Walters and Walters - [2007] FamCA 832

FAMILY COURT OF AUSTRALIA

WALTERS & WALTERS

[2007] FamCA 832

FAMILY LAW - FALSE EVIDENCE - Family Law Act Sec. 79A(1)(a) - Evidence – Failure to rely on documents, records, witnesses - Rule in Jones v Dunkel discussed and applied to documents of party, party’s bank, records of others and evidence of possible witnesses

Family Law Act 1975 (Cth) Sec.79A(1)(a).

Jones v Dunkel (1959) 101 CLR 298
Cadwallader v Bajco Pty Ltd [2002] NSWCA 328
Fabre v Arenales (1992) 27 NSWLR 437

Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504; [2003] NSWCA 131; BC200303670
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157; [2001] FCA 1040; BC 200104902

Payne v Parker (1976) 1 NSWLR 191
O'Donnell v Reichard (1975) VR 916
Earle v Castlemaine District Community Hosptial (1974) VR 722
Brandi v Mingot (1976) 12 ALR 551
AMP Services v Manning [2006] FCA 256
Ho v Powell (2001) NSWLR 572
White Constructions ACT Pty Ltd (In liq) v White [2005] NSWCA 173
Shellengerg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594
Skye Helen O’Meara v Dominican Fathers [2003] ACTCA 24

APPLICANT:

MRS WALTERS

RESPONDENT:

MR WALTERS

FILE NUMBER:

NCF

793

2002

DATE DELIVERED:

3 August 2007

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

Justice Mullane

HEARING DATE:

25 & 26 July, 27 & 28 September 2006, and 19 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Messrs Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Messrs Rod Power Lawyers

Orders

1These proceedings are listed at 2.15pm on 15 October, 2007 for directions as to the further hearing of the Section 79A Application.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Walters & Walters.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 793 of 2002

MS WALTERS

Applicant

And

MR WALTERS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This was a preliminary hearing to determine whether under Section 79A(1)(a) of the Family Law Act there was fraud or false evidence by the husband in property proceedings between the parties determined by Rowlands J by orders made on 20 December 2004.

LIST OF DOCUMENTS

Subject to objections allowed, and in addition to exhibits, the following documents were read in the proceedings:

Document Dated Sworn

Orders made 13/3/03
Orders made 2/5/03
Exhibit W18 from hearing before Rowlands J – wife April/May 2003
Orders made 12/9/03
Orders Made 11/11/03
Husband’s Affidavit worn 19/11/03, para 82
(Appeal Book 1 page 112-113) – wife 19/11/03
Appeal Book 5 transcript pages 320-333 – wife 12/5/04
Appeal Book 5 transcript pages 423-425 – wife 13/5/04
Judgment of Rowlands J, Appeal Book 1,
pp.11-17 – husband 19/11/04
Orders and Reasons of Full Court 15/3/06
Application of wife (79A) 7/4/06
Response of husband 11/5/06
Affidavit of the son– wife 10/3/06
Financial Statement – wife 3/4/06
Affidavit of wife 3/4/06
Financial Statement – husband 11/5/06
Affidavit of husband 11/5/06
Affidavit of the daughter– husband 11/5/06
Affidavit of wife 25/5/06
Affidavit of the son – wife 25/5/06
Affidavit of Mr A 11/7/06
Affidavit of husband 21/9/06
Affidavit of Ms LS 21/9/06

BACKGROUND

By interim orders in the property proceedings made on 13 March 2003 Judicial Registrar Loughnan gave the wife exclusive occupancy of the former matrimonial home that included facilities for breeding, keeping and training dogs. The husband had dogs on the property at the time. He was ordered to remove them. The wife, as a condition of the removal of the husband’s dogs, was ordered to cause $45,000 to be held by her solicitors pending further order.
There was an order as follows:
3 That there be a payment out of that fund by the wife’s solicitors of up to $800 per week upon provision to that solicitor of proof of kennelling expenses incurred by the husband in respect of the said [dogs].
In the final Judgment in the property proceedings Rowlands J held that “about $40,000” (the parties agree in these proceedings that the actual amount is $40,225) of the funds held by the wife’s solicitor had been paid to the husband in respect of alleged expenses under Order 3. Rowlands J accepted on the evidence before him that the husband was entitled to receive those funds under Order 3.
The wife claims that evidence in the husband’s case supporting that finding was false.
The wife appealed the decision of Rowlands J and sought leave to adduce fresh evidence at the hearing of the appeal. The Full Court of the Family Court of Australia on 15 March 2006 refused her leave to adduce fresh evidence and adjourned the hearing of the appeal to allow the wife the opportunity to take proceedings under Section 79A to set aside the orders of Rowlands J.
On 15 May 2006 the proceedings were fixed for a 2 day hearing on the preliminary issue of whether there was false evidence at the hearing before Rowlands J. As it turned out, the hearing took nearly 5 days. It concluded on 19 January 2007. At the end of the hearing written submissions were ordered, the last of which was not received until 29 June.

