St Claire and St Claire and Ors (No 2)

[2012] FamCA 311

FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE AND ORS (NO 2) [2012] FamCA 311

FAMILY LAW – INJUNCTIONS - Anti-suit injunction – proceedings to enforce a mortgage transferred to a litigant already joined as a party in this Court.  All monies mortgage issues.  Application by wife for permission to file an expert’s evidence where the expert purports to determine issues that are matters for the court.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Property Law Act 1958 (Vic)
Transfer of Land Act 1958 (Vic)

CSR Limited and Signa Insurance Australia Limited (1997) 189 CLR 345
French v Queensland Premier Mines Pty Ltd and Ors [2006] VSCA 287
Henry v Henry (1996) 185 CLR 571
Re GHI (a Protected Person) [2005] NSWFC 466
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT: Ms St Claire

RESPONDENT: Mr St Claire

2^ND RESPONDENT: E Pty Ltd

3^RD RESPONDENT: Mr G

FILE NUMBER: MLC 9777 of 2010

DATE DELIVERED: 4 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: FC Law Lawyers

COUNSEL FOR THE 3^RD RESPONDENT: Mr Wilson

SOLICITOR FOR THE 3^RD RESPONDENT: Trumble Szanto Lawyers

Orders

1. That until further order, Mr G be restrained by injunction from taking any action to enforce a judgment in the Supreme Court of Victoria between he and E Pty Ltd.

2. That the applications in a case filed by the wife on 14 February 2012, 14 March 2012 and 30 March 2012 and the application in a case filed by Mr G on 24 April 2012 are otherwise dismissed.

3. That by 4.00pm on 18 May 2012, Mr G file and serve a response to the application initiating proceedings filed by the wife on 27 September 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym St Claire & St Claire and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9777  of 2010

Ms St Claire

Applicant

And

Mr St Claire

Respondent

And

E Pty Ltd

2^nd Respondent

And

Mr G

3^rd Respondent

REASONS FOR JUDGMENT

1. There are three issues for determination in these interim reasons.  They are:

   (a)should an anti-suit injunction be made against Mr G preventing enforcement of a judgment of the Supreme Court of Victoria which he obtained by default relating to possession of what I shall refer to as the B property but which is known to the parties as their former matrimonial home.  That home is in the name of E Pty Ltd;

   (b)should Mr G who is joined as a party by being named on an amended application filed 27 September 2011, be removed from the proceedings upon his application?; and

   (c)should the wife be permitted to file an affidavit by an accounting expert relating to various transactions giving rise to a claim by Mr G against the husband and/or the wife?

2. These proceedings were activated by applications in a case filed by the wife on 14 December 2012, 14 March 2012 and 30 March 2012 to which no response was filed by the husband.

3. Mr G, the third party, filed an application in a case on 24 April 2012.  All of these applications related to the three issues mentioned above.

4. The applications were supported by affidavits.  In addition to those affidavits, my attention was drawn to the wife’s trial affidavit filed 20 December 2011 and an affidavit by Mr G filed 14 February 2012. 

5. Without opposition, I was given a report of the wife’s proposed expert witness Ms N.  It is common ground that that report was prepared by the wife’s accountant and was distributed to the parties.  It is proposed by the wife to be incorporated into an affidavit and filed as her evidence subject to the leave of the Court.

6. The wife was represented by Mr Davis of counsel, the husband by Mr Sweeney of counsel and Mr G by Mr Wilson of counsel.  Each made submissions and drew my attention to various pieces of evidence in the various affidavits.

7. The substantive pending proceedings relate to property in the sense of them being an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”) but there are also parenting issues outstanding. The trial is set for hearing in July before me. The financial proceedings appear on their face to be complex.

8. On 29 September 2011, the wife filed her amended application which would appear to be her current position.  Relevantly, for the purposes of this interlocutory proceeding, she sought orders that:

   (a)pursuant to s 106B of the Act, a particular agreement entered into by the husband on behalf of an entity with another company in May 2011, be set aside;

   (b)that any deed or instrument arising out of which Mr G had lodged any caveat against the B property, be set aside pursuant to s 106B of the Act; and

   (c)alternatively, the husband be solely responsible for any monies owing to Mr G and that the caveat lodged by Mr G against the B property be transferred to another property in the husband’s name for the purposes of any security.

