On and On (No. 10)

[2007] FamCA 997

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 10) [2007] FamCA 997

FAMILY LAW - PROPERTY – Ruling – During the course of re-examination concerning comments sought to be tendered and what weight, if any, should be give to them.

Section 39 of the Evidence Act (Cth) 1995

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 7 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 7 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Mr Sweeney of Counsel

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the Applicant (wife) do file and serve any closing written submissions relied upon in these proceedings by 4.00 pm on 14 March 2007.

2. That the Respondent (husband) do file and serve submissions in writing in response to those of the wife by 4.00 pm on 21 March 2007.

3. That the Applicant (wife) do file and serve in writing any reply to the husband’s submissions by 4.00 pm on 28 March 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

RULING

1. The husband has been in the witness box variously over the last two days during the course of re‑examination.  The transcript will record that the proceedings were stood down on 6 March 2007 to enable the husband to prepare a “dot‑point narrative summary” of the points he proposed to raise in re‑examination, together with supporting documents.  An order that I made appears on the court file as well as my extempore judgment detailing the events of that day. 

2. The process continued this morning.  As I understand it, the husband has complied with the order and provided to Mr Kirkham and Mr Sweeney a summary of the documents upon which he seeks to rely. 

3. The first documents sought to be tendered consist of three letters, which I have now marked Exhibit "H8".  They comprise a facsimile transmission of 13 February 2001 from Mr EA to the husband and two copy letters from the husband to Mr EA of 16 February and 19 February 2001.  There are obvious reasons why these documents cannot be received at this stage.  However, as a matter of fairness to the husband and without resistance from Mr Sweeney, I will receive the documents and they will later become the subject of submissions in writing to me as to what weight, if any, I should attach to them.

4. Mr Sweeney has already forewarned that it will be the submission of the wife that little, if any weight should be accorded to these documents in the exercise of my discretion.  It is quite clear that I will give them such weight as I consider appropriate.  That may well be dependent upon the submissions that I ultimately receive from both Mr Sweeney and from the husband.

5. The next document sought to be tendered by the husband really pushed the limits of discretion.  It comprises a facsimile transmission from his accountant, Mr SB of B Company Pty Ltd dated 1 March 2007 and which I mark Exhibit “H9”.  It appears to me that there must have been communication between the husband and Mr SB following the cross‑examination by Mr Kirkham and discussion of the evidence which generated this letter.  That of course has its own associated degree of difficulty.  Be that as it may, the cross‑examination elicited that in the financial accounts, being the balance sheet of ON’s Business at June 2005 and under the column comprising Assets, there was listed "[ES] Pty Ltd" revealing a credit of $141,436.35.  The husband was cross‑examined upon this.  This letter purports to respond to the evidence given.

6. Mr Kirkham helpfully referred to section 39 of the Evidence Act (Cth) 1995.  It is clear that re-examination is limited to matters arising in cross‑examination, and at times it has been argued that it is restricted to clearing up ambiguities.  That is not so.  It is plain that re‑examination is permissible in every case where the answers or account given in cross‑examination would have been left unexplained or uncompleted.

7. It appears to me that in the exercise of my discretion I should receive this document, which is, as Mr Sweeney correctly put, a self‑serving document sought to be tendered by an author who, in effect, says that the book-keeper who prepared the accounts got it wrong.  It goes to an financial entry in the balance sheet of ON’s Business as at June 2005.  The letter, as Mr Sweeney put, is not in admissible form.  Mr SB could have produced it.  It is not a matter that has been put by any witness earlier in the proceedings. 

8. However, I receive this document as a matter of fairness to the husband and in the exercise of my discretion.  I will ultimately give it such weight as I will consider appropriate, after I have received submissions in writing on behalf of the wife and from the husband.  The question of the husband calling Mr SB as a witness has been left open to him and I will await that eventuality. 

9. In relation to the property at …, London which is dealt with under the “Wife's Objections to Documents Produced in Re‑examination” and which I have before me, I am informed, and such is accepted by the husband, that the correspondence sought to be tendered passing between his solicitors and himself and the solicitors for the parties is designed to demonstrate “wastage” on the part of the wife.  I will not in the exercise of my discretion receive these documents.  It was not an issue that was put before the court in the husband's trial affidavit.  Nor was it an issue upon which the wife was cross‑examined.  In the circumstances, I will not receive those documents.

10. I might also indicate that I will direct that the document, “Wife's Objections to Documents Produced in Re‑examination”, for the assistance, if necessary, of any other court, remain on the court file.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  28 August 2007.