOWLES
Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	30 MAY 2022

THE COURT ORDERS THAT:

1.The time for compliance by the parties with Orders for filing of submissions on the issue of the admissibility of the 54 documents marked STI be extended to the date on which the parties filed the documents required of them.

2.I do not permit any of the wife’s exhibits which are marked STI to be received into evidence absolutely.

3.Any party wishing to make an application as to costs do so in accordance with the Rules of Court.

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 Fowles & Fowles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BENNETT J:

INTRODUCTION	[3]
EVIDENCE RELIED UPON	[4]
EXHIBIT W47STI AS AN EXEMPLAR	[5]
DOCUMENTS OTHER THAN EXHIBIT W47STI	[18]
SCHEDULES A AND AA	[18]
Exhibit W21STI	[19]
Exhibit W97STI	[19]
Exhibit W98STI	[19]
SCHEDULE B AND BB (REMAINDER)	[19]
Exhibit W22STI	[19]
Exhibit W34STI	[19]
Exhibit W35STI	[19]
Exhibit W36STI	[20]
Exhibit W37STI	[20]
Exhibit W48STI	[20]
Exhibit W50STI	[20]
Exhibit W53STI	[20]
Exhibit W68STI	[20]
Exhibit W113STI	[20]
Exhibit W114STI	[21]
Exhibit W116STI	[21]
Exhibit W117STI	[21]
Exhibit W119STI	[21]
Exhibit W122STI	[21]
Exhibit W125STI	[21]
Exhibit W126STI	[21]
Exhibit W127STI	[22]
Exhibit W129STI	[22]
Exhibit W130STI	[22]
SCHEDULES C AND CC	[22]
Exhibit W38STI	[22]
Exhibit W40STI	[23]
Exhibit W41STI	[23]
Exhibit W42STI	[23]
Exhibit W43STI	[23]
Exhibit W45STI	[23]
Exhibit W49STI	[24]
Exhibit W51STI	[24]
Exhibit W52STI	[24]
Exhibit W69STI	[24]
Exhibit W75STI	[24]
Exhibit W76STI	[25]
Exhibit W78STI	[25]
Exhibit W91STI	[25]
Exhibit W92STI	[25]
Exhibit W93STI	[25]
Exhibit W94STI	[25]
Exhibit W95STI	[25]
Exhibit W96STI	[26]
Exhibit W131STI	[26]
Exhibit W132STI	[26]
Exhibit W133STI	[26]
SCHEDULE D	[26]
SCHEDULE E	[26]
Exhibit W46STI	[27]
Exhibit W85STI	[27]
Exhibit W86STI	[27]
Exhibit W87STI	[27]
Exhibit W89STI	[27]
THE WIFE’S EVIDENCE	[28]
THE LAW	[31]
DISCUSSION	[32]
Section 81 – evidence of admissions	[38]
Section 48 – proof of contents of documents	[41]
CONCLUSION	[42]

INTRODUCTION

1. On day 41[1] of the final hearing of this protracted financial matter, and after the evidence in the husband’s case was concluded, counsel for the wife made application to re-open her case for the purpose of tendering absolutely 43 documents which had been tendered conditionally subject to identification (STI).  It was an application of which counsel for the wife gave notice on day 12[2] of the final hearing when he tried, unsuccessfully, to tender an undated document headed “[Mr Fowles’] Assets”. The tender was rejected because the document could not be identified. Further, it was not conceded by the husband that the document was relevant. By the time evidence was concluded, there were at least 42 other documents which counsel for the wife had sought to tender and been met with an objection that the documents had not been identified and their relevance had not been established. All were marked STI.

   [1] 8 September 2021.

   [2] 4 July 2018.

2. I granted permission for the wife to re-open her case. I heard evidence from the wife and cross-examination.

3. I ordered that the parties file and serve written submissions as to the admissibility of the 43 documents which had been tendered by the wife STI.

4. The parties did not adhere to the timetable for the filing of submissions. The wife’s submissions were filed on 16 September 2021.  The husband’s submissions were filed on 1 October 2021. The wife’s submissions in reply were filed on 12 October 2021. However, no issue is taken as to non-compliance and I have regard to the submissions.

5. The number of documents sought to be tendered has increased from 43 to 54 exhibits marked “STI”.  The increase in the number of documents STI arose from a review of the transcript and the practitioners and my Chambers staff discovering errors in the initial recording of exhibits. The husband appears to take no issue with that proposition that the application now relates to 54 documents.

6. The parties seek this ruling as to the admissibility of the wife’s exhibits tendered STI so that each party and their practitioners know what documents are in evidence before the court prior to making final submissions on the substantive financial issue.   

7. For the following reasons, I do not allow any of the wife’s STI exhibits to be tendered absolutely.

   EVIDENCE RELIED UPON

8. At paragraph three of the written submissions of the wife in support of her application for leave, it is stated:

   The applicant relies on her Affidavits sworn 8 December 2017 and 7 September 2021, the oral evidence given in examination in chief of a nation chief and cross examination upon her recall, and the Notice to Admit filed 18 August 2017 and the Notice Disputing a Document filed 11 September 2017 with respect to these submissions.

9. At paragraph one of the husband’s submissions in response, the husband objects to the wife’s reliance on her affidavit sworn 8 December 2017.  It is stated:

   [the wife] now seeks to rely on her affidavit of 8th December 2017 notwithstanding that when she was permitted to reopen her case did not seek to rely on it and it is not included in the court book as an affidavit relied on the final relief.  The husband objects to this late reliance on the affidavit of 8 December 2017 after the evidence has otherwise closed and after the cross examination of the wife has concluded.  The husband is prejudiced as he has been denied the opportunity to consider whether there are matters within it he would have sought to make the subject of cross-examination.

10. Notably, when Mr North refers to the evidence in chief and cross examination of the wife having been completed, he is referring to the evidence in cross examination within the application for leave to reopen her case.  That was the second occasion upon which the wife entered the witness box, the first being in the early days of the trial when she was briefly cross-examined.

11. On 9 September 2021, I had asked counsel for the wife to identify the evidence relied upon by the wife in her application for leave to re-open her case. Counsel for the wife had agreed with Mr North’s identification of the affidavits upon which he understood the wife was relying. However, for the avoidance of doubt, I required that Mr Sheales prepare a list of those affidavits. On 9 September 2021, Mr Sheales confirmed that the 13 documents relied upon by the wife were listed in the electronic court book under the heading “Documents relied upon by the Applicant Wife with respect to the Final Relief sought”.  There was no mention of the wife’s affidavit of 8 December 2017 in the discussion between Mr Sheales and the court, during Mr Sheales’ discussion with Mr North or in the list of documents included in the electronic brief as being documents relied upon by the wife with respect to final relief sought.

12. The wife’s submission in reply to the husband’s response was that the husband and his advisers have been in possession of the wife’s affidavit of 8 December 2017 for three and a half years and that Counsel for the husband could have cross examined the wife on the contents of that affidavit if he chose to do so. I do not accept that submission.  Counsel for the wife should have identified the affidavit of the wife sworn on 8 December 2017 as a document relied upon if he was going to seek to rely upon it in his written submissions. He did not do so.  It is irrelevant that the husband does not now identify any matters upon which his counsel would have cross-examined the wife had he been aware that the wife relied on the affidavit in question.

13. I accept that the husband was deprived of the opportunity of considering whether he wanted to cross-examine the wife in relation to the contents of her affidavit of 8 December 2017 on the basis that it was evidence upon which she relied. Mr North’s submission that the husband is prejudiced is persuasive. I will not permit the wife to rely on her affidavit of 8 December 2017 as evidence in the application for leave to re-open her case and/or as evidence in support of tendering absolutely the 54 exhibits marked STI.

14. The husband gave no evidence.

    EXHIBIT W47STI AS AN EXEMPLAR

15. Prior to discussing the parties’ submissions, I will describe the treatment of one document, Exhibit W47STI. In many respects it is representative of the documents which the wife seeks to tender absolutely.  

16. Exhibit W47STI is an undated memorandum entitled “[Mr Fowles’] assets”.

17. On day 11 of the final hearing, I had ruled[3] on the effect of the husband having filed a Notice Admitting Facts in which he admitted that certain documents were authentic rather than genuine. Rules 11.07, 11.08 and 11.09 of the Family Law Rules 2004 (Cth) (“FLR2004”), which were then applicable, referred to whether a document was genuine. However, the Notice to Admit Facts composed, served and relied upon by the wife referred to the authenticity of documents.  I decided that authentic was synonymous with genuine. My reasons included the following:

    [3] Fowles & Fowles (No. 2) (2018) 58 Fam LR 511; [2018] FamCA 498.

    27.Central to the debate is the import of the husband’s admission as to genuineness and/or authenticity of certain documents as part of the Chapter 11 procedure. That is a matter on which I will make findings in due course having regard to the Notices Disputing and the admissible evidence adduced by each party. However I will make some preliminary comment about the Chapter 11 procedure.

    28.I understood Mr North’s original submission to be that the husband’s admissions amounted to no more than an acknowledgment that the description of the document in the Notice to Admit was accurate. That is clearly not the case.

    29.Later Mr North’s submitted, correctly in my view, the utility of an admission will depend upon what the document is on its face. Here the respondent husband was not asked to admit where documents came from and or who was the author of documents. 

    30.To the extent that Mr Sheales submitted that the husband had admitted the wife’s description of how the documents came to be in her possession, because the documents were identified as annexures to the wife’s affidavit in which she provided a narrative of where the documents are located, that is not correct. Much of what the wife deposed to about sourcing the documents was struck out and is not in evidence before me.

    31.In considering the import of the husband’s admission, I am attracted to the definition of “authenticity of a document” as provided in the Federal Court Rules 2011. Part 22 of the Federal Court Rules 2011 (”FCR2011”) provides a procedure for admissions as to the truth of any fact and the authenticity of any document by a notice to admit facts of documents and a notice disputing facts or documents. Notably the “authenticity of a document” is defined in the Dictionary to the FCR2011 as follows:-

    authenticity of a document means:

    (a)    if the document is an original — it was created, printed, written, signed and executed as it purports to have been; or

    (b)    if the document is a copy — it is a true copy.

    32.Where the husband has not disputed the authenticity of a document which is the subject of a Notice to Admit, he has admitted that the document exists or has existed in that form. However, the authenticity or genuineness of a document is a separate question to the authorship, location, truthfulness or probative value of a document.

