FAMILY COURT OF AUSTRALIA
| PHE & LENG | [2019] FamCAFC 17 |
| FAMILY LAW – APPEAL – PROPERTY – Where the primary judge’s finding that a loan existed between the respondent and the respondent’s father was open on the evidence – Whether the primary judge erred by failing to rule that evidence supporting the existence of the loan was a privileged communication and therefore inadmissible pursuant to s 131(1) of the Evidence Act 1995 (Cth) – Discussion of s 131(2)(g) of the Evidence Act 1995 (Cth) – Where a broader interpretation of s 131(2)(g) of the Evidence Act 1995 (Cth) is to be preferred – Where s 131(2)(g) of the Evidence Act 1995 (Cth) excluded any possible claim of privilege and the communication was admissible – Whether the primary judge appropriately assisted the appellant as to the admissibility of evidence in accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Where the primary judge complied with Guideline 6 and adequately provided general advice to the appellant regarding the inadmissibility of evidence – Where the primary judge failed to comply with s 132 of the Evidence Act 1995 (Cth) and Guideline 7 and inform the appellant of a possible claim of privilege under s 131(1) of the Evidence Act 1995 (Cth) – Whether this failure to comply with s 132 of the Evidence Act 1995 (Cth) and Guideline 7 was such a failure and denial of procedural fairness as to call for appellate interference – Where the wife was not deprived of the possibility of a successful outcome – Whether the primary judge erred in the treatment of the respondent’s legal fees and associated liabilities – Where there was no error in the primary judge’s treatment of the respondent’s legal fees –Whether the primary judge erred by failing to make findings in the appellant’s favour pursuant to Weir and Weir (1993) FLC 92-338 – Where the appellant was unable to demonstrate deliberate non-disclosure by the respondent – Where there was no error in the primary judge’s exercise of discretion – Where none of the grounds of appeal were made out – Appeal dismissed – No order as to costs. |
| Acts Interpretation Act 1901 (Cth) s 15AA |
| Atlas Financial International Ltd v Nortbale Pty Ltd [2011] NSWSC 815 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd(No. 2) (2011) 193 FCR 479; [2011] FCA 276 Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 Brown v Commissioner of Taxation (2001) 187 ALR 714; [2001] FCA 596 Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633 De Winter and De Winter (1979) FLC 90-605 Edwards v Transport Accident Commission [2013] VSC 557 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 Gronow v Gronow (1979) 144… |
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Details
- AGLC
- Phe & Leng [2019] FamCAFC 17
- Case
- [2019] FamCAFC 17
- Decision Date
CaseChat Overview and Summary
The case of Phe & Leng involves a dispute between the parties, with the wife seeking relief for parenting orders and a property settlement. The husband's appeal concerns the exclusion of evidence related to settlement negotiations under s 131(1) of the Evidence Act. The court was tasked with determining whether certain communications made during settlement negotiations were admissible as evidence in the proceedings. Section 131(1) of the Evidence Act establishes an absolute privilege against the admission of communications made in connection with attempts to negotiate a settlement of a dispute. This privilege is not discretionary and can only be overcome if one of the exceptions under s 131(2) applies. In this instance, the court had to consider whether the exception in s 131(2)(g) was relevant, which applies if evidence or an inference from evidence is likely to mislead the court unless the communication is adduced to contradict or qualify that evidence.
The court evaluated the differing interpretations of s 131(2)(g) of the Evidence Act, with one view being that the exception applies when the privileged communication contradicts or qualifies existing evidence or an inference from that evidence, potentially misleading the court. This broader interpretation was supported by various cases, including Nader v Sutherland Shire Council. The alternative, narrower view, held that the exception applies only when the privileged communication could enable a party to mislead the court about the course of settlement negotiations, where that matter was an issue in the proceedings. This narrower interpretation was initially expressed by Emmett J in Brown v Commissioner of Taxation and has been supported by other cases. The court had to determine which interpretation was more appropriate in the context of the present case.
