Verdon and Verdon (No 2)
[2021] FamCA 258
FAMILY COURT OF AUSTRALIA
| VERDON & VERDON (NO. 2) | [2021] FamCA 258 |
| FAMILY LAW – RULINGS ON EVIDENCE – principle trial affidavits of the parties – major portions of each affidavit sought to be ruled inadmissible – explanation for rulings. |
| Evidence Act 1995 (Cth) s 50 Family Law Act 1975 (Cth) ss 79, 75(2)(o) Family Law Rules 2004 Cth) r 15.09(1)(a) Partnership Act 1958 (Cth) s 5 |
| Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9 Beach Petroleum NL v Johnson (1993) 43 FCR 1 Bradshaw & McEwans Pty Ltd (1951) 217 ALR 1 Coco v A N Clark (Engineers) Ltd [1969] RPC 41 El Ajou v Dollar Land Holdings PLC [1994] 2 All ER 685 Girlock (Sales) Pty Limited & Hurrell (1982) 149 CLR 155 Holloway & McFeeters (1956) 94 CLR 470 Krakowski & Eurolynx Properties Limited (1995) 183 CLR 563 Luxton & Vines (1952) 85 CLR 352 Mehmet & Mehmet (No 2) (1987) FLC 91-801 Richard Evans & Co v Astley [1911] AC 647 Robb & Robb (1995) FLC 93-218 The Trustees (in Bankruptcy) & Cummins (2006) 227 CLR 278 Verdon & Verdon [2020] FamCA 824 |
| APPLICANT | Mr Verdon |
| RESPONDENT | Ms Verdon |
| FILE NUMBER | MLC | 12735 | of | 2017 |
| DATE DELIVERED | 28 April 2021 |
| PLACE DELIVERED | Melbourne |
| PLACE HEARD | Melbourne |
| JUDGMENT OF | Wilson J |
| HEARING DATE | 26, 27 and 28 April 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT | Mr A. Strum QC |
| SOLICITOR FOR THE APPLICANT | Accord Family Law |
| COUNSEL FOR THE RESPONDENT | Mr T. North SC |
| SOLICITOR FOR THE RESPONDENT | Schembri & Co Lawyers |
Orders
Parts of the affidavit of Ms Verdon affirmed 15 March 2021, the affidavits of Mr Verdon affirmed 1 March 2021 and the affidavit of Mr Verdon filed 13 April 2021 are ruled inadmissible as provided hereunder.
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 Verdon & Verdon 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 12735 of 2017
| Mr Verdon |
Applicant
And
| Ms Verdon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Prior to any evidence being called at the trial of this proceeding, it became necessary to rule on array of evidentiary objections each party has taken with the evidence of the other.
In broad overview, the nature of this litigation has been the subject of my consideration in the earlier reasons reported as Verdon & Verdon.[1] No useful purpose is served in reciting them again.
[1] [2020] FamCA 824.
The parties sought rulings on the papers. These are my reasons for those rulings.
The applicant’s objections to the respondent’s evidence
The applicant husband took objection to the material in the affidavit of Ms Verdon affirmed 15 March 2021. Some of the objections were technical or formal in nature whereas others were substantive. Some objections were conceded whereas others were pressed and resisted calling for my determination.
Consistent with best trial practices in superior courts across the Commonwealth of Australia, prior to any evidence being adduced from the relevant witness and prior to that witness adopting the contents of his or her affidavit, I have ruled on the admissibility of the impugned portions of the relevant affidavit. I require a marked up version of the affidavit to be produced to the witness. That practice will apply to this case.
The applicant objected to that portion of paragraph 11 of the respondent’s affidavit, second sentence, in which the respondent asserted that her daughter’s employment contract was not renewed due to COVID-19. The applicant objected to that evidence on the basis that the answer was hearsay. The respondent conceded that objection. Accordingly, in the second sentence of paragraph 11 the words “however, due to COVID-19 her contract was not renewed” are deleted for being inadmissible by reason of their being hearsay.
The applicant objected to the second sentence of paragraph 22 of the respondent’s 15 March 2021 affidavit. In that sentence the respondent asserted that she was the primary carer of the applicant’s children from his earlier marriage to a woman whose name is Ms Z. The applicant objected to that assertion contending that it was an argument or a conclusion. The respondent conceded the objection. While not stated I assume that the alleged conclusion pertains to the characterisation by the respondent of her role as primary carer. Having regard to the fact that the objection was conceded, irrespective of my personal views as to the admissibility of the impugned evidence, I shall rule it inadmissible, by agreement.
The applicant objected to the third and fourth sentences of paragraph 23 of the respondent’s 15 March 2021 affidavit. In those sentences the respondent asserted that the applicant’s children from his first marriage stayed with the respondent and the applicant on an estimated 50% of the time whenever the applicant’s first wife travelled or entertained guests. The applicant asserted that the respondent’s contentions in that regard were argumentative or speculative and were therefore inadmissible. The respondent pressed for the inclusion of her evidence.
In my view, the evidence is admissible and I overrule the objection to it for four reasons. They are–
a)the impugned sentences respond directly to the contention that the applicant and Ms Z’s children spent five nights per week with Mr Verdon putting that assertion in issue,
b)as a statement of fact the respondent is perfectly capable of giving evidence that the applicant’s children of his first marriage stayed with the respondent and the applicant more than five nights per fortnight as well as the reason why they stayed;
c)as a matter of common human experience the respondent is capable of estimating in percentage terms how often the applicant’s children of his first marriage stayed with her; and
d)to the extent that such a percentage conflicts with the applicant’s, he can give a different version which can be tested.
The objection is overruled. Precisely how prohibitive the evidence is remains to be seen.
The applicant objected to the first and last sentences of paragraph 24 of the respondent’s 15 March 2021 affidavit. In the first sentence the respondent stated that she treated the applicant’s children (meaning of his first marriage) like her own. In the final sentence the respondent asserted that as a result of the applicant leaving for work at 6:00am and returning at 7:00pm the respondent asserted that she was primarily responsible for caring for the applicant’s children.
To my way of thinking, the first sentence does not suffer from the vice alleged. The statement that the respondent treated the applicant’s children of his first marriage like her own was not defective in form nor was it an argument or a comment. How prohibitive such a statement is remains to be seen. So far as the last sentence was concerned, the objection is made out but not on the grounds asserted. An assertion that the respondent was primarily responsible for caring for the applicant’s children from his previous marriage trespasses into (or has the capacity to trespass into) a matter of law or a matter of mixed fact and law, namely parental responsibility for the care of the applicant’s children of his first marriage. Further, the gravamen of the first sentence was that the respondent’s assertion that by reason of looking after the applicant’s children from his first marriage during certain hours of the day, she was primarily responsible for their care. Such a construction is open only if sense can be made of the second sentence. I am unable to construe the second sentence in the manner for which the respondent contended. In the second sentence the respondent asserted that typically the applicant left the house between 6 and 6:30am for work. She then added “and the children generally started there day at 7:00 am”. Aside from the typographical error, in the use of the word “there”, which should have been in the possessive, the respondent did not say that the applicant’s children of his first marriage were dropped off to the respondent at her home, of if they awoke at her home having stayed at her home 50% of the time. The respondent’s failure to provide an evidentiary connection of the children’s 7:00am start at the respondent’s home meant that it was not possible to verify the respondent’s assertion that she was primarily responsible for caring for the applicant’s children.
The objection to the first sentence of paragraph 24 is dismissed. The objection to the fourth sentence is upheld rendering that sentence inadmissible.
The applicant objected to the whole of paragraph 26 of the respondent’s affidavit made 15 March 2021. The bases of the objection were argument, conclusion or evidence of the applicant’s state of mind. The respondent conceded the objection in relation to the third sentence only. That sentence is therefore deleted.
Insofar as the first sentence was concerned, in it the respondent asserted that the applicant rarely assisted her with the children as he was usually working. The word “rarely” introduces a temporal connection to the event described, especially in relation to the frequency with which the event described occurs. It is not absolute in terms and is often used to differentiate the frequency of the occurrence of an event from an event that may be any one of “often” “common” “frequent” or “regular”. I do not agree that the expression of the frequency of an event, hence its rarity, is the expression of an argument or a conclusion nor is it the deposition of a state of mind. In common parlance a person can quite legitimately give evidence, for example, that in a typical summer, temperatures rarely reach 40 degrees celsius. It could not legitimately be argued that such evidence is objectionable as amounting to the expression of a conclusion or is argumentative or was the expression of a state of mind. The first sentence is admissible and I overrule the objection to it.
The second sentence contains the respondent’s assertion that the applicant was an absent parent. Little factual material underpinned that contention beyond the information in paragraph 24 in which the respondent asserted that the applicant usually worked from 6:00am to 6:30pm. To that extent he may have been absent from the home at his place of work rendering the respondent’s statement that the applicant was an absent parent factually correct if her evidence was accepted that the applicant was at his place of work from 6:00am to 6:30pm. In those circumstances the second sentence of paragraph 26 was not argument, conclusion or the expression of a state of mind.
The third sentence was conceded as being inadmissible. In the final sentence of paragraph 26 the applicant stated that in effect the management of the children and the dealing with difficulties between them was left to her. That statement was not an argument nor the expression of a state of mind. The sentence suffers from the defect that it is expressed in the passive tense and fails to incorporate a subject who allegedly left the respondent with the task described and it fails to say what acts constituted the “leaving”. But when read in conjunction with paragraph 24, especially –
(a) the reference to the applicant being at work from 6:00am to 6:30pm;
(b) the children of whom the respondent spoke including the applicant’s children from his first marriage; and
(c) there being no one else to whom it could be said was involved in leaving the task of managing the children other than to the applicant
then I am willing to infer that the phrase “it was left” was a reference to the applicant who left those tasks to the respondent. The inference arises from other facts and not from “conflicting conjecture of equal degrees and probability” in accordance with authorities that include Richard Evans & Co v Astley,[2] Bradshaw & McEwans Pty Ltd,[3] Luxton & Vines,[4] Holloway & McFeeters,[5] Girlock (Sales) Pty Limited & Hurrell,[6] The Trustees (in Bankruptcy) & Cummins[7], and Lithgow City Council & Jackson.[8]
[2] [1911] AC 647.
