Oglesby & Oglesby (No 2)
[2023] FedCFamC2F 566
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, 17th 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 evidence, each party made a number of objections to the others affidavit material. I gave a preliminary view in relation to each of the objections and, ultimately, all but one of the objections were determined or settled.
The remaining objection related to paragraph 13 of an affidavit of Mr S, filed 6 April 2023, and extracted here:
Shortly thereafter, I attended a meeting with [Mr Oglesby] and other persons who were introduced to me as representatives of [T Ltd]. I attended the meeting as [Mr Oglseby] had asked me to be present to support him. [T Ltd] holds an Australian Financial Services Licence, and their licence underpinned the registration of [R Company] as a managed investment scheme. During the meeting, a conversation to the following effect took place:
[T Ltd] Rep: "We are concerned about the allegations [Ms Oglesby] made. Even though they are false, they are clearly damaging. We are withdrawing the scheme, and consent to use our licence."
"[Ms Oglesby] has contacted us directly on a number of occasions. She has demanded to know what funds had been generated by [R Company], despite there not being any. She made several accusations about [Mr Oglesby]. She asserted that she and other investors had lost funds in [R Company]. We have a professional reputation to preserve and we cannot be associated with any appearance of impropriety.
Analysing the paragraph, Mr S is saying that he was present at a meeting with the Husband when other persons, unnamed, were introduced as representatives of T Ltd. During the meeting, an unnamed T Ltd representative made certain comments about allegations made by the Wife. Of note, Mr S directly quotes the T Ltd representative, even though no recording or transcript of the conversation produced to establish that the words quoted are accurate. The T Ltd representative is not named or identified from among the other persons that were representatives of the management group at the meeting, nor is there any mention that the T Ltd representative had authority to make decisions on behalf of the company.
Mr Schonell, on behalf of the Wife, submitted that the evidence was substantially hearsay and, as such, inadmissible. Alternatively, he argued that the probative value of paragraph 13 is outweighed by the prejudicial effect of admitting such confusing evidence,[1] where the maker of the representation is not named nor available.
[1] Evidence Act 1995 (Cth) s135 (‘Evidence Act’).
Mr Ahmad, on behalf of the Husband, submitted that the evidence in paragraph 13 is admissible because:
(a)it is relevant;[2] and
(b)the words attributed to the T Ltd Representative were first-hand hearsay and can be received pursuant to section 66A of the Evidence Act 1995 (Cth) (‘the Evidence Act’), as an exception to the hearsay rule — that is, the representation evidences the state of mind of the T Ltd representative and T Ltd, and explains why T Ltd withdrew from the managed investment scheme and no longer consented to the use of their license.
Alternatively, it was argued that the evidence should be received de bene esse and I should rule on the issue upon the completion of Mr S’s evidence.
[2] Ibid s55.
Consideration
There is no doubt that the information set out in paragraph 13 is relevant evidence. The information goes directly to an issue in these proceedings — whether or not the Wife had, by her conduct, damaged the businesses known as D Pty Ltd and/or E Company — as the Husband asserts at paragraph 105 and following of his affidavit.
Paragraph 13 contains first-hand hearsay. Section 59(1)(2) and (2A) of the Evidence Act states:
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
There are, however, a number of exceptions to the hearsay rule and Division 2 of part 3.2 of the Evidence Act deals with those relating to first-hand hearsay. Section 62 of the Evidence Act is headed ‘Restriction to first-hand hearsay’, and states:
(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of an asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a representation made by another person about the fact.
(3)For the purposes of 66A a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
Section 63 is headed ‘Exception-civil proceedings if maker not available’, and states:
(1)This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to:
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Section 63(2)(a) states:
(2) The hearsay rule does not apply to:
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made.
It is noted that section 67 of the Evidence Act imposes notice requirements, and, in this case, section 67 has not been complied with — that is, notice was not provided that the evidence in paragraph 13 would be adduced, nor was there any reason given as to why the maker of the representation — the unnamed T Ltd representative — was not made available to give evidence.
Section 66A of the Evidence Act[3] (‘s 66A’), upon which Mr Ahmad relies, is headed, ‘Exception: contemporaneous statements about a person’s health etc’ and states:
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about a person’s health, feelings, sensations, intention, knowledge or state of mind. (emphasis added)
[3] S66A has statutory equivalents in State Evidence Acts throughout the Commonwealth.