ALLEGED FALSE EVIDENCE

The wife provided the following particulars of alleged false evidence or fraud:
1.        The husband gave evidence at the Trial that he paid a maximum of $800.00 per week per dog for kennelling expenses in relation to 27 dogs he removed from the property at [U] in or about March 2003.
2.        The husband gave evidence at the Trial that he had provided evidence of the costs of kennelling the dogs by way of provision of invoices to the wife's solicitors.
3.        The husband gave evidence that he had received invoices from [Mr S], (the son), (the daughter), [Mr K] and/or [Ms K] and [Mr M] and paid them monies on the invoices in relation to the kennelling expenses of the dogs.
4.        The evidence at the Trial was that the wife had paid approximately $41,500 to the husband on invoices having been provided by or on behalf of the husband to the wife's solicitors.
5.        The evidence of the husband that he had paid monies in relation to kennelling expenses or at all was false and misleading and given by the husband knowingly and intentionally to mislead and deceive the Court and the wife.
6.        The evidence in relation to the provision of invoices by the husband or others on his behalf to the wife's solicitors contained false and misleading information and that the invoices had been brought into existence knowingly and intentionally to deceive and mislead the Court and the wife.
Unfortunately, those were the best particulars the Court was able to extract from the applicant wife on the first day of the hearing. Those particulars unfortunately did not provide any more specific identification of the evidence alleged to be false. On the third day of the hearing, however, I was able to obtain more details. Those were:
(i)the invoices the husband relied upon to prove payments were false evidence;
(ii)the evidence that kennelling expenses were paid by the husband was false;
(iii)the husband’s evidence before Rowlands J at transcript pp 320-333 was false; and
(iv)the evidence of what the husband was being charged for in the invoices was false.
I have also relied upon the written submissions of the wife to identify elements of the wife’s grounds under Section 79A. Doing the best I can on the material, the wife contends that the following evidence was false:
a)Statements in the invoices from alleged suppliers of kennelling for the husband’s dogs;
b)Evidence “in relation to the provision of invoices”; and
c)Evidence that the husband had paid amounts for kennelling.
Despite numerous attempts to have the wife properly particularise the evidence alleged to be false, she did not specify any particular evidence, but rather the effect of the evidence.
But she nominated 3 pieces of evidence at the property hearing that she claimed included false evidence. The first of these is evidence by the husband in an affidavit. It is contained in Document 6 in these proceedings and the relevant paragraph contains the following:
82Since being required by the Order of the Court on 13 March 2003 to remove “my […] dogs” from the property the following has occurred:
82.1All dogs were removed from the property on or about late March, 2003;
82.2the dogs have been kennelled with a various persons;
82.3I have rendered accounts regularly to [the wife] through her solicitor;
82.4I regularly receive $800.00 in reimbursement of the kennelling expenses;
82.5Payments were not received in accordance with the March Order. This led to me bringing proceedings for enforcement and contravention;
82.6On 12 September, 2003 [the wife] was found to have breached the Order of the Court.
It is noted that in this passage the husband gives no direct evidence that he paid any of the persons with whom the dogs were kennelled any amount. However, he refers to “reimbursement of the kennelling expenses” and the inference, therefore, is that when he received any amount from the wife’s solicitors pursuant to the interim orders, he had already paid that amount (or more) for kennelling and the payment was in reimbursement or part reimbursement of that payment. The wife’s argument is that the inference is false.
The second piece of evidence alleged to involve false statements is document 7, an extract of the cross-examination of the husband before Justice Rowlands on 12 May 2004. The evidence is as follows:
MS BRIDGER: Thank you, your Honour. [Mr Walters], some of the dogs that you took in March 2003 when your wife was given an order for exclusive occupation of the property, included dogs for example like [Dog C], didn't it?---I don't think [Dog C] was out there, no. She was out there but she wasn't on that list, I don't think.
You took [Dog C] with you, didn't yo_--I don't think [Dog C] was on that list. And you took [Dog F], didn't you?---I don't know whether she was on the list either.
You took 27 dogs, didn’t you?--- Twenty seven in total, yes.
And could you do a list of the 27 dogs that you say - - - ?---I have done a list.
Where is that list?--- You'd have it right there because that was the list that come from the solicitor, from Rod - my solicitor, Rod Powe, and even at the Court in Sydney.
HIS HONOUR: Is that annexure A?
MS BRIDGER: No, it's not, your Honour. That's not annexure A.
HIS HONOUR: All right.
MS BRIDGER: Where do you say is this list, [Mr Walters], where do you say?--- Well, excuse me, - -
Where's the list of the dogs that you say - - - ?--- When we - when we went to Court the list was produced to the Judicial Registrar down there, and there was a dispute of how many dogs of ownership and in control of me by my ex-wife, but it was then proved that I did have 27 there under my control and owned, so they were the 27 that were named is in that list.
Well, perhaps you could do a list for us - - - ?---I couldn't think - I could not" think - two and a half years, two years ago or how many, which - exactly which dog was on it.
You know that [the wife] was ordered in March 2003 to pay kennelling expenses of $800 a week?--- Well, she wanted the property.
Just please, wait until I've asked the question. 13 March 2003, that she was to pay up to $800 a week upon provision to her solicitor of proof of kennelling I expenses - - - ?--- That's true.
- - - incurred by you in respect of the [dogs], the 27 [dogs] that you say you removed from the property at [U]?---Not what I say, it's what I did. I removed 27 dogs from the property.
Have you ever provided to [the wife] a list of what [dog] is where?--- That's nothing to do with it. They were my dogs. I didn't have to provide and say which dog was where. I wasn't asked to do that through the Court.
You were ordered to provide evidence of kennelling expenses, weren't you?---That's right, of 27 dogs, which I did.
Well, where are the 27 dogs now?---Well, they've slowly diminished.
How many dogs are there now?---Fourteen, I think.
And where are those 14 dogs?--- (The son’s) got 10.
Well, you could tell us which ones (the son) does have, don't you?--- Well, I've - I've never been asked, and I don't think I have to. I don't - -
I'm asking you now to provide me with a list tomorrow morning - - - ?---But I'm not. But I'm not going to because it's got nothing to do with you.
- - - of a list of the 10 dogs that you say (the son) has, and where are the other four dogs?--At her sister's, [Mrs K’s].
You could provide us with a list of the names of the dogs that you say are at [Mrs K’s] by tomorrow morning, couldn't you?--- If I wanted to.
Well, perhaps - - - ?---If I'm ordered to, I will.
Perhaps your Honour we could have an instruction from you, a direction from you.
HIS HONOUR: Well, it's part of the property that I'm concerned with and if it's sought it should be provided. As I understand the evidence you now have 14 dogs, 10 with (the son), four with [Mrs K], and you want them identified?
MS BRIDGER: I do, your Honour.
HIS HONOUR: Yes. Are they all named dogs, [Mr Walters]?--- Yes.
All right. You could provide overnight the list?---Mm.
Now, in relation to the earlier list, 27, is it your belief that those 27 were listed in an affidavit or was there a piece of paper which was prepared in the witness box and handed up to the Judicial Registrar, do you remember how it was that that list came into being?--- Yes, I think it was just a list written out, your Honour, and it was agreed to by both parties.
And - -
MS BRIDGER: I'm sorry, your Honour, I beg your pardon.
HIS HONOUR: Do you believe it was an exhibit before the Judicial Registrar?
MS BRIDGER: I don't think we've got an answer yet, your Honour.
HIS HONOUR: Yes. Do you remember if it was an exhibit? Was it one of those with a blue tag on it? I'm not sure.
All right.
MS BRIDGER: Did you give a list of the dogs, the 27 dogs that you took when you left [U property], to your solicitor?---Some of them were unnamed pups, so.
Did you give a list to your solicitor?---I would say so, yes, I possibly did.
Well, I call for that list then, your Honour.
WITNESS: Possibly. I'm not quite sure. I'd have to ask Mr Powe that.
MS BRIDGER: If there is a list, your Honour, I make a formal call for it.
HIS HONOUR: Yes.
MR DUANE: Your Honour, I'd just asked - my whisper was that my instructor didn't go down to Sydney. Mr Boyd should have a copy of the handwritten list that was apparently handed up to the Judicial Registrar.
MS BRIDGER: Can I have one?
MR DUANE: So the answer may lie at home.
MS BRIDGER: We'll have a look, your Honour.
HIS HONOUR: Yes, all right. Good. Your only obligation at the moment, [Mr Walters], is in relation to 14 dogs, their names, the 10 with (the son) and the four with [Mrs K]?--- There's one that's not named.
One is not named. We'll just say unnamed dog?--- Yes.
MS BRIDGER: Thank you, your Honour. You see, you know - -
HIS HONOUR: And you better put its breeding down, I think?--- Yes, of course.
