Smith v Young - [2017] FCCA 1085

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH v YOUNG

[2017] FCCA 1085

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice.

PRACTICE & PROCEDURE – Application in a Case to adduce expert evidence of pocket books and diaries – whether the expert evidence would have any probative value – application allowed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.01

Cases cited:

Ebert v The Union Trustee Co of Australia [1961] HCA 29; (1961) 105 CLR 327
Vogwell v Vogwell (1939) 11 ABC 83
Guss v Johnstone [2000] HCA 26; (2000) 171 ALR 598
Scanhill Pty Ltd v Century 21 Australasia Pty Ltd [1993] FCA 618; (1993) 12 ASCR 341

Applicant:

JOSEPHINE AAPA SMITH

Respondent:

JOANNE ELIZABETH YOUNG

File Number:

SYG 244 of 2016

Judgment of:

Judge Nicholls

Hearing date:

Decided on the papers

Date of Last Submission:

13 May 2016

Delivered at:

Sydney

Delivered on:

29 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr E Walker

Solicitors for the Applicant:

Greg Walsh & Co Solicitors

Counsel for the Respondent:

Mr J Sheller

Solicitors for the Respondent:

Levitt Robinson Solicitors

ORDERS

Leave is granted to the respondent to adduce at the final hearing expert evidence on the following question: “For each of the entries appearing in the “little red book” and in the 2000, 2002 and 2003 pocket diaries that relates to an alleged advance made by the applicant to the respondent, was it made contemporaneously with the alleged advance or at some other time?”.
The respondent may uplift the contents of Packets S1 and S2 produced by the applicant to the Court under a Notice to Produce and provide them to Forensic Document Services Pty Limited for the purposes of forensic examination and the preparation of an expert report.
The respondent to file and serve any expert evidence by way of affidavit on or before 13 June 2017.
The applicant to file serve any expert evidence in reply by way of affidavit on or before 27 June 2017.
The applicant to file and serve any evidence by way of affidavit on or before 13 June 2017.
The respondent to file and serve any evidence by way of affidavit on or before 27 June 2017.
The matter is set down for further directions on 12 July 2017 at 9:30am before Judge Nicholls at Court 8.2, 80 William Street Sydney.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 244 of 2016

JOSEPHINE AAPA SMITH

Applicant

And

JOANNE ELIZABETH YOUNG

Respondent

REASONS FOR JUDGMENT

This is an Application in a Case (“AIC”) formally filed by Ms Young in these proceedings on 10 May 2016, seeking that she be permitted to adduce, at the final hearing, expert evidence from a forensic document examiner regarding certain entries said to be made in a notebook (“little red book”) and various “pocket diaries” by Ms Smith. It is submitted that the expert evidence is needed to be adduced for the purpose of determining whether the entries were made contemporaneously with alleged advances, said to have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Young

Details

AGLC: Smith v Young [2017] FCCA 1085
Case: [2017] FCCA 1085
Decision Date: 29 May 2017

CaseChat Overview and Summary

In *Smith v Young*, heard before Judge Nicholls, the applicant, Smith, sought to set aside a bankruptcy notice issued against him. The dispute arose from an underlying debt, and the application to set aside the notice was accompanied by an application to adduce expert evidence concerning pocket books and diaries.

The primary legal issue before the court was whether the bankruptcy notice should be set aside on the grounds that Smith had a counter-claim, set-off, or cross-demand that equalled or exceeded the amount of the judgment debt. A secondary issue concerned the admissibility and probative value of the proposed expert evidence relating to pocket books and diaries.

Judge Nicholls considered the nature of the alleged counter-claim, set-off, or cross-demand. The court determined that the expert evidence regarding the pocket books and diaries had sufficient probative value to potentially support Smith's assertion of a counter-claim or set-off. Consequently, the application to adduce this expert evidence was allowed.

The court ordered that the application to adduce expert evidence be allowed. The ultimate determination on whether to set aside the bankruptcy notice would depend on the further consideration of the evidence, including the expert evidence, in relation to the alleged counter-claim, set-off, or cross-demand.

Orders