The operation of s 66A has been considered in a number of jurisdictions. In Boral Resources Victoria Proprietary Limited v CFMEU (Ruling No 2) [2015] VSC 459, dealt with a similar type of representation to that confronting the court in this case. In a short judgment, Bell J started with the facts and then considered the operation of s 66A of the Evidence Act 2008 (Vic) :
The union objects to the admissibility of evidence to be given on behalf of Boral by Neil Phillips. Mr Phillips is a Boral account manager with responsibility for customers in the Ballarat region. He managed the account of Town and Country, a concrete placer, in relation to construction projects at Werribee Plaza and Ballarat Aquatic Centre. The evidence concerns two groups of conversations between him and representatives of Town and Country.
In the first group of conversations, Mr Phillips evidence would be that the part-owner of Town and Country, Liam Kinniburgh, and its estimator, Tim Knowles, told him that the concrete supply contract for the Werribee Plaza had all but been awarded to Boral. After the quotation process was completed, Mr Kinniburgh said that Boral had offered the best price and finalisation of the sale was underway. After the union bans were implemented, Mr Kinniburgh said that Town and Country could not use Boral because of the bans. The contract was awarded to another supplier. Mr Phillips would also depose that Mr Kinniburgh told him that Mr Kinniburgh had been told by a shop steward of the site builder not to use Boral and he told the shop steward that he would not do so. It can be seen that Mr Phillips’ evidence in this respect contains double-hearsay.
The second group of conversations concern the Ballarat Aquatic Centre. Mr Phillips’ evidence would be that Mr Kinniburgh told him that Boral would be awarded the concrete supply contract. Just prior to the commencement of the pour, Mr Kinniburgh told Mr Phillips that Town and Country would not be using Boral because the union did not want it on site. This contract too was awarded to another supplier.
Boral witnesses have given, and will be giving, some evidence of this kind without objection in circumstances where it will be leading direct evidence from the customers about them not using Boral because of the union bans. The union is not objecting to evidence of Boral witnesses about what customers told Boral in this respect where the customers themselves will be giving evidence. It is only objecting to evidence of this kind from Boral witnesses where the customer will not be doing so.
The ground of objection is hearsay and, in the one case, double-hearsay.
Boral relies upon the exception to the hearsay rule specified in s 66A of the Evidence Act 2008 (Vic). Section 66A provides
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
The exception in this provision applies in civil and criminal proceedings to first-hand hearsay evidence of contemporaneous representations by persons about their health etc. The operation of the exception is well illustrated by the classic case of evidence of fears expressed by a murdered Wife about her husband’s violence and her intention to leave him. First-hand hearsay evidence of the words and actions of the deceased expressing these feelings and intentions are usually admissible in the trial of criminal charges against the husband. The fact that the evidence is hearsay evidence goes to weight, not admissibility. The evidence might be subject to discretionary exclusion, but that is not relevant here.
Boral submits that Mr Phillips’ evidence would be of the contemporaneous intention and state of mind of Town and County with respect to the awarding of the concrete supply contracts to Boral and then not doing so because of the union bans. It relies upon this evidence in relation to the issues of causation and quantum. It does not do so as evidence of the bans as these are taken to have been admitted by reason of the default judgment.
The evidence of the conversations in the two groups would be of what Town and Country representatives told Mr Phillips about both its intention to award the contracts to Boral and its intention not to do so by reason of the bans. In terms of s 66A, the evidence would be of Town and Country’s contemporaneous intention and state of mind in relation to awarding and not awarding the contracts to Boral. Despite being first-hand hearsay, that provision would apply to make the evidence admissible if it is relevant to issues in the trial. It would be so relevant because causation and quantum are issues in the trial. As I have said, that the evidence is hearsay goes to weight, not admissibility, and discretionary exclusion does not arise.
