On and On (No. 7)

[2007] FamCA 996

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 7) [2007] FamCA 996

FAMILY LAW - PRACTICE AND PROCEDURE – Application by husband after close of the wife’s case to admit two affidavits annexing a number of documents.  Application considered and dismissed.

Rule 15.13(1) of the Family Law Rules 2004

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 1 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 1 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the said Application be dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as ON & ON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. The husband has sought leave this morning to introduce three affidavits.  In the course of his preliminary comments, he submitted that he proposed to rely upon two further affidavits sworn by himself and an affidavit sworn by Dr H.  The latter affidavit goes to issues concerning the husband's health.

2. In the course of discussion with the husband, he frankly conceded there was no material in his trial affidavit, which was settled after lengthy consultation with Senior Counsel and a solicitor well versed in Family Law, raising it as an issue for determination.  Nor was the issue of his health raised in the prior proceedings before Bell J in August and September 2004.  The husband provided the affidavits, and properly so, to Mr Kirkham and Mr Sweeney this morning.  Mr Sweeney had no objection to me reading the affidavits.  He submitted they were inadmissible and ought not be received.

3. The first affidavit to be dealt with is that of Dr H.  It comprises a total of three and a half lines.  In order to understand the paucity of the material in this affidavit, it is best that I include it in its complete form in this short extempore judgment.  It reads as follows:

   “Late last year Mr [ON] suffered from a severe iron deficient anaemia.  I referred him to a gastroenterologist for tests for cancer of the colon.  These tests have yet to be undertaken.  Mr [ON] has failed to attend appointments made for him.  I have ongoing concerns about his health.”

4. Mr Sweeney firstly submitted that it did not advance the issue and secondly, that the report, as framed, was inadmissible.  With that I agree.  The issue of the parties health was raised, as Mr Sweeney correctly pointed out, only by way of passing in the evidence of the wife, who said that she “believed” the husband had “reasonable” health.  Her own health situation was reasonable as well.  Given the ages of them both and given the history of the proceedings and the contents of this affidavit, I do not propose to admit this affidavit.

5. The husband has sought to have filed and rely upon two further affidavits.  I have styled one of them "affidavit numbered 1", which affidavit in its substantive part commences in paragraph 3 with the words:

   “Exhibited hereto and marked with the letters "WWON1" is a true copy of a letter received from [Mr EA] of [WT] Group.”

6. I have listened carefully to the submissions of Mr Sweeney in response to the affidavit and overall, it was his submission that the affidavit is inadmissible and irrelevant.  He commented that it was witnessed by the husband's previous solicitors.  However, in coming to my determination I give no weight to that aspect at all.

7. Given the submissions, it is necessary for me to go through each of the paragraphs relied upon.  Dealing first with paragraph 3 which refers to Annexure numbered 1, a letter received from Mr EA of the WT Group and from Ms MG of GH in relation to rental and vacancies of the properties at G3, G1 and G2, UK. 

8. Mr Sweeney submitted, and such is the case, that I have already ruled upon that issue.  He submitted that if the document was available in 2002, it was never discovered.  In any event it predates the trial affidavit of 13 February 2007.  Furthermore, despite the assistance of senior counsel this was never a matter relied upon in the drafting of the husband’s trial affidavit as a significant issue before me.  There was a proper way in which to deal with the contents of this letter at a far earlier stage if it was an issue sought to be relied upon by the husband.  The husband has given evidence about this particular issue and I will deal broadly with it in the course of my judgment at the conclusion of all of the evidence.  In particular, it will be necessary for me to address the way in which he has treated the process of discovery and production of documents leading up to trial.

9. Mr Sweeney then dealt with paragraph 5 dealing with Annexure 2, being a letter from B Company Pty Ltd (and indeed specifically from “[SB]”).  This document, as Mr Sweeney submitted can be introduced through Mr SB in proper form.  If it is relevant, no objection would be taken.  Evidence can be given by Mr SB upon which he will be tested through cross examination.  At the moment, as matters presently stand, it is in an inadmissible form.  It has been indicated by Mr Kirkham that no objections would be taken to Mr SB giving evidence.

10. Paragraph 5 deals with Annexure 3, which appear to be documents provided by PS (Vic) Pty Ltd comprised of a trust account receipt and a trust account ledger.  There is nothing in the affidavit to delineate with clarity this issue as to relevance.  In any event, Mr Sweeney correctly submitted that the information was available at the time of the preparation of the husband’s trial affidavit and ought to have been part of the discovery process.  This was never done.  If the husband argues that it was an issue that has arisen in the course of cross‑examination, it may be a matter proper for re‑examination.  In those circumstances, the issue can be re-visited and the husband may seek to introduce it at that time and seek to argue its admissibility. 

11. Mr Sweeney then addressed paragraph 6, which deals with Annexure 4, being a schedule detailing various property transactions between 1972 and 2000. He submitted, and such is the fact, that it is irrelevant and offends rule 15.13(1) of the Family Law Rules 2004 given the concession made of equality of the parties' contributions as at the time of separation.

