Gin and Hing (No 4) - [2020] FamCA 746

FAMILY COURT OF AUSTRALIA

GIN & HING (NO 4)

[2020] FamCA 746

FAMILY LAW – EVIDENCE – on the ninth day of the trial and after a certain translation of 13 audio files had been ruled inadmissible, Mr Gin seeks to cross examine the maker of the authorised translation by putting to him the revision given by the translator whose translation was ruled inadmissible – applicant seeking to rely on previous translation– parties bound by the manner in which they conduct their case – applicant must identify each individual inconsistency to be put to witness.

FAMILY LAW – COSTS – the applicant is to meet the costs of this additional task.

Evidence Act 2008 (Vic) s 135

Gin & Hing [2019] FamCA 779
Ramsay Health & Compton (2017) 261 CLR 132

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

FILE NUMBER:

MLC

4528

2010

DATE DELIVERED:

3 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

31 August, 1, 2, 3, 4 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

GR Lawyers

COUNSEL FOR THE RESPONDENT:

Mr F. Dixon SC

SOLICITOR FOR THE RESPONDENT:

Clancy And Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

Orders

The applicant must identify in writing each line of the Mr K translation that the applicant intends to put to Mr K in Mr K’s cross examination as being inaccurate.
The applicant must state the contrary version to be put by him to Mr K.
By 4pm on 3 September 2020 or in such later time as may be allowed the applicant must formulate that document and to circulate it to Mr Dixon SC and to Mr Whitchurch.
The applicant must meet the costs of this additional task.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528 of 2010

Mr Gin

Applicant

And

Ms Hing

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr K is soon to give evidence in this case. Objection has been taken to there being debate and cross-examination about Mr K’s transcription of the evidence. This debate occurred on day 9 of the trial at a time when Mr Gin is still under cross-examination by Mr Whitchurch, counsel for the ICL. I ruled on the imbroglio created by the insufficiency, inadequacy and inaccuracy of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gin and Hing (No 4)

Details

AGLC: Gin and Hing (No 4) [2020] FamCA 746
Case: [2020] FamCA 746
Decision Date: 3 September 2020

CaseChat Overview and Summary

In *Gin and Hing (No 4)*, Justice Wilson of the Family Court of Australia considered an application by Mr Gin concerning the admissibility of evidence during the ninth day of a trial. The dispute centred on the applicant's attempt to cross-examine the maker of an authorised translation of 13 audio files, after a previous translation of those same files had been ruled inadmissible. Mr Gin sought to put to the authorised translator the revisions provided by the translator whose translation had been excluded, effectively seeking to rely on the earlier, inadmissible translation.

The primary legal issue before the court was whether the applicant could cross-examine the authorised translator by referencing a translation that had already been ruled inadmissible. This raised questions about the proper conduct of a case, the reliance on previous evidence, and the specific requirements for challenging expert testimony in family law proceedings. The court also had to determine the appropriate costs order for this additional evidentiary task.

Justice Wilson reasoned that parties are bound by the manner in which they conduct their case and that the applicant could not simply rely on a previously excluded translation. To properly challenge the authorised translation, the applicant was required to identify each specific inconsistency they intended to put to the witness. The court ordered that the applicant must identify in writing each line of the Mr K translation that he intended to put to Mr K as inaccurate, and to state the contrary version he intended to put. This document was to be formulated and circulated to the opposing counsel by a specified date. The applicant was also ordered to meet the costs of this additional task.

Orders

Orders of the court

The applicant must identify in writing each line of the Mr K translation that the applicant intends to put to Mr K in Mr K’s cross examination as being inaccurate.

The applicant must state the contrary version to be put by him to Mr K.

By 4pm on 3 September 2020 or in such later time as may be allowed the applicant must formulate that document and to circulate it to Mr Dixon SC and to Mr Whitchurch.

The applicant must meet the costs of this additional task.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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