    (footnotes omitted)

18. The next day, being day 12[4], counsel for the wife sought to tender an undated memorandum entitled “[Mr Fowles’] assets”, eventually marked Exhibit W47STI, through the husband in cross examination. I reproduce the transcript for the relevant part of the hearing which culminated in the undated memorandum entitled “[Mr Fowles’] assets” being marked Exhibit W47STI. Amongst other things, a reading of the transcript of the proceedings together with the submissions filed by the wife demonstrate that, by day 41 (8 September 2021), the wife’s case for the tender absolutely of documents tendered STI was not much further advanced than it had been in respect of Exhibit W47STI on day 12.

    [4] On 4 July 2018 at 10.26 am.

19. The transcript is as follows:

    COUNSEL FOR THE WIFE: Thank you, your Honour. Could the witness be handed a copy of this document, please, your Honour. And one for your Honour.  

    Now, I would seek to – is it – [Mr Fowles], can you have a look at that document, please. Just familiarise yourself with it?---Yes.

    Okay. Your Honour, I would seek to tender this document. This was a document which was – the authenticity of was admitted by [Mr Fowles].

    HER HONOUR: Yes.

    SENIOR COUNSEL FOR THE HUSBAND: Well - - -

    HER HONOUR: W – what are we up to, [Ms AX]?

    ASSOCIATE: 47. 

    HER HONOUR: 47.

    SENIOR COUNSEL FOR THE HUSBAND: Well, again, your Honour, it’s - - -

    COUNSEL FOR THE WIFE: Your Honour, I ask that the witness be asked to leave, please.

    … 

    <THE WITNESS WITHDREW [10.28 am]

    SENIOR COUNSEL FOR THE HUSBAND: Again, your Honour, it’s a - - -

    HER HONOUR: It’s one of those unauthored - - -

    SENIOR COUNSEL FOR THE HUSBAND: So, consistent with your Honour’s ruling, it doesn’t establish anything more than the document existed in this form.

    COUNSEL FOR THE WIFE: All I’ve done is tender it - - -

    SENIOR COUNSEL FOR THE HUSBAND: Well - - -  

    COUNSEL FOR THE WIFE: - - - and you’re objecting.

    SENIOR COUNSEL FOR THE HUSBAND: Yes. I’m objecting to it.

    COUNSEL FOR THE WIFE: What’s your objection? To tender?

    HER HONOUR: Well, who has identified it.

    SENIOR COUNSEL FOR THE HUSBAND: Excuse me, your Honour. I am tired of this.

    COUNSEL FOR THE WIFE: Well, your Honour, I’m tired of objections that have no merit.

    HER HONOUR: Well, we’ve only been here five minutes.

    COUNSEL FOR THE WIFE: I know, your Honour. Your Honour, I’m entitled to tender a document the authenticity of which is not disputed. Where it goes from that is not to the point. All I’ve done at the moment is tender it.

    HER HONOUR: Well, for what purpose?

    COUNSEL FOR THE WIFE: So it’s in evidence in the case.

    HER HONOUR: Well, being in evidence is the purpose. How do you get it into evidence?

    COUNSEL FOR THE WIFE: By – the authenticity of the document is not disputed between the parties. Are the contents of the document relevant? Yes. They are. Therefore it’s tendered. The first question is relevance; are the contents of the document relevant? Yes. Is the authenticity of the document disputed between the parties? No. Therefore, I seek to tender it. What your Honour ultimately - -

    HER HONOUR: Mr Sheales, it’s not relevant in – relevance would be determined, I expect, in relation to this document largely by reference to who made it.

    COUNSEL FOR THE WIFE: Your Honour, that’s a matter ultimately for evidence. The only issue at the moment is it tenderable. Yes. It is. I don’t understand any objection to it not being tenderable. 

    HER HONOUR: But where does it go? Are we going to have it – is this going to be - - -

    COUNSEL FOR THE WIFE: Well, maybe I might ask a question about it once it goes in.

    HER HONOUR: Excuse me. Don’t you raise your voice at me. You could not find - - -

    COUNSEL FOR THE WIFE: Well, I - - -

    HER HONOUR: You could not find – you could not be in a court which was more lenient. Right. I do not deserve to be spoken to in that way and I now require from you an apology - - - 

    COUNSEL FOR THE WIFE: I apologise, your Honour.

    HER HONOUR: - - - as to raising your voice to me.

    COUNSEL FOR THE WIFE: I don’t – I apologise, your Honour. I don’t understand the objection. When a party admits a document, it becomes tenderable in the proceeding if it is relevant. Clearly this document on the face of it is relevant. As to the weight to be attached to the document, those matters your Honour raises will obviously surface. And your Honour ultimately might decide, well, in the absence of me being able to make a finding of who authored it or in what group of persons authored it and, even if you were able to make a finding about that, what it means as to any weight that can be attached, that’s all a matter for findings of fact in relation to the document. The only issue at the moment is it tenderable. It’s not as to how it ought to be used. The question only at the moment is it tenderable. That’s the point.

    HER HONOUR: And you will be dealing with all of these matters – it’s not up – I  don’t want the case to end and then I have to sift through documents and figure out whether you ever got them or made any - - -

    COUNSEL FOR THE WIFE: No.  

    HER HONOUR: - - - purpose of them.

    COUNSEL FOR THE WIFE: What I’m proposing to do is do it this way. If my learned friend, as you got a ruling yesterday morning, was wanting to dispute the admission made there’s provision – there has been no application to do so therefore I’m entitled to rely on that. Accordingly, any document the authenticity of which has been admitted – and I don’t quarrel with what your Honour says in any way and the submissions won’t be at odds with your Honour’s reasoning as to what authentic means will vary compared to each document, no argument about that. This is only a matter of getting it into evidence ..... I intend to simply seek to tender – because there’s no – there has been no application to withdraw the admission. I simply am going to seek to tender the documents the authenticity of which is not disputed.

    What they are ultimately – their evidentiary weight will ultimately be a matter of submission and your Honour’s finding. In relation to documents that at the moment are not subject to admission by way of a notice to admit or – and, further, not adopted or recognised in any way by the witness so they can’t be tendered in that way – I’m just going to have marked for identification. And then we will prove it the usual way at the close of the case. There’s two ways I can do that: one is by – and I intend to prove every single one of them that’s marked for identification and get them into evidence. So it will end up the same.

    That’s why I really, with the greatest respect – the time wasting on all this – because all that’s going to happen is they either go in now by consent to be marked or I’m going to make an application under, what is it, section 43 as a document that’s being cross-examined on where it’s the discretion of the court to admit it into evidence. Now, I would imagine that would follow the event. However, even if that is unsuccessful – that will waste time but even if that’s unsuccessful I will just seek to reopen the case and rely on the material in the affidavit in reply to establish the document. They’re all going to get in.

    HER HONOUR: The material that was struck out?

    […]

    COUNSEL FOR THE WIFE: Yes. It was struck out because we can’t lead it in our case. I accept that. But it gets back in in this way, and then it’s a circumstance – say, for example, if the respondent hadn’t called any evidence these documents would never get in because there’s no basis for them to get in. So we don’t get them, in our case. But they’re going to get in regardless and – so if we have to go through this charade of marking them for identification, so be it, but they’re all going to get in ultimately.  And then it’s a matter of, well, if your Honour forms a view – for example, this document.

    On the evidence, I can’t be satisfied that – as to who the author is, when it was made, and we will be making submissions about this because of what’s on – what the document says. I can’t attach any evidentiary weight to that but so be it – but it’s still in evidence. And that’s what I don’t understand is the going around in circles by my learned friend on this because they’re all going to get in. It’s just a matter of now or later. That’s why I don’t understand why he objects this morning. 

    HER HONOUR: You would be seeking to tender this W47STI?

    COUNSEL FOR THE WIFE: No because there’s no challenge by way of the notice to admit, I’m seeking to tender it absolutely. Where there is challenge, I can’t seek to tender it absolutely and I accept that unless the parties agree that it goes in. I would have thought that’s what would happen in a common sense running of a case, but clearly not in this case but that’s all right. We will deal with that in due course.

    HER HONOUR: How many more of these documents have you got?

    COUNSEL FOR THE WIFE: 200? And that’s why I’ve decided this morning, I’m just giving him the documents and – I will be cross-examining on them but I’m going to put them in on that – like, one, two, three, four, five. Some will be marked for identification, some will be tendered absolutely, then – they’re all the ones on that subject matter then I’m going to put to him, do you recognise that document. If the answer is no, we will move on. I’m going to put – and then I’m going to ask him various things about the document ..... “Is that within your – that was within your knowledge. Yes. So ultimately my submission to you, for example in relation to this document, is this document existed – and you can work out – we will say you can easily work out from what’s on that list when it was created in a timeframe. Secondly, my submission to you would be that the only person who was possessed of all the information in this document is [Mr Fowles]. There’s no one else who had this information.”

    And I’ve got supporting documents for all that which I’m going to put to him. And, accordingly, we’re going to submit to your Honour you ought find this was created by [Mr Fowles] at or about a given timeframe and you ought find – therefore the document is – notwithstanding his denials or not lack of memory – the document is a true reflection of what his asset position was in that timeframe. Now, that’s all legitimate but it’s a matter of what your Honour finds in relation to the document itself but that doesn’t stop the document getting into evidence.

1. Pausing for a moment, Counsel for the wife’s reference to s 43 of the Evidence Act 1995 (Cth) (“the Evidence Act”), is a reference to the provision in the uniform evidence law on the procedure to be adopted in cross examining a witness about a previous statement which is inconsistent with evidence given by the witness. The Evidence Act provides:-

   43(2)If, in cross examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross examiner is not to adduce evidence of the statement otherwise than from the witness unless, in cross examination, the cross-examiner:

   (a)informed the witness of enough of the circumstances of the making of the statement to  enable the witness to identify the statement; and

   (b)drew the witness’s attention to the so much of the statement as is inconsistent with the witness’s evidence.

   43(3)For the purpose of adducing evidence of the statement, a party may re-open the party’s case.

2. Section 43 merely imposes procedural requirements on the cross examiner where the cross examiner proposes to adduce evidence of a prior inconsistent statement, from a person who is not the witness and where the witness does not admit making the prior statement as alleged. It provides a witness against whom a cross examiner will seek that the court make an adverse finding as to credit or fact, is fairly informed of what he is alleged to have said, the provenance of what was said and how that previous statement is alleged to be inconsistent with his/her current evidence. The previous statement can be adduced by the cross examiner re-opening their client’s case or otherwise.