MS BRIDGER: You know, don't you, that [the wife] doesn't accept that the invoices, you have copies of the invoices that you have presented for payment of these kennelling expenses, relates to the dogs that you took; you know that, don't you?---I don't know what she believes.
You know, don't you, that [the wife’s] solicitors has sought a number of times for information as to what dog is kennelled where?---I don't have to give that information. I was not told by the Court to give that information, therefore it had nothing to do with her, but she'd made it her business by going around to different trainers trying to find out.
[The wife] was paying for the dogs - - - ?---Excuse me, out of whose money?
[The wife] was providing $800 a week to you for what you say were kennelling expenses, wasn't she?---Not what I say it what - what was kennelling expenses.
And she was essentially paying for your dogs, wasn't she?---Excuse me? No.
So it's not unreasonable, considering that she was providing the $800 a week, -
HIS HONOUR: Well, that's an argument that you're having - -
WITNESS: She wasn't providing it.
HIS HONOUR: - - - (indistinct) in fact. As I understand it, she got the property and he got some money to help him support the dogs because he wasn't on the property. If you're going to run an argument that he got money for 27 dogs, and in fact he only had 14, well, that ought to be squarely put.
MS BRIDGER: Thank you, your Honour. You see, what I'm putting to you is this, [Mr Walters], is for example, you maintained at one stage that you had dogs at [G] Kennels, do you remember that?---I didn't maintain it, I did.
And you sent a copy of an invoice to Mr Boyd, didn't you?---And they're still there, that's where (the son) lives.
Who owns [G] Kennels?---I don't know. You'd have to ask (the son) that. (The son) rents the place.
And what is [G] Kennels?---Well, I don't know. I mean, if the - his address is [G Road, T], so (the son) probably thought well, he would call it [G] Kennels.
Do you know if it's a business that your son, (the son), runs, [G] Kennels?---No, he rents the - the place. He rents the house.
Well, tell me what's [G] Kennels?---Because they were registered kennels. I don't know what their names were previous. They were registered kennels by the council. (The son) wanted somewhere to train some dogs, so therefore (the son) rented the place because there was some few kennels, half a dozen kennels there, to train dogs, and that's exactly what he's doing.
What expenses did (the son) charge you for your dogs?---$30 a week.
For what?---For the dogs?
Well, what did he do for the $30 a week?---Feed them. Water them.
What about [Mr S] at [B] Kennels, you would accept from me that there is no entry in a telephone directory for the [rural NSW] area for any place called [B] - and it's spelt, your Honour,
[B] Kennels?--- That [Mr S] calls his kennels - -
Would you accept that from me?---No.
Perhaps you could find an entry for me in either the yellow or the white pages for some place" called [B] or [B] Kennels?---Excuse me, she knows where it is. She was out there hassling, trying to find out about the dogs. Now, whether he calls it [B] Kennels or calls it [Mr S] Kennels, has nothing to do with me.
Well, how long did you have dogs out there?---Twelve months, I suppose. I don't know.
And what dogs did you have out there?---Part of the 27th of the list.
Wen, what part of the 27 on the list were at [B] Kennels?---I couldn't remember actually. I swapped and changed them.
They're your dogs, aren't they?--- Yes, but the 27 dogs, I'm not here to - to remember things like that when it was never an order.
What about the dogs that are at [W]?--- Yes.
Where is [W]?---[W], up near [N].
Why did you have dogs as far away as [N] being kennelled?---Excuse me, I have had twenty - I had 14 days to get rid of seven - 27 dogs. There's not now - the man out there, [Mr M], he looks after - and that's all he does, he's a breeder - I knew he would look after some of the older breed bitches until I could find a spot back here, close, where I could keep an eye on them.
And who's [Ms T]?---She's a lady who lives at [M].
How many dogs did you have kennelled there?---I think we had about six or eight there, I think, right from the very - from day one, eight, I think.
And just going back to [B] Kennels, this is this [Mr S], I think, is that what you said his name is?--- That's true.
He was only kennelling the dogs for you, was he?---No. He had yards, and fed them.
What else did he do?---Fed them and give them water.
And gave them somewhere to rest their weary bones at night?---Well, he would have had - naturally had some type of kennels in the yards, yes.
You see, isn't it the situation that in June last year [Mr S] was rearing the dogs for you, wasn't he?---He was selling them. What's - I don't think you know the question you ask. I don't think you know what you mean.
Did [Mr S] give you the invoices?--- Yes.
You then sent them by Australia Post to Mr Boyd at his office, is that right?--- Yes.
And then - - - ?---Every week when I paid him.
And as far as you were concerned [Mr S] was doing no more than feeding and watering the dogs and giving them somewhere to sleep?--- What would you be expecting him to be - to be doing with them?
And you are quite sure that he wasn't rearing dogs, is that right?--- Well, that - you don't know what you're saying.
Please answer the question?--- You don't know what you're saying, that's what I'm saying. Because - -
Are you saying that Mr - - - ?---Because rearing is - is feeding them and having them in the same yard of older dogs, he's just feeding them at the same time. So it means exactly the same thing, if that's what you're trying to get around. If you had - -
Well, it could mean something else, doesn't it?---Pardon?
Rearing means that your - - - ?---What I mean is you're still- but you're still feeding them.
Please, don't - just wait until I've asked the question?---And you asked me.
Rearing dogs means that he's doing a little bit more than just feeding and watering them, doesn't it?---No.
Tell me, - - -?---No, it doesn't.
HIS HONOUR: I assume it involves the upkeep of the dogs, does it?---Sir - sir, it means they put them in yards, exactly how I used to rear them out at [U property], they went in yards. As long as they had a house to sleep in, you fed them morning and afternoon, they had water, that was it. If you had an older brood bitch, right, that you didn't let run in the property but you had them in a yard, she would be in a yard, with a house to sleep in, she would have water and she's fed morning and afternoons. So what is the difference? That's what I'm trying to say.
And there was no exercise involved?---Well, because they're in long -long yards, your Honour, you see, and - and, I mean - I mean, an older person won't run as much as a younger person.
MS BRIDGER: What does (the daughter) [Walters] have to do with [G] Kennels?---Well, (the daughter) was living there with (the son).
So she runs [G] Kennels as well as your son, (the son), does she?--- They were living there.
No, that's what I asked you, she's running [G Kennels] - - - ?---There was no running.
Well, can I show you this document? Might I approach, your Honour? You would agree with me that that's an invoice for 19 September 2003?--- Yes.
From something called [G] Kennels, is that right?--- That's true.
And whose signature - - - ?---It's my daughter, (the daughter) [Walters], when she was living there.
MS BRIDGER: What did your daughter, (the daughter) [Walters], do for the $30 per dog a week?---(the daughter) lived there and (the son) lived there - -
No, no. I'm asking you what did your daughter, (the daughter) [Walters], do to charge $30 a week for each - for how many dogs does she say she had?---Eight.
What did she do for each of those eight dogs?---Fed them, watered them.
HIS HONOUR: Was it a reasonable charge?---Well, yes.
I was asking, was it - - - ?--- Yes, yes.
MR DUANE: Your Honour, I think the wife would have to concede that. It's what she claims are costs per week.
HIS HONOUR: We've got an expert in the box. I thought just to find out what it is, otherwise I'll never know.
MS BRIDGER: So (the daughter) and (the son) are billing their own father to look after the dogs for him?---Well, they had to feed them. They've got to get a feed.
Do you have a lot of contact with (the daughter)?---Probably went there the same as many - as - as (the son) is now, probably a couple of times a week, and now (the daughter) is living in a different house, I might call in once or twice a week and see her.
You see, when did you stop claiming $800 a week for the dogs?---As they went away, after they'd go away and get broken in, they'd come back and they'd go to trainers, or if they died, it might be a couple of them died or (indistinct) died.
What about when they went to trainers, would you charge Mrs [Walters] kennelling costs for them when they were at trainers?---No.
Quite sure about that?---Positive.
HIS HONOUR: What's the arrangements with its owner. They don't charge but they get half the winnings?---That's right, that's right.
So they don't charge you?---Some trainers do. Some trainers will change - charge you up to $80 a week to train someone's dog and more, plus - -
But do they get a share of the winnings then?--- They get a less share.
MS BRIDGER: Your Honour, - -
HIS HONOUR: The 50/50 arrangements is no charges but 50 per cent of the winnings?---Well, when I say 50/50, 50/50 of winnings. I mean -I mean, if they run second at, say [C] and it's worth full, say a third at [C] it's worth $80, they keep it for their expenses for the dog, to feed it and so forth.
They actually hold - yes?--- Yes.
And the same for a second?---I beg your pardon?