[3] (1951) 217 ALR 1.
[4] (1952) 85 CLR 352.
[5] (1956) 94 CLR 470.
[6] (1982) 149 CLR 155.
[7] (2006) 227 CLR 278.
[8] (2011) 244 CLR 352.
I overrule the objection to the last sentence of paragraph 26. It was admissible.
Paragraph 28(k) of the respondent’s affidavit was the subject of objection by the applicant. There she stated she performed the majority of household duties including “managing daily finances, paying bills, insurances, repairs, outdoor maintenance, etcetera”. It was put on behalf of the applicant that the phrase “managing our daily finances” and “etcetera” were conclusions because the actual acts undertaken to which the verb managing applied was not given. The pronoun “etcetera” was the subject of objection on the same basis. I agree. Parts of that subparagraph mentioned are objectionable and I uphold the objection. Those parts must be deleted.
In paragraph 33 of the respondent’s affidavit the third sentence includes the clause “to my surprise I found out that”. Objection was taken to that clause for being comment. The respondent conceded the inadmissibility of the phrase “to my surprise” but not beyond. Once that concession was made the applicant persisted with his objection leaving the sentence now to read “after separation I found out that the Suburb AA property was not registered in my name at all”. That evidence is not a comment. It is not objectionable. I overrule the objection to it.
The second sentence of paragraph 34 of the respondent’s affidavit was the subject of objection on the ground that it was comment or it was defective in form or it was argument. The respondent conceded that the adjective “satisfactory” was inadmissible, but not otherwise.
In the impugned sentence the respondent stated that she had not received documentation from the applicant’s legal representatives demonstrating where the funds from the sale of the Suburb AA property were deposited and how they were spent. That statement represented her evidence on point. She deposed to not having not received documentation from the applicant’s solicitors demonstrating where those funds were deposited and how they were spent. That is not comment, nor argument and there can be no mistake in terms of form about what she says. I overrule the objection. Her evidence is admissible. Whether she makes good that evidence following cross-examination is another matter altogether.
Objection was taken to the last sentence of paragraph 36 of the respondent’s 15 March 2021 affidavit. The sentence reads “this information has never been provided to me”. The applicant argued that the last sentence is argument or comment. I disagree. She states as a matter of fact that certain documentation has not been provided to her. She may be correct in that once her evidence is tested or she may be found to be wrong. But that does not mean her evidence is objectionable especially on the basis asserted, namely comment or argument. I overrule the objection. The evidence is admissible
The applicant objected to the first sentence of paragraph 37 of the respondent’s 15 March 2021 affidavit. The applicant contended that the information in the first sentence was a conclusion. The respondent resisted the objection. Her evidence was in the following terms – “during the marriage I was involved in the family business which was run through various entities”.
Several things must be said of that short sentence. First, at a temporal level the respondent’s evidence on point is confined to the duration of the marriage. Second, the respondent does not identify any corporate or unincorporated entity to which her description “the family business” relates. Third, she states that the family business, whatever may be caught by that wording, was run through various entities. Fourth, she states without giving details that she was involved in the family business. The manner of her involvement was not stated. However she states that she was “involved”. Her statement is not inadmissible. But it is bereft of details and its utility or probative value is in the air. Without her describing the way in which she was involved and with what entity to which she refers, her evidence seems to be of limited use. That said, I do not agree that the first sentence of paragraph 37 is objectionable on the ground asserted, namely a conclusion. As a common human experience routinely encountered in courts family members speak of working in a “family business” not knowing whether a company is the proprietor of a business name, whether the clause “family business” describes the assets and undertaking of a company or an unincorporated association, or whether, in lay terms, the words “family business” are used to describe a commercial endeavour in which family members participate with a view of generating assessable income. The respondent does not, at least it seemed to me, purport to use the clause “family business” in a legal or technical sense or even as a term of art.
She affirmed positively that she worked in that business. That was not a conclusion.
So far as the final component of the first sentence was concerned, namely that the family business was “run through various entities” it was common ground that various companies were involved in this case. I addressed some of them in my earlier reasons in this case concerning expert evidence.
I overrule the objection taken in respect of paragraph 37.
The applicant objected to the entirety of paragraph 40 of the respondent’s affidavit. The respondent pressed for the inclusion of that evidence. In two sentences of that paragraph the respondent stated that in 2004 the product base of the G Pty Ltd was minimal compared to what it is now. In the second sentence the respondent stated that “G Pty Ltd is now one of the largest international suppliers of products in Australia”.
In my view, the first sentence is admissible. The second is not.
In the first sentence the respondent made a temporal comparison between the year 2004 and the year 2021 stating that in 2004 G Pty Ltd’s product base was minimal when compared with its product base in the year 2021. She earlier deposed to having been involved in the family business during the marriage. That included the period 2004 onwards. Having established that she has a familiarity with that information to enable her to speak about aspects of the family business she stated in the first sentence of paragraph 40 that in 2004 (17 years ago) G Pty Ltd had a minimal product base when compared to its present product base. She does not purport to recite the components of that product base, intellectual property rights associated with that product base or the value in 2004 of that product base. Instead, she deposed to a simple comparison in 2004 as compared to its present stating that in 2004 the product base was minimal when measured against its present state. She is perfectly able to say that. How useful her evidence is remains to be seen.
The second sentence is in a different category, however. In it the respondent purports to speak of the size of G Pty Ltd. She does not reference her evidence of G Pty Ltd’s size, being on her evidence one of the largest in Australia, to “largest” in terms of turnover, net equity, cash flow, number of employees, ranges of products, market share or any of the customary markers against which size is reckoned. The applicant complained that her evidence in the whole of paragraph 40 was defective in form, that it was argument, it was a conclusion or it was hearsay. It seems to me that the primary basis of inadmissibility of the second sentence is that the respondent did not identify –
a) on what basis she asserts that G Pty Ltd is one of the largest international suppliers, and
b) her qualifications to make that assessment.
The second sentence in paragraph 40 is inadmissible. I uphold the objection in respect of it but overrule the objection in respect of the first sentence.
The applicant objected to the majority of paragraph 42 of the respondent’s affidavit made 15 March 2021. It was said that the majority of that paragraph was argument or comment. In that paragraph, after deposing to having been provided with business cards she stated that those cards were provided to her to enable her to distribute them at trade shows she and the applicant attended. She stated further that the business cards refer to her as “merchandiser and product designer” and later her role changed to development manager. The applicant argued that the phrase “business cards were provided to me” was not objectionable, whereas the balance of the paragraph was on the basis that the balance was argument or comment.
I do not agree. She is permitted to say why business cards were given to her so long as she explains what was told to her as being the basis of the provision of those cards to her. She did that. She states that the cards were provided to her for trade show distribution. The only person within G Pty Ltd, other than the respondent, capable of procuring the creation of business cards for distribution at trade shows was the applicant. The respondent stated that she and he were to attend trade shows. That is not a comment nor is it an argument. Further, the respondent gives direct evidence of the details on the card, in particular, reference to her described role. That too is not comment or argument. It is direct evidence and therefore it is admissible. I overrule the objection to paragraph 42.
Paragraph 43 was the subject of objection in two places. The first related to the words “which is a demographic that I could relate to”. That is not a statement of fact, as r 15.09(1)(a) of the Family Law Rules require affidavits to contain. That portion of the paragraph is inadmissible and must be deleted. Similarly the whole of the final sentence is not a fact so it has no place in the affidavit, according to r 15.09(1)(a) of the Family Law Rules. I uphold both objections.
Paragraph 45 of the respondent’s affidavit was the subject of objection as to the second sentence with the phrase “as a result of my idea”. The applicant contended that those words were argument. The idea, which the second sentence was the consequence, was recorded in the first sentence, namely that the idea was the applicant and the respondent should not rely on a middleman to source products for them and that they should make arrangements themselves to save costs and to allow greater flexibility. In the second sentence, as the introductory remark, she gave the impugned evidence, namely, that as a result of her idea, hers and the applicant’s overseas travel increased tenfold as they commenced frequent travel to Asian countries to source products and to manage their factories. It will be readily apparent that the respondent claimed the idea of not relying on a middleman and that they should make arrangements to source products so as to save costs and to allow greater flexibility.
I am unable to see how it could be said that such a statement is argument. The respondent stated in direct evidence that she formulated the idea. Then, after conveying the substance of the idea she explained the events that subsequently transpired, seemingly after the acceptance of the idea and after its implementation, namely a tenfold increase in the overseas travel of the two, mainly to Asia. In my view, there is no merit in the basis of the objection. I overrule the objection. The evidence is admissible.
In the same paragraph, 45, the applicant objected on the same ground to the last three sentences in toto, commencing with “establishing reliable manufacturers”. It is necessary to dissect each of the impugned sentences. The applicant’s statement that establishing reliable manufacturers for specific products took years of trial and error was not expressed in the active, first person tense. In the second last sentence the respondent gives an illustration which she said she directly recalls. One wonders how it could be said that such evidence is argumentative. To the contrary it is direct evidence. As to the last sentence the evidence’s probative value is minimal in the absence of details of what was actually agreed, when, between whom, who said what to whom and most importantly, what was the correct shade of colour. Without that information, the evidence is near meaningless, albeit that it is not inadmissible. It is admissible, but borderlines useless.
Paragraph 47 of the respondent’s affidavit made 15 March 2021 was the subject of objection. The grounds of objection were said to be argument and comment. The third sentence needed to be read in conjunction with the second sentence because “these issues” to which the deponent refers in the third sentence is a reference to problems and difficulties then being encountered with manufacturing, quality control and delays in production. The respondent went on in the third sentence to state that those issues needed to be avoided because penalties apply for delays or defects in quality, and those issues could result in “us losing contracts”. To the extent that the respondent was there discussing contractual penalties that may have applied, she did not give details of any such contract or contractual term by which she could properly give evidence that penalties applied. To the extent that “those issues” could result in them losing contracts, the respondent was there purporting to either speculate or to give some view about a matter of law and if the latter, she offered no details of her legal qualifications to be able to give that evidence. On either basis, but not on the ground of argument or comment, I uphold the objection. The third sentence is not admissible. The objection was conceded in any event.
