Gin & Hing

[2021] FedCFamC1F 192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gin & Hing [2021] FedCFamC1F 192

File number(s):

MLC 4528 of 201

Judgment of:

WILSON J

Date of judgment:

8 November 2021

Catchwords:

FAMILY LAW – EVIDENCE – Leave to adduce further evidence refused.  

Legislation:

Evidence Act 2008 (Vic) s 135(c)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.09(2)

Division:

Division 1 First Instance

Number of paragraphs:

9

Date of hearing:

 8 November 2021

Place:

Melbourne

Solicitor for the Applicant:

Clancy And Triado

Senior Counsel for the Applicant:

Mr S. Dixon SC with
Mr A. Robinson

Counsel for the Respondent:

Respondent in person

Counsel for the Independent Children's Lawyer:

Mr D. Whitchurch

Solicitor for the Independent Children's Lawyer:

Macgregor Solicitors

ORDERS

MLC 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HING

Applicant

AND:

MR GIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILSON J
DATE OF ORDER:	8 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Leave to the respondent to allow photograph 53 to be adduced into evidence is refused.

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

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

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

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

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. Today is the 16^th day of the trial of this proceeding.  The trial should have concluded a long time ago having regard to the fact that the proceeding commenced in 2010 and lamentably, the case has limped towards the fishing line but has not yet crossed it.  Today was set aside to deal with the expert evidence of Ms N, a single expert, who has been required to give evidence by cross-examination at the request of Mr Gin, the respondent in this litigation, a solicitor and litigant in person.

2. During the course of Mr Gin’s cross-examination of Ms N he produced a bundle of documents including a photograph described as photograph 53.  That photograph is not the subject of other evidence in the proceeding.  Despite the fact that the case has been on foot for as long as it has, no endeavour has been earlier made to introduce the photograph into evidence.  At 12.30pm today, or thereabouts, Mr Gin sought to tender that photograph, along with others in the bundle, while Ms N is in the witness box being cross-examined.  Importantly, no lay evidence of any description has been adduced up until this point about the events depicted in photograph 53.  Unsurprisingly, counsel for the wife and counsel for the independent children’s lawyer (“ICL”) objected to the receipt of the photograph and the admission of it into evidence.

3. Mr Dixon SC relied on s 135(c) of the Evidence Act as well as rule 7.09(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to support his contentions for the rejection of the tender. Section 135(c) of the Evidence Act entitles a court to refuse the admission of evidence if the probative value of that evidence is substantially outweighed by the danger that the evidence might (relevantly here), cause, or result in undue waste of time. In addition, rule 7.09(2) provides that the court may limit the cross-examination of a single expert.

4. It must not be overlooked that Ms N’s appearance today, as a single expert under cross-examination, has been caused by the request of Mr Gin.  Of course, he is entitled to ask for the cross-examination of a single expert but he was required to pay Ms N’s fees as the condition of her appearance today and, as it happens, the time allocated for the receipt of Ms N’s evidence has or is likely to be truncated by reason of Ms N’s availability elsewhere tomorrow which means that the resumption of her evidence is to take place on a date, the identification of which is still at large.

5. For the ICL, Mr Whitchurch supported Mr Dixon’s objections.  He contended that it is not possible to tell, without other evidence, who is depicted in the photograph.  Mr Whitchurch said Mr Gin has closed his case.  Mr Whitchurch said the content of the depictions in photograph 53 is not the subject of other evidence of fact and that no witness has previously been cross-examined on the photograph or its contents.  Mr Whitchurch went so far as to say that it was borderline mischievous for the adduction of this evidence at this late point in time and that Mr Gin has had an abundance of opportunity to lead this evidence. 

6. The proposal by Mr Gin involves his stopping the cross-examination of Ms N at 12.30pm, or thereabouts today, for Mr Gin to disrobe thereby jettisoning his role as counsel, entering the witness box and proving the details of photograph 53.  He would then subject himself to the cross-examination by other counsel after which they would finish their cross-examination, and upon tendering the photograph he would return to the bar table.  To say that that is an unusual course is an understatement. 

7. In his reply, Mr Gin said that Ms N had previously given evidence about the trampoline, that is the subject of photograph 53 and that such evidence alone enlivens this line of questioning rendering it permissible for Mr Gin to undertake the course he proposes.  He conceded that his trial affidavit did not include this affidavit but he said if I were against him on the point he proposed to use the subject of photograph 53 as the subject of a hypothetical line of questioning.

8. In my view, the proposal in respect of document 53 is unusual (to say the least), problematic on day 16 of the trial, antithetical to the efficient conduct of a proceeding and likely to be productive of delay and an undue waste of time within the contemplation of s 135(c) of the Evidence Act. On top of that, I take the view that the purpose of rule 7.09(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, in its enabling provisions which should limit the cross-examination of single expert witnesses, is fully engaged in the circumstances of this case.

9. We are at the middle of the 16^th day of the trial of this proceeding.  To say that the depictions in photograph 53 may have been overlooked or explained by the way the case has somehow evolved is to entirely overlook the orderly preparation and good conduct of this case.  I refuse to allow photograph 53 to be adduced in evidence at this stage in the manner proposed by Mr Gin whether by his entry into the witness box upon the halting of the current cross-examination of Ms N or by the putting of hypothetical questions in the manner proposed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:        8 November 2021