The same for a second place, for a second - - - ?---Well, a second - it depends on where it is, your Worship, they're all different, a lot of them are different. Say, like I haven't been to the dogs for a long (the son)e, but [S] – [G], sorry, on Tuesday night might be 260 or 280, a third might be 100, 120.
If it was $280 what would they give the owner if they're on a 50/50 basis?---It depends on what agreement you make.
Yes?---They might keep the first 100 and give you - say, they won 280, they keep the first 100. They split 180 with you so you get 90.
Yes, all right.
MS BRIDGER: Let's just go to some of these dogs for which [the wife], 27 dogs that [the wife] was paying $800 a week for, for some (the son)e, [Dog M] was one of the 27 dogs you took with you when you left [U], wasn't it?---I think you said a while ago he was in Victoria.
Please just listen to what I'm asking you?---No.
You're quite sure?---I'm pretty sure of that, yes.
Well, were you charging [the wife] kennelling expenses for [Dog M] in October last year?---If - if [Dog M] wasn't on the list, no.
Well, where was [Dog M] kennelled in October last year?---Probably at (the son’s), is when he come back from Victoria, about then, I suppose.
It wouldn't have been kennelled at [H]?---They haven't got no kennels at [H] - kennel dog there, so.
Now, [Dog T], did you take her when you left [U]?---No, I think she might have been one of the ones that had gone from there. I don't think she was in the list. She could have been, but I mean, after she was taken off she would have been taken off the list.
What about [Dog A], was she one of the ones you left with in March 2003?---Yes, she would have been one of those.
Well, where was she being kennelled in November last year?---Well, she's only went from being reared to - -
No. I'm asking you, where was she kennelled in November last year?---I'd say with (the son), possibly, yes.
At [G] Kennels?--- Yes.
[G] Kennels is at [T], isn't it?--- Yes.
Not [H], is it?---No.
You live at [H], don't you?--- Yes.
You see, you were charging [the wife] kennelling expenses for [Dog A] November - - - ?---I don't - I don't know.
What I'm putting to you is that [Dog A] was in fact with you at [H], wasn't it?---No. I've never had a […] dog at my - at [H] in my life and never will.
Can I show you these documents. There are three letters. Have you seen any of those documents before?--- Yes, I've seen that one anyway. That's where she tried to renege on paying.
No, please just listen to what I'm asking. Have you seen those documents?--- Yes, I have.
You would agree with me, would you not, that each of those documents is a letter from your wife's solicitor to your solicitor?--- Yes.
Asking for details about where the dogs were kennelled and the expenses that you say you were incurring?--- Well, we did say where the dogs were kennelled.
You didn't provide any information to your wife, did you, at al1?---As far as?
About any of the information that you were asked to produce?---I didn't have to.
You didn't provide any other information, did you?---I didn't have to. I didn't have to. I was advised - -
HIS HONOUR: So as I understand the - - - ?---I was advised by my solicitor.
So as I understand this question, to your wife means to your wife or to your wife's solicitor, does it?
MS BRIDGER: Yes. Perhaps if I'll rephrase it, yes, your Honour.
HIS HONOUR: Yes.
MS BRIDGER: And it would be fair to say that you made no reply to the information requested either to your wife or to your wife's solicitor, did you?---By advice of my solicitor, no.
HIS HONOUR: What did the Judicial Registrar's orders say?
MS BRIDGER: The Judicial Registrar's orders are, your Honour, that first of all, the wife would have exclusive occupation of the house; the parties agreed that the husband could remove 27 [dogs]; condition of the order for exclusive occupation, the wife was refunded $45,000 to be held by her solicitor until further order of the Court; payment out of that fund of up to $800 a week upon provision to the solicitor being the wife's solicitor of proof of kennelling expenses incurred by the husband in respect of the [dogs], and then it goes on and the order 6 was the trial Judge was to determine the character of the payments made.
HIS HONOUR: Yes, thank you.
MS BRIDGER: Thank you, your Honour. Could I have those - -
MR DUANE: Your Honour, there were further orders, your Honour, about those orders.
HIS HONOUR: I think the orders should be before me formally, but they're not.
MS BRIDGER: Yes. I will tender - -
MR DUANE: They are, your Honour, they're in the - they were certainly marked with a cross and I'm pretty sure that they're in - -
HIS HONOUR: As long as they're before me.
MR DUANE: Yes, they're documents 8, 11, 12, your Honour, and there was a stoush and the wife was put on a bond to comply with those orders.
HIS HONOUR: You say that it's document 8?
MR DUANE: Yes, 8, 11 and 12 in your Honour's - -
HIS HONOUR: Thank you. So there's no need - they're part of the documents before me.
MR DUANE: Yes.
MS BRIDGER: Your Honour, I tender three documents to form part of a bundle. It's three letters from my instructing solicitor to the husband's solicitor dated 30 April 2003, 9 May 2003, 5 February 2004.
HIS HONOUR: Have you got replies?
MS BRIDGER: No.
MR DUANE: I think it was put on the basis that there was no reply, your Honour, to that issue.
MS BRIDGER: No reply, your Honour, to that issue only, to the dog issue only.
HIS HONOUR: Yes.
MR DUANE: And can I just reserve the right within a reply, if there is such a basis?
HIS HONOUR: Yes. Well, it .nay even be that the reply was in another form and there are many ways in which solicitors can - -
MS BRIDGER: My instructions are that there were no reply to the dog issue at all.
HIS HONOUR: Yes. Exhibit WI8, bundle of letters.
EXHIBIT #W18 BUNDLE OF LETTERS
MS BRIDGER: Now, one of the dogs that you took after the orders of March 2003 were made, was [Dog C], wasn't it?---l don't think [Dog C] was involved in that 27.
You're quite sure about that?---No, I'm not, but I don't think she was.
Well, let's assume that she was - - - ?---I don't think she was.
No, let's assume that she was, that she was in one of the 27 dogs, - - - ?---No, she wasn't, I'm sure.
You're quite sure about that?---I'm pretty sure.
Well, let's just assume for practical purposes at the moment that she was in one of the 27 dogs that you took?---Right.
And of course you provided invoices, copies of invoices to Mr Boyd on 21 March from [K] Kennels for 19 dogs, do you remember that?---If you're saying 19. I can't remember that now exactly which - there was a lot of dogs swapped around because they didn't suit different places.
I see.
HIS HONOUR: You put a hypothesis to the witness that he doesn't accept. Now, if you're putting a hypothesis - -
MS BRIDGER: I withdraw it, your Honour. It's not going to go very far at the moment, I don't think.
Tell me, are there any dogs for which you have claimed kennelling expenses that weren't with [G] Kennels or [K] Kennels or [Mr M] or any other person on any of the invoices?--- What the invoices state - -
No, please listen to what I'm asking you. Are there any dogs for which you have claimed kennelling expenses from [K] Kennels, [G] Kennels, [Mr M], [Mr K] or [Ms T] for dogs that weren't at those kennels?---No. I think [Ms T] was only there a week or two or something like that. So this was - it was a rush to get them out because I couldn't find enough places to place 27 dogs. I only had 14 days.
And [Dog MK], it's racing presently in Queensland, isn't it?---No.
[Dog C] recently has had nine pups, hasn't she?---I think [Mr D] said she had nine but I think one died, horn memory, I think he might have said - told me that.
Is it racing in Victoria?---No.
Where is it racing? (the son’s) - it's out at (the son’s) house.
So it's not racing at all?---I don't know what (the son’s) doing with it. If he wants to race it, he may.
Is this another dog that you've given to (the son), is it?--- Well, I've got nowhere to put any dogs, you see.
Could I have exhibit, I think it's HI, your Honour? Perhaps if I give the - -
HIS HONOUR: When you say you've got no place to put them, you were claiming kennelling expenses?--- Yes, but I've got to pay for that, your Honour. .
Yes?---I'm getting no - not enough money to go paying for eight or ten dogs to be boarded out, out of my own pocket.
The dogs that have been kept out of the moneys you were getting, I assume - - - ?---Paid for those dogs, yes.
Yes, you were putting those dogs into races and things of that kind?---No, they were just brood bitches and pups mostly.
So you just kept them for the sake of keeping them?---Well, they were brood bitches and pups, pups to grow up, and brood bitches are still sitting there waiting for me to breed with.
Well, you've had some time to breed, why haven't you been about the business of breeding, if you've gone to the trouble of keeping them?--- Well, I can't breed anywhere, I've got nowhere to breed.
MS BRIDGER: What about your racing dogs, where were you keeping those?--- Which - the racing dogs?
The racing dogs?--- Which racing dogs?
That you took .with you when you left?---I don't think there was any racing dogs then. (The son) might have had a couple.
No racing dogs at all?---I don't think so. I had to get - I had to get rid of my racing dogs.
Well, let's look at [NM]?---No, she's - -
She was whelped in April 200 1. You took her, didn't you, when you left in March - - - ?---She's only just turned - -
Please wait until I've asked you the question. You took her with you when you left in March 2004, didn't you?---In 2004?
2003, I beg your pardon?---She would have been one of them, yes.
Well, she's a racing dog, isn't she?---Excuse me, she was 12 months old, not even 12 months old then.
Where did you have her?---She would have been probably at [Mr S’s]. She was at [Mr S’s].