Two aspects of paragraph 49 were the subject of objections, each on the ground of being argument or conclusion. The first objection was as to the first sentence. In the first sentence, the respondent stated that in addition to working as a purchasing consultant, she had experience in other areas that she utilised to the benefit of G Pty Ltd. The sting in the objections seemed to relate to the respondent’s statement that her experience in areas other than as a purchasing consultant was used by her “for the benefit of G Pty Ltd.” True, in that sentence she did not say what that other experience was. In the balance of paragraph 49, she set that out. So the real complaint seemed to be her statement that she used that other experience for the benefit of the company. Strictly speaking the applicant can be heard to complain that it is a matter of argument whether her bringing her other experience had the consequence of benefitting G Pty Ltd. But she was directly involved in its operations and said the business grew while she worked there. I am prepared to infer that the respondent did not bring her experience to the detriment of G Pty Ltd. For that matter, as a husband and wife team then working in a business together it would be absurd to suggest that one party did otherwise then bring his or her experience to the benefit of the joint enterprise. I overrule the objection of the first sentence in paragraph 49.
The second objection to the contents of paragraph 49 went to the fourth sentence. In it the respondent deposed to be able to assist her husband with the development of G Pty Ltd by reason of her knowledge of and experience in importing and exporting of products into and out of Australia. True, she did not descend to the precise detail by describing her knowledge and experience that assisted the applicant in the development of the G Pty Ltd business nor does she say how her experience and skill actually assisted. Her statement is necessarily broad and imprecise and its forensic and probative value will be commensurately imprecise. However, that does not render it inadmissible. I allow the evidence and overrule the objection to it.
The applicant objected to paragraph 50 of the respondent’s affidavit made 15 March 2020, in particular the phrase “due to how much Mr Verdon and I had increased our production base”. The applicant said such a statement was argument or it was a conclusion. Curiously, the applicant did not object to the balance of the paragraph in which the substantive evidence at paragraph 50 was found. In the balance of the paragraph the respondent stated that the applicant and the respondent in 2005 had to move to a different warehouse because the warehouse they then occupied was no longer able to hold the 35,000 different products they had. The applicant did not complain about that evidence, yet he did object to the respondent’s attribution of the reason for the move, namely an increase in their product base. Hence, no complaint was raised about the respondent’s evidence of the increase in different products to 35,000. No complaint was made to the respondent’s evidence about the move to a different warehouse, and the reason for it being the current warehouse’s inability to hold the amount of stock, yet the applicant objected to the respondent giving evidence that the applicant’s and her factory move was by reason of the increase in their production base (admitted at 35,000). The applicant’s position in relation to this evidence is inconsistent. The respondent gave the reasons for the factory move and it was increasing the number of different products, 35,000 in total. That was not argument. Nor was it an unsupported conclusion. She explained that the increase in product base was the reason for the move from a factory that was unable to warehouse products of that quantity. That evidence was admissible. However, the respondent conceded to the objection (wrongly, in my view) so I shall delete that portion of paragraph 50.
The last sentence of paragraph 51 of the respondent's affidavit was the subject of objection by the applicant. In the last sentence the respondent stated that she supported the applicant throughout the meetings and engagements mentioned by her during 2005 to 2007. The applicant said that the respondent's evidence in that regard was comment, argument or conclusion. Without describing what she did at the meetings and engagements between 2005 and 2007 her evidence is meaningless. She described a large category of meetings and engagements, including travelling, establishing reliable manufacturers, sourcing documents, bidding on new contracts, and meeting or socialising with Mr QQ and Mr T. For her to say in respect of each such meeting and engagement that she supported her husband was a conclusion that was unsupported by the acts said to constitute such support. I uphold the objection.
In the final sentence of paragraph 54 of her affidavit the respondent stated that she considered the payment to her of a salary for her work as a consultant to be acknowledgment of her contributions. The respondent conceded the inadmissibility of that statement. I shall delete it from paragraph 54.
The applicant objected to the whole of paragraph 56 of the respondent's affidavit. In that paragraph the respondent stated that she accompanied the applicant to the trade shows mentioned in paragraph 55 "as his wife but as his partner". The applicant objected, contending the quoted portion was argument, a conclusion, comment or evidence about a state of mind and on all grounds the evidence was inadmissible. It seemed to me that only the clause "but as his partner" is objectionable. The respondent is capable of deposing to accompanying her then husband to the trade shows she mentioned. She is also capable of giving evidence that her accompaniment of her husband was in her capacity as his wife. However, for her to then go on to say that she accompanied him as his partner was either surplusage, she having already stated that she accompanied him as his wife, or it purported to be a statement of law or a mixed matter of fact and law because "partner" is a term of art derived from the Partnership Act (s 5), the definition of partnership being the relation which subsists between persons carrying on a business in common with a view to profit. The characterisation of a person in law as being a partner of another is a matter of mixed fact and law or it is a matter of law. She is not qualified to give evidence about a matter of law. I uphold the objection but only in relation to the clause "but as his partner". It is not admissible.
The whole of paragraph 60 was the subject of objection. It was said that the paragraph was objectionable for being argument, comment or conclusion. Aside from the paragraph having next to no probative value, the respondent was required by the Family Law Rules to depose to fact. Paragraph 60 was not a deposition of a fact. It was a submission. It is inadmissible. I uphold the objection to it.
In reality, the whole of paragraph 63 of the respondent's affidavit was the subject of objection. The applicant divided his objections into two components in the paragraph. However they covered the entirety of the paragraph. In paragraph 63 the respondent stated that she and the applicant preferred to travel to Asia personally in order to liaise with manufacturers or other service providers. The applicant argued that the respondent was not permitted to give evidence of another person's state of mind relevantly here, the applicant's reference to travelling personally. That is a correct statement of the law of evidence. She was permitted to depose to her own preference (whatever probative value it may have had) but not that of another person. The respondent conceded the first sentence's inadmissibility. So far as the second sentence was concerned, in it she stated that she and the applicant travelled to Asia for cultural reasons because, so she said, suppliers preferred to deal directly with her and the applicant rather than dealing with an agent or other person. Again, in that sentence she purported to depose to the reason why the applicant did something, namely travel to Asia. She went on to purport to give evidence about the preferences of "the suppliers" (whatever that may mean) in their wishes when dealing with persons within an organisation's hierarchy. She did not identify to whom she referred when purporting to depose to "the suppliers". The whole of paragraph 63 is inadmissible. I uphold the objection to it.
The applicant objected to the second and third sentences of paragraph 66 of the respondent's affidavit made 15 March 2021. In the first sentence of that paragraph the respondent deposed to the applicant following separation having taken her computer’s hard drive on which she stored various photographs. In the second sentence, the subject of objection, the respondent deposed to the applicant having deleted all her emails and files from the computer. The applicant submitted that the whole of the second sentence was speculative or argumentative. He also argued that the sentence was defective in form which I took him to mean that in the second sentence the respondent did not identify the emails and files allegedly deleted from the computer, nor when that occurred, and that the respondent did not depose to the act of deleting. In my view, there is merit in the objection. I rule that the second sentence is inadmissible. The complaint about the final sentence in paragraph 66 is that it piggybacks on the second sentence by the conjunctive clause "as a result" thereby purporting to convey the respondent's evidence that the fact that she no longer has access to her emails and files is directly attributable to the applicant who she says took her hard drive from the former matrimonial home. The applicant complained that the final sentence was also speculative and argumentative. I agree. It was also an impermissible attempt to connect the respondent's missing emails and computer files to an act perpetrated by the applicant. I uphold the objections in relation to paragraph 66.
Objections were raised to two aspects of paragraph 67 of the respondent's affidavit. In that paragraph the respondent deposed to her taking detailed handwritten notes about aspects of trade shows and meetings she attended with her husband, the applicant. She said the handwritten notes she made were detailed. The applicant objected to her deposing to the notes being detailed. He argued that such evidence was conclusionary or argumentative. While it is true that minds may differ in the characterisation of any written record being detailed on the one hand or perfunctory on the other, each characterisation being largely subjective and not objectively measurable, nevertheless the respondent described the matters that met her description of "detailed". Those included her thoughts and comments during her visit to various trade shows stating the times and dates of her attendances, the locations of the trade shows and the meetings and her thoughts on various items she had inspected. The objection seemed to me to be grounded in her ascribing an adjectival reference to the information in the notes. From her description of the contents of the notes, she was conveying the notion that the notes were akin to a contemporaneous aide-mémoire or a file note in which a collection of facts or information was recorded. It seemed to me more likely than not that the respondent's use of the adjective "detailed" may well have been accurate. I do not accept that her description of the records as "detailed" was noxious and offensive to evidentiary rules. I overrule the first objection to paragraph 67.
But the second objection, that is to say, the whole of the final sentence of paragraph 67 is made out. It is not for a lay witness to purport to state the evidentiary effect of his or her evidence. That is a matter for me. The respondent conceded as much. The final sentence must be deleted.
In paragraph 69 the respondent set out in tabular form the dates on which she said she travelled between September 2001 and September 2011 on one passport. In the same paragraph she set out in tabular form the dates of her travel based on a different passport in the period October 2008 to August 2017. In the tables she set out the relevant passport page, the destination, the arrival date and the departure date (in all but a few instances). The applicant objected on the basis that the passports spoke for themselves and that the respondent's formulation of tables that narrated entries from each passport represented impermissible hearsay on the basis that the respondent was giving direct evidence of information obtained by hearsay.