9. I am unaware of when Mr G received the relevant documents but on 7 December 2011, his current solicitors filed a Notice of Address for Service.  To my knowledge, no formal response has been filed.  In respect of the interlocutory proceedings before me, namely the application filed on 24 April 2012, Mr G sought orders that the three applications of the wife for interlocutory orders be dismissed and that he be released from the proceedings forthwith.  He also sought an order that if the B property was ordered to be sold, it should be he selling it and the proceeds of sale after payment of costs and expenses of sale be placed in a trust account pending the outcome of the proceedings between the husband and the wife.

10. The husband filed a response to the wife’s application on 11 November 2011 relevantly seeking that the B property be delivered up to him and that the wife pay rent to him for her occupation.

11. I am not concerned that Mr G has not filed a response because his position as set out in the interlocutory application to which I have just referred, makes his position clear.  However if as I will order, he remains a party to the proceedings, he will have to formally indicate what orders he is proposing.

12. Whilst on their face, each of the issues appears discrete, they are really interwoven.  The facts upon which this determination is made come from the affidavits of the parties and wherever possible, I have endeavoured to seek out those matters which are not controversial. 

13. The husband and Mr G were in the business together of buying and conducting personal services businesses.  They did so through corporate entities.  On the evidence, the husband’s “drawings” were somehow “accounted for” in the books of accounts of the corporate entities run by both men.

14. What was described as the husband’s entity E Pty Ltd was referred to in the wife’s affidavit for trial filed 20 December 2011 as an entity being one in which she became a sole director in approximately 2002 but transferred back to the husband in the same year.  It was transferred back again to the wife in 2005 and remained that way until September 2010.

15. The corporate entity of Mr G was L Pty Ltd. 

16. No evidence was brought to my attention that would enable me to make any finding about how Mr G was owed money from the arrangement involving the drawings.  Mr G described the arrangement as a “pre-existing business debt” and simply that it was money owed to him.  In discussion with counsel for Mr G, reference was made to “transactions” between the husband and Mr G.  The interchangeability of corporate and personal liabilities compounds the confusion in this case. 

17. In 2004, the husband paid Mr G $110,572.94.  Mr G said the pre-existing business debt was thereby reduced to $393,715.25.  Mr G provided a trial balance sheet of E Pty Ltd for 2003 which showed (as a debit) E Pty Ltd owing $504,288.69 and a similar document for 2004 showing $393,715.75.  Whilst the usefulness of a trial balance is questionable where the company’s financial statements should have been produced, the inference I was asked to draw was that the E Pty Ltd debt was reduced during that year.  I can draw that inference because of what is set out in paragraph 21 below.  The similar trial balance records of L Pty Ltd show similar ledger movements. 

18. The formal balance sheet of L Pty Ltd at 30 June 2010 showed E Pty Ltd owing it $393,715.  The evidence of Mr G was that there were discussions with the husband and wife at unspecified times when commitments to pay were made by them in relation to the debts.

19. Where the evidence is untested, I will not draw any inference against the husband and the wife.  As such I can only conclude at this stage that E Pty Ltd owed L Pty Ltd money.

20. Also in 2004, according to Mr G, he and the husband executed a contract for the sale of a business.  Despite the language of the affidavit, the exhibited contract of sale is shown to be between two companies Z Pty Ltd and L Pty Ltd.  Although the description by Mr G is of a contract for $100,000 plus or minus adjustments and that he would remain as a manager, the contract shows L Pty Ltd (which I presume is Mr G’s entity) as the vendor.  The terms of the contract included Mr G “remain as manager” for a set time for “a minimum of $1000 per week…if the purchaser should decide so”.  The terms include that the management fee was payable weekly.

21. Mr G said he was given $100,000 in April and the sum for the adjustments in May and by agreement with the husband, these payments were applied to the pre-existing business debt rather than the contract itself.  On that evidence, the E Pty Ltd debt to L Pty Ltd was down to $393,715 which is consistent with the 2004 trial balance and 2010 balance sheet to which I have referred.

22. Mr G then said that the total debt of “the husband” had effectively not changed (in 2004) so he insisted on “some security”.  He said the husband agreed to a “security agreement” for the sale price of the 2004 contract referred to in paragraph 20 above plus his “prospective wages” of $1000 per week.  He calculated that total amount at $198,000 and apparently both parties signed this document called a “security agreement”.