The third area of evidence the wife asserted to involve falsehood was evidence in the husband’s case that the amounts for which the husband claimed and were paid to the husband by the wife’s solicitor, had previously been paid by the husband for kennelling expenses for dogs.

MR A

Mr A, a Forensic Document Examiner, gave evidence in the wife’s case. He undertook the following examinations of the invoices/statements for alleged kennelling, for which the husband was reimbursed:
a)A microscopic and macroscopic examination of the questioned documents using both a stereomicroscope and magnifying glasses.
b)Were necessary, a latent indentation examination of questioned documents using the Electrostatic Detection Apparatus (ESDA). The transfer of pressure from the writing instrument to the underlying pages creates indentations. These indented areas are developed as dark lines on the resulting ESDA foil which can be useful in determining the provenance of a document.
c)Were necessary, ink differentiation tests using the Video Spectral Comparator (VSC) under infra-red (IR) and infra-red luminescence conditions (IRL).
He made the following findings:
5. As a result of these examinations the following were observed:
a) The invoices can be divided in seven different Invoice/Statement books. These being:

Category

Inv # Range

Kennel

Comment

1

1-4

[CSL]

2

1-100

[CSL]

[G]

#1-50

#51-100

3

51-53

[CSL]

4

254701-254725

[G]

5

1-27

[K]

6

255501-255524

[K]

7

4

[Ms T]

Only 1

b)        Of particular importance; Invoices from [CSL] numbered 1 - 50 and [G] numbered 51 -100 were created from the same invoice book or from an invoice book with a similar printing defect. Note, this defect towards the lower portion of the document.
c)        A different writer has written the CSL invoices compared to the writer who wrote the [G] invoices in this book.
d)        The category 3 invoices numbered 51 - 53 for CSL can be readily differentiated from the category 2 invoices for CSL.
e)        The following Invoice numbers are missing:
i. Category 2 – [G] -Invoice #'s: 55, 70, 84, 87.
ii. Category 4 – [G] - Invoice #'s: 254705 - 254716, 254720
iii. Category 5 – [K] - Invoice #: 6
f)        All invoices, except for the abovementioned, can be accounted for being either produced as originals to the court, as faxed reproductions received by the solicitors acting for [the wife] or from the two invoice books produced by [Mr S].
g)        Each entity (Kennel name) has produced consecutively numbered invoices doctored to "[the husband]". In other words, every invoice in each invoice book was made out to [the husband]. Forensically, no inference was drawn from this observation; it is simply an observation that has arisen from this examination.
h)        Nineteen invoices have alterations to the originally written date. See Appendix A for a list of those invoices with altered dates.
i)        In a number of instances, the alteration to the date placed that invoice out of sequential order in relation to the surrounding numbered invoices.
j)        Five distinct writing styles were observed to have written the handwritten entries on the invoices. These being:
Writer 1
i. [G] - Category 2 Invoice #'s 51, 52, 53, 60, 61, 64, 65, 66, 67, 68, 69, 71,73,74,75,76,77,79
ii. [G] - Category 4 Invoice #'s 254703, 254704, 254705, 254717, 254718.

Writer 2
i.         [G] - Category 2 Invoice #'s 54, 57, 58, 59, 62, 63, 81, 83, 85, 86, 88,           89,90,91,92,93,94,95,96,97,98,99,100.
ii.        [G] - Category 4 Invoice #'s 254701,254702,254719,254721,254722,           254723,254724,254725
Writer 3
i.         CSL - Category 1 Invoice #'s 1,2,3,4
ii. CSL - Category 2 Invoice #'s 1, 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,14, 15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,35,36,3738,39,40,41,42,43,44,45,46,47,48,49,50.

iii. CSL - Category 3 Invoice #'s 51,52,53.
Writer 4
i. [K] - Category 5 Invoice #'s 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15,16,17,18,19,20,21,22,24,25,26,27.
ii. [K] - Category 6 Invoice #'s 255501, 255502, 255503, 255504, 255505,255506,255507, 255508, 255509, 255510, 255511, 255512, 255513, 255514, 255515, 255516, 255517, 255518, 255519, 255520, 255521,255522,255523,255524.

Writer 5
i.         [Ms T] - Category 7 Invoice # 44.
Handwriting Comparison – [Ms LS]
k)        I was satisfied that the same person wrote all the substantive handwritten entries on the documents referred to in items 168 to 194. It was noted, except for item 171 that the signature on these documents was "[Ms LS]".
l)        In using the term "substantive" I am excluding all handwriting that could reasonably be taken to have been written by Post Office staff or by persons in an official capacity. Nor does it include any signatures.
m)      At this stage of the examination of the material submitted there is a strong link between the substantive handwriting entries on items 168 to 195 and the writing on the Invoices attributed to Writer 3.
n)        Given further standards of this writer and more time it may be possible to arrive at a stronger conclusion. Note, these observations refer strictly to the handwriting on these documents and not the [Mr K] signatures.
o)       It was observed that the "[Mr K]" signatures on the category 2 Invoice #s 24, 30, 31, 32 could be simulations of genuine "[Mr K]" signatures. To take this aspect further I require known standards of "[Mr K]” for comparison.
Handwriting Comparison – [Mrs K]
p)        Within the writing provided as known samples of [Mrs K] referred to in item 195 it is not possible to link this writer with having written any of the entries on the questioned documents. This is not to say that this writer has not written some entries on these invoices but simply there is insufficient comparable material available on this document to conduct a meaningful comparison.
q)        To take this aspect, further I require further writing standards of [Mrs K]. This observation refers strictly to the handwriting on these documents and not the signatures.
Handwriting Comparison – [the husband]
r)        Likewise, there is nothing to link the writer of the known writing of [the husband] referred to in items 197 to 198 as having written any of the entries on the questioned documents. This is not to say that this writer has not written some entries on these invoices but simply there is insufficient comparable material available to conduct a meaningful comparison.
s)        To take this aspect, further I require further writing standards of [the husband]. This observation refers strictly to the handwriting on these documents and not the signatures.

Mr A was not a Single Expert. He was instructed by the solicitors for the wife. In cross-examination he conceded that he had had 2 conferences with the wife’s Counsel before he had received formal instructions. It was put to him that it would be difficult for him in those circumstances to maintain objectivity. He was evasive. He also became agitated. When I directed him to answer the question, he rejected the proposition. When asked, he said he did not know if the other party would perceive his behaviour as “objective”. He claimed that he believed that he had maintained objectivity.
When it was put to him that when he undertook the work, he knew that the wife was contending that some of the invoices were “dodgy”, he avoided the question. It was only when I repeated the question to him that he answered it and rejected the proposition. He said that it was suggested to him later in a letter, but not initially. He was not prepared to concede fairly obvious propositions, such as that it would have been better in terms of his objectivity or appearance of objectivity to not be aware of such an allegation. He avoided that question. He denied that such information planted “a sinister thought” in his mind. He rejected the suggestion that it might cause him to look for sinister explanations, rather than innocent explanations.
He testified that in his opinion there was “another invoice book that had not been produced”. This opinion was based upon differences in the dates and layout of information on an original invoice number 5 from CSL and copy 5 in the invoice book exhibit W2 from CSL. He testified that the original of invoice 5 did not come from that book. When cross-examined, he became so evasive that I had to warn him about answering questions directly and not avoiding questions. Concessions which followed then indicated that the copy No. 5 in invoice book Exhibit W6, is in all probability the carbon copy of the relevant invoice, except the date has been over written on the copy in blue. However, when it was put to him he was wrong in saying that “clearly” there was another invoice book, he would not concede that obvious proposition.
Some of his evidence, such as that relating to a printing defect common to all the invoices in one book, discrepancies of dates, over-writes of invoice dates, and altered dates, was not evidence requiring exercise of any expertise, but it was very useful. He also prepared useful summary lists of invoices, including Exhibit W7, which shows the number of dogs for which kennelling expenses were claimed in respect of any particular week and includes the following information:

INVOICES DATE(S)

No. OF DOGS PW

28/3/03 to 18/4/03

19

18/4/03 to 25/7/03

22

1/8/03

27

8/8/03

27

15/8/03

12

22/8/03 to 21/11/03

Excepting weeks of 3/10/03 and 10/10 03 when

26

18

28/11/03

28

5/12/03

24

9-12/12/03

24

19/12/03

34

20 & 26/12/03

34

2 & 6/1/04

24

Between 6 January 2004 and the hearing in May 2004 the number of dogs for which kennelling expenses were claimed in any week varied from as few as 4 to as many as 24.
The invoices continued to issue in respect of alleged kennelling by the son and Mr K after the hearing in May until 4 September 2004 (a total of 13 dogs). Although there is 1 invoice for 10 dogs dated 26 December 2004, it appears that the date on that invoice (because of the invoice number, the period during which invoices were issued and reimbursement claimed, and the sequence of invoices issued) is incorrect and should have been 26 December 2003.