On analysis, the conversation containing the double-hearsay stands in the same category but upon the basis that the evidence is admissible in relation to Town and Country’s intention and state of mind, not in relation to what the shop steward said. Mr Phillips’ evidence of what Mr Kinneburgh told him was said to Mr Kinniburgh by the shop steward is not covered by s 66Abecause it is double hearsay. But Mr Phillips’ evidence of what Mr Kinniburgh told him is further first-hand hearsay evidence of Town and Country’s intention and state of mind with respect to not awarding the contract to Boral by reason of the union bans and, in that respect, is covered by s 66A. It too is relevant to causation and quantum.[4] (emphasis added)
I therefore overrule the objections and admit the evidence.
[4] Boral Resources Victoria Proprietary Limited v CFMEU (Ruling No 2) [2015] VSC 459.
In R v Hannes [2000] NSWCCA 503, the Court did not allow evidence to be admitted pursuant to section 72 of the Evidence Act 1995 (NSW) (the equivalent of s 66A), concluding that the document could not be admitted as it failed to satisfy the relevance test and the words did not go to a fact in issue:
The document could not be admitted under section 72, having failed to satisfy the relevance test under section 55. However, the document would not have become admissible under section 72 in any event. Assuming the words “but must take Mark with me to ASC” could be treated as evidence of the appellant’s intention as to – as at the time he wrote in the pad, evidence of the appellant’s intention at the time of writing did not go to a fact in issue.[5] (emphasis added)
[5] R v Hannes [2000] NSWCCA 503 [480].
I note that a distinguishing feature of the present case is that the evidence of what the T Ltd representative said is relevant to a fact in issue — whether the Wife had, by her conduct, damaged the businesses known as D Pty Ltd and/or E Company.
In Connect TV Pty Ltd v All Rounder Pty Ltd (No 5) [2016] FCA 338, the appellants submitted that letters that were directly relevant to the question of whether Connect TV held exclusive rights from the broadcasters and were admissible under s 66A because they were contemporaneous statements about the state of mind of Russian broadcasters in relation to the rights of their licensees. The Federal Court stated:
Issues thus arise as to whether any or all of the contents of the letters may fall within the exception provided for in s 66A. They will only do so if they constitute first-hand hearsay and are contemporaneous in the necessary sense. Insofar as the letters express opinions other issues arise under ss 76 and 79 of the Evidence Act.
Mr Shtifelman does not assert that he has personal knowledge of the matters which are dealt with in the two letters. The representations in the letters are the representations of the authors who, at least to the extent that the representations relate to facts, such as where in the world programmes are distributed, may be assumed to be matters within the personal knowledge of the respective authors. Mr Shtifelman can thus be seen to be giving evidence that the authors, who had the relevant personal knowledge, had represented that certain facts existed. The contents of the letters, about which Mr Shtifelman gave evidence, thus constitute, at best for the applicants, second-hand hearsay. They are not rendered admissible by s 66A of the Evidence Act.
Section 66A provides that a representation may be admissible if it was a “contemporaneous representation” about the state of mind of the person making it. This begs the question: contemporaneous with what? The answer, in general terms, is: contemporaneous with the act to which the representation relates and which it is sought to establish.[6] (emphasis added)
[6] Connect TV Pty Ltd v All Rounder Pty Ltd (No 5) [2016] FCA 338 [60] – [62].
The decision is distinguishable as the evidence contained in paragraph 13 is first-hand hearsay.
Mr Ahmad argues that the evidence of Mr S goes to the state of mind of T Ltd and the T Ltd representatives, and explains why they withdrew from the managed investment scheme and removed their consent to use of their license. I accept that submission and find that the evidence is admissible pursuant to s 66A. Adopting the approach of Bell J in Boral Resources, despite the evidence in paragraph 13 being first-hand hearsay, s 66A applies to render the evidence admissible as to T Ltd’s contemporaneous intention and state of mind and is relevant to the Wife’s alleged conduct in relation to the operation of D Pty Ltd and/or E Company — which is an issue at trial. That the evidence is hearsay goes to weight — not admissibility.
Mr Schonell submitted that in the event that the evidence is ruled admissible, it should nevertheless the struck out because he has no ability to cross-examine the purported maker of the statement, who is unavailable and unnamed, and further that the evidence is misleading and confusing. I reject the second submission. The evidence clearly relates to the proposition that T Ltd did not become involved in the managed investment scheme, nor consent to the use of its license, because of the Wife’s purported poor behaviour. The evidence is not misleading or confusing.
