Sigley and De Santis & Ors (No 3)
[2020] FamCA 883
•16 October 2020
FAMILY COURT OF AUSTRALIA
| SIGLEY & DE SANTIS AND ORS (NO. 3) | [2020] FamCA 883 |
| FAMILY LAW – EVIDENCE – RULING AS TO ADMISSIBILITY – expert adversarial affidavit – discretion to allow evidence despite non-compliance with Chapter 15 – Rule 1.12 prevails. |
| Family Law Rules 2004 (Cth), rr 1.12, 15.52, 15.54, 15.59, 15.62(1), 15.63(c)(viii)(A), 15.64(b) |
| Commonwealth of Australia v Verwayen (1990) 170 CLR 395 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Finance & Guarantee Co Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Verdon & Verdon [2020] FamCA 824 |
| APPLICANT: | Ms Sigley |
| FIRST RESPONDENT: | Mr De Santis |
| SECOND RESPONDENT: | Q Pty Ltd as trustee for Q Discretionary Trust |
| THIRD RESPONDENT: | R Pty Ltd as trustee for De Santis Family Trust |
| FOURTH RESPONDENT: | Mr S De Santis |
| FIFTH AND SIXTH RESPONDENTS: | Mr T and Mr U as liquidators of E Pty Ltd (in liquidation) |
| SEVENTH RESPONDENT: | De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund |
| EIGHTH RESPONDENT: | V Partners Pty Ltd (formerly P Partners Pty Ltd) |
| |
| TENTH RESPONDENT: | X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis |
| ELEVENTH RESPONDENT: | E6 Pty Ltd |
| TWELFTH RESPONDENT: | Ms De Santis (also known as Ms BB De Santis) |
| THIRTEENTH RESPONDENT: | E Pty Ltd |
| FOURTEENTH RESPONDENT: | Mr AA De Santis |
| FIFTEENTH RESPONDENT: | Ms EE De Santis |
| SIXTEENTH RESPONDENT: | Ms DD De Santis |
| SEVENTEENTH RESPONDENT: | Ms AA De Santis |
| FILE NUMBER: | MLC | 9296 | of | 2015 |
| DATE DELIVERED: | 16 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 15 & 16 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. St John QC with Mr P. Agardy and Mr T. Hutchings |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE FIRST RESPONDENT: | No appearance |
| SOLICITOR FOR THE FIRST RESPONDENT: | No appearance |
| COUNSEL FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE THIRD RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE THIRD RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FOURTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE FOURTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FIFTH AND SIXTH RESPONDENTS: | Dr A. Trichardt |
| SOLICITOR FOR THE FIFTH AND SIXTH RESPONDENTS: | Charles Fice Solicitors |
| COUNSEL FOR THE SEVENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE SEVENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE EIGHTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE EIGHTH RESPONDENT: | V Partners Pty Ltd |
| |
| |
| COUNSEL FOR THE TENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE TENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE ELEVENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE ELEVENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE TWELFTH RESPONDENT: | Mr M. Wilson |
| SOLICITOR FOR THE TWELFTH RESPONDENT: | KCL Law |
| COUNSEL FOR THE THIRTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE THIRTEENTH RESPONDENT: | Charles Fice Solicitors |
| COUNSEL FOR THE FOURTEENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE FOURTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FIFTEENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE FIFTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE SIXTEENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE SIXTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE SEVENTEENTH RESPONDENT: | Mr D. Bongiorno |
| SOLICITOR FOR THE SEVENTEENTH RESPONDENT: | Berry Family Law |
Orders
The applicant has leave to rely on the affidavits of Mr C affirmed on 16 April 2020 and 4 September 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigley & De Santis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9296 of 2015
| Ms Sigley |
Applicant
And
| Mr De Santis |
First Respondent
And
| Q Pty Ltd as trustee for Q Discretionary Trust |
Second Respondent
And
| R Pty Ltd as trustee for De Santis Family Trust |
Third Respondent
And
| Mr S De Santis |
Fourth Respondent
And
| Mr T and Mr U as liquidators of E Pty Ltd (in liquidation) |
Fifth and Sixth Respondents
And
| De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund |
Seventh Respondent
And
| V Partners Pty Ltd (formerly P Partners Pty Ltd) |
Eighth Respondent
And
| |
Ninth Respondent
And
| X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis |
Tenth Respondent
And
| E6 Pty Ltd |
Eleventh Respondent
And
| Ms De Santis (also known as Ms BB De Santis) |
Twelfth Respondent
And
| E Pty Ltd |
Thirteenth Respondent
And
| Mr AA De Santis |
Fourteenth Respondent
And
| Ms EE De Santis |
Fifteenth Respondent
And
| Ms DD De Santis |
Sixteenth Respondent
And
| Ms AA De Santis |
Seventeenth Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
On the first day of the trial of this proceeding objection was taken by Mr Daniel Bongiorno of counsel who appeared for the third, fourth, seventh, tenth, eleventh, fourteenth, fifteenth, sixteenth and seventeenth respondents to two affidavits of Mr C being admitted into evidence.