THE INVOICES

Various invoices are in evidence. They are evidence of the statements contained in them, namely that the number of dogs specified were kennelled by the person from whom the invoice was supplied for the period specified and the kenneller stated a charge for the kennelling.
But the invoices are not receipts. None of them state receipt of any amount. Each invoice is not evidence of payment of the amount specified.

THE RULE IN JONES V DUNKEL

The rule

The key case governing whether an inference may be drawn from failure to call evidence is Jones v Dunkel. A useful summary of this rule is provided by Cross on Evidence at [1215][1]:
[1] Justice JD Heydon Cross on Evidence, LexisNexis Online at “[1215] (e) The Rule in Jones v Dunkel” (current to Service 104, July 2007) (accessed online 26 July 2007)
… unexplained² failure by a party to give evidence, to call witnesses,³ or to tender documents⁴ or other evidence or produce particular material to an expert witness⁵ may, not must,⁶ in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case.⁷ The rule can operate against parties not bearing the burden of proof and parties which do bear it as well.⁸ The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered: the details of this condition, so far as elucidated by the cases, are considered below.
(Footnotes ommitted, underlining mine)

The rule will not apply where there is a valid explanation for failure to call evidence

Cross on Evidence

Cross on Evidence discusses what constitutes a reasonable explanation for failure to call evidence at [1215]:
… the rule has no application if the failure is explained, for example by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or other unavailability, or by loss of memory or refusal to waive privilege.¹⁰ Other explanations are that the witness not called by the plaintiff is the defendant's son,¹¹ or that the witness is hostile,¹² or that calling the witness would cause jeopardy or grave prejudice to the witness (eg a witness shortly to face a criminal trial).¹³ But the explanation must be established by evidence and is not merely to be presumed from the passage of time.¹⁴ The fact that the proceedings were proceedings for a civil penalty, the fact that they might be followed by other proceedings for a civil penalty, and the contemporaneous conduct of a Royal Commission into the events in issue with power to recommend criminal charges were held not to be satisfactory explanations.¹⁵ A belief by the defendant that the plaintiff's evidence is insufficient is not a satisfactory explanation.¹⁶ And failure to call an expert witness may not attract the principle where there is no issue on which the witness's evidence would assist.¹⁷ The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness.¹⁸ Hence the inference does not arise where the relationship with the party criticised for not calling the witness has ceased and the relationship with the opposing party has begun.¹⁹ Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely engaged in the transactions in question and present in court during the hearing.²⁰ A former director of a company may not be in the company's camp.²¹ However, failure by a defendant to call a witness likely to be friendly to the interests of the plaintiff (for example, a third party insurer failing to call the plaintiff's husband or friend responsible for the accident)²² may entitle the court not to draw any adverse inference. It seems that the onus of establishing unavailability is on the party against whom Jones v Dunkel operates.²³
(Footnotes omitted, underlining mine)

In Cadwallader v Bajco Pty Ltd [2002] NSWCA 328, the New South Wales Court of Appeal said at paragraph 97:
[97] Jones v Dunkel does not operate where the failure of a party to call a witness is explained. An explanation can be found in the close blood relationship between the potential witness and the opponent of the party who did not call the witness… hostility of the potential witness… (or where) the potential witnesses relationship with the party criticised for not calling the potential witness has ceased, and the potential witness has entered into a relationship with that party’s opponent…
(Authorities omitted)

In Fabre v Arenales (1992) 27 NSWLR 437, the New South Wales Court of Appeal (per Mahoney JA, Priestley and Sheller JJA concurring) considered the principles in Jones v Dunkel in the context of inquiring whether there was a duty of care owed between driver and passenger who were both running away from police in a car chase. Mahoney JA when considering the principles in Jones v Dunkel said at 445-446: “a Jones v Dunkel inference will not be drawn if there are facts which provide an explanation of why the witness was not called or which show that the reason for not calling him was not that the party “fears to do so”.” The Court held that (from the headnote at 27 NSWLR 437): “a Jones v Dunkel inference may not arise if, for example, a witness has a reason for not telling the truth or refusing to assist and the party who may call such witness is aware of this, particularly where a third party insurer is conducting the proceedings on behalf of that party and the witness who is not called to give evidence is that party. (450B-451B)”.
The Court discussed what may consitute a valid explanation for not calling a witness at 449–50:
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship with the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness “blind”.
… A Jones v Dunkel inference may not arise if, for example, the witness has a reason for not telling the truth or refusing to assist and the party who may well call him is aware of this.

A belief by a defendant or respondent that the plaintiff or respondent’s case is insufficient is not a satisfactory explanation for not relying on evidence, (Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504 at [663] – [664]; [2003]NSWCA 131; BC200303670)
The significance of the inference where a party fails to call a witness depends on the closeness of the relationship of the absent witness with the party who did not call the witness (Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [164]; [2001] FCA 1040; BC 200104902 per Hill and Finklestein JJ)

The Rule cannot be used to fill in gaps in evidence or permit an inference that the evidence not tendered would have been damaging to the party

Cross on Evidence at [1215] on this issue states:
… while the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it.^23A The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.²⁴ Nor does the rule prevent any inference favourable to the party who has failed to call the witness from being drawn: other evidence may justify the drawing of the inference.²⁵
(Footnotes omitted)

The evidence must be such that it would have elucidated a matter

Cross on Evidence at [1215] cites the following passage from Payne v Parker[1976] 1 NSWLR 191 at 202 (CA) in support of this principle:
[a]ccording to Wigmore⁵⁴ the … condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts,⁵⁵ might have proved the contrary,⁵⁶ would have a close knowledge of the facts,⁵⁷ or where it appears that he had knowledge.⁵⁸ I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.

The evidence must be expected to be called by one party not the other

Legal principles

In order for Jones v Dunkel to apply, the “first condition” must be satisfied- that is “the missing witness could be expected to be called by one party rather than the other”: Parker v Parker (1976) 1 NSWLR 191 at 201-202 per Glass JA; Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at par 98. In relation to the non-calling of a witness, the rule cannot be applied unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness: O'Donnell v Reichard(1975) VR 916 at 929 (FC).
In determining which party would be expected to call the witness, the passage in Cadwallader (supra) referred to in the husband’s submissions[2] provides some guidance:
[98] In his classic judgment in Payne v Parker (1976) 1 NSWLR 191 at 201-202 Glass JA said that the first condition for the operation of Jones v Dunkel was that "the missing witness would be expected to be called by one party rather than the other". He continued:
"The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, para286, or the witness would be expected to be available to one party rather than the other: ... , or where the circumstances excuse one party from calling the witness, but require the other party to call him ..., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him ... , or where the witness' knowledge may be regarded as the knowledge of one party rather than the other ... , or where his absence should be regarded as adverse to the case of one party rather than the other ... . It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary ... . If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so ... . Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman ...; his safety officer ...; his accountant ...; his treating doctor ... ."
What if both parties fail to call a witness?

Cross on Evidence

i)[2] Paragraph 314 of Husband’s submissions

Cross on Evidence at [1215] comments that:
… the principle in Jones v Dunkel may apply to both parties; if so, the operation of the principle is not that the failure of one party excuses the failure of the other, but that competing inferences that the uncalled evidence would not have assisted either side arise, and that the trier of fact must consider the evidence which is before it in the light of those inferences: Brandi v Migot(1976) 12 ALR 551 at 560 (HC).

