FAMILY LAW – APPEAL – ANTI-SUIT INJUNCTION – Procedural fairness – Where the primary judge restrained the appellant from continuing proceedings in Singapore in their totality – Where the respondent only sought that the appellant be restrained from continuing the property proceedings – Where restraint of the totality of the proceedings in Singapore was not raised with the parties and no submissions were made to that effect – Appeal allowed – Costs certificates granted.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether the dismissal of the respondent’s stay application in Singapore had a preclusionary effect upon advancing a claim under s 79 of the Family Law Act 1975 (Cth) – Consideration of Clayton v Bant (2020) 385 ALR 41– Res judicata – Where the statutory right to seek orders under s 79 cannot “merge” in any judicial orders other than final orders – Where the court in Singapore did not determine any substantive rights to property of the parties – Estoppel – Where any forum issue before the court in Singapore was not the same forum issue advanced in the Australian proceedings – Where the respondent was not estopped by the determination in Singapore from advancing his application for an anti-suit injunction – Where there can be no issue estoppel in relation to a foreign court’s decision that it has jurisdiction.
FAMILY LAW – APPEAL – EVIDENCE – Whether the primary judge had an independent duty to exclude any irrelevant or inadmissible evidence – Where the objection to the expert evidence was vague and imprecise – Where no right of reply to the evidence was sought, nor was there any application before the primary judge to cross-examine the witness – Where the primary judge was not under a separate duty to determine the admissibility of the expert evidence absent any objection being raised.
FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the appellant seeks to adduce two provisions of the Women’s Charter (Singapore, cap 353, 2009 rev ed) – Where expert evidence relied upon by the respondent before the primary judge was incomplete by omission of the full terms of the relevant sections – Where the subject sections are relevantly considered in association with some of the challenges on appeal – Application granted.
[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.
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AGLC
OBANNON & SCARFFE [2021] FamCAFC 33
Case
[2021] FamCAFC 33
Decision Date
CaseChat Overview and Summary
In the case of Obannon & Scarffe, the central issue was the admissibility of expert evidence presented in the proceedings. The court had to determine whether the primary judge had an obligation to exclude irrelevant or inadmissible evidence independently, irrespective of objections raised by counsel. This question arose from the wife's counsel arguing that the primary judge should have excluded certain evidence under section 135 of the Evidence Act, even without an objection from counsel for the husband. This argument was influenced by the decision in Velkoski v The Queen, which dealt with the admission of tendency evidence in a criminal context. The court's task was to interpret the phrase "is not admissible" in the context of the Evidence Act and to decide whether the failure to object to evidence deprived the party of the right to dispute its admissibility.
The court examined the legal principles surrounding the conduct of litigation, particularly the binding nature of counsel's actions and the wide discretion they have in managing a case. The court referenced the High Court's observation in Smits v Roach about the adversarial system of litigation, where a party is generally bound by the conduct of their counsel. The court also considered the relevance of the decision in Velkoski, where the Court of Appeal critiqued the interpretation that evidence becomes inadmissible only upon objection. The court acknowledged the importance of the appellate process's finality and efficiency and the potential complications if judgments could be overturned based on counsel's actions without client approval. Given these considerations, the court deliberated on whether the primary judge had an independent duty to exclude inadmissible evidence and whether the failure to object should deprive a party of the right to challenge admissibility.
Ultimately, the court concluded that the primary judge did not have an independent duty to exclude inadmissible evidence without objection. The court found that the language of the Evidence Act did not support the interpretation that evidence was admissible in the absence of an objection, but it did not need to definitively resolve this issue. The court emphasized the importance of the adversarial system and the wide discretion of counsel in managing litigation. The court's reasoning underscored the balance between ensuring the efficiency of the judicial process and upholding the rights of parties in litigation. The outcome was that the primary judge's failure to exclude the evidence did not automatically render it admissible, but the court did not find it necessary to address the broader implications of this issue in this case.
The court did not make any final orders regarding the admissibility of the evidence in question but instead focused on the legal principles governing the conduct of litigation and the role of counsel. The court's decision highlighted the importance of adhering to the adversarial system and the potential consequences of deviating from established legal norms.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In Smits v Roach[50] the High Court of Australia observed of the binding nature of the manner of conduct of civil litigation as follows:46.The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. This was civil litigation. If Mr Lindsay had failed to object to inadmissible evidence in the course of the trial, the appellants would have been bound by the consequences, and there would have been no inquiry by an appellate court as to whether that had occurred for a good reason, or with the approval of the clients. Indeed, such an inquiry would normally be impossible. Similarly, if Mr Lindsay had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter. The respondents were not at risk of having a favourable decision set aside on the ground that, in some aspect (perhaps some very important aspect) of the conduct of the case, Mr Lindsay was acting without express instructions from his clients. That was because, in conducting the case on behalf of his clients, Mr Lindsay was exercising wide and independent discretion. If it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless relitigation of contested issues.(Footnote omitted) (Emphasis added)[50](2006) 228 ALR 262 (“Smits v Roach”). In argument of this ground, Queen’s Counsel for the wife agitated the proposition that, irrespective of any relevant failure to raise an objection to the expert evidence being admitted, the primary judge had an independent duty to exclude any irrelevant or inadmissible evidence and that the subject affidavit ought to have been wholly excluded pursuant to s 135 of the Evidence Act. For that proposition counsel for the wife relied principally upon the decision of the Victorian Court of Appeal in Velkoski v The Queen,[51] a case in criminal law dealing with the admission of tendency evidence. In particular, our attention was directed to [199] and [200] as follows:199.This mode of construction of “is not admissible” that adds the words “over objection” before the evidence becomes inadmissible is the subject of criticism by Odgers in Uniform Evidence Law in Victoria. This criticism appears to have some force. Research has not disclosed that this question has received any attention in this court. The Crown did not explicitly rely upon this construction, but the effect of its contention was that the failure to object deprived the applicant of the right to dispute its admissibility.200.The decisions of another intermediate appellate court on the identical provision in uniform legislation must be given great weight, but in the absence of full and considered argument by this court, we would be reluctant to construe the term “is not admissible” in s 97 (and other provisions of the Evidence Act to the same effect) as meaning that the evidence was admissible in the absence of objection. For the reasons that follow, it is unnecessary that we express a concluded view as to this question.(Footnote omitted)[51](2014) 45 VR 680 (“Velkoski”).