The question that remains is whether or not Mr Schonell’s inability to cross-examine the T Ltd representative is so prejudicial that it outweighs the probative value of the evidence contained in paragraph 13. This question has been considered in a number of decisions, helpfully summarised by Stephen Odgers in Uniform Evidence Law: [7]
[7] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 17th ed, 2022) 1297-1299.
Subsequently, in the NSW Court of Appeal, two members of the court appeared to approve the notion that inability to cross-examine on material sought to be introduced is not of itself unfairly prejudicial, at least in civil proceedings where there is no jury, even though that inability may well be a very relevant consideration in the court's decision as to the weight it should ultimately afford to the evidence. Certainly, if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or were often to be a significant factor in justifying, a decision to exclude evidence in the court's discretion, the result would be to write the hearsay exceptions out of the Act to a large extent. That outcome would be contrary to the legislative intention. On the other hand, the balancing exercise involved in the discretion gives courts considerable flexibility.
The NSW Court of Appeal has reaffirmed the power of a court to exclude evidence where the opposing party is unable to cross-examine. Similarly, the NSW Court of Criminal Appeal has recognised that an inability to cross-examine can significantly reduce the probative value of the evidence and cause prejudice to the opponent. It would appear that the proper approach is to assess the significance of the inability to cross-examine in the particular circumstances of the case. In R v Suteski (2002) 56 NSWLR 182; 137 A Crim R 371; [2002] NSWCCA 509 at [126]–[127] Wood CJ at CL observed:
I see no reason why the inability … to cross-examine … should not have been relevant for s 135 and s 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to these provisions. See Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30, and in particular the decision of Heydon JA in R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at para 164. The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case, in my view, needs to be examined individually by reference to the well understood balancing exercise.
These propositions were subsequently endorsed in Galvin v The Queen (2006) 161 A Crim R 449; [2006] NSWCCA 66 at [40] per Howie J (McClellan CJ at CL and Latham J agreeing). In ALRC 102, it was stated at para 16.45:
The Commissions acknowledge that there has been uncertainty as to whether unfair prejudice can arise from procedural considerations. As noted above, one of the objects of these provisions is to prevent the tribunal of fact from being exposed to evidence that is likely to mislead it or play upon its emotions or prejudices. In the Interim Report for the previous Evidence inquiry, the ALRC referred not only to unfair prejudice arising from evidence which might inflame emotions, but also to unfair prejudice resulting from mis-estimation by the fact-finder of the weight to be given to particular evidence. An inability to test the reliability of evidence may carry with it the danger of such mis-estimation. It is therefore consistent with the policy basis for this discretion that the inability to test evidence may constitute a legitimate ground for its exclusion where this will affect the ability of the fact-finder to assess rationally the weight of the evidence.
Of course, there is “no property in a witness” and an opposing party may be able to call the person who made the representation as a witness. In those circumstances, it would be appropriate to consider whether that person may be questioned by the opposing party prior to giving evidence and whether leading questions of the witness may be permissible in examination-in-chief. (citations omitted) (emphasis added)
The outcomes of the decisions mentioned in these passages clearly depended upon their particular facts, the nature of the evidence involved and the extent of the potential prejudice to the relevant party. The Wife in this case is prejudiced by the fact that her Counsel cannot cross‑examine the maker of the representation, as that person is unavailable and unnamed. Such prejudice does not however outweigh the probative value of the evidence. It affects the weight that can be given to the evidence, but, in my view, does not result in the evidence being rendered inadmissible.
The prejudice to the Wife can be somewhat cured by giving Mr Schonell the opportunity to lead some evidence from her in response to the purported representation of the T Ltd representative. I will allow him that opportunity because of the nuanced nature of this ruling, and the potential that the Wife has been prejudiced in some fashion. I will provide the Wife with leave to consult Mr Schonell and her legal advisors so that she can respond to paragraph 13 of Mr S’s affidavit.
I will allow paragraph 13 to remain in Mr S’s affidavit. I formally provide leave for the Wife, notwithstanding the fact that she is under cross-examination, to speak with Mr Schonell and her legal advisors to provide her response to the matters raised in paragraph 13, and I provide Mr Schonell with leave to adduce evidence from his client in response to the same.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Turnbull. Associate:
Dated: 24 May 2023
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