Kent, J.S. and Matysek, S.P.

[1986] FamCA 13

In the marriage of KENT, J.S. and MATYSEK, S.P.

(1986) FLC ¶91-743

Full Court of the Family Court of Australia at Launceston.

Judgment delivered 11 July 1986.

Before: Ellis, Simpson and Ross-Jones JJ.

Ellis, Simpson and Ross-Jones JJ.: On 15 October 1985 the husband in these proceedings filed an application seeking access to the only child of his marriage. That application was supported by an affidavit filed on the same day. The wife filed an affidavit in answer pursuant to the provisions of O. 16 r. 4. On 9 December 1985 the husband, prior to the hearing of the application itself, successfully applied to have portions of the wife's affidavit struck out pursuant to the provisions of O. 15 r. 9. She has now appealed against that decision.

It was submitted by counsel on behalf of the appellant/wife that the matter struck out was not capable of being struck out pursuant to the provisions of O. 15 r. 9 on the proper construction of that rule.

The rule is in the following terms:

``9(1) The court may, at any stage of proceedings, order to be struck out any matter in an affidavit which —

(a) is unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) sets out opinions other than opinions of persons properly qualified to give them.

(2) Where the court orders any matter in an affidavit to be struck out, any costs occasioned by the matter struck out and the costs of the application to strike out shall, unless the court otherwise orders, be payable by the party who filed the affidavit.''

It was submitted that, on the proper construction of the rule, (a) matter will not be struck out of an affidavit simply because it is irrelevant and that the learned trial Judge erred in striking out matter on that basis, and (b) such matter must also be scandalous and will only be struck out where it is either unnecessary or irrelevant and also prolix, scandalous or argumentative. In support of that proposition we were referred to Cayron & Ors v. Russell & Ors (1897) 23 V.L.R. 399; MacPherson v. Kerr; Ex parte Lewis (1893) 19 V.L.R. 23 and Re Jessop (1910) W.N. 128. In the course of the argument reference was also made to Rossage v. Rossage (1960) 1 All E.R. 600 which involved an application by a wife to have removed from the file certain affidavits which were submitted to be scandalous and irrelevant to the issue as to whether the wife's access to the child should be suspended. In the course of his judgment Hodson L.J. said at p. 601:

``There are five affidavits, which the court has read, and as to the last two there is, I think, no ground for saying that the contents of those affidavits are irrelevant. The gist of the application really relates to the three other affidavits — an affidavit by the father of the child and two affidavits by the managing clerk to the firm of solicitors instructed by him. Those affidavits contain material which is relevant, but contain also a great deal of material which is irrelevant — pure hearsay evidence which the court cannot take into account in the form in which it stands. The proportion of that material to the relevant material is so high that if this matter is to be disposed of with any regard to convenience it is clearly right that the whole of those affidavits should be removed from the file rather than by seeking, by expunging irrelevant matter, to put the affidavits in order.''

and at p. 602:

``There has been some discussion as to what is meant by `scandalous'. It is quite clear that we cannot strike out matters in a pleading or an affidavit simply because they are scandalous, because scandalous matter may be relevant, and may be the very matters which have to be investigated by the court. If, however, the matters are plainly irrelevant, as they are here, there is no doubt that the court can strike them out, either by virtue of its inherent power or by virtue of the power contained in R.S.C., Ord. 38, r. 11.''

In referring to that case, Cross J. in Re J. (an infant) (1960) 1 All E.R. 603 at p. 605 said:

``In Rossage v. Rossage [...] Barnard, J., while holding that the passages in the affidavits to which objection was taken were not admissible in evidence, refused to strike them out, as he considered that he would be able to put them out of his mind when he heard the application. The Court of Appeal reversed his decision, and as in that case the proportion of inadmissible material in the affidavits was very high, the court did not simply strike out the inadmissible passages but directed the affidavits to be taken from the file. The matter objected to in that case was not only inadmissible and so irrelevant, but was also `scandalous' in the sense that it contained allegations of misconduct by the mother. The Court of Appeal, however, I think, took the view that even if hearsay evidence improperly contained in an affidavit is not `scandalous' in the ordinary sense of that word, the court nevertheless can, if it thinks fit, strike it out either under R.S.C., Ord. 38, r. 11, or under its inherent jurisdiction.''