I disagree. She did the travelling that is recorded on the passports. She is able to say by direct evidence that the entries on the passport correctly recorded dates of her departure from Australia and the entries in her passport correctly recorded the dates of her arrival at a destination. It would be astounding if she were to give viva voce evidence without details of dates from her passport. It would be equally astounding if the applicant were to challenge her on the basis that the entries in her passport are wrong and that she did not undertake the travel that is recorded by stamps in her passport. The tables are a convenient chronological recital of the entries in her passport. If anything, that evidence is likely to be useful to me as it removes the chore of having to examine in microfine detail the entries on each passport. I overrule the objection.
The respondent conceded the inadmissibility of paragraph 70 of the affidavit. I uphold the objections and delete that paragraph.
Paragraph 71 was the subject of objection. In it the respondent stated that she contributed her time and effort to manage F Pty Ltd, an accessories business. The applicant objected to that evidence on the basis that her statements were argumentative or conclusion. I disagree. True, the respondent does not describe in detail what she did. However she said she gave her time and effort in managing F Pty Ltd. Her statement is likely to have little in the way of probative value. Nevertheless, it is admissible.
In paragraph 74 the respondent stated that the business venture did not succeed. She gave as the reason for its failure that the applicant was unwilling to invest further capital and so, she deposed, she was forced to bring it to a close. The applicant objected to that evidence on the ground that it was argumentative, that it involved a conclusion or that it purported to be a statement of a state of mind of the applicant. Curiously, the applicant gave evidence about the business’s failure.
Strictly speaking, the respondent’s evidence that the business failed for a stated reason was a conclusion. Here, the respondent’s stated reason for the failure of the business was the applicant’s unwillingness to invest further capital in the business. The vice of that evidence was not only its conclusionary nature but the ascription of the reason for the business’s failure, namely the applicant’s unwillingness to fund it, a statement of his willingness being a statement of his state of mind, wholly inadmissible.
The applicant sought the deletion of the words of paragraph 74 “because Mr Verdon was unwilling to invest further capital and I was forced to bring it to a close”. Importantly, the respondent did not give a word-for-word account by which she gave evidence of the applicant’s alleged unwillingness to fund the capital investment alleged. Nor did she say how much was required and how it was canvassed that such an amount would be funded. It seemed to me that the stark statement that the applicant was unwilling to invest further capital had no factual substratum. It seemed to be a conclusion, unsupported by all acts, fact matters, circumstances or things by which the statement would be assessed for its veracity.
I uphold the objection. Those parts of paragraph 74 that were the subject of the objection must be deleted.
The respondent conceded the objection to the last sentence to paragraph 76. That sentence should be deleted by consent.
So far as paragraph 77 was concerned, the first four sentences were the subject of objection on the basis that they were argument, comment or hearsay. In those sentences in which the respondent persisted, the respondent contended that E Pty Ltd was acquired in 2016, when it “was not doing well”. The respondent asserted that the previous owner, known only by the name Ms TT, told the respondent that she was willing to sell the business because she and the other vendor were not making enough money. The complaint about this evidence saying that it is hearsay.
I agree. I shall delete the first sentences of 77.
Next, in relation to paragraph 77 the applicant asserted that the clause of the fifth sentence “I was concerned about this conversation and” was also a conclusion or comment or argument. It certainly was the expression of the subjective state of mind as opposed to a fact as required by the Family Law Rules. Those words “I was concerned about this conversation” should be deleted.
In the final sentence of paragraph 77 the respondent stated that “I was not impressed with this explanation”. Whether or not the respondent was impressed was not a factual matter that fell for my determination. The objection was well made. I uphold the objection and delete the final sentence of paragraph 77.
The third sentence of paragraph 78 was conceded in terms of its admissibility. It must be deleted.
In paragraph 78, as the introduction to the fourth sentence, the words “at best” appeared. The applicant submitted that those seemingly innocuous words were offensive for being comment. The applicant was correct. Those words must be deleted. The respondent conceded as much.
The applicant objected to the adjective “meaningful” in the fifth line of paragraph 78. The complaint related to the characterisation of the discussions as meaningful. That was said to be opinion or comment. The respondent resisted the objection. In my view, the use of the adjective “meaningful” is opinion and must be deleted.
The sixth and seventh sentences were conceded for being inadmissible. They must be deleted.
In the eighth sentence the words “in the hope that Mr LL would be more accommodating” appear. Objection was taken to that phrase. The applicant objected on the grounds that those words were comment, argument or opinion. I agree. Those words must be deleted.
The applicant objected to the use of the word “smirking” in the final sentence of paragraph 78. It was said that such a word was comment or opinion. A smirk somehow indicated conceit, according to orthodox language. That goes beyond the proper contents of an affidavit, which should be confined to facts not opinions or conclusions, comments or opinion. The use of the word “smirking” contravenes that. It must be deleted.
In paragraph 79 of her affidavit the respondent included in the second line a phrase that stated “however, he was always very secretive and would not disclose anything to me that was of importance”. The applicant objected to that wording on the basis that it was comment, argument or conclusion. It was defective for several reasons. First, while using the word “always” the respondent failed to instance the occasions on which the applicant was allegedly secretive. Next, it failed to say in what way the applicant was allegedly secretive or very secretive. Next, it failed to identify the disclosure that the respondent asserted the applicant was required to make. Nor did she say in what way the disclosure allegedly not made was in respect of something important and in what way that so‑called failure of disclosure was important. In other words, in that short phrase about which the applicant complained an array of value judgments are embedded that went vastly beyond factual matters that should be the province of an affidavit. I uphold the objection. The impugned phrase must be deleted.
In paragraph 80 the applicant objected to the second sentence. In it the respondent stated that the experience she gained while working with the applicant sourcing stock for G Pty Ltd enabled her to be successful in a role at E Pty Ltd. The objection was as to argument or conclusion. The respondent pressed for the inclusion of that evidence. The impugned portion of the paragraph addressed the respondent’s activity in sourcing stock for G Pty Ltd and the respondent’s statement that her experience in that activity enabled her to be successful in a role at E Pty Ltd. She does not describe the details of her role in sourcing stock. However, she does assert that she was successful in her role at E Pty Ltd. She did not substantiate in what way she said she was successful – whether in monetary terms, in acquiring market share, or howsoever otherwise. Her statement in the second sentence was an unsupported assertion. It was comment or argument, in either case inadmissible. I uphold the objection.
In the third sentence of paragraph 80 the respondent incorporated the phrase “despite my initial reservations about the venture”. That was the subject of objection. It was said that the phrase was inadmissible because it was argument or conclusion. To my mind, the respondent’s reservation or enthusiasm were irrelevant. They were not matters of a fact in issue. The phrase was, as the applicant contended, objectionable. The phrase must be deleted.
In the last sentence of paragraph 80, the respondent purported to explain why the E Pty Ltd business encountered difficulties with patronage. She stated that there was not enough foot traffic as the store was in old section of the shopping mall. The respondent did not give evidence that she had experienced in retail demographics or in customer throughput. Her attribution of an explanation of insufficient foot traffic was not connected to a consequence. Even accepting that the store may have been in an old section of the mall, the respondent did not say how that was connected to some other phenomenon. In my view, there is merit in the objection and I uphold it. As to the statement that the dollar purchase per person increased, the respondent did not say when that increase incurred, what the dollar purchase per person was nor in what way that dollar purchase per person increased from what to what. In my view, the final sentence of paragraph 80 is objectionable and must be deleted.
Paragraph 81 contained a statement in the first sentence that E Pty Ltd manager Ms BB was undermining the respondent. No details of the acts of undermining were given. The applicant argued that the words “was undermining me and” was a conclusion and should be deleted for being objectionable. I agree. Those words must be deleted.
The second sentence of paragraph 81 was also the subject of objection. In it the respondent stated “I found this very stressful”. That was said to be comment, conclusion, argument, or opinion. It was also a statement about a state of mind, wholly irrelevant. It must be deleted.
In the final sentence of paragraph 81 the respondent stated that Ms CC and a person whose name was given as Ms DD attended E Pty Ltd about (I presume although it was not said) Ms BB’s behaviour. The respondent did not say whether she was part of the deputation to speak with Ms BB. The respondent unless present at such a meeting, is unable to say why Ms DD and Ms CC attended upon Ms BB. The respondent did not say she was part of the deputation who attended upon Ms BB, nor did the respondent say who said what to whom at any such meeting, especially whether it related to Ms BB's behaviour. In my view, the last sentence is irrelevant and must be deleted on that basis.
The respondent conceded the inadmissibility of the first sentence of paragraph 82. It must be deleted.
In the second sentence of paragraph 82 the respondent stated that her commute from the former matrimonial home was up to an hour and it was not maintainable. The applicant took exception with the phrase "and it was not maintainable", contending that the phrase was argument or it was the expression of the respondent's state of mind. She explained why she said the hour-long drive was not maintainable, namely, because after the drive home for an hour she was required to cook and manage the household. Having explained why she stated that the drive was not maintainable, she does not say why that was relevant as a foundation for some other factor. It seemed to me that the statement that the drive was not maintainable to her way of thinking was irrelevant. I delete it on that basis.
The applicant contended that the third sentence was objectionable. In it the respondent stated that despite her working all day she was still expected to return home to cook for everyone and manage the household. True, she does not say who expected that of her. However, it may be inferred that the expectation arose from those with whom she shared the house. In my view, the objection taken is highly technical and a waste of the court’s time to press. I overrule the objection.
The final sentence of paragraph 82 was the subject of objection. The relevant portion was "and then I was meant to move on". The respondent pressed for the inclusion of that evidence. In that phrase the respondent did not say who meant for her to move on. In the whole of paragraph 82 the respondent expressed herself in the passive tense, not identifying who meant for her to do the things to which she deposed. The impugned phrase, "I was meant to move on" was inadmissible for being a conclusion and for there being no evidence of who meant her to move on. The phrase must be deleted.
The respondent conceded the inadmissibility of the second sentence of paragraph 83. That sentence must be deleted.
Likewise, the respondent conceded the inadmissibility of the whole of paragraph 86. It must be deleted in toto.