12. Mr Sweeney next addressed paragraph 7 of the husband’s affidavit dealing with Annexure numbered 5 which appear to be award wage schedules detailing adjusted wages between the financial year 2001/2002 to the year ended 30 June 2007.  It is difficult to understand the relevance of these documents to the issues that I am to determine for the same has not been made clear through the husband’s trial affidavit or his submissions. 

13. However, as Mr Sweeney correctly pointed out, if it is relevant and to be relied upon, it may be introduced through the single expert, Mr I in the course of cross‑examination by the husband.  It appears, certainly on the face of it to be a wage record of a business, but its relevance, as matters presently stand, is not made out.  It is still open to the husband however in all the circumstances to address this particular issue through Mr I at the proper time. 

14. Paragraph 8 of the husband's affidavit deals with Annexure 6, which purports to be a copy of a letter from DI Ltd arranging for the transfer of funds remitted to the parties.  The letter is dated 31 May 2000, some twelve months prior to the parties’ separation.  It should have been, and apparently was not, made available as part of the discovery process.  That however does not shock me, given what appears so far to be, unchallenged in affidavit form, various affidavits from Ms G concerning the struggle by the wife to obtain discovery throughout the litigation pathway. 

15. Mr Sweeney correctly submitted that it is inadmissible in form and purports to be a communication between two people, not parties to the litigation.  However, it does in the three numbered paragraphs refer to "AUD receipts for the account of [ON’s Business]", and the particular numbered account.  My recollection is that evidence has been given by the husband in relation to this.  However, it is not currently in admissible form and if it is to be relied upon or some clarification is sought in relation to it, the husband can endeavour to lead that evidence through the process of re‑examination.

16. Paragraph 9 of the affidavit deals with Annexure 7, which purports to be a true copy of a credit agreement between DI Ltd and the husband, dated 14 March 2000.  This too predates the parties’ separation and was not an issue raised in the husband’s trial affidavit.  Furthermore, it has never been part of the discovery process.  In addition, however, the husband gave evidence in relation to it.  The contents of that document, which I have now perused, in no way will assist me in my judgment.  In the circumstances and in the exercise of my discretion I will not receive that document.

17. Mr Sweeney next addressed my attention to paragraph 10 dealing with Annexure 8, which purports to be a true copy of an executed transfer of part of the property at G1, UK.  It is dated in 1995 and appears to be a transfer from the husband and the wife to SI Ltd.  It is not a fact in issue and in my view will not assist me in my judgment.

18. Finally. Mr Sweeney addressed paragraph 11 and Annexure 9 being copies of two schedules setting out figures of the CBD1 and CBD2 businesses at the CBD retail centre between 2001 and 2006.  These documents are, as Mr Sweeney correctly submitted, matters that may be addressed by Mr I, if it is helpful to do so.  My finding does not prevent the husband from putting these matters to Mr I, if he wishes to lead this evidence as relevant to the valuation of the business.  In any event, if the husband proposes to do that, it is correct for Mr Sweeney to observe that the husband make those particular pages available to Mr I.  The husband can then use them in cross‑examining the expert. 

19. In the circumstances, I do not propose to admit this affidavit into evidence.

20. There is a body of law concerning leave to introduce evidence at this particular stage.  In general adversary proceedings, a party is bound by the conduct undertaken at trial, subject to a discretion vested in a trial judge to permit a party to call further evidence at any stage prior to judgment and final orders.  There are applicable general principles such as whether or not the new evidence is so material that the interests of justice require its admission and whether or not the new evidence would probably affect the result of the trial.  Other issues for consideration include the issue of prejudice to the other side and the overall impact of the proposed new evidence upon the proper orderly and speedy determination of the trial. 

21. It is a fact that, as I said earlier, the wife has closed her case.  Furthermore, the husband is being cross examined, and I would estimate is some three‑quarters of the way through that process and he now seeks the introduction of this affidavit.  In the result, it is a matter for my discretion and I take into account any detriment to the husband by my refusal to admit this affidavit going to the issue of fairness as well.  I do not see the husband suffering detriment nor is it unfair to rule as I have done.  In the circumstances, I do not admit the affidavit numbered 1.

22. Insofar as affidavit numbered 2 is concerned, it was the rapid and, it seems to me, fair observation of Mr Sweeney that in this affidavit the husband appears to be dealing with his own evidence.  He purports to exhibit a number of annexures, described in the body of the affidavit under the rubric of "SR, SS and [FF]".  This obviously deals with the property at F which has a fairly central role in the proceedings before me, not so much as to quantum, but as to credit.  However, quantum is important as well.

23. A fair reading of this document suggests to me that these are all matters that the husband can address at the relevant time in the process of re‑examination.  I have explained that to the husband.  At that particular time he can look to these issues, and, if relevant and appropriate for the process of re‑examination, and allowing leeway for him as a litigant in person, the evidence can be given.  If, however, objection is to be taken, I will deal with it at the relevant time.  In the circumstances it can be seen that I am not locking the husband out in the presentation of those documents, which is a matter of fairness and within my discretion. 

24. I will order that the application of the husband to admit these documents be otherwise dismissed. 

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  27 August 2007.