Verdon and Verdon (No 3)

[2021] FamCA 269

FAMILY COURT OF AUSTRALIA

VERDON & VERDON (NO. 3) [2021] FamCA 269

FAMILY LAW – RULING ON EVIDENCE – various posts of consequential affidavits ruled admissible or inadmissible.

Codelfa Constructions Pty Ltd v State Rail Authority (1982) 149 CLR 337

APPLICANT Mr Verdon

RESPONDENT Ms Verdon

FILE NUMBER MLC 12735 of 2017

DATE DELIVERED 29 April 2021

PLACE DELIVERED Melbourne

PLACE HEARD Melbourne

JUDGMENT OF Wilson J

HEARING DATE 29 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

1. Parts of the affidavit of Mr MM made 13 April 2021, the affidavit of Ms UU affirmed on 13 April 2021 and the affidavit of Mr LL sworn 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

Ms Verdon

Applicant

And

Mr Verdon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Following the delivery of my ruling yesterday[1] in relation to the admissibility of the main affidavits in this proceeding, the parties agreed that a more streamlined approach should be adopted to the recording of reasons for admitting or rejecting disputed portions of other affidavits. 

   [1]Verdon & Verdon [2020] FamCA 269

2. The parties agreed that it will suffice for the impugned aspect of the relevant affidavit to be identified, for the conclusion to be expressed about the admissibility of that portion and if pertinent, for my reasons for judgment at the end of this trial to state why the relevant portion was ruled admissible or inadmissible. 

3. With that agreement reached, I now proceed to rule on the admissibility of the balance of the affidavits on which the parties rely. 

AFFIDAVIT OF MR MM FILED 13 APRIL 2021 

1. Mr MM was at the relevant time the project manager attained by the applicant.

2. Paragraph 9’s table is in my view inadmissible.  The proper person to give evidence about the cost plans is the author of the cost plan, Mr VV.  The fact that the documents to which reference is made in the table are available does not cure the objection. 

3. Paragraphs 3 to 14 are admissible for being relevant. 

4. Paragraph 15 second sentence is inadmissible.  The witness deposes to the incorporation of WW Pty Ltd in 2016 but not his status within it nor does he give details of its contractual relationship with H Pty Ltd.  The third sentence is also inadmissible through this witness. 

5. Paragraph 16 is admissible as this witness was privy to the negotiations. That said, negotiations that are agreed leading to the formation of a contract are admissible whereas negotiations that lead nowhere are not.[2] 

   [2]Codelfa Constructions Pty Ltd v State Rail Authority (1982) 149 CLR 337.

6. Paragraph 27 fourth sentence is hearsay rendering the sentences inadmissible. 

7. Paragraph 28 is inadmissible for being an expression of this witness’s hopes, views, his fastidious behaviour and matters important to him, all irrelevant. 

8. Paragraph 29 is irrelevant. 

9. Paragraph 30 is relevant and admissible. 

10. Paragraph 43 has been conceded as being irrelevant. 

AFFIDAVIT OF MS UU AFFIRMED 13 APRIL 2021

1. Paragraph 16 is inadmissible for two reasons, the first on the basis of hearsay and the second on the basis that the word “trends” is unexplained and meaningless. 

AFFIDAVIT OF MR LL SWORN 13 APRIL 2021

1. Paragraph 13 second sentence is inadmissible.  It is this witness’s statement of the applicant’s narration to this witness of the applicant’s intention.  The applicant’s intention is irrelevant and the statements through Mr LL of the applicant’s intention is hearsay therefore inadmissible. 

2. Paragraph 16 second sentence is conceded for inadmissibility.  The balance does not state that the BAS statements were withdrawn, merely that an unidentified source at the ATO allegedly told him.  It is not admissible in that form.  The final sentence is admissible. 

3. Paragraph 20 is not admissible. 

REPLY WITNESSES

1. At the request of Mr Strum QC for the applicant, at the close of play yesterday I indicated that at this stage of the trial I was not prepared to rule as inadmissible the entirety of the affidavits of Mr XX, Mr T, and Ms DD. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 29 April 2021.

Associate: 

Date:  5 May 2021