The first sentence of paragraph 89 was the subject of objection. In it the respondent contended that as the idea of the apartment complex developed, the applicant and she decided that she would be responsible for the interior decoration of the apartments. The applicant objected on the basis that such a statement amounted to evidence of a state of mind or was argument. It seemed to me that neither ground of objection was well founded. Instead, the phrase was objectionable on the basis that the words "Mr Verdon and I decided" were included without saying who said what to whom leading to that decision. The words "Mr Verdon and I decided" were a conclusion. The first sentence is inadmissible for being a conclusion. In the second sentence of paragraph 89 the expression "as a result of this" is used immediately after the first sentence and are deleted. The words "as a result of this" are meaningless and must be deleted.
The respondent conceded the inadmissibility of the whole of paragraph 91. It must be deleted.
The respondent conceded the inadmissibility of the opening words of paragraph 95 so the words to the first comma must be deleted.
The respondent also conceded the second sentence of paragraph 95. It too must be deleted.
The last three words of paragraph 97 were conceded as being inadmissible. They must be deleted.
In the last sentence of paragraph 98 the respondent deposed to her suspicions about the applicant's intentions. That is not evidence of a fact. It is not probative. It is inadmissible and must be deleted.
The last sentence of paragraph 100 was conceded by the respondent as being inadmissible. It must be deleted.
The whole of paragraph 102 was the subject of an objection on the basis of hearsay. In that paragraph the respondent deposed to her being requested by her former solicitors for certain documentation. That is not hearsay. She is perfectly able to depose to requests made directly to her by another. I overrule the objection.
Save for the concession as to inadmissibility of the last sentence, rendering the last sentence deleted, the respondent pressed for the admission of the whole of paragraph 103. The applicant complained about the admissibility of the paragraph on several grounds, including hearsay. In paragraph 103 the respondent purported to say how her former solicitors received some statutory declaration prepared by a person involved in the development project. In that paragraph the respondent stated that the person before whom the statutory declaration was made had not witnessed it. That entire paragraph is inadmissible. Legal representatives preparing affidavits intended for use in this court should take greater care than was exhibited in the attempt to rely on material as noxious as paragraph 103. The whole of the paragraph must be deleted for being hearsay, comment, speculation and argument.
The whole of paragraph 104 was the subject of objection. I do not agree that the whole of the paragraph is objectionable. The first two sentences represent the respondent's version of events and are based on specific documents. If the applicant wishes to challenge those amounts, he will undoubtedly do so in cross-examination. The second sentence is in a different category because the respondent purported to depose that the applicant had failed to explain discrepancies to her satisfaction. Embedded in that statement is the assumption of the accuracy of the arithmetical calculation of the asserted discrepancy, that the sum asserted is in fact a legitimate discrepancy, that the applicant was required to explain any such discrepancy and that he was required to persuade the respondent of the validity of any such explanation. The second sentence is argument and therefore inadmissible. I delete it.
Paragraph 105 in its entirety was conceded for being inadmissible. It must be deleted.
Paragraph 106 second sentence from "however" was conceded as being inadmissible. Those passages must be deleted.
In paragraph 107 in the first sentence after the words "however" and to the end of that sentence the respondent conceded the inadmissibility of the respondent's statement. That passage must be deleted. The respondent also conceded the last sentence of that paragraph with the same consequence.
The whole of paragraph 113 was conceded as being inadmissible. It must be deleted.
The same concession was made in relation to paragraph 115 with the same consequence.
The whole of paragraph 117 is inadmissible. If the evidence has any probative value it should have been adduced through a witness capable of giving direct evidence on point, not the respondent. Paragraph 117 must be deleted.
The second sentence of paragraph 118 and following was conceded for its inadmissibility. It must be deleted.
The whole of paragraph 119 was the subject of objection on the basis that it was hearsay. I agree. It must be deleted.
The respondent conceded the evidentiary objection in relation to paragraph 120 in its entirety. The paragraph must be deleted.
Paragraph 121 was pressed by the respondent. It was flagrantly inadmissible. The witness is required to confine her evidence to facts within her direct knowledge. She is not permitted to act as a commentator about other aspects of activities in this litigation. Paragraph 121 must be deleted in its entirety.
The same ruling applies to paragraph 122 of the respondent's affidavit.
I make the same ruling in relation to paragraph 123 and reject her evidence in that paragraph.
The same ruling applies to paragraphs 124, 125, 126, 131 and 134. Each is inadmissible. Each must be deleted.
The respondent conceded the inadmissibility of the entirety of paragraph 135, except for the first seven words. The rest of the paragraph must be deleted.
The whole of paragraph 136 of the respondent's affidavit was conceded. It must be deleted.
Paragraph 137 was the subject of objection for irrelevance. I agree. It must be deleted.
Paragraph 138 the last sentence was conceded as being irrelevant. It must be deleted.
The respondent conceded the deletion of the word "severely" in paragraph 139 but otherwise persisted in the contents of that paragraph. In that paragraph the respondent stated that she had to limit her spending since separation and had she not had access to income earned from matrimonial assets. The applicant objected to the evidence in paragraph 139 contending that it was comment or argument. I disagree. Her statement that since separation she has been required to limit her spending is a factual matter, not a matter of comment. So far as her statement "in contrast to Mr Verdon" was concerned, it is open to a witness to give comparative evidence without that evidence being argumentative or commentary. Precisely how probative the evidence turns out to be is an altogether different matter. I overrule the objection.
In paragraph 141 the applicant objected to the balance of the paragraph on the second line after the word "payments". The respondent conceded as inadmissible the whole of the last sentence, so in view of that concession the last sentence will be deleted. The phrase "because I suspected that Mr Verdon had access to my messages and files as my laptop and mobile were set up through our company’s server” was both speculative (that being her suspicion) as well conjecture (the consequence of the laptop and phone having been set up through the company’s server). On either basis, it was inadmissible. I delete it.
Paragraph 142 was the subject of objection as to all except the first sentence. In the first sentence of that paragraph, the respondent deposed to requesting Mr EE, an IT employee, to provide her with the password for a laptop. She said that was in 2018. In the second sentence (the subject of objection) the respondent stated that Mr EE told her he was unable to provide the password because by doing so, he provided the respondent with confidential information relating to the company. The applicant objected to that sentence on the basis that it was hearsay or comment or argument.
I disagree. In the second sentence, the respondent was narrating the substance of a conversation with Mr EE to which she was privy, and in respect to which she gave in evidence the substance of the conversation. That is not hearsay. Whether the password was in fact properly the subject of a valid claim to confidentiality is to be determined in accordance with the decision of his Lordship Mr Justice Megarry in Coco v A N Clark (Engineers) Ltd.[9]
[9] [1969] RPC 41.
As to the balance of paragraph 142, the sentence was irrelevant, as was the fourth. The resetting of the passwords on computers was on the extreme periphery in this case. I uphold the objection on the grounds of relevance.
Paragraph 144 proceeds on the assumed premise that orders for the payment of money had been breached by the applicant. That is a fact in issue. Otherwise the second sentence is commentary. It is inadmissible. The respondent fails to identify which order was allegedly breached, nor the sum allegedly unpaid. The second sentence of paragraph 144 will be deleted.
Paragraph 146 provides a commentary of the contents of Mr U’s affidavit. That goes beyond her task in giving evidence by affidavit, namely stating the facts on which she relied. The objection to paragraph 146 is made out. I will read Mr U’s affidavit when he gives evidence, but I will not receive an edited version or commentary about it. The whole of paragraph 146 must be deleted. That was conceded by the respondent.
Paragraph 147 of the respondent’s affidavit purported to paraphrase the operation of the court order made 13 February 2018. The applicant objected, arguing that the orders speak for themselves. I agree. Paragraph 147 is inadmissible for being a paraphrasing of the relevant order.
Paragraph 148 is a comment or conclusion based on the untested evidence of Mr U. It is also a submission that is predicated upon the wholesale acceptance of Mr U’s evidence. It is not for this witness to offer submissions in her affidavit. Paragraph 148 is inadmissible. I delete it.
Paragraph 150 contains the respondent’s statement that the applicant has not explained how much money H Pty Ltd paid for the applicant’s legal fees. That is scarcely proof of the fact of payment or the amount of payment. The applicant objected to paragraph 150 saying that it contained matters of a speculative nature, it was her opinion or was argument. One thing remains, it is not proof of a fact. Instead, it is a statement of what the respondent does not know. It is objectionable and therefore inadmissible. I delete it.
The concerns expressed by the respondent in paragraph 151 are not evidence of fact. They are evidence of a state of mind, concern, and that is not relevant, unless such concern was adduced, for example, in support of an application for a quia timet injunction. Paragraph 151 was not put forward on that basis. I do not allow it to remain in the affidavit.
Paragraph 152 was a submission. It is not admissible and must be deleted.
The whole of paragraph 153 was the subject of objection. It is a submission, not the proper subject of an affidavit. It must be deleted. The whole of paragraph 153 was the subject of objection. It is a submission, not the proper subject of an affidavit. It must be deleted.
Paragraph 154 contains a submission and not facts, rendering it inadmissible in its entirety.
In paragraph 155, the respondent purports to give evidence about the steps taken by the expert, Mr N, in his preparation of his report. That is hearsay and I exclude that paragraph.
Paragraph 156 purports to give a commentary on an email of a person called Mr F Verdon. Based on that email the respondent deposed in paragraph 56 that a particular loan was a matrimonial asset about which the respondent stated she expected certain matters to arise, mostly of an accountancy nature. This paragraph was the subject of objection for being comment. I agree. It is inadmissible.
Paragraph 157 was the subject of objection. In it, the respondent purported to give evidence based on her construction of the financial statements of H Pty Ltd and the email from Mr F Verdon. The applicant complained about paragraph 157 on the basis that it was commentary on documentation. That was true, it was. It was inadmissible on that basis. More fundamentally, an array of highly qualified experts were involved in this case whose expertise eclipses that of the respondent. I rule against the admission of paragraph 157.
