Gin v Hing

Case [2019] FamCA 779


FAMILY COURT OF AUSTRALIA

GIN & HING [2019] FamCA 779
FAMILY LAW – EVIDENCE – use to be made of recordings taken by a mobile telephone and from skype conversations – whether unlawful telecommunications – whether s 138 Evidence Act permits receipt of transcriptions of those recordings – trial of proceeding adjourned part heard after five days of hearing – application to adduce evidence tending to put in issue the circumstances in which transcription of the 13 separate mobile telephone calls and skype conversations were created – whether any unfairness occasioned by admitting the evidence about the circumstances of the creation of the 13 transcriptions, despite extensive cross-examination already having taken place on those 13 transcriptions – held, further evidence allowed.

Commonwealth of Australia Constitution Act (The Constitution) 1900, s 109

Evidence Act 1995 (Cth), ss 97, 103, 138

Family Law Act 1975 (Cth), ss 11C, 60CA, 62G, 69ZT, 69ZU
Family Law Rules 2004 (Cth), r 1.19
Listening and Surveillance Devices Act 1972 (SA)
Listening Devices Act 1984 (NSW), s 5
Listening Devices Act 1991 (Tas)
Surveillance Devices Act 1999 (Vic), ss 3, 6, 11
Surveillance Devices Act 2007 (NSW), s 7(3)(b)(i)
Telecommunications (Interception and Access) Act 1979 (Cth), ss 6, 7

Telephonic Communications (Interception) Act 1960 (Cth)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617
Bunning v Cross (1978) 141 CLR 54
Carr v Western Australia (2007) 232 CLR 138
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Director of Consumer Affairs Victoria v Good Guys Discount Warehouses (Australia) Pty Ltd and Another (2016) 245 FCR 529
Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562
Director of Public Prosecutions v Marijancevic (2011) A Crim R 344
Employment Advocate v Williamson (2001) 111 FCR 20
Farmer & Killen (No 2) [2015] FamCA 809
Hazan v Elias (2011) 45 Fam LR 475
Huffman & Gorman [2014] FamCA 150
In the Marriage of Parker & Williams (1993) 117 FLR 1
Janssen & Janssen [2016] FamCA 345
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kawada & Kawada [2011] FamCA 659
Latham & Latham [2008] FamCA 877
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Miller v Miller (1978) 141 CLR 269
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Northern Territory v Collins (2008) 235 CLR 619
Parker v Comptroller-General of Customs (2009) 252 ALR 619
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Berchet (1794) 89 ER 480
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Sepulveda…

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Details
AGLC
Gin v Hing [2019] FamCA 779
Case
[2019] FamCA 779
Decision Date

CaseChat Overview and Summary

In proceedings before Wilson J, the wife sought leave to file an affidavit of Mr D, affirmed on 15 October 2019. The husband had exhibited audio recordings as part of his case.

The court was required to determine whether to grant the wife leave to file her proposed affidavit, and whether to grant leave for the filing of an affidavit of Mr E, affirmed on 11 September 2019. Further, the court needed to make directions regarding the future conduct of the proceedings and address the comparison of transcripts with audio recordings.

Wilson J dismissed the wife's application for leave to file Mr D's affidavit. However, leave was granted for the filing of Mr E's affidavit. The matter was listed for a directions hearing to determine future conduct. Crucially, the husband was ordered, at his own expense, to engage a Mandarin interpreter, chosen by the independent children's lawyer from appropriately qualified individuals residing outside Victoria, to compare specific transcripts with audio recordings and identify any errors or omissions. The costs associated with this comparison and the hearing on 21 October 2019 were reserved.

Orders

Orders of the court

1.

The wife’s oral application made 21 October 2019 seeking leave to file the affidavit of Mr D affirmed 15 October 2019 is dismissed.

2.

Leave is granted for the filing of the affidavit of Mr E affirmed 11 September 2019.

3.

The matter is listed on 11 November 2019 at 9am for a directions hearing in relation to the future conduct of the matter.

4.

The husband, at his expense at first instance, engage a Mandarin interpreter to compare the transcripts referred to in paragraph 7 of the affidavit of Mr F affirmed 13 August 2019 with the audio recordings exhibited on behalf of the respondent husband in these proceedings, and identify errors and omissions, if any.

5.

For the purposes of paragraph 4 herein, such interpreter is to be chosen by the independent children’s lawyer from those appropriately qualified and residing outside the State of Victoria.

6.

The costs of and associated with the aforementioned comparison and the hearing on 21 October 2019 are reserved.

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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