Legal Research
Cases
Oglesby & Oglesby (No 2)

Oglesby & Oglesby (No 2)

Case [2023] FedCFamC2F 566 21 April 2023

Admissibility of Evidence

First-Hand Hearsay

Exceptions to Hearsay Rule

Contempt of Court

Jurisdiction

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oglesby & Oglesby (No 2) [2023] FedCFamC2F 566

File number(s): PAC 1109 of 2022

Judgment of: JUDGE TURNBULL

Date of judgment: 21 April 2023

Catchwords: FAMILY LAW - Objections to Evidence - first-hand hearsay – exceptions; whether section 66A of the Evidence Act renders the hearsay evidence admissible - whether the evidence is misleading and confusing- whether the inability to cross-examine an unnamed and unavailable witness would be so prejudicial that the impact of receiving the evidence would outweigh its probative effect - whether leave should be given to provide instructions notwithstanding the Wife being cross-examined.

Legislation: Evidence Act 1995 (Cth) ss 55, 59, 62, 63, 66A, 67,135

Cases cited:
Boral Resources Victoria Proprietary Limited v CFMEU (Ruling No 2) [2015] VSC 459

Connect TV Pty Ltd v All Rounder Pty Ltd (No 5) [2016] FCA 338

R v Hannes [2000] NSWCCA 503

Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 17^th ed, 2022).

Division: Division 2 Family Law

Number of paragraphs: 23

Date of last submission/s: 20 April 2023

Date of hearing: 20, 21 April 2023

Place: Parramatta

Counsel for the Applicant Mr Schonell

Solicitors for the Applicant Marando Solicitors

Counsel for the Respondent Mr Ahmad

Solicitors for the Respondent Long Saad Woodbridge Lawyers

ORDERS

PAC 1109 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS OGLESBY

Applicant

AND:
MR OGLESBY

Respondent

order made by:

JUDGE TURNBULL

DATE OF ORDER:

21 MAY 2023

THE COURT ORDERS THAT:
1.Paragraph 13 remain in Mr S’s affidavit filed 6 April 2023.
2.The applicant is subject to cross-examination and therefore is restricted from being able to speak with her legal advisors. Notwithstanding this, the Court provides leave to the applicant to speak and consult with her legal advisors about the following matters:
(a)Any document which has been called for in these proceedings;
(b)Any offer’s to be made by her and/or to be considered that have been made by the husband.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT

JUDGE TURNBULL
Background

These are property proceedings relating to the marriage of Mr Oglesby and Ms Oglesby. The final hearing commenced on 20 April 2023. Prior to the commencement of the…

Grounds of appeal

[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.

Continue reading Oglesby & Oglesby (No 2)

Details

AGLC: Oglesby & Oglesby (No 2) [2023] FedCFamC2F 566
Case: [2023] FedCFamC2F 566
Decision Date

CaseChat Overview and Summary

This case involves property proceedings related to the marriage of Mr. Oglesby and Ms. Oglesby. The primary dispute is whether certain evidence, specifically paragraph 13 of an affidavit filed by Mr. S on 6 April 2023, should be admitted. This paragraph contains a first-hand account of a conversation that occurred during a meeting involving Mr. Oglesby, Mr. S, and unnamed representatives of T Ltd. The conversation pertains to allegations made by Ms. Oglesby, which T Ltd representatives view as damaging to their reputation. The central legal issues revolve around the admissibility of hearsay evidence under section 66A of the Evidence Act 1995 (Cth) and whether the inability to cross-examine an unavailable and unnamed witness would result in the evidence being unfairly prejudicial.

The court held that the information in paragraph 13 is relevant to the proceedings, specifically addressing whether Ms. Oglesby's conduct damaged the businesses known as D Pty Ltd and/or E Company. The court found that the evidence in paragraph 13 constitutes first-hand hearsay, which, under section 66A of the Evidence Act, is admissible if it represents the state of mind of the T Ltd representative at the time of the conversation. The court determined that the evidence in question does indeed reflect the state of mind of T Ltd and its representatives, explaining why T Ltd withdrew from the managed investment scheme and removed consent to use its license. Consequently, the court ruled that the evidence is admissible. Furthermore, the court concluded that although the inability to cross-examine the T Ltd representative is prejudicial, it does not render the evidence inadmissible. Instead, the prejudice affects the weight, rather than the admissibility, of the evidence. To mitigate the impact of this prejudice, the court granted leave for Ms. Oglesby to consult with her legal advisors in response to the contents of paragraph 13, allowing her to present a counter-argument.

The court's final orders include allowing paragraph 13 to remain in Mr. S's affidavit and permitting Ms. Oglesby, despite being under cross-examination, to consult with her legal advisors to respond to the matters raised in paragraph 13. Additionally, Mr. Schonell is granted leave to adduce evidence from his client in response to the same.

Orders