Paragraph 158 is further commentary or submission. It is not evidence of a fact on which the respondent is capable of giving direct evidence. I rule it inadmissible.
The respondent’s concerns were again expressed in paragraph 159. That was a submission. It is not evidence of a fact. It is not admissible, so I delete it.
Paragraph 160 was a submission that certain loans were matrimonial assets. In it, the respondent purports to express an opinion about the loans’ status in law as a matrimonial asset. She is not legally trained to venture that opinion. Paragraph 160 is not admissible. The status of the loans is a matter for me.
Paragraph 161 is inadmissible for being a comment on the absence of information in the affidavit of the applicant. In that paragraph, the respondent purports to speak of the applicant’s alleged failure to disclose benefits he may have received. It is not for a witness of fact to make that submission in an affidavit. Paragraph 161 is inadmissible.
Paragraph 162 contains commentary about the absence of evidence from the applicant in relation to certain dividends. The whole paragraph is a subject of objection on the basis that the paragraph was not evidence of a fact, but rather it was commentary. I agree. It is not admissible.
The respondent recites an expectation in paragraph 163. She purports to base that expectation on the matters recorded in the sub-paragraphs of paragraph 163. Her expectations are not evidence of a fact. The applicant objected to the paragraph being unqualified opinion or speculation. To my mind, the whole of the paragraph was speculation. It is not admissible. Further, it is commentary based on the evidence of others.
In the final sentence of paragraph 165 the respondent made observations about the contents of a letter. If the letter is probative it should be exhibited by which its contents can be read. In its current form, the final sentence of paragraph 165 is commentary and not admissible. I delete it.
The instructions referred to in paragraph 167 are not hearsay as the paragraph records in direct terms her instructions. But unless those instructions produced a letter consistent with those instructions the instructions themselves are meaningless and irrelevant. The respondent does not depose to her solicitor sending a letter to the other side in terms that were consistent with those instructions so whatever may have been her instructions to her solicitors, without more, that evidence is irrelevant and irrelevant evidence is inadmissible. The whole of the paragraph is deleted.
The whole of paragraph 170 is inadmissible for being hearsay.
Only the second sentence of paragraph 171 was objected to. All other parts of the paragraph were the subject of objection on the basis that they were hearsay. I agree. All but the second sentence of that paragraph must be deleted.
The last two sentences of paragraph 172 were the subject of objection. The third sentence was premised with “to my knowledge” and thereafter the respondent purported to record that the applicant will receive an additional sum from the self-managed superannuation fund. She did not say what the basis of her knowledge was. Her statement that the applicant will receive a sum was speculation. It was not evidence. I disallow it. The final sentence contained a statement of how the respondent is not sure of something. That is not evidence of a fact. It is not admissible. The second last and last sentences will be deleted.
The respondent conceded that certain aspects of paragraph 173, 174 and the second last sentence of paragraph 175 were inadmissible. In view of those concession, I rule that the conceded portions are inadmissible.
So far as the final sentence of paragraph 175 was concerned, the respondent asserted that she has no tertiary education or qualification to enable her to earn a meaningful income or to obtain gainful employment. The applicant submitted that those observations were argument. That is true. Self-evidently, she may well be able to obtain some form of employment. It seems she cavils with the status of any such employment in that she requests it to be both gainful and meaningful. Those adjectives invite debate. What is meaningful to one person may not be to another. Equally, what is gainful to one person may not be to another. The applicant submitted that her evidence in the final sentence was argumentative. I agree. I am willing to entertain an application that she have leave to give such viva voce evidence as she is able about her future employment prospects.
On the second sentence of paragraph 176 the respondent stated that she does not have the qualifications to obtain a similar role without a familial connection. That was a reference to her having worked primarily throughout her career in family businesses. The applicant objected on the basis that her evidence in that regard was opinion or argument. It seemed to me there was merit in the objection. It was self-evident that not all employees of all family businesses are family members or family connections of relevant family members. In addition, she did not adduce any evidence that she had attempted to find employment in a family business with which she had no family connection. I uphold the objection. The second sentence is inadmissible.
In the first sentence of paragraph 177 the respondent stated that after separation she found herself, "to be in pieces emotionally, spiritually and psychologically to the point (she) thought (she) would not recover". Without those words the first sentence is meaningless, so the objection must be taken to be the whole of the first sentence. The applicant objected on the basis that such evidence was argument, comment, conclusion or an unqualified opinion, the latter of which I took to be a reference to the respondent's psychological state.
At the very least, the statements in the first sentence of paragraph 177 were devoid of content. Precisely how she functioned on a day-to-day basis when she was "in pieces emotionally, spiritually and psychologically" was not said. I accept that the respondent was endeavouring to convey some form of emotional collapse but that told me very little about the true impact on her of her condition. I assume it was an undiagnosed emotional state as no psychological evidence was adduced. Further, it is difficult to know what the respondent meant when she said she went to pieces spiritually. As to the statement that she thought she would not recover. The forensic provenance of that evidence was on the periphery. I regard the first sentence of paragraph 177 as inadmissible.
The second sentence of paragraph 177, especially "and was very unwell" was the subject of objection. No medical evidence was adduced to support the assertion. In those circumstances I regard that phrase as a conclusion unsupported by the evidence and therefore inadmissible.
The second-last and last sentences of paragraph 177 were the subject of objection. In the second-last sentence the respondent described what her therapist encouraged her to do in relation to narcissistic behaviour and gas lighting. In the last sentence the respondent stated that as a result of her mental health she has "not been emotionally in a place where (she) has felt capable of pursuing meaningful employment." The applicant objected on the basis of comment, conclusion or unqualified opinion. I agree, and in relation to both sentences, at the risk of repetition, no evidence is before me about the respondent's mental health. Both sentences are inadmissible. They must be deleted.
The applicant objected to paragraph 180. In it the respondent stated that Stephanie is financially dependent upon the respondent. That is evidence the respondent can give. It is not hearsay, argument or conclusion. It is admissible. In the second sentence the respondent stated that Stephanie is having difficulties finding employment. I see no basis for objecting to that evidence. I overrule the objections to paragraph 180.
The respondent conceded the inadmissibility of paragraph 181. It can be deleted. The same applies to paragraph 182.
I take the view that paragraph 184 is a submission. In order for her evidence in paragraph 184 to be utile the respondent would need to separately address each reference to "I" and positively say that in respect of each the applicant's reference is to be read in the plural. She made no attempt to do that. Paragraph 184 is inadmissible.
So far as paragraph 186 is concerned, in my view it is in fact admissible. In it the respondent deposed to her financial arrangements with Lee. She gives direct evidence about that. I overrule the objection to paragraph 186.
The last sentence of paragraph 187 was conceded. It must be deleted.
Paragraph 188, second sentence and beyond, was the subject of objection on the ground of relevance. I agree. Whether or not the applicant threatened the respondent by telling her he would tell people she was a prostitute was neither here nor there. The first sentence is relevant. The balance is not.
Concessions as to admissibility were made in relation to paragraphs 189 and 190. Each must be deleted.
So far as paragraph 191 was concerned, in my view the whole of the first sentence is admissible, even the impugned words "and I was trying to cope with the emotional trauma of our separation." So far as the second sentence was concerned, in my view the whole of that sentence is objectionable for being an opinion, a conclusion or a state of mind. It must be deleted.
The impugned portion of paragraph 193 is conceded and must be deleted by consent.
The respondent conceded the objection to paragraph 193. That said, with that deletion the second sentence is grammatically meaningless.
Paragraph 194 is the respondent's evidence of her state of knowledge. It may be wrong. That must await cross-examination but it is not inadmissible.
To paragraph 195, the applicant argued that the second sentence was objectionable. In it she deposed to her understanding of her salary package. An understanding is subjective. It may be correct or it may be erroneous. The best evidence of a contract that is oral is given by who said what to whom. To say that a witness's understanding was to a particular effect tells me nothing about who said what to whom. In its current form the second sentence of paragraph 195 is inadmissible. It must therefore be deleted.
The respondent conceded the objection to paragraph 197. It can be deleted.
I reject the evidentiary challenge to paragraph 198. The probative value of her statement remains to be seen in view of there being little in the way of supporting information.
So far as paragraph 199 was concerned, the second sentence was a submission as to consistency. It was not for a witness of fact to depose to submissions of consistency. The third sentence was about the respondent's understanding. As has been canvassed above, a witness's understanding of a matter is not evidence of the fact. The final sentence is admissible. The second and third are not.
As far as paragraph 201 was concerned, the words of the first sentence "I did not think we kept our financial affairs separate except for those areas of our finances that Mr Verdon was secret about" are objectionable. They are inadmissible. The respondent conceded the inadmissibility of the last sentence.
The applicant objected to the last two sentences of paragraph 202. He said they were comment. That was true. Each must be deleted for being inadmissible.
The portion of paragraph 204 conceded as being inadmissible must be deleted.
Paragraph 205 was the subject of objection. In the first sentence the respondent stated that the applicant took all documents of importance from the former matrimonial home. Precisely which document answered the description "all documents of importance" were not identified. The respondent conceded the point. That phrase must be deleted.
So much for the wife's affidavit.
Objections to the applicant's affidavit
The 1 March 2021 affidavit
The first objection taken by the respondent was to paragraph 6 commencing from the second sentence to the end of that paragraph. The applicant conceded the irrelevance of those parts. In those circumstances I delete all but the first sentence of paragraph 6.
In paragraph 27 the first two sentences were said to be irrelevant. The applicant disputed the irrelevance of those sentences contending that details of the applicant's settlement with his previous wife Ms Z were relevant to the husband's initial contributions. In my view that evidence is admissible on the basis stated, namely that it provides a foundation for the applicant's evidence of the initial contributions he says he brought to the marriage with the respondent.