3. In the context of this case, s 43 provides the steps which must be followed before counsel for the wife could have adduced evidence, from someone other than the husband, of a prior inconsistent statement made by the husband. Applied to this case, the purpose of s 43 is to guarantee the husband procedural fairness in respect of evidence that would necessarily follow the conclusion of his cross examination and re-examination. It ensures that counsel for the wife provides the husband with a proper opportunity to consider precisely what the wife alleges the husband previously said (to which a witness other than the husband will testify) and precisely how that statement is asserted to be inconsistent with what the husband now says.

4. Section 43 necessarily operates only where the prior inconsistent statement is (or will be) admissible. It has no application where there is no admissible evidence of a prior inconsistent statement because there is nothing in respect of which the witness needs to be accorded procedural fairness. Here, the issue is whether the undated memorandum entitled “[Mr Fowles’] assets” is admissible. The objection is that it is neither identified nor relevant. Section 43 cannot be employed by counsel for the wife to adduce evidence which is inadmissible. Mr Sheales’ reference to s 43 is misconceived, s 43 has no application.

5. Continuing with the record of how Exhibit W47STI came into being:

   HER HONOUR: And why is it relevant?

   COUNSEL FOR THE WIFE: Because our submission will be, for example, you see down there at 13, 14 and 15, they’re all trusts – well, firstly, [WW LLC] is a transaction which he clearly – which we will be saying, your Honour, on the documents we will put to him and tender – which have all been provided – that [WW LLC] was a very large transaction which he made a lot of money out of in his own name still has a significant interest in none of which has been disclosed and what I will be saying to your Honour about that is - - -

   HER HONOUR: Okay. Well, that satisfies me on relevance.

   COUNSEL FOR THE WIFE: Yes.

   HER HONOUR: Okay. Mr North, is there any way we can shortcut this?

   SENIOR COUNSEL FOR THE HUSBAND: Well, your Honour, I think there is because, in my respectful submission, this is one of the documents to which paragraph 32 of your Honour’s reasons yesterday is directly applicable […]

   Where the husband has not disputed the authenticity of a document which is the subject of a notice to admit, he has admitted that the document exists or has existed in that form. However, the authenticity or genuineness of a document is a separate question to the authorship, location, truthfulness or probative value of the document.

   HER HONOUR: Yes. That’s what – Mr Sheales is happy with that.

   SENIOR COUNSEL FOR THE HUSBAND: But, in my respectful submission, it doesn’t – you don’t establish its relevance unless and until you establish something with respect to those other matters. And particularly where the authorship is not yet established and where it came from is not yet established, all you can do – and I have no objection to him doing this – is to tender it marked for identification. And it can’t go in for all purposes or, indeed, any purpose absolutely until it has been identified or findings are made about those other matters. At the very best - - -

   HER HONOUR: Okay. So he can put together a bundle of documents that you say can go in as having been the documents the subject of the notice to produce?

   SENIOR COUNSEL FOR THE HUSBAND: Yes.

   HER HONOUR: All right. STI without having to - - -

   SENIOR COUNSEL FOR THE HUSBAND: Yes. He could but it would be STI.

   COUNSEL FOR THE WIFE: Your Honour, to save time on this, with the greatest respect to my learned friend I completely disagree with his submission but I’m not going to further argue it.

   HER HONOUR: Well, I don’t.

   COUNSEL FOR THE WIFE: We’re going to – no. What we will do is we’re going to mark everything for STI – everything. And then I’m going to seek to prove them all as I’m entitled to under the Evidence Act and so rather than have this circus go on in relation to these sorts of objections, that’s what I would propose to do. So I’m happy to have the witness back, your Honour.

   HER HONOUR: Well, how are you going to do it? Is he just going to sit there whilst you hand up documents?

   COUNSEL FOR THE WIFE: Well, no. I’m - - -

   HER HONOUR: Because you don’t need to put them to him, you can just put them into a folder.

   COUNSEL FOR THE WIFE: No. I’m putting them in his hand, having him look at them; I’m going to cross-examine on them, I’m going to have them marked for identification and then I’m going to call my client if I have to call to prove them. I don’t understand there to be any issue from my learned friends as to where they’re found and I don’t understand - - -

   HER HONOUR: Well, do you say there’s an issue as to where they’re found?

   SENIOR COUNSEL FOR THE HUSBAND: Well, I don’t know what this document is, your Honour.

   COUNSEL FOR THE WIFE: Well, for example, let’s say I call my client and say, “This document, if you had read the notice to admit, comes off one of the computers and your client had admitted only the document” - - -  

   HER HONOUR: Where does it say they came off the computers?

   COUNSEL FOR THE WIFE: In her affidavits that are referred to, A, B and C are marked that way because they came from different places. They’re marked in groups. A came from one area, B came from one computer, C came from another computer. This is all in her affidavits.

   HER HONOUR: But at the moment that’s struck out, isn’t it?

   COUNSEL FOR THE WIFE: Of course it is, your Honour. So I will call her to say, A was found here as per my affidavit, B was found here – schedule B was found here on this computer, schedule C was found here. I don’t understand how if his client can’t remember anything how he can possibly put to her that’s not true. Now, this is the thing. She has called, she gives that evidence, what’s this cross-examination? You fabricated these documents? No. You didn’t find them where you say you found them? No because there could be no basis, as I apprehend it, for such cross-examination – there could be no instructions to that effect because this witness doesn’t remember anything. So, in those circumstances, I’m going to prove them. It’s a matter of this is just taking too long to do it this way so I’m happy just to mark them all for identification. That’s what I’m saying, your Honour.

   HER HONOUR: Okay. Well, you weren’t originally prepared to mark them for identification so it can be 47 STI.

6. The wife’s Notice to Admit was filed on 18 August 2017 and served on 7 September 2017. It required the husband to admit 39 factual matters commencing with details of a loan application in October 2001 and concluding with the quantum of arrears of school fees then owing to M School. The next section reads:

   You are required to admit for the purpose of these proceedings only the authenticity of the following documents:-

   All individual documents as particularised in Schedules A, B and C annexed hereto (which constitute respectively exhibits “[MF-2]”, “[MF-5]”, “[MF-6]” to the Affidavit of [Ms Fowles] sworn 25 May 2017) which documents remain available for inspection by the Solicitors for the Husband on request.

7. Exhibit W47STI is document 45 in Schedule “B” to the Notice to Admit.  The wife’s affidavit sworn 25 May 2017 was sealed by the court on 26 June 2017. That affidavit is not a document upon which the wife relied in the running of her case. It was in evidence before me save as a descriptor of the schedules referred to above. Relevantly, in the wife’s affidavit of evidence in chief sworn 30 January 2018 the wife had deposed under the heading “Relevant disclosure obtained by me”:

   155.There are a number of documents were obtained by me in hard copy either during the marriage or after separation that have been relevant to those proceedings.  These documents are listed in either my Affidavit of Disclosure sworn 25 May 2017 and filed 26 in 2017 all my Affidavit of Disclosure sworn and filed 3 November 2017.

8. The next 14 paragraphs of the wife’s affidavit, numbered 156 to 169, describe various ways in which documents came into the possession of the wife and what she did with them. On the first day of the hearing objection was taken to parts of the wife’s evidence and paragraphs 155 to 169 were struck out in their entirety.  On day 12 there was the following interchange[5]:

   [5] Transcript 4 July 2018, p.891 line 28 to p.894 line 30.

   COUNSEL FOR THE WIFE: […] And so we say there are many millions that you would infer he has outside the [Fowles Family Trust] – has access to. And we will be putting – these submissions – they’re not going to be made in the context of some ethereal clutch. We’re going to be submitting exactly how you ought draw the inferences. And accordingly, it’s a matter of – we will be seeking, for example, orders along the lines of Chang & Su. This is – you know, obviously which are in relation to the unencumbered nature of the Melbourne apartment and for money – the 2 million that we’re seeking he pay. And I understand what our obligations are to do that. But it’s a circumstance where at the moment I’m just getting the evidence in that we’re going to seek to rely upon.

   HER HONOUR: Okay. Thank you.

   SENIOR COUNSEL FOR THE HUSBAND: Your Honour, can I raise a matter, just because I seek clarification? Did I understand my friend correctly to say that their position is that you can infer that W47STI was created with these proceedings in mind or words to that effect?

   COUNSEL FOR THE WIFE: Yes. That’s what I will be submitting.

   SENIOR COUNSEL FOR THE HUSBAND: For the purposes of these proceedings. Do I understand that to be the wife’s position?

   COUNSEL FOR THE WIFE: Is it that difficult? We’re saying that when you date this document and you look at the chain of documents in the divorce plan, if I can describe them that way – there’s about 14 – and you see where this fits into them, it’s a matter for you whether you infer that or not, but we say it’s created by [Mr Fowles] and it is an accurate listing of everything he has an interest in. That’s what we’re saying. As at – and we will be invited your Honour to infer when it was created because of what’s on it. You can’t create a document about things that haven’t happened yet.

   SENIOR COUNSEL FOR THE HUSBAND: I understand that my friend’s case is also that this is a document that was obtained by reference to one or other of the computers or hard drives by his client. Is that correct?

   COUNSEL FOR THE WIFE: No. Read the materials. I’m not explaining every document to you. You’ve had notice of this for six months. We’re wasting time.

   HER HONOUR: Well, can you explain it to me?  

   COUNSEL FOR THE WIFE: Yes, your Honour. This is document – was it B - - -

   HER HONOUR: 47.

   COUNSEL FOR THE WIFE: No. W47, which is document B43, which was – give us the notice to admit of August. It’s all in the materials. If you go to my client’s affidavit of 25 May 2017.

   SENIOR COUNSEL FOR THE HUSBAND: Is it document 45 in your notice to admit?

   COUNSEL FOR THE WIFE: Please. Do you want me to tell you where it is or not on stuff you should have read?

   HER HONOUR: Please don’t say that. It wasn’t a vexatious question.

   SENIOR COUNSEL FOR THE HUSBAND: What? I beg your pardon? Where do you want me to go?

   HER HONOUR: The May affidavit.

   COUNSEL FOR THE WIFE: 25 May 2017.

   HER HONOUR: Can I see that, please, [Ms AX]? I should have a copy, but I don’t seem to.

   COUNSEL FOR THE WIFE: And can I have the notice to admit as well? Just so I can read it. That’s all. Just the bit at the end

   HER HONOUR: 25 May.

   COUNSEL FOR THE WIFE: Yes. Does your Honour have that?

   HER HONOUR: Yes, I do.  

   COUNSEL FOR THE WIFE: Paragraph 5. Do you want to follow?

   SENIOR COUNSEL FOR THE HUSBAND: I beg your pardon?

   COUNSEL FOR THE WIFE: Do you want to follow, seeing as though you want me to do this for you?