The impugned Affidavits
The first affidavit was affirmed by Mr C on 16 April 2020. The second affidavit was affirmed by Mr C on 4 September 2020.
The basis of the evidentiary Challenge
In essence, Mr Bongiorno submitted that each affidavit made by Mr C on which the applicant relied should not be admitted into evidence on several evidentiary grounds. In no particular order those grounds included the following –
a)Mr C’s evidence was not that of a single expert witness so in order for it to be admissible it needed to comply with the relevant rules in Chapter 15 of the Family Law Rules concerning adversarial witnesses;
b)Mr C made no attempt to engage Rule 15.52(c), (d) or (e);
c)Rule 15.54 was not satisfied;
d)Rule 15.59 was not met as Mr C was not independent;
e)the form and content of his evidence did not meet Rule 15.62(1);
f)under Rule 15.64(b), the whole of Mr C’s evidence should be excluded; and
g)Rule 15.63(c)(viii)(A) was not satisfied.
Further, citing the decision of the Court of Appeal of the Supreme Court of New South Wales in Makita (Australia) Pty Ltd v Sprowles[1] and the decision of the High Court of Australia in Dasreef Pty Ltd v Hawchar,[2] Mr Bongiorno contended that the path of reasoning on which Mr C proceeded was not exposed in his affidavit. He also submitted that –
a)it was not possible to discern on what material Mr C relied in expressing his views;
b)Mr C prepared two affidavits, not expert reports;
c)he did not reveal the instructions he received on which his affidavits were premised;
d)his evidence went beyond his expertise; and
e)Mr C was not independent and he acted as an advocate rather than as an expert.
[1] (2001) 52 NSWLR 705.
[2] (2011) 243 CLR 588.
The basis for the admission of the evidence
On behalf of the applicant Mr St John QC acknowledged that the affidavits of Mr C did not comply with the requirements of Chapter 15 of the Family Law Rules. However, he submitted that the affidavits should not be excluded from admissibility. He argued that the contention about the admissibility of the two Lipson affidavits emerged at 10pm on Wednesday night, that is to say, the night before the trial of this proceeding was to commence. In resisting the contentions that the two Lipson affidavits were inadmissible, Mr St John made the following submissions –
a)Mr C had relied on documentary information that had emerged in this case after that documentation had been produced in response to one or more subpoenae;
b)the applicant has not, and at no time has she purported to, give instructions to an expert as might be given, for the simple reason that the applicant is not privy to most if not all of the transactions about which Mr C gives evidence;
c)over the life of this litigation all respondents have known of the role Mr C has played on behalf of the applicant;
d)on several occasions since this litigation commenced consent orders have been made concerning Mr C’s evidence and at no time has there been any protest about the status of Mr C as a witness in this litigation;
e)in both of his affidavits Mr C has identified the documents on which he has relied in expressing his views;
f)Mr MM, one of the respondents’ witnesses, has responded to Mr C’s evidence and Mr C has responded by joining issue with the evidence of Mr MM thereby rendering each important witnesses;
g)it would be unfair to permit Mr MM’s evidence to stand yet at the same time disallowing Mr C’s evidence especially as they join issue with one another’s evidence; and
h)all documents upon which Mr C expresses his evidence have emanated from one of W Pty Ltd, Berry Law or they are official documents so the source of the documents on which Mr C relies cannot be said to emerge from a source beyond the knowledge of the clients for whom Mr Bongiorno appears.
