Graham & Callen

In the Family Court of Australia, Justice Macmillan considered applications by the husband (Mr Graham) and the second named respondent (B Pty Ltd) for leave to file affidavits out of time. The proceedings involved the applicant husband, the respondent wife (Ms Callen), and the intervenor B Pty Ltd. The core of the dispute revolved around the parties' failure to comply with court orders regarding the filing of trial affidavits, and their subsequent requests to introduce new evidence at a late stage of the proceedings, shortly before a scheduled final hearing.

The primary legal issues before the court were whether to grant leave for the parties to file their respective affidavits out of time, and in doing so, to balance the need for full and frank disclosure and adherence to court orders against the potential prejudice to the other parties and the overarching need to ensure a just and efficient resolution of the matter. Specifically, the court had to determine the admissibility and timing of evidence relating to the husband's share trading, capital gains tax liabilities, and building costs, as well as evidence sought to be introduced by the wife and B Pty Ltd.

Justice Macmillan reasoned that while the husband's self-representation might explain some delays, it did not excuse non-compliance with court orders or the obligation of full disclosure. The court distinguished between evidence that addressed long-standing issues and evidence that raised new matters. For the husband's affidavit concerning tax returns and share trading, the court refused leave, finding that this evidence should have been provided much earlier and its late introduction would disadvantage the wife. However, leave was granted for affidavits concerning capital gains tax and building costs, as these were considered to be largely consistent with existing evidence or capable of being addressed in cross-examination without significant delay. The court also granted leave for the wife and B Pty Ltd to file their affidavits, noting that the husband had not objected and the new evidence was unlikely to cause surprise.

The court ordered that the husband be granted leave to file the affidavits of Mr J, Mr W, and Mr R, and that the second named respondent be granted leave to file the affidavit of Mr A Callen. The question of costs arising from the late filing of these affidavits was reserved. The court also noted that annexures to affidavits would not be treated as evidence until their relevance was established.