   HER HONOUR: Please don’t use that tone.

   …

   COUNSEL FOR THE WIFE: Yes, your Honour. You will see document 45. And you will see there a memo entitled [Mr Fowles’] Assets.

   SENIOR COUNSEL FOR THE HUSBAND: Yes. Well, that’s not this.

   COUNSEL FOR THE WIFE: Well, your solicitors were provided with a hard copy with the schedules. It’s ridiculous. Now, if you go to the notice to admit, you will see that when we seek to ask – you know, it’s just ridiculous.

   HER HONOUR: Come on. You can get there. You haven’t got time before lunch. Stop huffing and puffing and just say the words. So we’re looking at the August notice to admit.

   COUNSEL FOR THE WIFE: Yes. And you will see when the documents are sought to be admitted – I’m just getting out my copy of it, your Honour – it refers to the affidavit and schedules A, B and C in relation to the documents. So what the notice to admit says is – setting out schedule B again, obviously, A, B, and the schedules are attached to the notice to admit. […] Not only that, we sent them hard copies of them all. And now I’m being asked on day 11 where this document comes from. And it’s a document he admitted the authenticity of. I mean, I nearly fall over.

   HER HONOUR: Don’t.

   COUNSEL FOR THE WIFE: I will try not to, your Honour.

   HER HONOUR: All right. Well, this affidavit of 25 May 2017 isn’t a document you’ve previously relied on?

   COUNSEL FOR THE WIFE: No. It was in the paragraphs struck out in relation to the source for the documents, which we accepted. It was incorporated into our trial affidavit for this purpose.

   HER HONOUR: Okay.

   COUNSEL FOR THE WIFE: But it was struck out of our case in chief, which I accept.

   HER HONOUR: Okay.

   COUNSEL FOR THE WIFE: But it’s just - - -

   HER HONOUR: All right. Thank you.

9. By the Notice Disputing a Document filed 11 September 2017 the husband, inter alia, admitted the authenticity of the document 45 in Schedule B, which became Exhibit W47STI. The wife’s Notice to Admit served on 7 September 2017 did not ask the husband to admit any facts in relation to the undated memorandum which went to the provenance of the document, including its authorship. The husband was merely required to admit that it was authentic and he did so.

10. Following the luncheon adjournment, counsel for the wife addressed me as follows[6]:

    [6] Transcript 4 July 2018, p.895 line 21 to p.896 line 5.

    COUNSEL FOR THE WIFE: Your Honour, just to close the circle on what we were discussing this morning just before we rose – and I apologise. I made – obviously, everyone knows I made an intemperate remark, and I apologise. What slipped out, it wasn’t intended. But just to close the circle so I can explain so that no one is under any misapprehension about where it sits – we say – evidentially, if I can invite your Honour to turn to my client’s trial affidavit, and I’m not raising these matters to debate them. I’m just raising them to bring them to your Honour’s attention, and I’m not raising these matters to debate them. I’m just raising them to bring them to your Honour’s attention. 

    HER HONOUR: Got it. Yes.

    COUNSEL FOR THE WIFE: If I can invite your Honour to go to paragraph 155 and following which was ruled out, that was – that’s what I’m referring to when I refer to where we sought to incorporate in the trial affidavit those earlier disclosures, but - - -

    HER HONOUR: Well, that’s what I had read - - -

    COUNSEL FOR THE WIFE: Yes. 

    HER HONOUR: - - - and that’s – I think I might have made reference to it in the reasons I just delivered.

    COUNSEL FOR THE WIFE: Yes, your Honour.

    HER HONOUR: All right. But I hadn’t read – I hadn’t read the affidavit of 25 May.

    COUNSEL FOR THE WIFE: Yes, your Honour. And in a more perfect world we may – obviously in a more perfect world we might have set our notice to admit out a bit, incorporating more steps as well, but, anyway, we have what we have. Your Honour, that’s the only matter I want to raise with your Honour, so if we could have the witness back, we will keep going. 

11. I understood the statement by counsel for the wife that “obviously in a more perfect world we might have set our notice to admit out a bit, incorporating more steps as well, but, anyway, we have what we have” to be a reflection by him on the fact that the wife’s Notice to Admit had not required the husband to admit such matters as authorship or accuracy of its content. The tender of Exhibit W47 remained subject to identification. The threshold issue of the document’s relevance also remained unresolved.

12. The husband has admitted the authenticity of W47STI but there is no concession as to relevance or provenance of the document. I am not satisfied as to the provenance of the document and in the circumstances of this case, its relevance. The document will not be tendered absolutely.

13. To the extent to which counsel for the wife may be submitting that a document can be admitted into evidence absolutely merely on the basis that it appears to be relevant and what weight is to be accorded it can be the subject of subsequent evidence about the provenance of the document, I do not accept that submission. A document may appear to have potential relevance based on certain assumptions being made. However, if there are difficulties with identification of the document, by which I mean such things as authorship or provenance, those matters must be determined before the court can be satisfied that receipt of the document into evidence will rationally affect the probability of existence of a fact in issue within the meaning of s 55 of the Evidence Act.

    DOCUMENTS OTHER THAN EXHIBIT W47STI

14. For the purpose of seeking that the documents be tendered, the wife’s representatives ordered them into a number of schedules.

    SCHEDULES A AND AA

15. In the wife’s affidavit sworn 7 September 2021 the wife had deposed:

    7(a)      The documents listed at Schedules A and AA were found by me in the [L Pty Ltd] Office from in or around 2013 to early July 2015.

16. In relation to Schedules A and AA the wife’s evidence under cross examination was part of her duties working at L Pty Ltd involved filing documents and tidying up after the husband. It was in this capacity the wife discovered the documents depicted in schedule A and AA, including the martial exit plan (Exhibit W97STI) which she claims was located on top of a filling cabinet in the husband’s office. To the wife’s knowledge the husband did not take any steps to preclude her from having access to documents located within his office during her employment.

1. The Exhibits STI in Schedules A and AA are as follows:

   Exhibit W21STI

   (a)W21STI is a document entitled “exchange agreement” between Mr Fowles and SS Company dated 1 October 2001.

   Exhibit W97STI

   (b)W97STI is the Marital settlement agreement dated April 2014. By his Notice Disputing Facts filed 11 September 2017 he denies that he drafted, authored or otherwise directed the drafting of the document in response to proposition of fact No. 24 in the Notice to Admit Facts. The authenticity of this document was admitted by the husband in the same Notice Disputing a Document.

   Exhibit W98STI

   (c)W98STI is an undated Memorandum regarding meeting with “Dad, Ms BG, Mr Fowles, Mr BH, Mr AD” regarding “Mr Fowles Snr’s Objectives”.  

   SCHEDULE B AND BB (REMAINDER)

2. The balance of the documents in Schedule B and BB are as follows:

   Exhibit W22STI

   (a)W22STI is a three page document titled “re Melbourne Ventures, Fowles LLC, SS Company, BK Inc, W Pty Ltd – queries arising” and is undated.

   Exhibit W34STI

   (b)W34STI is a two page document dated 12 February 2011 and described as an Analysis of Assets and Liabilities purportedly relevant to the marriage between Mr Fowles and Ms Fowles. The authenticity of this document was admitted by the husband in his Notice Disputing a Document filed 11 September 2017.

   Exhibit W35STI

   (c)W35STI is an undated two page document titled “documents to be located” and refers to SS Company, the Melbourne Condo, W Pty Ltd and the Trust. The wife’s counsel seeks to rely on the document in order to establish the Australian Condo (otherwise known as the X Street apartment) as an asset of the husband’s as at 2011 and the husband to be an owner for tax purposes.

   Exhibit W36STI

   (d)W36STI is a document headed “REV June 91.2013” and purports to be a document prepared regarding ownership and with questions to Mr Fowles in relation to assets (including SS Company) dated 12 February 2013 to 19 June 2013.

   Exhibit W37STI

   (e)W37STI is a two page document entitled “[Mr Fowles] – Assets Subject to Divorce Settlement” dated 9 March 2013. The authenticity of this document was admitted by the husband in his Notice Disputing a Document filed 11 September 2017.

   Exhibit W48STI

   (f)W48STI is a document titled “390 Trust Status as of February 28, 2014”.

   Exhibit W50STI

   (g)W50STI is an email between Ms BL, Mr Fowles and Ms BM dated 15 January 2010 regarding a change to the husband’s email address.

   Exhibit W53STI

   (h)W53STI is an undated IRS Form 1099 Miscellaneous Income with the recipient listed as Mr Fowles at W Pty Ltd.

   Exhibit W68STI

   (i)W68STI is an agreement dated 16 December 2013 between BN Ltd and BO Trust Ltd as trustee of the EE Trust. The authenticity of this document was previously admitted to in the husband’s Notice Disputing a Document filed 11 September 2017.

   Exhibit W74STI

   (j)W74STI is an undated one page memorandum titled “RE BP” referencing the BQ Bank.

   Exhibit W113STI

   (k)W113STI is a chronology of events regarding Melbourne Ventures spanning from 25 August 1999 to 26 November 2003.

   Exhibit W114STI

   (l)W114STI is a chronology spanning from 2 December 1999 to 2 October 2001 of the deposits and sales in relation to Mr Fowles and SS Company. 

   Exhibit W115STI

   (m)W115STI is a letter from Mr BR, the Legal and Compliance Manager at W Pty Ltd to BS Services Ltd dated 15 December 2009.

   Exhibit W116STI

   (n)W116STI is a chronology of developments regarding BK Inc spanning 13 July 2000 to 23 January 2002.

   Exhibit W117STI

   (o)W117STI is a chronology from 21 November 2000 to 5 July 2005 of a number of events regarding Melbourne Ventures.

   Exhibit W119STI

   (p)W119STI is a Nominee Agreement between W Pty Ltd and SS Company LLC dated 1 June 2007. The authenticity of this document was admitted by the husband in his Notice Disputing a Document filed 11 September 2017.

   Exhibit W122STI

   (q)W122 is a letter dated 8 September 2009 from BT & Associates enclosing the 2002 Federal Corporation Income tax Return for Melbourne Ventures for signing. The authenticity of this document was admitted by the husband in his Notice Disputing a Document filed 11 September 2017.

   Exhibit W125STI

   (r)W125STI is an email from Ms BM to Mr BU regarding BV Associates- K1 dated 8 August 2003.

   Exhibit W126STI

   (s)W126STI is an undated document headed “Companies mentioned”.

   Exhibit W127STI

   (t)W127STI is an undated 3 page document regarding Melbourne Ventures, Fowles LLC, SS Company, BK Inc and W Pty Ltd- queries arising.

