Polo & Polo and Ors - [2007] FamCA 384

FAMILY COURT OF AUSTRALIA

POLO & POLO AND ORS

[2007] FamCA 384

FAMILY LAW – PRACTICE AND PROCEDURE – Application by wife to strike out answers to specific questions contained in an affidavit sworn by the husband on the basis that documents requested in the specific questions were not attached to the answers, various answers were non-responsive, and various answers were not in admissible form

The Family Law Rules 2004

Sharpe & Smail (1975) 5 ALR 377

APPLICANT WIFE: MRS POLO

RESPONDENT HUSBAND:                   MR POLO
SECOND RESPONDENT:  MS POLO
THIRD RESPONDENT:  MR S POLO
FOURTH RESPONDENT:  P PTY LTD
FIFTH RESPONDENT:  G PTY LTD
FILE NUMBER:  CAF 872 of 2003

DATE OF RULING:  11 April 2007
PLACE DELIVERED:  Canberra
RULING OF:  Finn J
HEARING DATE:  11 April 2007

REPRESENTATION
COUNSEL FOR THE APPLICANT WIFE: Mr Mater
SOLICTOR FOR THE APPLICANT WIFE: Anne Marie Proctor & Associates
COUNSEL FOR THE RESPONDENT

HUSBAND AND FOURTH RESPONDENT: Mr Bartfeld SC and Mr Kearney

SOLICITOR FOR THE RESPONDENT
HUSBAND AND FOURTH RESPONDENT: Farrar Gesini and Dunn