Consideration
Mr St John correctly conceded that the two Lipson affidavits do not comply with the strict requirements of Chapter 15 of the Family Law Rules. Mr Bongiorno’s criticisms of Mr C’s affidavits are correct, especially as to deficiencies of form, instructions and the basis of the conclusions. Yet Chapter 15 of the Family Law Rules is not a code, to be read and construed as if it were a statute of strict liability. As with all aspects of the Family Law Rules, the operation of Chapter 15 is subject to the overriding entitlement of the trial judge – me in this instance – to ameliorate the hardship of the strict application of any aspect of the rules in the circumstances to which Rule 1.12 applies. That rule seems to me to correspond with the discretion conferred over centuries upon trial judges in the common law world to ensure that a fair trial is conducted. I made observations about Rule 1.12 in Verdon & Verdon.[3] In my view, while Chapter 15 of the rules has been breached in certain respects, in the circumstances of this case Rule 1.12 should be invoked relieving the applicant of the hardship of the consequences and strict application of the requirements of Chapter 15 of the Family Law Rules. I say that for the following reasons –
[3] [2020] FamCA 824.
a)since at least 2 March 2016 when Bennett J made orders concerning Mr C’s evidence, all parties have been aware of the role of Mr C in this litigation;
b)on various occasions since March 2016 orders have been made, mostly by consent, concerning Mr C’s evidence;
c)Mr C made an affidavit on 16 May 2017;
d)no point has been taken about the admissibility of Mr C’s evidence until the first day of the trial of this proceeding;
e)objection was raised to Mr C’s affidavit material the night before the start of the trial;
f)Queen’s Counsel previously appearing for the objectors did not previously raise the objections now taken;
g)to say this litigation has suffered a tortured approach to trial is an understatement of mammoth proportions;
h)if the point about admissibility had merit it should have been raised on one of the 46 separate occasions on which this proceeding had been ventilated before a justice of this court;
i)had complaint been raised earlier on the grounds now asserted then the applicant would have had an opportunity to mend her hand by addressing the criticisms now made;
j)Mr Bongiorno’s clients are to be taken to have acquiesced in the forensic state of the Lipson evidence by reason of their having failed to earlier complain about its deficiencies; and
k)in all events, Rule 1.12 gives me a general and all pervading entitlement to dispense with strict compliance with the rules in the circumstances set out in Rule 1.12(3), having regard to –
i)the main purpose of the rules;
ii)the administration of justice;
iii)whether the application has been made promptly;
iv)whether non-compliance has been intentional; and
v)the effect of the grant of the relief sought.
Taking the last point first, a ruling in favour of the objectors would orchestrate irreparable damage to the applicant’s case. Of course, if that were the upshot of a valid objection then the point would lay where it fell. However, in the circumstances of this case that result would be an affront to the administration of justice because this application for the exclusion of Mr C’s evidence is made so very late. The main purpose of the rules is to achieve a trial as speedily and as cost-effectively as can be achieved, and, it seems most importantly, all parties have until day one of the trial proceeded on the basis that the Lipson affidavits were not objectionable for contravention of Chapter 15.
As to the alleged want of objectivity, I have considered the decision of Riordan J in Finance & Guarantee Co Pty Ltd v Auswild (Expert Evidence Ruling).[4] His Honour’s conclusions accord with those that I favour.
[4] [2019] VSC 665.
Mr St John flirted with the submission that the objectors are estopped from making their objection as to admissibility. Whether an estoppel arose of the sort considered by the High Court in Commonwealth of Australia v Verwayen[5] and the point need not be considered as the point was not argued in particular detail. However, the point remains that this litigation has proceeded to trial without objection to the Lipson evidence. This case has been disproportionately difficult to get to trial. The applicant should not be visited with the irremediable consequences of the objections urged on behalf of Mr Bongiorno’s clients.
[5] (1990) 170 CLR 395.
I will allow the evidence of Mr C to be given.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 16 October 2020.
Associate:
Date: 21 October 2020
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