Poyzer and Tritton (No. 2)

[2009] FamCA 364

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON (NO. 2) [2009] FamCA 364

FAMILY LAW – PRACTICE AND PROCEDURE – application by the husband to interpose the evidence of a witness – application dismissed

Family Law Act 1975 (Cth)

Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 29 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms E.F. Nelson QC

SOLICITOR FOR THE RESPONDENT: David M. Davidson

Orders

1. I formally dismiss the Application in a Case filed by the husband on 27 April 2009.

IT IS NOTED that publication of this judgment under the pseudonym Poyzer & Tritton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

MR POYZER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the husband, in the middle of a long and complex trial, to interpose the witness Mr S, who is the real estate valuer in the evidence currently being given by his accountant Mr I.  The husband was given permission to have Mr H sit in and assist him in arranging questioning of Mr S.  Mr H is not available on Friday of this week, when it now transpires Mr S is likely to be called.  I use the expression "likely to be called" because it is not at all clear that the evidence of Mr I will now necessarily be completed in all aspects by Friday morning. 

2. It is already now past 10.35 am in the morning and these preliminary issues have delayed the resumption of the evidence-in-chief of Mr I.  It is likely that the cross-examination of Mr I, the accountant for the group, is likely to be lengthy, therefore the planned arrangements for Mr S to give his evidence today have had to be postponed.

3. Obviously, in many cases the Court agrees to interpose the evidence of one witness, but care must be taken to ensure that there is some order in the evidence given, so that material and factual bases are established which might form the basis of questioning of a further witness.  For example, in children's matters the Court is usually disposed to hear the evidence of the parties before the evidence of the experts, so the evidence of the parties can be put to the experts with a view to making their opinion clearly based upon factual material which is before the Court.

4. In relation to the real estate valuations in this matter, it is submitted on behalf of the wife that the valuations carried out by Mr S are determined in relation to the operation of the businesses for which Mr I is the accountant, and in particular, relevant matters will relate to rental charged for the property, rental received, proper rates of rental and the maintenance of the properties.

5. I considered the possibility of directing the wife's counsel to cross‑examine Mr I on those issues prior to any other issues, with a view to considering the possibility of then calling Mr S to give his evidence.  I accept the wife's counsel's submission that that may not be as simple as it sounds and that the order of cross-examination needs to be determined, to a large extent, by other factors.  I am therefore not sure that even if that were directed the problem would be easily solved.

6. The husband is unrepresented and claims he will be disadvantaged by not having someone available to sit in Court with him, to assist him in cross-examining Mr S, should that be necessary.  Mr H was arranged for today on the understanding that Mr S would be giving his evidence today but that, notwithstanding the correspondence between the husband and the wife's legal representatives about this issue, he has not made any arrangements to obtain any other assistance for him if Mr S is to give his evidence on Friday.

7. I am told that Mr H will be interstate until 6 May, by which time it was hoped that this trial would have been concluded.  Bearing in mind that we are still in the evidence of Mr I, have not started the evidence of Mr S or Mr J, nor heard final submissions, I am now more than concerned about the possibility that the matter will not be concluded by the end of business on Tuesday, 5 May. 

8. The husband has arranged an operation on 6 May and will be unable to return to proceedings before the Court for a fortnight.  This will involve the Court in considerable further delay if the matter is not resolved then.

9. I have to weigh up all of the factors and in particular in relation to in Re F: Litigants in PersonGuidelines (2001) FLC 93-072 and other authorities concerning the conduct of the proceedings, to ensure that justice is done to both parties.

10. In view of the arrangements that were previously made and in view of the arrangements which currently exist, namely, that Mr I has only just commenced his evidence and will be some time in the witness box, I am not disposed to permit the interposition of Mr S today.  I also do that on the basis that I am told that neither Mr S nor Mr H are in the precincts of the Court and would need to be called to come to Court today.

11. There is a possibility that Mr I’s evidence will still be continuing on Friday, when the timing of Mr S’s evidence will have to be further reviewed.  In view of that, the husband therefore has the further possibility of making arrangements, either later today or tomorrow, for someone to assist him in giving him advice about the cross-examination of Mr S if that takes place on Friday of this week or early next week.

12. I therefore decline to make the order to interpose Mr S in the evidence of Mr I today.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  8 May 2009