Case law

In Earle v Castlemaine District Community Hospital(1974) VR 722 (Little, Gillard and Lush JJ), Little J at 728 provides an early discussion of the principles applicable when a witness is equally avilable to both parties:
Mr. O'Bryan, QC, who appeared with Mr. Wiltshire for the respondent, submitted that the learned trial judge was not in the circumstances of this case required to give a direction of the character contended for by the appellant because, he said, Schofield was equally available to both parties as a witness. He argued that it would, accordingly, not be open to the jury to draw any inference unfavourable to the respondent from the fact that it did not put Schofield in the witness-box. In support of his argument Mr. O'Bryan drew attention to the statement in Wigmore on Evidence, 3rd. ed. (1940), vol. 2 s288, pp. 169-70, which reads: "It is commonly said that no inference is allowable where the person in question is equally available to both parties; particularly where he is actually in court; though there seems to be no disposition to accept such a limitation absolutely or to enforce it strictly. Yet the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured." I think, contrary to Mr. O'Bryan's contention, that it would be quite unrealistic in this case to say that Schofield, even if he were in court, was a witness equally available to both parties: cf. Blatch v Archer, supra; R v Burdett (1820) 4 B and Ald 95; 106 ER 873; [1814-23] All ER Rep 80. Apart from that, however, it would, in my opinion, be erroneous to lay down any general rule that in cases where it could be fairly said the witness was equally available to both parties, the inference under discussion cannot be drawn against a particular party. Circumstances attending cases are infinite in their variety, and the question must depend upon the facts and circumstances of a particular case. Reference in this connexion may be made to Tozer Kemsley and Millbourn (A'asia) Pty. Ltd. v Collier's Interstate Transport Service Ltd. (1956) 94 CLR 384; [1956] ALR 271. In that case it is stated at (CLR) p. 397; (ALR) p. 278, that at the trial "the principal concern of each party appears to have been to wage a battle of tactics and to force the other to call Duncan, Power and Cann or one or more of them rather than to seek to elicit the whole truth. In the end the plaintiff called Watt alone, and the defendant called no-one, not even Dalton". It may be added that Watt was an accountant in the employment of the plaintiff, and Dalton was the manager of a branch store of the defendant. Duncan, Power and Cann were, it appears from the report, persons independent of either party, and it would seem they were equally available as witnesses to both parties. At (CLR) p. 403; (ALR) p. 282 Fullagar, J, said: "In the second place, the election of the defendant to call no evidence has, to my mind, more than ordinary significance in this case. That it may have significance is well established: see e.g. May v O'Sullivan (1955) 92 CLR 654; [1955] ALR 671. The silence of one party cannot, of course, fill the place of actual evidence on an issue, but it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party."
In Brandi v Mingot (1976) 12 ALR 551 the High Court (per Gibbs ACJ, Stephen, Mason, Murphy and Aickin JJ) made the following observations at 560 on the correct inferences to be drawn when both parties fail to call a witness:
In the learned trial judge's charge he also stated that the consequences of failure to call available witnesses did, in this instance, cut both ways since the case of each party was open to the like comment. His Honour was, with respect, clearly correct in saying this in the particular circumstances of this case where, the appellant having led some expert medical testimony, the evidentiary onus as to the appellant's physical condition thereupon passed to the respondent. Once that stage was reached the respondent's failure to call available medical evidence was open to the same inference as that flowing from the appellant's like failure. No doubt the former's failure does not “excuse” the failure of the latter, but in truth no question of excuse arises. When both sides fail to call available evidence competing inferences arise and it will then be for the tribunal of fact to consider the evidence which is before it, in the present case coming exclusively from the appellant and his witnesses, in the light of such inferences.
(Underlining mine)

In the recent decision of AMP Services v Manning [2006] FCA 256 the Federal Court considered whether Jones v Dunkel was available when a witness was available to both parties. In this case the plaintiffs, members of the AMP Group, sought to recover losses through amongst other things a claim for breach of contract, relying on a post-employment restraint of trade and confidentiality clause. Finkelstein J, in a passage partially quoted by the husband in his submissions, said at par 48 and 49:
[48] If it were possible, I would have called the clients myself in order to get to the truth of the matter. After all, the principal object of a court proceeding is to find the truth and arrive at the right result. Or at least that should be the object. Unfortunately, while the adversary system is touted as “the greatest legal engine ever invented for the discovery of truth” (5 Wigmore on Evidence (3rd ed, 1940) §1367) it often falls well short of the mark. The problem is that the system leaves it to the parties to shape the issues to be litigated and to call the evidence they feel will resolve those issues. And in a civil case it is not permissible for the judge to go behind the parties to call witnesses: Enoch and Zaretzkey, Bock & Co’s Arbitration [1910] 1 KB 327. Perhaps this will one day be reformed. But until that occurs all a judge is able to do when faced with a refusal by a party to call relevant evidence is, if appropriate, to apply the rule in Jones v Dunkel (1959) 101 CLR 298.
[49] The conditions for the application of that rule are explained in Payne v Parker (1976) 1 NSWLR 191 at 201–202. Opinions have differed as regards whether these conditions can be satisfied when a witness is equally available to both parties. Some judges have said that in such circumstances no inference is available: see eg Claremont Petroleum NL v Cummings (1992) 110 ALR 239. This is not a universally accepted view. For example, in Earle v Castlemaine District Community Hospital (1974) VR 722 at 728, a decision of the Full Court of the Supreme Court of Victoria, Little J, cites with approval the following passage from 2 Wigmore on Evidence (3rd ed, 1940) §288, 169–171:
“The more logical view is that the failure [by both parties] to adduce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.”
The judge went on to say that it would be erroneous to lay down any “general rule” that if a witness was available to both parties no inference could be drawn against either and that it must depend on the facts and circumstances of a particular case. This, I think, is the correct view.
(Underlining mine)

Thus if it is determined that the witness were equally available to both parties, an inference would be available against each of them “the particular strength of the inference depending on the circumstances”: AMP Services v Manning [2006] FCA 256 at [49] citing Wigmore on Evidence.

The basis of the rule in plain common sense: Payne v Parker (1976) 1 NSWLR 191 at 194

The basis of the rule is plain commonsense, the natural inference of failure to call evidence generally being that the party fears the consequences of doing so, unless there is an explanation leading to a contrary conclusion: Payne v Parker (1976) 1 NSWLR 191 at 194

Case law

In O’Donnell v Reichard (1975) VR 916 (Gillard, Newton and Norris JJ), Gillard J at 920 said:
A similar conclusion was reached by this Court in Earle v Castlemaine District Community Hospital, (1974) VR 722 at pp. 728, 730, 734. If I may respectfully adopt the words of Windeyer, J in Jones v Dunkel, to describe this rule of practice, it is simply a case of "plain commonsense". Of course, patently there must be some limitation imposed upon the application of this rule. For example, any party upon whom the burden of proof on any issue is imposed must always adduce a prima facie case on such issue to go to the jury, and the failure of the other party to the litigation to call witnesses who may be expected to elucidate the matter cannot fill in any gaps in the proof required (see per Dixon, CJ in Hampton Court Ltd. v Crooks (1957) 97 CLR 367 at p. 371; and Tyne v Rutherford (1963) 36 ALJR 333). Again, where it is equally open to both parties to call a witness and neither of them call the witness, it is matter of commonsense that any criticism of one party's failure to call the witness would be cancelled out by the criticism of the other party's failure to call the witness (see Wigmore s288). It was apparently the learned judge's view that in this case this limitation on the rule would have applied. But for the reasons which appear hereunder, I cannot agree with this view.
At 921:
Looking at the authorities from Blatch v Archer, supra, right up to Earle's Case, supra, it may be accepted that the effect of a party failing to call a witness who would be expected to be available to such party to give evidence for such party and who in the circumstances would have a close knowledge of the facts on a particular issue, would be to increase the weight of the proofs given on such issue by the other party and to reduce the value of the proofs on such issue given by the party failing to call the witness. It should be added that direct evidence of availability of the witness is rarely adduced in evidence. Generally speaking, the proof that a witness is available is a matter of inference from all the circumstances. Sometimes evidence is given to stifle criticism by showing that a witness is not available.
In Payne v Parker (1976) 1 NSWLR 191 Huntly JA explained the basis of the rule in Jones v Dunkel in the context of failure of a defendant to call a witness in a medical negligence case. His Honour said at 194 (in a passage also quoted by the husband in his submissions) that:
The basis of the rule is “plain commonsense”, as Windeyer J. said in Jones v. Dunkel ⁽³⁾, after quoting from Wigmore on Evidence, 3rd ed. (1940) vol. 2, s. 285, p. 162, as follows:
The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.
The relevance of bearing the onus of proof

Introduction

It is well settled that Jones v Dunkel may apply to either party regardless of who bears the onus of proof: Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 367 per Hutley JA; Ho v Powell (2001) 51 NSWLR 572 per Hodgson JA at [16]; Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [96].