   Exhibit W129STI

   (u)W129STI purports to be a table listing Mr Fowles’s assets dated 23 July 2013.

   Exhibit W130STI

   (v)W130 is a table which is undated referencing “short terms cap gains” and “long term cap gains”, “wires to Ms Fowles for D’s school fees”, “transfer to BW Company” and “Fowles Family Legal Expenses”.

   SCHEDULES C AND CC

3. In the wife’s affidavit sworn 7 September 2021 the wife had deposed:

   7(c) The documents listed at Schedules C and CC were sourced from a [BX laptop] that I found in the former matrimonial home in November 2016. The [BX laptop] was not in working condition however I was able to obtain a copy of the hard drive. I then made a copy of a number of documents found on that hard drive, including a number of emails, and provided a copy of those documents to my solicitors.

4. As discussed above, in relation to Schedules C and CC the wife’s evidence under cross examination was that the husband last had access to the BX laptop in July 2015, prior to which the laptop worked “intermittently”.[7] The wife explained that the computer was located in a cupboard post separation and had been repaired.[8]  Further, that when it was eventually re-connected to the internet, it began to receive documents.

   [7] Transcript 10 September 2021, p.797 line 6.

   [8] Transcript 10 September 2021, p.806 line 36.

5. The Exhibits STI in Schedules C and CC are as follows:

   Exhibit W38STI

   (a)W38STI is a letter dated 20 April 2009 from Mr Fowles to BY Trust Ltd regarding DD2 Trust. The letter purports to notify the Trust Company of the husband’s intention to effect a transfer of trusteeship from the DD Trust to BZ Trust Ltd.

   Exhibit W40STI

   (b)W40STI is the BN Ltd Financial Report for the period 1 January 2008 to 21 December 2008 and dated 31 December 2008.

   Exhibit W41STI

   (c)W41STI is a 2009 Deed of Removal and Appointment of Trustee for the EE Trust. It was asserted on behalf of the wife that this document was signed by the husband despite his evidence that he did not recognise it and nor was he familiar with it. The document describes the husband as the protector of the Fowles Trust. The wife sought to relies on the deed as evidence of the existence of the BZ Trust Ltd, the BY Trust Ltd as well as the Fowles Trust prior to 2003.

   Exhibit W42STI

   (d)W42STI are emails dated 5 May 2009 between Mr Fowles, Mr Y and Ms BM regarding trusteeships. The wife’s counsel contends that this email establishes that the husband was a trustee of the EE Trust, or otherwise an office bearer, given his instructions to Mr Y that “his sister is not involved in the [EE Trust]” and his request for Mr Y to deal directly with him with regards to the EE Trust. Further the wife contends that the email chain also purports to establish the husband’s awareness of the existence of the BZ Trust Ltd.

   Exhibit W43STI

   (e)W43STI are emails dated 6 March 2006 between Mr BC and Mr Fowles in regards to the Fowles Trust. The emails were said by counsel for the wife to establish the husband’s awareness of the existence of the Fowles Trust.

   Exhibit W45STI

   (f)W45STI are emails dated 26 July 2005 between Mr Fowles, Ms BM and Ms DA regarding DQ Trust Company. The subject of the email chain deals with the DQ Trust Company and discussions regarding the generation of capital gains and the ability to distribute yearly capital gains to the four children, understood to be the husband and his three siblings. The document was put to the husband in the course of cross examination who confirmed the document to be a true and correct copy save for where it was forwarded from the husband to Ms BM eight days later. The husband identified the top of the email to be a “cut and paste”. Counsel excised the first four lines of the email and the balance was tendered absolutely as Exhibit W45.

   Exhibit W49STI

   (g)W49STI are emails dated 15 September 2010 between Mr Fowles, Ms DB, Ms BL and Ms DC regarding the DE Company tax return. Counsel for the wife suggests that the emails establish that the husband has been a shareholder in DE Company since the 390 Trust was established. When the emails were put to the husband as true and correct copies the husband claimed not to recognise the emails or recall having any dealings with DE Company.

   Exhibit W51STI

   (h)W51STI is a two page document dated 1 March 2005 and headed “Notes for [Mr DF]”. The notes canvass a variety of matters including the W Pty Ltd loan and DG Trust.

   Exhibit W52STI

   (i)W52STI is a 7 page document dated 28 January 2009 and entitled “[Mr Fowles] Time Management”. The document purports to deal with the husband’s interests and involvements in W Pty Ltd, W Pty Ltd, L Pty Ltd, personnel and investment banking among other financial matters.

   Exhibit W69STI

   (j)W69STI is a Trust Indenture of the Fowles Trust dated 1 July 1989.

   Exhibit W75STI

   (k)W75STI are emails dated 5 February 2006 between Ms BM and Mr BC from DK Bank with the subject line “[DQ Trust] Company ATF [Fowles Trust]”.

   Exhibit W76STI

   (l)W76STI are emails dated 6 March 2006 between Mr BC and Mr Fowles regarding the Fowles Trust.

   Exhibit W78STI

   (m)W78STI are emails from Mr Z to Mr Fowles dated 28 March 2014 with the subject line “Re: Call in number SDTC” and was forwarded by the wife on 28 March 2014 at 6:37 am. The authenticity of this document was previously admitted to in the husband’s Notice Disputing a Document filed 11 September 2017.

   Exhibit W91STI

   (n)W91STI is a document entitled “[Mr Fowles’] Entities” and dated 23 August 2004.

   Exhibit W92STI

   (o)W92STI are emails between Mr BC and Mr Fowles dated 4 April 2006 in regards to Trust investment objectives.

   Exhibit W93STI

   (p)W93STI is a letter dated 20 April 2009 from Mr Fowles to the BY Trust Ltd giving notice of his wish to effect the transfer of the trusteeship of the DD2 Trust to BZ Trust Ltd.

   Exhibit W94STI

   (q)W94STI are emails between Mr Fowles Snr and Mr Y with the subject line “Following up” dated 2 and 3 April 2012 and forwarded to Mr Fowles in 13 February 2017. 

   Exhibit W95STI

   (r)W95STI purports to be an email between Mr Fowles Snr and Mr Y and obtained in accordance with the method described in the wife’s affidavit as schedule CC. However, on the face of it, it seems to be W96STI in schedule CC-88 which are emails between Mr Fowles Snr, Mr Z and Mr AY.

   Exhibit W96STI

   (s)W96STI purports to be emails between Mr Fowles Snr, Mr Z and Mr AY and sourced in the method described in the wife’s affidavit as schedule CC. However, W96STI on the face of it is consistent with the description of W95STI which are emails between Mr Fowles Snr and Mr Y.

   Exhibit W131STI

   (t)W131STI is a letter dated 18 May 2006 from Mr BC to Mr Fowles regarding the Fowles Trust and notifying him of a recent change within DQ Trust Company that precluded his further involvement in the trust relationship.

   Exhibit W132STI

   (u)W132STI purports to be a letter from Mr DL Fowles to DQ Trust Company dated 11 February 2008 and sourced from schedule CC-41. However, on the face of it is a photo taken on 12 December 2016 of an email from Mr Fowles Snr to Mr NN Mr DF and Mr Fowles regarding “Melbourne reported with M[r Fowles] Thru 2001”.

   Exhibit W133STI

   (v)W133STI is an email dated 6 October 2010 from Mr Fowles to Ms DM regarding the EE Trust.

   SCHEDULE D

6. None of the documents tendered STI or otherwise the subject of this application were sourced by the methods described in Schedule D.

   SCHEDULE E

7. In the wife’s affidavit sworn 7 September 2021 the wife deposed:

   7(d)Schedule E refer to emails that were sent to my email address from [Mr Fowles’] various email addresses. Due to the passage of time, I cannot recall the circumstances of how each individual email was sent to me however I recall that the Respondent forwarded me emails from time to time, either inadvertently or otherwise that related to his financial circumstance and some of these emails were sent in this manner. Others were forwarded by me upon me accessing the Respondent's outlook from time to time during the marriage.

8. As discussed earlier, the wife’s evidence under cross examination in relation to Schedule E was that some of the documents were not accurate or complete copies in-so-far as they may be missing a page and not in sequential order. The wife gave evidence that she supplied the documents to her solicitors by way of disclosure and was not involved in the process of copying or uploading them. The wife admitted to it being an “oversight” that she herself did not confirm that the documents were accurate in the way they were described in the schedules.

9. The Exhibits STI in Schedule E are as follows:

   Exhibit W46STI

   (a)W46STI are emails dated 9 October 2012 between Mr Fowles Snr, Mr Fowles incorporating an email from Mr BD. When put to him in cross examination the husband accepted that the email chain, save for the top four lines where it was forwarded from the husbands email to the wife’s, was a true copy.[9] The husband subsequently reported he had “no recollection”[10] of the email chain and did not accept that it actually occurred, causing it to be marked for identification. 

   [9] Transcript 29 June 2018, p.797 lines 14-33.

   [10] Transcript 29 June 2018, p.797 line 22.

   Exhibit W85STI

   (b)W85STI is an email from Mr Fowles to himself dated 6 October 2010 with the subject line “$141K”.

   Exhibit W86STI

   (c)W86STI is an email dated 4 October 2012 from Mr Fowles Snr to Mr Fowles enquiring what date the husband purchased the Melbourne Condo.

   Exhibit W87STI

   (d)W87STI is an email from Mr Fowles Snr to Mr Fowles dated 9 October 2012 enclosing the Marital Exit Plan.  

   Exhibit W89STI

   (e)W89STI is an email dated 27 March 2014 from Mr BE to [Ms BF] regarding statements and 1099 for SS Company and K-1 for DN Company and was forwarded to the wife on 28 March 2014.

   THE WIFE’S EVIDENCE

10. Counsel for the wife relied on an affidavit by the wife sworn on 7 September 2022.  The wife’s affidavit of 7 September 2022 appears to be drawn from the paragraphs 155 to 169 of the wife’s affidavit of evidence in chief which were struck out on the first day of the hearing.

11. The wife deposes to the source of the 43 documents (as they then were, now 54 documents) which had been tendered on her behalf subject to identification and which were itemized in schedules A, B, C, AA, BB, CC, D and E annexed to her affidavit sworn 7 September 2021.