In paragraph 34 of his affidavit the applicant deposed to a decision being made by his mother, his father and himself to sell the SS Street property. In the final sentence of that paragraph the applicant stated that G Company/G Pty Ltd wanted to move premises. Objection was taken about the applicant giving evidence about the mind of the corporate entity. The applicant submitted that the applicant was permitted to give evidence about the mind of the company as he was a director of G Company/G Pty Ltd. The High Court in Krakowski & Eurolynx Properties Limited[10] held that the mind of a company is the person so closely or relevantly connected with the company that the state of the mind of that person can be treated as being identified with the company so that the person's state of mind can be treated as being the state of mind of the company. That is consistent with the alter ego doctrine espoused in El Ajou v Dollar Land HoldingsPLC[11] as well as being consistent with other Australia decisions such as Beach Petroleum NL v Johnson[12] and Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd.[13] The applicant was chair of G Pty Ltd G Company so I take the view he was the controlling mind of that company. The objection is overruled.
[10] (1995) 183 CLR 563.
[11] [1994] 2 All ER 685.
[12] (1993) 43 FCR 1.
[13] [2015] VSCA 9.
The applicant conceded the objection to the second sentence of paragraph 35. That sentence will accordingly be deleted.
All of paragraphs 41 and 42 are conceded as being objectionable and therefore inadmissible. I have deleted those paragraphs on the basis of that concession as to inadmissibility.
Paragraph 44 attracted objections to the first, second and third sentences. In the first sentence the applicant stated that the business of F Pty Ltd did not take off. It must be recalled that the respondent said the same thing in paragraph 74 of her trial affidavit. The applicant disputed the objection which was put on the basis in the first sentence of paragraph 44 introduced information which was in the nature of a conclusion from unstated facts. The applicant contended that it was common ground that the business did not take off. I agree. The first sentence is not objectionable and therefore is not inadmissible.
In the second sentence of paragraph 44 the applicant stated that the respondent gave away some of the accessories. The respondent contended that assertion was irrelevant. I agree. The second sentence is irrelevant. I uphold the objection and rule that the second sentence is inadmissible with consequences that it must be deleted.
The third sentence of paragraph 44 was also said to be irrelevant. In it the applicant stated that he explored the idea of importing sport equipment from China. No issue in the case arose about the development of a sport equipment importation business. The third sentence was irrelevant. It must be deleted on the grounds of inadmissibility.
In paragraph 47 the applicant conceded the inadmissibility of the final sentence. It must be deleted.
The second sentence of paragraph 48 was the subject of objection for being hearsay. In that sentence the applicant deposed to a conversation with his accountant, Mr LL. The two were the participants in that conversation. The applicant was therefore able to recount his firsthand recollection of the conversation which he did in paragraph 48 in the second sentence. I agree that the sentence is evidence of what was said. The objection on the ground of hearsay was not applicable. I overrule the objection and allow the evidence.
Paragraph 55 attracted objections to parts of the final sentence. The words “through hard work and”. In those words the applicant conceded should be deleted. Later in the same sentence the word “major” in reference to the producer was introduced. The applicant conceded that it was appropriate to delete that adjective. That work must be deleted.
The second sentence of paragraph 57 was the subject of objection. That objection was conceded by the applicant. The sentence will be deleted.
The whole of paragraph 61 was the subject of objection. The ground of objection was hearsay or relevance. In paragraph 61 the applicant narrated how G PLC did not want to buy the whole of G Company and would only entertain discussions to buy some of the shares if the applicant remained working in the business in view of the applicant’s local working knowledge. The applicant stated that he agreed to stay with the business. The applicant resisted the objection on the basis that the contents of the paragraph were not hearsay as he was privy to the negotiation. Further, in respect to the objection that a state of mind of G PLC was concerned, the applicant submitted that Mr T of G PLC is to give evidence in this proceeding so he can be cross-examined about the statement in paragraph 61.
Both responses meet the objections. I overrule the objection to paragraph 61.
The second sentence of paragraph 62 is the subject of objection on the ground of relevance or hearsay. In that sentence the applicant stated that his parents sold their 50% shareholding in G Company to G PLC in 2007 for AUD$5 million on earn-out terms. So far as relevance was concerned, I am of the view that the historical evolution of G PLC’s acquisition of the shareholding in G Company is in fact relevant. The amount paid by G PLC for the 50% interest explains in part the value of G Company, a fact in issue. The fact that the sale of the 50% interest was on an earn-out basis explains why the applicant remained in the G Company business, also a contentious issue. To my way of thinking, the phenomenon of the sale of the applicant’s parent’s 50% shareholding in G Company is in fact relevant. I overrule the objection on that basis. As to the second basis of objection, namely hearsay, I do not agree. The applicant was directly affected by the fact of the sale of his parent’s 50% shareholding as he was required to remain with G Company on an earn-out basis. He therefore was directly involved in those negotiations as he agreed to the earn-out requirements. It could scarcely be said that he was giving evidence about a matter in which he had no direct knowledge and instead was merely purporting to narrate matters told to him by his parents. To the contrary – he was very involved in that sale of the 50% shareholding his parents held. I overrule the objection on that basis also. The second sentence of paragraph 62 is in fact admissible.
The whole of paragraph 66 was the subject of objection. In that paragraph the applicant deposed to the difficulty occasioned by the term of the shareholders agreement with G PLC pursuant to which G PLC was able to veto the sale of the applicant’s shares in G Company, a matter he said he found unattractive as might prospective purchases. It was put on behalf of the respondent that the applicant’s evidence on that issue was a conclusion, it was an argument, it was hearsay, or it revealed the state of mind of another.
Several things must be said of this objection. First, no dispute exists in this case that G PLC had the power of veto of which the applicant spoke. Next, the applicant stated that the power of veto was a difficulty for him to overcome. That was his evidence on the effect of the power conferred. That was within his knowledge so the objection based on argument evaporated in my view. So far as the power of veto being hearsay is concerned, it was common ground that the power was in the shareholders agreement. The argument that paragraph 66 addresses the state of mind of another seemed to relate to the applicant’s reference to the fact that the power of veto was not an attractive position for a prospective purchaser. That statement does not purport to be evidence of some other person’s state of mind, but rather it is a statement of the commercial advantage or otherwise of the existence of the power of veto may confer on a would-be purchaser of the applicant’s shares. I do not regard that statement as being noxious on that basis. In my view, each objection to paragraph 66 was not made out. Paragraph 66 is in fact admissible.
Paragraph 67 second sentence was said to be objectionable on the basis that it was a conclusion or an argument. In that sentence the applicant stated that the shareholders agreement gave G PLC a first option to purchase H Pty Ltd shares if H Pty Ltd wished to sell those shares. The applicant met the objection on the basis that the evidence he purported to give was within his knowledge. While true, a lay witness is ordinarily not competent to give evidence about the construction of a commercial instrument, that being a matter for the court, in this scenario the right of first refusal had a commercial consequence to the value of the shareholding in H Pty Ltd with the consequence that the applicant is most likely to be intimately aware of that matter, no doubt he having negotiated for the inclusion of such a provision in the shareholders agreement. I agree that the subject matter of the second sentence of paragraph 67 is within the knowledge of the applicant. I overrule the objection.
The sixth sentence of paragraph 73 of the applicant’s 1 March 2021 affidavit was the subject of objection. In that sentence the applicant stated that G Pty Ltd can make no major decisions such as budget forecasts, hiring of key staff, the acquisition of any other entities or the change of its usual corporate practices without the approval of G PLC. That statement was said to be a conclusion or it was argument according to the respondent. In resisting the objection, the applicant contended that those statements were within the applicant’s knowledge and experience as a shareholder and director.
It must be said that in the sixth sentence of paragraph 73 of his affidavit the applicant is not purporting to paraphrase a provision of the contract. He is stating in practice how the arrangement with G PLC operates on a day-to-day basis. Those matters are within his personal knowledge. I do not accept that they are a conclusion or argument. I see no reason why the applicant cannot depose to G PLC’s day-day control of G Pty Ltd and how that control manifests itself in the workings of G Pty Ltd at a functional level to include budget forecasts, hiring new staff, the acquisition of other entities or changes to usual corporate practices. That evidence is admissible and I overrule the objection to it.
The respondent objected to the seventh sentence of paragraph 73. The relevant caution impugned was “but the nature of it remained the same, as it was when Ms Verdon and I started living together, save as stated”. That was in reference to the applicant’s evidence in that sentence that the size and turnover of G Pty Ltd increased over time during the relationship. Curiously, that observation was not the subject of objection despite its ambiguous nature. The objection was said to be opinion, argument or conclusion. The applicant was the controlling mind of G Pty Ltd and its previous corporate emanation. He is best able to give evidence about size and turnover of that company. I reject the evidence that his statement that the nature of the company remain the same. If anyone, he is probably the best placed person in this litigation to give direct evidence of that fact. I overrule the objection to the seventh sentence of paragraph 73.
The respondent objected to the use of the word “major” in the second sentence of paragraph 78 of the applicant’s 1 March 2021 affidavit. The adjective was applied to the contracts between G Pty Ltd and NN Company, as well as PP Company each of which the applicant stated represented major contracts for G Pty Ltd. The respondent contended that the use of the word “major” in reference to G Pty Ltd’s contracts with NN Company and PP Company represented opinion argument or conclusion.
I disagree. The applicant as the driving force of G Pty Ltd may be taken to know which companies represent major contractual parties for G Pty Ltd. Unless the applicant was aware of that matter, it might be said that he was or might be derelict in his duties as a director, although that point need not be further explored here. I take the view that the applicant is well able to identify G Pty Ltd major contracts as being with NN Company and PP Company. I overrule the objection in relation to paragraph 78.
