Tarrant v Australian Securities and Investments Commission
[2014] FCA 657
•17 June 2014
FEDERAL COURT OF AUSTRALIA
Tarrant v Australian Securities and Investments Commission [2014] FCA 657
Citation: Tarrant v Australian Securities and Investments Commission [2014] FCA 657 Appeal from: Tarrant v Australian Securities and Investments Commission [2013] AATA 926 Parties: MERVYN ROSS TARRANT v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION File number: NSD 37 of 2014 Judge: GRIFFITHS J Date of judgment: 17 June 2014 Catchwords: EVIDENCE – interlocutory application – extent to which appellant can rely upon affidavit in appeal – whether content of affidavit properly regarded as submissions or evidence – discussion of s 78 of the Evidence Act 1995 (Cth) Legislation: Evidence Act 1995 (Cth) s 78 Cases cited: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Date of hearing: 17 June 2014 Date of last submissions: 16 June 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Appellant: The appellant appeared in person. Counsel for the Respondent: Ms E A Cheeseman SC and Ms M Avenell Solicitor for the Respondent: Australian Securities and Investments Commission
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 37 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MERVYN ROSS TARRANT
AppellantAND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
17 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The affidavit of the appellant affirmed on 14 May 2014 may only be relied upon to the extent that it is not excluded by the rulings below:
a)Paragraph 6 is rejected, save for the second sentence starting “annexed to the affidavit”.
b)Paragraphs 7, 8, 10, 12, 14, 16, 19, 21, 23-26, 28-64, 66-67, 69, 71-75, 77-90, 92-96, 98-100, 104-173, 175-180, 183, 191-217, 224-227, 232-233, 235-385, 387-405, 426-429 are rejected.
c)Paragraph 9 is rejected, save for the last sentence.
d)Paragraph 11 is rejected, save for the last sentence.
e)Paragraph 13 is rejected, save for the last sentence.
f)Paragraph 15 is rejected, save for the last sentence.
g)Paragraph 17 is rejected, save for the last sentence.
h)Paragraph 18 is rejected, save for the last sentence.
i)Paragraph 20 is rejected, save for the last sentence.
j)Paragraph 22 is rejected, save for the last sentence.
k)Paragraph 27 is rejected, save for the last sentence.
l)Paragraph 91 is rejected, save for the last sentence.
m)Paragraph 223 is rejected, save for the first sentence.
n)Paragraph 386 is rejected, save for the last sentence. The table below paragraph 386 is also rejected.
o)Paragraph 430 is rejected, save for the last sentence.
2.The costs of today’s interlocutory hearing be costs in the cause.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 37 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MERVYN ROSS TARRANT
AppellantAND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
JUDGE:
GRIFFITHS J
DATE:
17 JUNE 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Court has before it today an interlocutory application filed by the respondent on 30 May 2014. The respondent seeks the following orders:
a)that the appellant not be permitted to rely upon his affidavit affirmed on 14 May 2014 (the affidavit);
b)in the alternative to prayer 1, that the appellant only be permitted to rely on paragraphs 1-5, 26-27, 30-31, 58, 61-62, 66-67, 72-75, 78, 82-123, 222-235 of the affidavit; and
c)costs.
For the reasons set out below, I have rejected the paragraphs of the affidavit set out in the attached orders. Many of the paragraphs which have been disallowed are paragraphs which do not conform with order 2 of the orders made by the Chief Justice in this matter on 5 February 2014, in which his Honour ordered that the appellant:
file and serve an affidavit setting out evidence supporting his claims relating to a denial of procedural fairness or the rules of natural justice, along with submissions in support of those claims and in support of any allegation of an error of law.
Many parts of the affidavit are in non-compliance with that order because, first, large parts of the affidavit do not amount to evidence but rather constitute submissions and, secondly, other parts of the affidavit relate not to the appellant’s claims of procedural unfairness or denial of the rules of natural justice, but go to other grounds which are raised in his existing notice of appeal. Many other paragraphs of the affidavit complain about ASIC’s conduct of the appeal, without raising any direct complaint of procedural unfairness against the AAT.
The appellant argued before me today that many parts of his affidavit are not in the nature of submissions but rather ought to be regarded as lay opinion evidence within the meaning of s 78 of the Evidence Act (Cth). I do not accept that submission.
In my respectful opinion, the construction which the appellant would place on that exception to the opinion rule is inconsistent with the description of the ambit of the provision in Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352. I refer in particular to the views expressed by French CJ and Heydon and Bell JJ concerning the ambit of s 78 in [39], [45] and [48] of the judgment.
One of the problems presented by the affidavit, which is some 76 pages in length not including the annexures thereto, is that its admission into evidence would permit the appellant, inappropriately, to circumvent the page limits that are imposed in this Court on the filing of outlines of written submissions.
However, where there are paragraphs in the affidavit which, on their face, appear to relate to the complaints of procedural unfairness or denial of natural justice, I have taken a liberal view and allowed some of the material in even though, strictly speaking, it is arguable that it is not evidence but is rather in the nature of submissions. My concern, however, is to have this matter proceed towards a position where the appeal can be heard as soon as possible. That is the reason why I have adopted a more lenient view in respect of those parts of the affidavit which do on their face relate to the complaints of procedural unfairness or natural justice.
The affidavit also contains many paragraphs which relate to other grounds in the appeal, which include allegations of errors of law and the like. I reject that material for the reason given above at [2]. For completeness, I should also add that I also made orders on 24 February 2014 to similar effect to those made by the Chief Justice on 5 February 2014, which required the appellant to file and serve an affidavit which contained evidence relating to his complaints of procedural unfairness and denial of natural justice (and not his other grounds of appeal).
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 23 June 2014
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