12. In respect of Schedule B/BB which included Exhibit W47STI, the wife deposed[11]:-

    7 (b) The documents listed at Schedules B and BB were sourced from the Respondent's laptop. I say that shortly prior to separation, I accessed the Respondent's laptop at the former matrimonial home and transferred a copy of his laptop onto an external hard drive. At the same time, I also forwarded to myself, some emails from the Respondent's outlook that I considered relevant at that time to these proceedings. The Respondent collected the laptop shortly thereafter however from time to time between July 2015 to March 2017, I accessed the hard drive and made a copy of documents that I considered relevant to these proceedings.

    [11] Wife’s affidavit filed 7 September 2021, paragraph 7.

13. The wife was cross examined by senior counsel for the husband on 10 September 2021 (day 43) which was three days after she had sworn the affidavit upon which she relied to tender documents.

14. In relation to Schedules B (which includes Exhibit W47STI) and BB, the wife’s evidence under cross examination was that following separation the husband’s laptop was located and “repaired to the point of working”[12] and that she did not log in to the husband’s email address and harvest the documents following separation. The wife was unable to explain beyond mere speculation how there were documents obtained from the husband’s laptop and uploaded to an external hard drive which post-dated the last time the husband had access to the computer. The wife’s evidence was:

    SENIOR COUNSEL FOR THE HUSBAND: Right. Now, the thing is I’m suggesting to you that neither of the documents bearing the date 2016 and the likely document H39 – this document - - - […] page 1 could possibly have come from any one of the four sources you identify in paragraph 7 of your affidavit?---No. I believe it’s possible it could have come from the [BX Laptop], to the best of my knowledge.

    It didn’t?---But I don’t know. I just do not know. It is very strange, I agree.

    Well, it’s very strange to understand how a document that is dated - - -[…] It’s very hard to understand how documents dated in 2016, including one dated in October 2016, can be found on the hard drive of the computer that has been in the cupboard and forgotten about by you for years and not used by my client since two – at the latest July 2015. It just can’t have happened, can it, [Ms Fowles]?---Yes. It could have happened.

    HER HONOUR: How?---But I don’t know – because the dates seem to coincide with when the – the computer was found and repaired to the point of working. You know, so I – that’s the only explanation I could come up with, otherwise I do not know.

    And what do you think its working capacity would have resulted in it being able to do?---It could have connected to the VPN and downloaded – I don’t know. But I – I don’t know because I need to look at – at the computer to see if it’s on the hard drive, but I don’t have and never – and have not had access since I gave it to my lawyers, and then I believe it has then gone on to – Mr North, I don’t know whether you have the [BX laptop] and maybe you could look, but I really can’t explain it, but that’s – it is just speculation but I don’t know how that document came into existence, but the – the fact is it is there.

    [12] Transcript 10 September 2021, p.806 line 36.

15. Under cross examination[13] the wife admitted that she had not identified each and every document deposed to by her in her affidavit sworn on 7 September 2021.

    [13] Transcript 10 September 2021, p.774.

16. The wife agreed[14] with counsel for the husband that she had not retained personal control of the documents which she collected, she did not copy the documents or compile them herself. In particular, the wife ‘s evidence was:

    SENIOR COUNSEL FOR THE HUSBAND: You didn’t do the copying, did you?---No, I did not - - -

    Someone did - - -?--- - - - these documents.

    You didn’t upload them?---No.

    And you didn’t copy them?---No. I – I gave them to my - - -

    Solicitors?--- .....

    So you have not checked whether the documents presented to the court are accurate copies of the documents you describe in your schedules, have you? You haven’t done the check?---I think in this particular case it was an oversight.

    SENIOR COUNSEL FOR THE HUSBAND: That’s not an answer to my question. You haven’t checked them all, have you? Yes or no?---No, I haven’t checked them properly.

    Yes. You haven’t - - -?--- .....- - - checked them at all?---I have – I have checked them as much as I had the ability to under incredible duress and stress at the time. It has been a lot - - - […] for one person.

    [14] Transcript 10 September 2021, p.775

17. On behalf of the wife it is submitted[15] that Mr North’s cross examination of the wife strengthened the wife’s case in relation to her retrieval and production of documents. That was not my impression. It is submitted on behalf of the wife that when senior counsel for the husband put to the wife that she had harvested document “W77STI” from the husband’s records, it was recognised that the document had emanated from the husband. Further, that when senior counsel for the husband put to the wife that two documents separately tendered STI are in fact two pages of one document, “[that] puttage reveals the husband’s instructions that he recognised both documents and they went together.” I do not accept that submission.  

    [15] Written Submission’s on behalf of the applicant regarding documents marked for identification [16] to [26].

1. The wife’s submissions refer to s 144 of the Evidence Act as permitting the court to take judicial notice of matters within common knowledge. Section 144(1) provides that proof is not required about knowledge that is not reasonably open to question and is common knowledge in the locality in which the proceeding is being held or generally or which is capable of verification by reference to a document the authority of which cannot reasonably be questioned. In particular, it was submitted that the court should take judicial notice of the fact “that a computer programmed to update an email inbox upon reconnection to the internet will download emails received since it was last connected to the internet unless re-programmed otherwise. There was no suggestion made or evidence adduced on behalf of the respondent to suggest that his email account was not of this type and that the [BX laptop] was not so programmed.” There are serious deficiencies in relation to that proposition including the absence of evidence from an appropriately qualified person as to what was wrong with the computer, how the computer was fixed and whether the computer collected documents as alleged. There is also no evidence from an appropriately qualified expert in metadata to verify from whence the information came and when it was downloaded. I reject the wife’s submission that I can support the wife’s explanation, which she volunteered was speculation, as to how certain documents sent to the BX laptop by taking judicial notice of a series of propositions advanced by counsel for the wife and the wife. Judicial notice has no application to the facts under consideration in this part of the proceedings.

2. It is also submitted by the wife that the husband did not lead evidence to support any argument that the documents tendered STI were not his documents. Counsel for the wife fails to have regard to the fact that the wife bears the burden of identifying the documents sought to be tendered and the relevance thereof. The husband is not obliged to lead evidence to prove a negative.

3. Mr North’s cross examination established that the wife was in a position to depose from her personal knowledge, as she purported to do, that the documents sought to be tendered out of Schedules A, AA, B, BB, C, CC and E were true and correct copies of the documents recovered and collected by her or that the wife retrieved the documents described by her in her affidavit from the sources identified by her.  

4. My impression is that the wife collected documents from various sources. Thereafter, the wife handed bundles of documents to her lawyers over time and trusted her lawyers to look after the documents, to put the documents into appropriate order and to prepare her affidavit evidence in September 2021 with all the skill care and diligence that was necessary to have her swear the document as true and correct. My observation of the wife on 9 and 10 September 2021 was consistent with her having done everything she could do to have been careful and methodical in her retrieval and her reliance on documents but that she was let down by her representatives.

   THE LAW

5. The tender of evidence is subject to the rules contained in the Evidence Act. Section 56 of the Evidence Act contains the primary rule of admissibility, that is:

   (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

   (2) Evidence that is not relevant in the proceeding is not admissible.

6. Pursuant to s 55 of the Evidence Act, evidence, if accepted, will be relevant if it could rationally affect the probability of the existence of a fact in issue in the proceeding.

7. In order to be relevant a document must frequently be identified. In other words, in order for the court to be satisfied that a document is “relevant” the party seeking to rely on the document may be required to prove the author of the document and the circumstances of its making. This is not necessary in every case but, commonly, the relevance of a document cannot be accessed without knowing how and by whom the document was brought into existence and for what purpose. The provenance of the document may be agreed or may be received by other evidence or be subject to some statutory provision, such as s 69 of the Evidence Act in relation to business records, which renders the document admissible notwithstanding that the author of the document is not called to give evidence.

8. The party who seeks to put a document into evidence bears the onus of identifying the document and satisfying the court that it is relevant in the terms of s 55 of the Evidence Act.  

9. In Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 Spigelman CJ and Basten and Ip JJA considered the scope of s 167(c) of the Evidence Act which, inter alia, provides that a party may make a reasonable request to another party for the purpose of determining a question which relates to “the authenticity, identity or admissibility of a document or thing.” Section 167 of the Evidence Act is in Div 1 Pt 4.6 of the of the Evidence Act which sets up a request procedure designed to give procedural protection to parties against whom hearsay, documentary or conviction evidence may be adduced or admitted. Basten JA (with whom Spigelman CJ and Ipp JA agreed) stated at [30]:

   The scope of the trinity in s.167(c), “authenticity, identity and admissibility”, is reasonably clear as to its core, but imprecise at the periphery. For example, a party may seek to tender a handwritten file note, the relevance of which may be skewered unless one knows the author of the document, when it was created and whence it was extracted. These may be considered questions of “identity” in relation to a document or thing. If the nature of the document, its author and its time of creation is apparent on its face, there may be a question as to whether it is indeed what it reports to be which might be categorised as a question of “authenticity”. Those matters may determine whether it is relevant, whether it is a business record, and may thus be matters affecting its admissibility. There is thus no entirely clear dividing line between questions of authenticity and identity and each may provide a basis for admissibility.

10. I respectively agree.

    DISCUSSION

11. The wife submits that “all of the 54 MFI documents ought to be received into evidence absolutely pursuant to s 56 of the Act.”

12. It is submitted on behalf of the wife that:-

    Each of the 54 MFI documents are relevant to at least one of the below listed facts in issue in the instant proceeding:

    a.The true owner of the assets of the [Fowles Family Trust (FFT)];

    b.The true controller of the [FFT];

    c.The true value of the assets of the [FFT];

    d.The current true owner of the assets formerly owned by [the EE Trust] before that trust was collapsed;

    e.The current true controller of the assets formerly owned by [the EE Trust] before that trust was collapsed;

    f.The indebtedness of the respondent to his father’s estate in the amount of $2.8M;

    g.The credibility and/or the reliability of the respondent’s evidence;

    h.The credibility and/or reliability of the witnesses [Ms OO], [Ms BB], [Mr HH], [Mr DD] and [Mr AZ];

    i.The respondent’s compliance with his disclosure obligations; and

    j.The respondent’s failure to call relevant witnesses.

    (footnotes omitted)

13. The above list identifies 10 facts which the wife contends are in issue. However the wife, through her written submissions and counsel, is also required to identify which document and which parts of that document are relevant to the listed facts in issue.

14. Relevant evidence is evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding (s 55). The onus of satisfying the court that evidence is relevant falls to the wife. The wife is required to identify how the evidence could rationally affect the assessment of the probability of a fact in issue in the proceeding. It is not an exercise in multiple choice, as the above list of 10 issues seems to suggest. It is not sufficient to say that each STI document is relevant to at least one of ten listed facts in issue without specifying which of the ten facts in issue is/are relevant to any one document. Counsel for the wife must specify how each individual document marked STI is relevant within the meaning of s 55 of the Evidence Act.