23. The debt for prospective wages is odd but in any event, the handwritten “security agreement” is between the husband with E Pty Ltd alongside his name in parenthesis and Mr G with L Pty Ltd alongside his name in parenthesis.  The document is said to secure both $198,000 and the $393,715.  The contracted 2004 debt was not for E Pty Ltd but Z Pty Ltd.  In any event, the “security agreement” said that the husband (with E Pty Ltd in parenthesis) agreed to allow Mr G to “charge a caveatable interest” on the B property in favour of Mr G. 

24. Leaving aside the clumsiness of the document and whether in law it is a charge all, it was Mr G who was the recipient whereas, the debt due by E Pty Ltd seemed to be to L Pty Ltd.

25. Mr G then lodged a caveat on the title to the B property but not until May 2011 and curiously, the husband and not E Pty Ltd was described as the “chargor”.  The legal effect of all this remains to be litigated if the anti-suit injunction sought by the wife remains extant from this Court.

26. Mr G went on in his affidavit to say that he had “increasing doubts” in May 2011 whether he would be paid which caused him to seek legal advice consequent upon which that caveat was lodged. 

27. A further financial issue between the husband and Mr G arose in 2011.  Mr G issued proceedings in the District Court of New South Wales against the husband and E Pty Ltd and by default, obtained a judgment against them for $198,000 relying on the 2004 contract of sale of business.  That could only have happened by default because on Mr G’s evidence before me, the contract of sale was between Z Pty Ltd and L Pty Ltd.  What the evidence of the connection is remains a mystery to me.  In addition and in any event, according to the wife’s evidence, she was removed (or removed herself) as a director of E Pty Ltd in 2010.  Whether the District Court proceedings were known to the wife is unclear.

28. On 13 January 2012, Mr G issued a writ out of the Supreme Court of Victoria against E Pty Ltd.  This was the action which gave rise to the wife’s anti-suit injunction application before me in February 2012.

29. The writ had attached to it a statement of claim.  The claim was for possession of the B property.  That issue requires careful analysis. 

30. In March 2008, E Pty Ltd, presumably then entirely under the control and directorship of the wife, mortgaged the B property to the National Australia Bank.  That mortgage was “transferred” to Mr G in August 2011 and the transfer properly registered with the Land Titles Office.  By circumstances which were referred to in my earlier interlocutory reasons for making an anti-suit injunction, the writ issued in January 2012 was not defended by E Pty Ltd.  The B property is where the wife lives.

31. I asked counsel for Mr G how his client came to be entitled to claim all of the monies owed as earlier described, as well as the amount due under the National Australia Bank mortgage, and whether Mr G was pursuing it as a result of the default judgment on the writ for possession.  Counsel said it was an “all-monies mortgage”.  The “all-monies” statement appears in the affidavit of Mr G filed 24 April 2012.  In that affidavit, Mr G was explaining errors he had detected in the report from the wife’s expert accountant.  That expert queried why no interest had been shown in the financial statements she had examined that had been provided by the parties.  In describing one of the accountant’s errors, Mr G said his rights to recover interest arose under the judgment of the District Court of New South Wales which is the one to which I have referred but also for the pre-existing business debt and other money owed by E Pty Ltd.  He said it was under the “all-monies” clause in the National Australia Bank mortgage document that had been assigned to him.

32. My understanding of what was being put by Mr G’s counsel and the inferences I have drawn from his affidavit was that by virtue of the transfer of the NAB mortgage, all money due to Mr G fell to be collected under the mortgage.  That statement seemed inconsistent with the notice to pay which Mr G produced as an annexure to his affidavit. 

33. No submissions were put by any counsel about the extent to which the Supreme Court of Victoria for possession gave Mr G the right to collect all of what he claimed as the debt owed to him.  Mr Sweeney on behalf of the husband submitted that to the extent that the wife did not seek to set aside the Supreme Court of Victoria order, the facts giving rise to the judgment merged with the order and an estoppel point would arise.  However, that would also depend upon the “all-monies” definition. 