However, these authorities, relating to the English rules, do not necessarily govern the construction of O. 15 r. 9. Matter set out in an affidavit must be pertinent and relevant. Irrelevant matter is inadmissible and, as such, should be struck out of an affidavit on an application pursuant to O. 15 r. 9 whether scandalous or not.

It was further submitted that the ordinary rules of evidence do not apply to an affidavit filed pursuant to O. 16 r. 4 because, if such rules did, (a) there would be no need to include the word ``irrelevant'' in O. 15 r. 9(1)(a), and (b) there would be no need for the provisions in O. 15 r. 9(1)(b) in respect of opinion evidence. Additionally, it was submitted that the provisions of O. 16 r. 4(d) and (e) demonstrated an intention to abrogate the rules of evidence in affidavits coming within the scope of those subrules. Counsel for the wife referred us to various other rules and contrasted the use of the word ``matter'' with the use of the word ``fact'' in the rules and to the definition of the word ``matter'' contained in the Shorter Oxford English Dictionary.

We are unable to accept these submissions. In our view, O. 16 r. 4 shows no such intention. The reference to the word ``matters'' in that rule includes a reference to facts, but not the evidence to support the facts, which may be included in an affidavit to which the rule applies.

Furthermore in our opinion the inclusion of the word ``irrelevant'' in O. 15 r. 9(1)(a) does not raise any implication that the ordinary rules of evidence do not apply to an affidavit filed in a matrimonial cause. The short answer to that submission is to be found by a consideration of the relevant provisions of the Family Law Act and fortified by reference to the provisions of the High Court Rules — in particular O. 39 r. 14 of those Rules.

It was submitted that part of the material ordered to be struck out related to the character of the husband and, as his character was relevant, all evidence in relation thereto should be admitted and thus the Judge erred in striking out those parts of the wife's affidavit. Whilst the character of the husband may well be a material consideration at the hearing, and thus relevant, limits must be placed on the scope of enquiries. It could not be said that the Judge erred in striking out the material that he did, nor can it be said that if the learned Judge's order stands the wife would be estopped from raising questions of the husband's character at the hearing.

Finally it was submitted that if the order appealed against stands, the wife would be unable to give in evidence her reasons why the husband should not have, access to the child. It does not follow from his Honour's order that the wife would be unable to place before the Court relevant evidence in admissible form on which she wishes to rely as to her reasons why the husband should not have access.

The appeal is an appeal from a discretionary order. The principles which govern such an appeal are well known and need not be restated. It has not been shown that his Honour erred in the appellate sense in making the orders that he did and accordingly we would dismiss the appeal.

Finally, we would make the comment that in our view it is undesirable to have a pre-trial determination of an application to strike out matters in an affidavit except in exceptional circumstances. The trial Judge would normally be in a better position at the hearing to deal with such an application than a judge hearing a pre-trial application confined to seeking an order striking out alleged objectionable matter, quite apart from the question of the costs incurred or the time of the Court involved. Different considerations may well apply, however, in the case of an application by a third party.

At the conclusion of the submissions made on the hearing of this appeal counsel on behalf of the husband sought an order that the wife pay the husband's costs of the appeal which was opposed by counsel on behalf of the wife. No assessment of the amount sought by the husband was available, as we are told the practice of having an assessment available for consideration is not followed by either the Hobart or Launceston registries. In our view, the circumstances of this appeal are such as to justify the making of an order for costs, particularly when one has regard to the provisions of O. 15 r. 9(2). Accordingly, we order that the wife pay the costs of the husband of the appeal, such costs to be taxed by the Registrar of the Hobart Registry of the Court. We certify the briefing of counsel to appear on the appeal as having been reasonably required.