COUNSEL FOR THE SECOND, THIRD

AND FIFTH RESPONDENTS: Mr North SC

SOLICTOR FOR THE SECOND, THIRD

AND FIFTH RESPONDENTS: Crowley Clifford Simpson

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 872 of 2003

MRS POLO

Applicant

And

MR POLO AND ORS

Respondent

RULING

There are currently before me for final hearing cross-applications by the husband and wife for property settlement. This final hearing, or in other words, trial, began on 2 April (2007), although it was of course interrupted by the Easter weekend.
In the course of taking objections to affidavits, counsel for the applicant wife has sought to take objections to answers given by the respondent husband in an affidavit sworn on 28 February this year and filed on 21 March (2007).
The background to that affidavit (of answers to specific questions) was an order which I made at what could be termed an interlocutory mention of this matter on 12 December 2006. The relevant part of my order was:
(1) That no later than Friday, 16 February 2007, the husband should provide sworn answers to the questions in the schedule included in exhibit 1.
I would explain that exhibit 1 was a bundle of documents before me on that day (12 December 2006).
In the course of the trial - and as I have said, in the course of making objections to affidavits - counsel for the wife has sought to raise objections to the answers to the specific questions contained in the affidavit sworn by the husband on 28 February.
Broadly speaking, counsel's objections fall into three categories:
·    First, that documents which were requested in the specific questions were not attached.
·    Two, that the answers - not all of them but those identified - were non-responsive.
·    Three, the answers which were identified were not in admissible form.
The relief sought by counsel on behalf of the wife is that I should strike out the answers to which objection has been taken on any of the bases I just mentioned.
Counsel appearing for the respondent husband, and also counsel appearing for other parties to the proceedings, being the two adult children of the marriage and a related company, maintain that the objection process, as used in relation to affidavits, is not available in relation to answers to specific questions, even though those answers were sworn. Further it is submitted that the objection process sought to be employed by counsel for the wife is misconceived.
I agree with those submissions, and I do so for the following reasons.
First, and perhaps on the most highly technical or procedural basis, I rely on the provisions of r.13.28 of the Family Law Rules (‘the Rules’). By way of background to that rule, I explain that it appears in Part 13.3 of Chapter 13 of the Rules. That part is headed: "Answers to Specific Questions", and it provides in its opening rules for specific questions to be asked.
The important rule for present purposes - and it is probably worth my reading it because of other observations I will later make, is r.13.27:
(1) A party on whom a request to answer specific questions is served must answer the questions in an affidavit that is filed and served on each person to be served within 21 days after the request was served.
(2) The party must, in the affidavit:
(a)   answer, fully and frankly, each specific question; or
(b)   object to answering a specific question.
Rule 13.27(3) then sets out the basis upon which there can be an objection.
But importantly, for the present purposes, r.13.28 then provides an interlocutory procedure for a party who is dissatisfied with the answers which he or she has received to specific questions. Certain remedies are then provided for the Court to use. The text of r.13.28 is as follows:
(1) After the final resolution event, a party may apply for an order:
(a) that a party comply with rule 13.27 and answer, or further answer, a specific question served on the party under rule 13.26;
(b) determining the extent to which a question must be answered;
(c) requiring a party to state specific grounds of objection;
(d) determining the validity of an objection; or
(e) that a party who has not answered, or who has given an insufficient answer, to a specific question be required to attend court to be examined.
(2) In considering whether to make an order under subrule (1), the court may take into account whether:
(a) the requesting party is unlikely, at the trial, to have another reasonably simple and inexpensive way of proving the matter sought to be obtained by the specific questions;
(b) answering the questions will cause unacceptable delay or undue expense; and
(c) the specific questions are relevant to an issue in the case.
Put simply, I agree with the submission made in opposition to the application to make objections to the answers to the specific questions, being that there was an earlier interlocutory process available (under r.28.13) and it is too late at the trial to object to the way in which the party to whom the questions were directed has chosen to answer them.
The second, and perhaps also somewhat technical reason why I consider at least part of the application is misconceived, relates to the fact that one of the wife’s complaints is that the answers did not attach documents which were requested by the specific questions.
There is another part of Chapter 13 which is concerned with obtaining documents. That is Part 13.2 which is headed: "Duty of Disclosure Documents", and it provides the process for obtaining documents. In my view therefore there is substance in the submission, which I understood to be put in opposition to the application, that Part 13.3 (“Answers to Specific Questions”) is not the vehicle for obtaining documents.
Thirdly, counsel for the wife has submitted that a great many of the answers to which he has drawn my attention are in inadmissible form. In support of that proposition he relies on r.15.09 which is in Chapter 15 of the Rules and is concerned with affidavits. As I earlier explained, r.13.27 provides for answers to specific questions to be in affidavit form. Rule 15.09(1) reads:
An affidavit must be:
(a) confined to facts about the issues in dispute;
(b) confined to admissible evidence;
(c) sworn by the deponent, in the presence of a witness;
(d) signed at the bottom of each page by the deponent and the witness; and
(e) filed after it is sworn.
The sub-paragraph r.15.09(1) on which counsel for the wife relies is sub-paragraph (b) which says “confined to admissible evidence”.
With respect to counsel, it seems to me that perhaps those who drew these Rules may have inadvertently included a certain inconsistency (which needs to be drawn to the attention of those now responsible for the Rules). I say this because commonsense would dictate, and perhaps more significantly, the general law seems to recognise, that it will not always be possible for a person to whom a specific question is directed, to be able to answer that question in what would be an admissible form.
Indeed, the decision to which I was referred by counsel for the husband, being Sharpe & Smail (1975) 5 ALR 377, which is a decision of Gibbs J (as he then was) sitting as a single Judge of the High Court, makes it clear that interrogatories (which can be seen to be the general law’s title for what we in the family law world now call “specific questions”), may well have to be answered to the best of a person’s knowledge, information and belief.
A reading of that case, which is interesting from a number of perspectives, makes it very clear that, and put simply, someone asked to answer questions (or interrogatories) may have to rely on information obtained from others, which was a point that counsel for the third parties also made in his submissions today.
I am thus prepared to conclude, at least on the basis of the argument that has been put to me this morning, and of the provisions of the Rules and of the limited authority to which I have been referred, that the normal rules of admissibility, which might found a valid objection to contents of an affidavit in the sense of the evidence-in-chief of a party for trial, do not operate in relation to answers to specific questions.
Further, and finally, to the extent that the answers to the specific questions may seem to be not responsive, the relief that should be sought in such a situation is not a “strike out” of the answers. Indeed I believe I am correct in saying - though I have not today had a chance to read the entire Rules (and one constantly finds interesting things in them) - that the Rules do not provide a remedy of “strike out” in relation to an answer to a specific question.
It seems to me that the appropriate course, if it is too late, as I think it is in the present case, to avail of the r.13.28 relief, is for a party, who complains about insufficient answers or non-responsive answers to specific questions, to raise that matter in final submissions in the context of submissions concerning lack of adequate disclosure on the part of the other party to the proceedings.
Accordingly I refuse to entertain or rule on objections to the answers to specific questions (even though given in affidavit form).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn.

Associate:

Date: 1 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as POLO & POLO