After considering the arguments and the relevant authorities, the court dismissed the husband's appeal. The court held that the broader interpretation of s 131(2)(g) was the correct one, in line with the ordinary meaning of the provision. The court found that the exception applied when the privileged communication contradicted or qualified existing evidence or an inference from that evidence, potentially misleading the court. Given this, the court ruled that the evidence in question was properly excluded under s 131(1) of the Evidence Act and that no exception under s 131(2) was satisfied. The appeal was dismissed, and there was no order as to costs.
The court evaluated the differing interpretations of s 131(2)(g) of the Evidence Act, with one view being that the exception applies when the privileged communication contradicts or qualifies existing evidence or an inference from that evidence, potentially misleading the court. This broader interpretation was supported by various cases, including Nader v Sutherland Shire Council. The alternative, narrower view, held that the exception applies only when the privileged communication could enable a party to mislead the court about the course of settlement negotiations, where that matter was an issue in the proceedings. This narrower interpretation was initially expressed by Emmett J in Brown v Commissioner of Taxation and has been supported by other cases. The court had to determine which interpretation was more appropriate in the context of the present case.
After considering the arguments and the relevant authorities, the court dismissed the husband's appeal. The court held that the broader interpretation of s 131(2)(g) was the correct one, in line with the ordinary meaning of the provision. The court found that the exception applied when the privileged communication contradicted or qualified existing evidence or an inference from that evidence, potentially misleading the court. Given this, the court ruled that the evidence in question was properly excluded under s 131(1) of the Evidence Act and that no exception under s 131(2) was satisfied. The appeal was dismissed, and there was no order as to costs.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Section 131(1) of the Evidence Act is in the following terms: Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or A “dispute” is a reference to “a dispute of a kind in respect of which relief may be given in an Australian or overseas proceedings" (s 131(5)(a) of the Evidence Act). In this case, the wife had the ability to obtain relief from this court by applying for both parenting orders and a property settlement order. Section 131(1) is not discretionary and is an absolute privilege against the admission of the message unless one of the exceptions in s 131(2) of the Evidence Act are attracted. Further, s 134 of the Evidence Act provides that evidence that must not be adduced or given in a proceeding is not admissible in the proceeding. Given that the statement made by the wife in the message is in connection with an attempt by the wife to settle disputes about whether the parties’ eldest child was to be returned to Australia and the property settlement, the provisions of ss 131(1) and 134 are, subject to s 131(2), attracted. In this case, the only exception to the privilege that might be relevant is s 131(2)(g) of the Evidence Act which provides: (2) Subsection (1) does not apply if: …(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence… It has been noted in various cases that the interpretation of the meaning and operation of s 131(2)(g) has been the subject of differing views (see, eg, Galafassi v Kelly (2014) 87 NSWLR 119 at 147 [136]; Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232 at [34]). Indeed, there are two competing interpretations as to the breadth of s 131(2)(g) of the Evidence Act. The broader view, which, in our view, accords with the ordinary meaning of the provision, is that s 131(2)(g) of the Evidence Act applies where the existence or the contents of otherwise privileged communication contradicts or qualifies existing evidence or an inference from that evidence and the court is otherwise likely to be misled unless the communication is adduced. This interpretation has been supported in Nader v Sutherland Shire Council [2008] NSWCA 265 at [48]–[52] and at first instance (see, eg, Mulkearns v Chandos Developments Pty Ltd (No 4) (2005) 12 BPR 22,993 at [66]–[67]; Simply Irresistible Pty Ltd v Couper [2010] VSC 505 and Edwards v Transport Accident Commission [2013] VSC 557). The narrower view is that s 131(2)(g) of the Evidence Act has to be read as applying only to cases where the privilege in s 131(1) could enable a party to mislead the court about the course of an attempt to settle a dispute where that matter was an issue in the proceedings and the privileged communication contradicted or qualified evidence which had been admitted about that issue. This view was initially expressed by Emmett J in Brown v Commissioner of Taxation (2001) 187 ALR 714 at [184]–[185] (“Brown”) and has been supported at first instance (see, e.g. Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [4]–[9]; Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd(No. 2) (2011) 193 FCR 479 at [41]–[57] (“Barrett Property Group”); Atlas Financial International Ltd v Nortbale Pty Ltd [2011] NSWSC 815 at [84]–[86]; Payne v Rowe (2012) 16 BPR 30,869 at 30,882 [45] (“Payne v Rowe”)).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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