The whole of paragraph 81 was the subject of objection. In that paragraph, financial information for each financial year as between 2005 and 2017 is set out under five categories. Those categories were G Company dividends, HH Trust, Verdon Family Trust, JJ Trust, and other income, including interest. In the table, various totals are set out. So far as the proof of the accuracy of the information the table was concerned the applicant made the glib and unverified statement in the third sentence of paragraph 81 that “I say this table accurately represents their contents”. No information was given that he prepared the table or even checked someone else’s workings in the formulation of the table to verify its accuracy. He did not say from what information the table is derived. The respondent complained that the entirety of paragraph 81 and the table were inadmissible assertions as to the contents of various documents. In resisting the objection, the applicant relied on s 50 of the Evidence Act, contending the documents previously provided to the respondent are admissible for tender. That rather missed the point because the thrust of paragraph 81 was on the accuracy of the information in the table. It is detailed and precise to the dollar yet the applicant made no attempt at all to lay the evidentiary foundation of the information in the table to be adduced in evidence through this witness. To the extent that other witnesses, especially experts, address the information recorded in the table, then I will consider their version of the evidence when I come to its receipt. However, in the current form the applicant failed at the threshold to pave an evidentiary foundation for my receipt through him of the information in paragraph 81. I uphold the objection to the paragraph and rule that paragraph 81 is not admissible.
The second sentence of paragraph 86 was the subject of objection. In that sentence the applicant stated that he and his accountant considered different ways of setting up ownership structures for the development of the KK Street property. It was put by the respondent that the second sentence was inadmissible for being hearsay, or it was a self-serving prior assertion. I reject both grounds of objection. The accountant, Mr LL, has made an affidavit about this matter. The respondent can cross-examine him on the issue. The applicant deposes in that sentence to his accountant and the applicant considering different ways of setting up ownership structure. He does not say who said what to whom. He used the verb "considered". The involvement of the accountant in that consideration is addressed in paragraph 9 in the affidavit of Mr LL. I reject the objection and admit the evidence in the second sentence of paragraph 86.
The objections to paragraph 87 were conceded. The impugned phrases have been deleted.
With the concession of the words "by oversight" are to be deleted where appearing in the second sentence of paragraph 88, the statement that the respondent's caveat was never removed is a matter of fact to which the applicant can depose.
The applicant conceded that the deletion of the first sentence of paragraph 96 was appropriate. I have deleted that sentence.
So far as the last sentence of paragraph 96 was concerned, the applicant pressed for its admission into evidence. In it the applicant stated that the respondent did not have an active involvement with the development. The respondent disputes that assertion. The differing versions can be explored during cross-examination. The second component of the sentence was the assertion that the applicant observed the respondent to be disinterested "in it" (inferentially, the development) whenever he tried to talk to her about it. The respondent objected to that component of the last sentence on the basis that it is argument, conclusion or opinion. It is fair to say that the applicant gives no details of the dates of any such discussions and that he does not say what he observed. He states that the respondent was disinterested. Without saying what he observed and without saying what amounted to the respondent's alleged disinterest I would ordinarily reject the evidence on the grounds stated in the objection. However, the respondent gave contrary evidence indicating to me that she was very interested in the development and worked on it in the ways to which she deposed. In those circumstances it seemed to me that the opposing versions of the involvement of the respondent must be subjected to cross-examination, and only with the benefit of the evidence derived therefrom will I be able to assess where the truth lies. I overrule the objection.
The applicant's intentions recorded in the second sentence and following of paragraph 97 are objectionable. That information is not evidence of a fact. I uphold the objection the whole of the second sentence to the end of paragraph 97. It is not admissible.
The whole of paragraph 98 was the subject of objection on the basis that it was hearsay and not otherwise relevant. The applicant conceded that the clause "reviewed the application" should be deleted but that the paragraph was otherwise admissible. So far as the concession was concerned, I make the deletion conceded. The balance of the paragraph is relevant and admissible, in my view. It explains the factual circumstances confronting the developer and the financial solutions then under discussion between the applicant and the accountant Mr LL who the applicant said is otherwise available as a witness. I overrule the objection and admit paragraph 98, save for the clause the inadmissibility of which was conceded.
The whole of paragraph 100 was the subject of objection. The applicant conceded that the words "in hindsight" should be deleted as well as the second sentence. I make those deletions. The respondent objected to the remaining portions on the basis that the applicant's statement that the cost of the KK Street development nearly totalled the same as the value of the property was a conclusion. That was true. But it was within the knowledge of the applicant to give that conclusion. I overrule the objection. Its probative value is debatable, however.
The applicant conceded that the inadmissibility of the word "dramatic" in paragraph 106. It is deleted.
The whole of paragraph 111 was the subject of objection for being irrelevant or hearsay. I disagree that the registration of the Suburb RR property in the respondent's name is irrelevant to the matter relevant to s 79 of the Family Law Act. So far as the other basis of objection, hearsay, was concerned, the applicant stated that the accountant Mr LL provided advice to register the property in the respondent's name for asset protection purposes having regard to his ongoing role as a director of G Pty Ltd. The applicant resisted the hearsay objection on the basis that he was privy to the advice given to the accountant. That would render the hearsay objection otiose. I overrule the objection. The respondent can be cross-examined on the point, as can the witness Mr LL.
The last two sentences of paragraph 112 were conceded for inadmissibility on the basis of irrelevance. They must be deleted.
The first sentence of paragraph 125 was conceded. It must be deleted.
Paragraph 126 attracted objections. In the second sentence of the paragraph the phrase "for both tax and asset protection purposes" was said to be a conclusion. The evidence that sometimes funds from the sale of the applicant's assets were invested in the respondent's name and not the applicant for both tax and asset protection purposes was said to be a conclusion. That may be correct. However, the best evidence on point is derived from the applicant as the statement concerned the applicant and his funds, a matter within his direct knowledge. I overrule the objection to that aspect of paragraph 126.
The second objection to paragraph 126 related to the fourth sentence and the applicant conceded its inadmissibility so it will be deleted.
Paragraph 140, specifically, the fourth sentence, was said to be irrelevant. In resisting the objection, the applicant submitted that the evidence addressed a factual matter to which the decisions in Robb & Robb[14] and Mehmet & Mehmet (No 2)[15] were applicable. It was said that the matter went to s 75(2)(o) contributions. It seemed to me that it would be unwise to shut out the factual argument on this issue by ruling the impugned evidence as inadmissible without that evidence being tested. In those circumstances I overrule the objection.
[14](1995) FLC 93-218.
[15] (1987) FLC 91-801.
The whole of paragraph 132 was the subject of objection for being irrelevant. The significance of the applicant residing at the KK Street property for a time was said to bear upon the assertion that the applicant removed documents while left at the house. Until I hear that challenge I am a little in the dark on the issue and it would be unwise, at this stage having heard openings only, to rule this evidence irrelevant and therefore inadmissible. I overrule the objection.
The third sentence of paragraph 135 was conceded. It must be deleted. The balance was not irrelevant nor was it scandalous or unnecessary assuming that is a valid evidentiary basis for objection, which I doubt. I overrule the objections and allow the surviving portion of paragraph 134.
The objections to paragraph 137(j), 146, 149 and the first sentence of paragraph 152 were conceded. The relevant portions of those paragraphs must be deleted.
As to paragraph 157 the first and second-last sentences were the subject of objection. The first sentence is hearsay, and even though Mr MM is giving evidence, that does not render the information and belief evidence given by the applicant admissible in the hands of the deponent who purports to give it. I rule that the first sentence of that paragraph is inadmissible. So far as the second sentence of three was concerned, the applicant stated that he caused Mr MM to provide documents to the respondent. In paragraph 37 and following of his affidavit Mr MM deposes to meeting certain requests for documentation. The applicant resisted the objection to the second last sentence of paragraph 157 on the basis that Mr MM is a witness. The fact that he is a witness does not render the evidence admissible. As it happens, Mr MM does give evidence consistent with that of the applicant on point rendering the hearsay objection unsupportable. I overrule the objection.
The third sentence was conceded in paragraph 159. That must be deleted. As to the seventh sentence, the applicant conceded the inadmissibility of the word "despite". In my view, the objection was made out for being argumentative. The sentence must be deleted.
Paragraph 160’s irrelevance was conceded. That paragraph must be deleted.
The applicant's affidavit filed 13 April 2020.
Paragraph 10, third sentence was the subject of objection for being hearsay. The applicant resisted the objection stating that the evidence was not hearsay and instead was his state of knowledge. That may be correct as to his state of knowledge, but his knowledge may be factually erroneous. It is not permissible for the applicant to purport to depose to the truth of a fact by stating that, according to his knowledge, the matter stated is true. He does not give the basis of his knowledge. The evidence is hearsay. I disallow it.
The third and fourth sentences of paragraph 41 were the subject of objection. In the third sentence the applicant stated that Mr T agreed to the income splitting arrangement. Mr T does not address the matter in his affidavit. The applicant said Mr T did. That provides a basis for Mr T's cross-examination on point. Otherwise, the applicant asserts that Mr T agreed. It is premature to rule the third sentence inadmissible. The fourth sentence was squarely hearsay. I disallow it. Mr OO is not giving evidence.
Paragraph 64, second sentence was conceded. It must be deleted.
Paragraph 82(a) was the subject of objection. In it the applicant asserted that Mr MM kept the cost report as a document in the company IT system. Prima facie that evidence was hearsay as alleged in the objection. However Mr MM gives evidence about the company IT system. He can be cross-examined on the assertion for what it may be worth. I overrule the objection.
As to paragraph 82(b) the same response applies. I overrule the objection.
The whole of paragraph 84 was conceded. That paragraph must be deleted.
Some overall comments
Many of the objections on which I have ruled were highly technical and in some instances trivial. This trial is likely to take a long time and will involve complicated accountancy issues. Not all of the objections taken are important in the overall. In this case I require counsel to focus more keenly on the real issues in dispute and exercise some independence of judgment in not acting as mouthpieces for their client by ventilating at immense cost to their clients but moreover, to the court, trivial and inconsequential evidentiary objections. Those who draft trial affidavits must be more attuned to evidentiary issues. In other jurisdictions of the Commonwealth courts and in state courts, important trial affidavits are settled by counsel so that glaringly inadmissible matters are jettisoned. That should have happened with the trial affidavits in this case.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 28 April 2021.
Associate:
Date: 6 May 2021.
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