15. Section 58 of the Evidence Act provides that, where relevance of a document is in issue, the court may examine the document and may draw any reasonable inference from it, including an inference as to its authenticity or identity including authorship.

16. In Commissioner of Taxation v Cassantiti[16] the Full Court of the Federal Court approved of the reasoning of Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No.1)[17] as to the correct approach when interpreting s 56 Perram J stated:

    [16] (2018) 266 FCR 385; [2018] FCAFC 212 Steward J at [64] with whom Greenwood and Logan JJ agreed.

    [17] (2012) FCA 1355; [2012] 207 FCR 448 at [92].

    It is useful to begin with some basic propositions:

    1.There is no provision of the [Evidence Act (the “Act”)] which requires that only authentic documents be admitted into evidence.  The requirement for admissibility under the Act is that evidence be relevant, not that it be authentic. On some occasions, the fact that a document is not authentic will be what makes it relevant, i.e., in a forgery prosecution.  In other cases, there may be a debate as to whether a particular document is or is not authentic, for example, a contested grant of probate where it said that the testator’s signature is not genuine.

    2.In cases of that kind, the issue of authenticity will be for the tribunal of fact to determine.  In cases heard by a judge alone, this will be the judge at the time that judgment is delivered and the facts found.  In cases with a jury, it will be the jury.

    3.The question of what evidence will be admitted is a question of law for the tribunal of law, which will be the Court.

    4.Since authenticity is not a ground of admissibility under the Act, the issue of authenticity does not directly arise for the tribunal of law’s consideration at the level of objections to evidence.

    5.What does arise for its consideration is the question of relevance under s 55. If the evidence is relevant it is admissible: s 56. It will be relevant under s 55 0if the evidence is such that “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue”.

    6.The question of a document’s authenticity is relevant only to the tribunal of law’s consideration of relevance under s 55. It has no other role.

    7.In that inquiry, the question for the tribunal of law is not whether the document is authentic but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact.

    8.If there is raised a question about the authenticity of a document (and assuming that, if authentic, it would otherwise be relevant to an issue) then there will be an issue in the proceedings about its authenticity.  This will be a question for the tribunal of fact to resolve, if the document is admitted.

    9.The question for the tribunal of law, by contrast, will be whether the document is relevant to a fact in issue under s 55. That is, the question will be whether the document can rationally affect the assessment of the probabilities of the fact, including its authenticity.

    10. What materials may be examined in answering this question? The answer is provided by s 58:

    58 Inferences as to relevance

    (1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

    (2)Subsection (1) does not limit the matters from which inferences may properly be drawn.

    11.The position then is clear.  In answering the only question before the tribunal of law — relevance — the tribunal may examine the document to see what may be reasonably inferred from it (s 58(1)).  It may also examine other material (s 58(2)).

    12.The tribunal of law does not find that the document is authentic. It finds that there is, or there is not, a reasonable inference to that effect and hence that the document is, or is not, relevant.  If there is a reasonable inference that the receipt of the document will rationally affect the probability of a finding of fact, then the matter may go to the tribunal of fact which will then determine at the end of the trial whether the document is authentic and whether the fact is proved.

    13.At no time does the tribunal of law determine that the document is or is not authentic because this is not a question for it.  It may, however, determine that no reasonable inference to that effect is open and thereby conclude that it is not relevant.  In a jury context, that will be similar to taking the question of authenticity away from the jury.  Analytically, it will be the same where the tribunal of fact is a judge.

    14.In deciding relevance (ie whether the tribunal of fact could reasonably infer that the document (otherwise relevant) was authentic), the tribunal of law is explicitly authorised by s 58(1) to ask what inferences as to authenticity are available from the document itself. That is what s 58(1) says.

17. In Re Wollongong Coal Ltd (formerly known as Gujarat NRE Coking Coal Limited )[18] Brereton J made the following observations:

    [18] [2014] NSWSC 1952.

    7A number of cases in this Court hold that a document does not prove itself simply by being tendered. Before admitting a document, a Court must be satisfied that it is what it purports to be. Sometimes, that inference can be drawn from the document itself. In National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309, Bryson J, as he then was, held that neither s 69 nor any other part of (NSW) Evidence Act 1995 had the effect of causing a document to be self-authenticating or permitted authenticity to be established simply by inference from the form or contents of the document.

    8His Honour's approach was considered in some detail by Austin J in Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 53 ACSR 752, particularly at [93] – [117]. His Honour observed that Rusu was approved by the Court of Appeal in Daw v Toyworld NSW Pty Ltd [2001] NSWCA 25, where Heydon JA, with whom Priestley and Sheller JJA agreed, observed (at [46]):

    If the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances.

    9Rusu has also been cited with approval in Kingham v Sutton (No 3) [2001] FCA 1117, [127] (Goldberg J).

    10As I pointed out in In the matter of Maiden Civil Pty Ltd [2012] NSWSC 1618 at [16], Rusu has not been without controversy, and aspects of Bryson J's reasoning are criticised in Odgers, Uniform Evidence Law, (8th edition, 2009) 1.3.480, a criticism that was taken up by Madgwick J in the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, [25]. Rusu was also questioned by the Court of Appeal of the Australian Capital Territory in O'Meara v Dominican Fathers [2003] ACTCA 24.

    11After reviewing those authorities and the judgment of Needham J in Re Marra Developments Pty Ltd and the Companies Act [1979] 2 NSWLR 193, which was endorsed in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, I concluded in Maiden Civil that while the mere production of a document cannot authenticate it, Marra Developments establishes, though Rusu might contradict, that production on subpoena from an identified source might suffice to show that it was produced from the custody of the entity whose business it is, which would facilitate an inference that it was a business record, and Rusu should not be taken to limit the way in which authenticity of the document can be proved.

    12I should add that Rusu has since not been followed in the Federal Court by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355. His Honour identified a distinction between authenticity and relevance and pointed out that the test of admissibility was relevance, not authenticity, and indeed that in some cases it would be absence of authenticity that might make a document relevant. To that extent, I agree, but it will always depend on the purpose of the tender.

    13A transactional document that is not binding on a party against whom it is tendered to prove the transaction is likely to be irrelevant. In order to establish that it is arguably relevant, something needs to be proven to show that party's assent to the document. For example, where a party seeks to prove a commercial transaction and relief for that purpose on a document signed by the other, if execution is in dispute then there will need to be some evidence of execution. The document does not become relevant until that is established. It is in that sense, I think, that Bryson J was referring to the concept of authenticity.

    14In this case, there is a live issue as to the authenticity of the fixture note. That there has been such an issue has been evident for some time. In the course of ruling on objections, I have indicated that I am inclined to reject it on the basis that it has not been authenticated in a manner sufficient to make it relevant. That is because, to be relevant, it would have to be shown that it was received by the applicant some time in or about June or July of 2013. It seems to me that on the material presently available, this document is not shown to be relevant.

    15It would seem that the applicant has assumed that I would reach the opposite conclusion and admit the document and in that respect entirely embrace the reasoning of Perram J, disregarding that of Bryson J, Austin J, the Court of Appeal and my earlier judgment in Maiden Civil. That may be thought to be a bold assumption.

18. The reasoning of Brereton J in Re Wollongong Coal Ltd has been referred to by the Court of Appeal in New South Wales in Capital Securities XV Pty Ltd v Callega.[19]  

    [19] [2018] NSWCA 26.

19. For many of the documents under consideration in this case it is apparent that the extent to which an inference can reasonably be drawn that the document will rationally affect the assessment of the probability of a fact in issue in the proceeding is dependent upon the husband’s relationship to, authorship or adoption of, the document at an earlier point in time. Unless there is a real connection between the husband and the prior statement or representation, it may not be reasonable to infer that the evidence will rationally affect the assessment of the probability of a fact in issue.

20. The written submission of each party contained an annexure which was a table of documents marked STI. The final column in the wife’s written submissions filed 16 September 2021 is headed “MFI Exhibits admitted” and it records those which the husband admitted as authentic in his Notice Disputing Facts of 11 September 2017. The husband adopted the wife’s annexure but changed the final column to “Submissions for non-admission”. In relation to all but three of the 54 documents marked STI the husband expressly includes “relevance” as a basis for non-admission. The other grounds for non-admission include that the document was not authored or executed by the husband, the husband did not adopt such a document or that the authorship of the document is unknown or that it is hearsay or opinion. Notably, in reply counsel for the wife did not address any of the husband’s specific objections to the admissibility of the documents marked STI. It was for the wife to satisfy the court of the relevance of any/all of the STI documents by articulating how an inference could reasonably be drawn that the document will rationally affect the assessment of the probability of a fact in issue.

1. There were three documents for which relevance and/or identification were not expressly stated in the table as a basis for the objection to the documents being tendered absolutely, they are:

   (a)W47STI being the undated memorandum headed “[Mr Fowles] assets”;

   (b)W60STI being a 2 page letter dated August 2016 to Ms DP at Landers & Rogers from the husband in response to request for disclosure;

   (c)W122STI being a letter dated 8 September 2009 from BT & Associates enclosing the 2002 Federal Corporation Income Tax return for Melbourne Ventures for signing.

2. In relation to W47STI, the husband’s evidence on day 12 of the final hearing, 4 July 2018, included[20] that he did not remember what documents he had looked at to respond to the wife’s Notice to Admit. Counsel for the wife did not specify how the receipt of document W47STI into evidence absolutely will rationally affect the probability of a finding of fact. I am not satisfied that it is reasonable to infer that the receipt of document W47STI into evidence absolutely will rationally affect the probability of a finding of fact. In other words, I am not satisfied that it is relevant within the meaning of s 55 of the Evidence Act.

   [20] Transcript 4 July 2018, p.865 lines 38-44.

3. In relation to W60STI, the husband’s evidence on day 12 of the final hearing, 4 July 2018, included[21] “[…] here we go again. I don’t know if it’s a true copy or not. It’s not signed. It’s not dated, and it seems to have a big line across the bottom, so I don’t know whether it’s true or not. I’m sorry.” Counsel for the wife did not specify how the receipt of document W60STI into evidence absolutely will rationally affect the probability of a finding of fact. I am not satisfied that there is a reasonable inference that the receipt of the document W60STI into evidence absolutely will rationally affect the probability of a finding of fact, in other words, that it is relevant within the meaning of s 55 of the Evidence Act.

   [21] Transcript 4 July 2018, p.947 lines 35-37.