34. It would appear that the debt to the National Australia Bank has been assigned to Mr G. The wife could therefore not dispute at least the amount due to the bank that was outstanding under the security. If that was the extent of Mr G’s claim, the wife would be hard pressed to maintain an anti-suit injunction because there could be no defence once the notice to pay had been served. However, the anti-suit injunction has a justifiable basis if Mr G is seeking to recover the total amount he says is outstanding to him under the “all-monies” claim. That debt is disputed by the wife and if there is doubt about the extent of the “all-monies” argument, and there is here, the dispute about the debt has to be determined before the Court can make any assessment about a pool of assets. However of course, that also depends on whether the wife’s s 79A of the Act application is successful because until it is, the s 79 jurisdictional steps are not relevant.

35. What then do I make of this “all-monies” mortgage? No authorities were put before me in argument. Section 114 of the Property Law Act 1958 (Vic) provides for the transfer of mortgages. One interpretation of that provision is that a deed executed purporting to transfer a mortgage or the benefit thereunder, operates to transfer to the transferee the benefit of all securities for the same and the benefit of and the right to sue on, all covenants of the mortgagee as well as the right to exercise all powers of sale. In addition, Division 9 of Part IV of the Transfer of Land Act 1958 (Vic) provides assistance as to how mortgages are so treated.

36. As I have said, I did not have the benefit of argument about this but when land is mortgaged, the mortgagor (in this case E Pty Ltd) retains the legal fee simple and the mortgagee obtains a statutory interest because of the registration of the mortgage. The registration of the mortgage does not give the holder ownership of the land. The mortgage itself is a security only and the obligation to pay under the mortgage is independent of the security. Therefore, does any agreement between E Pty Ltd or the husband and Mr G, form part of the mortgage upon transfer? Is it part of the covenant to which s 114 relates? If the debts arise out of loans or judgments, they are quite separate contracts or judgments unrelated to the security. Thus, I have presumed that Mr G’s right to sue for the various monies does not arise from a right under the mortgage but rather under the various agreements that he had with the companies about whom I express some confusion above. If that interpretation is correct, the debts by the wife remain unresolved and because of Rule 6.03 of the Family Law Rules 2004, Mr G must be joined because he is a person who may be affected by an order. Counsel for Mr G conceded that if there was a dispute about the debt and Mr G could not collect as a result of the Supreme Court proceedings, he would want to be involved.

37. The mortgage and the relevant transfer documents were not tendered in evidence and I am not in a position, without argument, to make any finding about the position that Mr G asserted was his entitlement under the “all-monies” clause of the original NAB mortgage.  Whether that enables him to claim the monies as he seems to assert, is a matter about which I cannot make a finding.  The law does not seem to me to necessarily support his argument (see French v Queensland Premier Mines Pty Ltd and Ors [2006] VSCA 287).

38. All of that means that the assertion of the wife as to the existence of a dispute about the debt remains alive.

39. On 17 February 2012, I granted the injunction against Mr G until 26April 2012.  The order was then and is again now, opposed. 

40. It was submitted by counsel for Mr G that his client was simply exercising his lawful rights by going to the Supreme Court on the strength of the mortgage. Furthermore, it was submitted that Mr G not only did not want to be involved in the proceedings in this Court between the husband and the wife, but that he had no reason to do so. That however must depend upon the issue of whether the proceedings are that simple. Mr G argued that it was not the law that because there were proceedings to which he was already a party, he had to seek relief in this Court and with that proposition, I agree. It was submitted on his behalf that because the wife said in evidence that she knew nothing about the indebtedness and was relying entirely upon her professional advisers, if it was accepted by the Court that the advisers were wrong, there was no basis to retain Mr G as a party. Counsel submitted that the wife’s trial affidavit pointed to no evidence justifying an order under s 106B of the Act nor had the wife responded to her own expert’s evidence subsequent to receiving the report. Thus it was submitted, on the evidence, the wife could not succeed and there was no justification for retaining Mr G as a party or restraining him from exercising his lawful rights. As attractive as that argument is, I am concerned about whether the facts are as clear as Mr G portrays them. As I have earlier mentioned, I cannot and do not make findings of fact in this case. As such I have to look at the documents before me. The facts which seem uncontroversial were as follows.

1. Mr G was joined as a party to the proceedings by the wife’s initiating application filed on 27 September 2011.  That application as I have already mentioned seeks orders against Mr G.

