Peterson & Davis (No 2)
[2022] FedCFamC1F 406
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peterson & Davis (No 2) [2022] FedCFamC1F 406
File number(s): PAC 1208 of 2016 Judgment of: CAMPTON J Date of judgment: 2 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the third and fourth respondents make an oral application to adduce further evidence in chief from a witness in their case on the fourth day of a five day trial – Where the witness’ affidavit relied upon for the purpose of the trial was sworn and filed some five years prior to the trial – Where there was no explanation as to the delay in the provision of the further evidence to be adduced – Application refused. Cases cited: R v Watson; ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 30 May – 3 July 2022 Place: Sydney Counsel for the Applicant: Mr George Solicitor for the Applicant: Williamson & Learmonth Solicitors Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Adams & Partners Lawyers Counsel for the Second Respondent: Mr Marshall SC with Mr Eardley Solicitor for the Second Respondent: Mercantile Legal Services Counsel for the Third and Fourth Respondents: Mr Cook SC Solicitor for the Third and Fourth Respondents: McEvoy Legal ORDERS
PAC 1208 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PETERSON
Applicant
AND: MR DAVIS
First Respondent
MR CUSSON
Second Respondent
MR B DAVIS (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The second and third respondent’s application to adduce further evidence in chief of Ms O is dismissed.
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 the pseudonym Peterson & Davis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
This is an application made by Ms Davis (“the third respondent”) and Mr B Davis (“the fourth respondent”) for leave to adduce further oral evidence from Ms O (formerly Ms Q), a witness in their case who has sworn an affidavit identified to be relied upon for purposes of the trial (“the witness”).
The further evidence is contained within a written proof of evidence that has been provided to each of the other parties at the bar table this morning, being the fourth day of the trial (“the written proof”).
It is submitted on behalf of the third and fourth respondents:
(a)That, to the credit of their senior counsel, there is no explanation as to the delay in the provision of the written proof to the other parties;
(b)That the contents of the written proof was put to the applicant in cross-examination and that the applicant has had the opportunity to give evidence on the subject matter. The applicant denied the alleged conversation.
(c)That the evidence contained within the written proof is important evidence in determining the true nature of the arrangements between the relevant parties in 2008 relating to the D Town properties and that importance of the evidence ought be a deciding factor in an exercise of discretion to permit the course for which leave is sought;
(d)That no specific prejudice has been identified so as to prevent the evidence being placed before the Court;
(e)That the evidence is of a similar character and nature to that contained in the witness’ affidavit filed on 17 August 2017, being a conversation that occurred between the witness and the applicant.
At the time of the application being made, Ms Peterson (“the applicant”), Mr Davis (“the respondent”), and third respondent had already completed their oral evidence.
The applicant opposes the application for leave to adduce oral evidence. She contends an absence of procedural fairness. She highlights that the witness’ affidavit was sworn in August 2017, that the proceedings have been listed for final trial on four occasions being in April 2019, April 2020, June 2021, and before me today, and that every opportunity has been available to the third and fourth respondents to put on the witness’ evidence in compliance with the rules of court and the directions that have been sequentially made for trial. There is prejudice contended on behalf of the applicant by way of the written proof being provided on the morning of day four of a five day trial, after the cross-examination of three of the relevant parties, and there may have been other inquiries or courses that the applicant would take as to relevant matters concerning the integrity of the witness’ evidence that have not been pursued in the circumstance of the late provision of the material.
On behalf of the Mr Cusson as the trustee of the wife’s bankrupt estate (“the trustee”) the application is also opposed. The trustee submits that there has been five years for this evidence to be given by way of affidavit, that any inquiries the trustee may wish to make as to the matters contained within the written proof have not been pursued and there would in reality be some cross-examination in the dark. He contends that there is other material within the written proof that takes the trustee by surprise. The trustee also highlights that there has been no explanation of the delay of provision of the written proof.
I have not read the written proof. I am told by senior counsel and I accept that the contents of the written proof were put to the applicant in cross-examination.
These proceedings were listed on my request on 6 May 2022 for the purposes of case management in preparation for the trial. Order 12 made on that date recorded:
12.Except as provided for in these orders, the parties will not be permitted to file any further affidavit in respect of the trial listed 30 May 2022 and that on or before close of business on 10 May 2022 each party will identify by way of a document to be served on each other party and provided to my associate in chambers the single trial affidavit upon which they sought to rely for the purposes of the prior listing of the matter for trial on 10 August 2020 and subsequently on 28 June 2021.
Each of the parties on the two prior trial listings identified at least implicitly contended that they were ready to proceed.
Order 13 made by me on 6 May 2022 provided:
13.In the event any party proposes to seek leave to rely on an updating affidavit for the purposes of the trial they are to provide a copy of that updating affidavit by way of service to each other party on or before close of business on 20 May 2022 and can make such application as they are advised at their risk as to costs to rely on the updating affidavit on the first morning of the trial.
Senior counsel for the third and fourth respondents tells me, and I accept for the purposes of this application, that he was first made aware of the contents of what is contained in the written proof that has been provided to the parties this morning on the weekend prior to the commencement of the first day of the trial. I have no evidence as to when or how the written proof came into existence.
These are proceedings that have been on foot for a lengthy period of time. The High Court on a number of occasions has said that this Court is a superior court of record. It is obliged to afford fairness to all parties, both procedurally and substantially, and not act in a manner which can be described as dispensing “palm tree justice” (see R v Watson; ex parte Armstrong (1976) 136 CLR 248). So that it is clear, all litigants before this Court are entitled to receive a fair and appropriate notice of the evidence to be agitated. That fairness extends to all of the parties before me today.
I accept that for the purpose of this determination that in the event the evidence was available to the applicant and the trustee, other inquiries may well have been put into place for the purposes of testing this evidence from this witness.
I find it pivotal that no explanation as to the delay in the provision of the written proof, which impacts on the exercise of my discretion.
In the circumstances and for the above reasons I refuse the application.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 June 2022
SCHEDULE OF PARTIES
PAC 1208 of 2016 Respondents
Fourth Respondent:
MS DAVIS
0