4. In relation to W122STI, the husband’s evidence on day 19 of the final hearing, 8 February 2019, included[22] “I don’t know where it’s from, but it looks like something that might have come out of my father’s office, but I don’t recognise that document at all. Completely foreign document to me.” There was no evidence to the effect that the return was executed and submitted. Counsel for the wife did not specify how the receipt of document W122STI into evidence absolutely will rationally affect the probability of a finding of fact. I am not satisfied that it is reasonable to infer that the receipt of document W122STI into evidence absolutely will rationally affect the probability of a finding of fact. In other words, I am not satisfied that it is relevant within the meaning of s 55 of the Evidence Act. None of these three documents will be received absolutely.

   [22] Transcript 8 February 2019, p.392 lines 14-16.

5. In the face of the husband’s specific objection to the admission of the STI documents or the basis, inter alia, that the wife has not demonstrated how the documents are relevant, Counsel for the wife did not explain how each document was relevant. I am not satisfied of the relevance of each document and it follows that each document is inadmissible.

   Section 81 – evidence of admissions

6. In the alternative, the wife submits that the 54 STI documents be received into evidence absolutely pursuant to s 88 of the Evidence Act on the basis that the documents contain admissions of the husband within the meaning of s 87 of the Evidence Act. Section 88 provides that for the purpose of determining whether an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. The wife submits that each of the 54 STI documents “satisfies the prima facie threshold test for their admission absolutely into evidence.” I do not agree with that submission.

7. The word “admission” is defined in the Dictionary to the Evidence Act:

   admission means a previous representation that is:

   (a)made by a person who is or becomes a party to a proceeding (including a defendant   in a criminal proceeding); and

   (b)adverse to the person’s interest in the outcome of the proceeding.

8. The term “previous representation” is defined in the Dictionary to the Evidence Act:

   previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

9. The word “representation” is defined in the Dictionary to the Evidence Act:

   representation includes:

   (a)an express or implied representation (whether oral or in writing); or

   (b)a representation to be inferred from conduct; or

   (c)a representation not intended by its maker to be communicated to or seen by another person; or

   (d)a representation that for any reason is not communication.

10. The term Representations in documents is referred to in Cl 6 of Pt 2 of the Dictionary to the Evidence Act:

    For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:

    (a)the documents was written, made or otherwise produced by the person; or

    (b)the representation was recognised by the person as his or her representation by signing, initialling or otherwise marketing the document.

11. Accordingly, where a document is said to be relevant (s 55(1)) on the basis that it is or contains as admission, the document will not be admissible unless the court can be satisfied of (a) or (b).

12. The contention of the wife about admissions is comprehensively, and in my view correctly, answered by the husband’s submission in response:

    32.The applicant fails to identify which of the said 54 STI documents contain representations capable of constituting admissions of the respondent and which of the said documents contain representations allegedly made by a third party which are capable of constituting admissions against the husband.  The applicant fails to particularise which representation is capable of constituting an admission in any of the documents let alone whether such admission is against the alleged interest of the husband in the outcome of the proceedings.

    33.The applicant has failed to identify which parts of the documents or indeed, which documents contain representations capable of constituting admissions of the husband which are allegedly adverse to his interests in the outcome of these proceedings.  Moreover, the alleged “adverse interest” of the husband is not particularized in any instance. 

    34.The applicant via her submissions, seeks to tender absolutely scores of pages of documents, thereby failing to identify or particularise what portion or passage constitutes an express or implied representation by the husband or unidentified individuals, which is capable of being construed as an admission for the purposes of the Act.  Further, the applicant fails to particularise whether the express or implied representation is strictly contained in writing in whichever of the relevant document or whether the representation is to be inferred from the alleged conduct of the husband, having regard to what he may or may not have done with respect to the alleged receipt of some of the documents or emails referred to in the STI documents.

    35.The many and varied categories of documents which are sought to be tendered absolutely by the applicant, comprise numerous different species of documents. They range from undated and unsigned notes, single emails or email chains, meaningless schedules, an undated and unsigned trust deed to income taxation returns.  We refer by way of example, to the following exhibits: W22, W35, W37, W48, W51, W69, W74, W86, W96, W114 and W116.

    36.In paragraph 29 of the applicant’s submissions, she submits that each of the 54 STI documents are relevant to at least one of the below “listed facts in issue” in the instant proceedings.  It is incumbent upon the applicant to identify which document and which parts of such document are relevant to each of the listed facts in issue in the proceedings.  The proposition advanced by the applicant that each of the 54 STI documents is relevant to at least one of the listed facts is untenable, in circumstances where inter alia no attempt has been made by the applicant to even identify the relevant period to which the alleged listed facts relate.  The 54 STI documents relate to periods spanning some in excess of 20 years. 

    37.Most of the 54 STI documents have either not been prepared, executed or adopted by the husband.  Most of the documents are irrelevant or constitute hearsay.  Many of the documents contain opinions by unnamed or unspecified individuals in circumstances where the individual is unknown, let alone qualified to express an opinion as to value.  The statutory provisions about the admissibility of admissions has no relevance to this case.

13. The statutory provisions about admissibility to which the Court has been referred have no bearing on the determination which I am now required to make in relation to the 54 documents marked STI.

    Section 48 – proof of contents of documents

14. It is submitted by the wife, wrongly in my view, that the husband’s response to the wife’s Notice to Admit Facts on 11 September 2017 renders the documents admissible in evidence at the discretion of the wife.

15. The wife relies on s 48(1)(a) of the Evidence Act which provides:

    A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

    (a)adducing evidence of an admission made by another party to the proceedings as to the contents of the document in question.

16. The wife’s Notice to Admit which was filed on 18 August 2017 and served on 7 September 2017, stated, inter alia:

    You are required to admit for the purpose of these proceedings only the authenticity of the following documents:-

    All individual documents as particularised in Schedules A, B and C annexed hereto (which constitute respectively exhibits “[MF-2”, “MF-5”, “MF-6”] to the Affidavit of [Ms Fowles] sworn 25 May 2017) which documents remain available for inspection by the Solicitors for the Husband on request.

17. By his Notice Disputing a Document filed on 11 September 2017, the husband admitted the authenticity of 47 documents and said that he “can not admit” other documents. Nine of the 47 admitted documents are documents which the wife has tendered STI. The wife submits that:

    43.Accordingly, there is no controversy in the evidence on this application as to the fact of the respondent’s admissions of 11 September 2017. 

    44.It is axiomatic in those circumstances that the applicant has satisfied the evidentiary preconditions to the invoking of the provisions of s.48(1)(a) of the Act. The discretion conferred to invoke the section (“may”) is conferred upon the tendering party, not the Court.

    45.The admissions of 11 September 2017 are therefore undisputed evidence on the instant application and have the consequential effect of compelling the receipt into evidence of 9 MFI admitted documents absolutely.

    46.It is submitted that there is no proper basis for the respondent to object to the absolute tender of the 9 MFI admitted documents.

    47.The admitted documents ought be received by the Court into evidence absolutely under s.48(1)(a) of the Act, independently of any other basis giving rise to their tender. I have made clear earlier in these reasons the scope of the husband’s admissions. The admissions certainly did not extend to the accuracy of the contents of the 9 documents admitted by him.

18. Section 48 of the Evidence Act makes provision for the means by which the contents of documents such as those found in computer systems, drives, disks, tapes, audio and/ or visual recordings may be adduced in evidence before a court having regard to modern information storage.

19. Section 48 of the Evidence Act is not an alternative means by which the wife can secure the admissibility of the documents in these proceedings which are marked STI. Counsel for the wife has either misinterpreted or misapplied s 48.

    CONCLUSION

20. The single biggest obstacle to the admissibility of the 54 documents under consideration has been the failure of the wife to specify how each document sought to be tendered absolutely was capable of rationally affecting the assessment of the probability of a fact in issue.  This was not the time for a broad brush approach. The wife’s submissions do not address the STI document methodically or individually, in spite of the very significant tie her legal representatives have and to prepare her case. The wife seeks to justify the presentation of her case on the basis that the husband has been aware for three and a half years that the wife maintains that the scheduled documents were all documents which emanated from the husband. However, the corollary of the wife’s approach is that her legal representatives have had three and a half years to structure her case so that the documents she has collected are admissible. I agree with the observation of Counsel for the husband that the general nature of the submissions made on behalf of the wife in this aspect of the proceedings has resulted in the court not being satisfied of relevance. Whilst there are some considerations common to all of the 54 documents marked “STI”, the admissibility of each such document must turn ultimately on a principled consideration of the evidence as it relates to the particular document. I accept the submission of Counsel for the husband that it is “not for the husband to go to the evidence given under cross-examination by him with respect to each document to examine whether it overcomes any deficiency in the wife’s proof. It was for the wife to demonstrate any such evidence that may help her in establishing all she needs establish in order to have a particular STI document exhibited accepted into evidence.”  The wife has not supported her case with evidence that is catalogued and cross-referenced. The wife’s evidence is that she gathered documents which belong to the husband from one or other of four sources. Her legal representatives prepared schedules of documents and attached those schedules to her affidavit of 7 September 2021 describing each document by reference to its source. However, the wife’s legal representatives did not establish how each STI document was a copy of a particular document in one or other of the schedules relied upon by the wife. Very many documents have been tendered in evidence absolutely in this proceeding. The electronic court book records 143 exhibits tendered by the wife of which 54 are marked STI. The electronic court book records 35 documents tendered on behalf of the husband.  The 54 documents marked STI are not documents which the husband is prepared to accept had been obtained by the wife from his possession, custody or control and with or without his consent.

21. I have not lost sight of the manner in which the husband responded when taken to documents in cross-examination. He battered documents away like flies. He routinely made statements such as “I don’t trust any document that is provided to me by Mr Sheales” and “I can’t confirm anything that you [Mr Sheales] present to me” or words to that effect. He frequently referred to documents appearing to him to have been “like a cut and paste”, “this document looks like a fabrication”, “I don’t accept anything from you, Mr Sheales. I think a lot of the documents produced are probably doctored.” As annoying and as frustrating as this must have been to the wife, it does not relieve the wife from proving the provenance of documents to the extent necessary to render that document relevant within the meaning of s 55.

22. For the above reasons I find that the 54 documents which the wife seeks be tendered absolutely are not capable of rationally affecting the assessment of the probability of a fact in issue (with the meaning of s 55(1)) and are, thereby, inadmissible (by operation of s 56(2)). The 54 documents will not be tendered absolutely.

23. The effect of this ruling is that the 54 documents will be removed from the bundles of exhibits and none is evidence in the proceeding.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett .

Associate:

Dated:       30 May 2022