2. The solicitors for the wife became aware of the moves that Mr G was making in relation to the mortgage when they received a copy of the notice concerning the demand for payment.  That document came to light on 1 December 2011.  The solicitors for the wife immediately wrote to the solicitor for Mr G confirming that Mr G was a party to the proceedings and that he could file material which would ventilate the dispute in this Court.  The letter went on to say that if Mr G sought to act on the s 76 notice, injunctive orders would be sought.  A complaint was made about the fact that Mr G had not filed any response to the wife’s application.

3. The wife’s solicitors became aware of the writ when they received a letter from the husband’s lawyers on 24 January 2012.  At that stage, no response had been received from Mr G relating to the earlier letter from the wife’s solicitors.  There can be no suggestion that Mr G was unaware of the proceedings because his solicitor filed a Notice of Address for Service on 7 December 2011.

4. The proceedings were before this Court on 9 February 2012.  According to the affidavit of the solicitor for the wife, no mention was made in court of the Supreme Court proceedings but later that morning, Mr G’s lawyers advised that default judgment had been entered.  Counsel for the wife raised the question of whether or not solicitors in that position had some responsibility to advise of the process under the strict disclosure requirements of this Court.  I do not make any criticism but it is odd that it was not mentioned having regard to the fact that the claim of possession was against E Pty Ltd (and not the wife) yet Mr G must have known that the wife was in occupation of the home and he was seeking possession for the purposes of sale.  No doubt that issue will be canvassed at trial. 

5. The wife’s position was that she did not know of the existence of the issue of the writ notwithstanding presumably, service of the writ was on the registered office of the company E Pty Ltd. 

6. Is this a case therefore where an injunction should be granted to preclude Mr G pursuing his judgment?

7. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 the High Court made clear that a court may stay local proceedings if it is satisfied that the proceedings have been issued in a clearly inappropriate forum. A court may always restrain a party over whom it has personal jurisdiction even if that person has specific rights as Mr G asserted. The source of power to make the anti-suit injunction was not challenged. In my view, both ss 34 and 114 of the Act give the Court that power. Section 114 requires the Court to consider whether it is proper to make the order bearing in mind the matters set out in s 4 of the Act relating to the definition of matrimonial cause. Ultimately, this is an application relating to the protection of property.

8. In CSR Limited and Signa Insurance Australia Limited (1997) 189 CLR 345, the High Court looked at the nature of the power to make an anti-suit injunction. The majority (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) said that the question whether a dispute as to legal rights should be litigated in the courts of one country or those or another was one that permits of resolution by one court staying its proceedings in favour of the other or conversely, granting an anti-suit injunction restraining a person amenable to its jurisdiction from continuing in the proceedings in the other country. Their Honours said the phrase “anti-suit injunction” was in common use and resembled an injunction to protect the legal or equitable rights of the parties or the processes of the courts against interference by processes of other courts. Here, the issue relates to whether or not Mr G can simply execute his judgment obtained in circumstances where the occupant of B property who at some stage had an interest in E Pty Ltd and who was unaware of the proceedings was in disputed proceedings in this Court which involved Mr G. The general principle (said the High Court) empowered a court to stay proceedings which were oppressive, vexatious or an abuse of process for the purposes of avoiding an injustice in the particular case.

9. The uncertainty in my mind about whether the “all-monies” mortgage is what Mr G is really saying is his right to pursue or whether it is simply a sale by virtue of what he paid to the National Australia Bank.  That concerns me because it is open for me to conclude that his actions were an endeavour to avoid this Court and obtain what he felt was rightly his where he might not have had such a straight forward claim in this Court.

10. Whilst counsel for Mr G simply said that it was his right to pursue his remedies wherever he saw fit, that must be subject to avoiding oppression and abuse of process.  Counsel for both the husband and Mr G pointed to the fact that the wife had not gone to the Supreme Court to do something about the judgment but in my view, that is the same argument as why Mr G did not bring proceedings in this Court to seek the same remedies that he sought in the Supreme Court.  The position of what he was doing is clouded by his argument about the “all-monies” mortgage in circumstances where the debt is well-known to be disputed.

11. The power to grant such an injunction is very wide.  It is particularly important where this Court’s jurisdiction is similarly wide.  One obvious question is whether the proceedings in this Court would be thwarted by the proceedings not being restrained in the Supreme Court or alternatively delayed if the wife has to go to the Supreme Court to argue that the judgment was irregularly entered.

12. In Henry v Henry (1996) 185 CLR 571, the High Court approved what Dixon J said in Union Steamship Company of New Zealand Limited v “The Caradale” (1937) 56 CLR 277 at 281 which was that:

    The inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.

13. In Henry, the majority of the High Court (Dawson, Gaudron, McHugh and Gummow JJ) said that is was prima facie vexatious and oppressive in the strict sense of those terms to commence a second or subsequent action in other courts if there was an action already pending with respect to the matter in issue.  Mr G distinguishes the proceedings in the Supreme Court from those here but the “all-monies” mortgage issue clouds the problem.

14. It is quite clear that this Court has the power to make an order for sale upon the application of a party to its proceedings.  Mr G could quite simply have sought that order here and no doubt would have comprehensively explained how it all was justified.

15. In my view, the matters are inextricably bound up and are not simply separate causes of action.  On that basis, the anti-suit injunction must be granted.

16. I have already referred to the fact that Mr G sought an order that the property be sold and the proceeds be placed in trust.  Having regard to the uncertainties about the “all-monies” mortgage and the issue not being comprehensively argued about that application before me, I do not propose at this stage to grant the application.  That is not to say that on a proper application supported by material, it would not be successful.  It would appear that the husband is the one who wants to retain the home rather than the wife.  I do not know whether he wants the property sold.

17. I turn then to the question of the wife’s application for the ability to file an affidavit by Ms N.  

18. Rule 15.52(3) of the rules relates to whether or not a party should be permitted to tender a report or adduce evidence from an expert.  That relates to the question of whether or not the expert has specialised knowledge that would justify a court allowing a party to present that evidence.

19. Mr G objected to the inclusion of the report on three bases.  The first was that the expert purported to determine the issue for the Court.  As I pointed out in argument, that is clearly not the function of the expert.  Mr Davis of counsel said that some trial judges seek to have experts tell them what the pool of assets is and in my view, that is not the function of a witness.  I do not propose to take that into account.  The second point that Mr G made was that the witness did not need to give expert evidence in any event because the documents giving rise to the claims that he had against the husband to which I have earlier referred, would be tendered in evidence and it was appropriate for the Court to make a conclusion as to whether or not there was money owing.  He complained that Ms N had drawn conclusions from his affidavits.  Furthermore, he pointed to a variety of errors that he said she had made.  I have examined all of the documents that have been tendered to me but I am not in a position to make any findings of fact.  It seemed clear that Ms N had not been told of the supposed errors.  I have indicated to the parties that on the basis that that exercise is undertaken, if Ms N’s evidence then becomes clearly relevant or irrelevant, the issue can be revisited.

20. Counsel for Mr G argued that I should exclude Ms N’s evidence on the basis of s 135 of the Evidence Act 1995 (Cth) because it may be misleading or confusing or result in an undue waste of time. The discretion to exclude evidence in that section arises if its probative value is outweighed by other factors such as those suggested by counsel for Mr G. What may be said to be misleading or confusing is hardly a problem here when a trial judge is sitting alone. It would be an odd situation where a judge rejected evidence on the basis that it might be confusing him or her (see Re GHI (a Protected Person) [2005] NSWFC 466 per Campbell J).  Other issues such as time being wasted are matters that can be argued at trial but in this case, the question is whether the wife should be entitled to file an affidavit in circumstances where it is asserted that the evidence is erroneous because of conclusions drawn from documents provided.  That witness has not had the opportunity to consider whether the interpretation she put on those documents is the same as those of the authors of the document.  Counsel for Mr G took me through a number of examples of that nature but another one where it was said that Ms N had double counted.  I do not propose to make any finding nor should I, in circumstances where I do not know whether Ms N agrees or not.

21. On the evidence, I am not satisfied that Ms N’s evidence should be admitted at this stage because I am not at all clear on whether or not it is necessary having regard to the provisions of ss 55 and 56 of the Evidence Act concerning relevance to the issue in dispute. If the evidence is led for the purposes of explaining documents, that does not require an expert. In the circumstances, the wife’s application at this stage is refused.

22. I propose to order accordingly.

I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 May 2012.

Associate: 

Date:  4 May 2012