Case law

In O’Donnell v Reichard (1975) VR 916 (Gillard, Newton and Norris JJ), Gillard J at 920 said:
… In recent cases, generally speaking, the rule being discussed has been invoked on behalf of the plaintiff, e.g. Black v Tung, [1953] VLR 629 at p. 634; Waddell v Ware, [1957] VR 43 at p. 49; Jones v Dunkel (1959) 101 CLR 298 at p. 320; [1959] ALR 367 at p. 381; Albus v Ryder, [1956] VLR 56; [1956] ALR 457; Kennedy v Ritcher, [1957] VR 515; [1957] ALR 1053; Earle v Castlemaine District Community Hospital, supra. Logically and as a matter of "common sense" there appears to be no reason why the rule should not be invoked in favour of the defendant, as was illustrated in the case of Ward v Apprice, supra. Of course, where the defendant has the onus of proof imposed upon him in relation to some issue of fact, the rule as recently invoked on behalf of the plaintiff should be equally applicable to such a defendant.
This principle was confirmed in Ho v Powell (2001) NSWLR 572 (Beazley JA, Hodgson JA and Davies A-JA), per Hodgson JA at [16]:
[16] The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.
In Cadwallader v Bajco Pty Ltd(supra), the New South Wales Court of Appeal said at [96] in relation to the onus of proof:
[96] It does not matter whether a legal onus lay on the plaintiff, Mr Alan Cadwallader, to prove that the crucial conversation did not take place, or whether a legal onus lay on the third defendants, the directors, to prove that it did take place. Jones v Dunkel applies in favour of and against parties on both sides of the record: Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 367 per Hutley JA. As Hodgson JA said in Ho v Powell (2001) 51 NSWLR 572 at [16], Jones v Dunkel:
"itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case ... ."
In Cook’s Construction Pty Ltd v Brown and Anor (as liqs of DML Resources Pty Ltd (In Liq))(2004) 49 ACSR 62 the Supreme Court of NSW, Court of Appeal considered Jones v Dunkel in the context of an appeal from a decision that a payment made was a voidable preference due to insolvency. The Court found that where a party bears the onus of proof and has a witness who is not called without valid reason, then this is taken into account when assessing the evidence as a whole. If failure to call is attributable to the party who does not bear the onus of proof then the inference may be drawn that the witness was not likely to assist that party’s case. The court discussed this issue at 67 to 68:
[32] As to this point it must be borne in mind that Jones v Dunkel is actually just one aspect of a wider principle. That wider principle is that in judging evidence the court has regard to the material available to a party. If the person that the court is considering is a person who does not bear the onus of proof and that person fails to call a witness, the inference may be drawn that the witness is not likely to assist the person’s case. That is Jones v Dunkel itself.
[33] If on the other hand the person bears the onus and has a witness which he or she does not call then the court takes that into account when assessing the evidence as a whole. As good an illustration as any of that point is the judgment of Hodgson JA in Ho v Powell (2001) 51 NSWLR 572 at 576–7. It is that second aspect of the rule that is really relevant in the present case and it is with respect inaccurate to tag it as a Jones v Dunkel point. However, the tag “Jones v Dunkel” does not detract from the point her Honour was making that she can take into account when a witness is not called by a person who bears the onus when she is evaluating whether the onus of proof has been established.
[34] Of course if it is shown that there is good reason why the witness is not called the principle does not apply. This may be that the witness is dead or cannot be found or material is shown that the witness is of little worth such as Fabre v Arenales (1992) 27 NSWLR 437. Indeed, not only does counsel say that her Honour did not properly apply Jones v Dunkel, he says that she should have applied it in the appellant’s favour. He said as the respondents did not give any evidence other than the formal evidence to show the insolvency, the payments and the state of the company accounts, and the respondents did not call any witnesses from DML or from the Gladstone office of the appellant, the judge should have drawn the appropriate inference in the appellant’s favour. This submission overlooks, with respect, the fact that the onus was on the appellant to prove and there was no obligation on the respondents at all to go into evidence to boost the appellant’s case in any way whatsoever. There was no foundation for what I might call the reverse Jones v Dunkel submission …
[42] Mr Langmead submitted that that was not a matter that should have been, or should now be, taken into account so as to refuse or decline to draw the inference that the person or persons had no reasonable grounds because, he submitted, there was no basis for inferring that the appellant feared to call those witnesses; and he referred to Fabre v Arenalis(1992) 27 NSWLR 437 at 448–50. However, in my opinion, where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party’s favour from indirect and second-hand evidence, when the party doesn’t call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation, as was the case in Fabre.

The husband in his submissions referred to White Constructions ACT Pty Ltd (In liq) v White [2005] NSWCA 173, as authority for the proposition that where a party is making allegations of fraud or improper conduct failure to call a relevant witness is taken seriously by the court. The New South Wales Court of Appeal said at paragraph 282:
[282] Jones v Dunkel does not apply where a witness is dead or cannot be found or is not available or is shown to be of little worth. But a party who bears the onus, and omits to call a relevant witness without any explanation as to why that witness is not called, may find that the judge has regard to that omission when evaluating whether the onus has been discharged. That is particularly the case where the allegations made by the party not calling the witness concern fraudulent or improper conduct: see Cook’s Construction Pty Ltd v Brown and Anor (as liqs of DML Resources Pty Ltd (In Liq)) (2004) 49 ACSR 62 at 67–68.
[283] As White ACT gave no explanation for the omission to call potentially important witnesses, his Honour was entitled to take that into account.
The rule only applies where a party is required to explain or contradict something

Introduction

The rule in Jones v Dunkel only applies when a party is required to explain or contradict something: Skye Helen O’Meara v Dominican Fathers [2003] ACTCA 24 at [69]; R v Burdett (1820) 4 B & Ald 95 at 161–2; 106 ER 873 at 898; [1814–23] All ER Rep 80 at 93; Jones v Dunkel (1959) 101 CLR 298 at 321; [1959] ALR 367 at 381.

Cross on Evidence

Cross on Evidence says at “[1215] (e) The Rule in Jones v Dunkel”:[3]
…the rule only applies where a party is “required to explain or contradict” something.²⁶ What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case.²⁷ No inference can be drawn unless evidence is given of facts “requiring an answer”.²⁸ If there is no issue between the parties on a matter, there is nothing to answer; and if there is an issue between them, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer.
(Footnotes omitted)
[3] Justice JD Heydon Cross on Evidence, LexisNexis Looseleaf at “[1215] (e) The Rule in Jones v Dunkel” (current to Service 104, July 2007)

Case law

In Shellengerg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594 (Gleeson CJ, Gaudron, McHugh, Kirby and Hayne JJ), Gleeson CJ and McHugh J (footnotes omitted)
[51] The finding that the equipment was not properly assembled, inspected or maintained, however, need not necessarily rely on the finding that the hose was “insecurely fastened”. The trial judge relied on the fact that no “evidence was adduced by the defendant as to how the compressed air equipment was assembled, inspected or maintained”. Thus, unless his Honour reversed the onus of proof, he drew a Jones v Dunkel inference in favour of the plaintiff. But there was nothing which called on the defendant to lead evidence in respect of these matters: its failure to call evidence therefore had no probative significance and could not assist the drawing of any inference in favour of the plaintiff. In Cross on Evidence Mr Dyson Heydon QC declares that:
[T]he rule [in Jones v Dunkel] only applies where a party is “required to explain or contradict” something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer” [footnotes omitted].
[52] In this case:
1. the trial judge found that there was insufficient evidence to find that the equipment was faulty or defective;
2. the plaintiff did not plead that the defendant's system of maintenance or inspection was defective; and
3. the plaintiff did not adduce any evidence that the defendant's system of maintenance or inspection was defective or that, if it had been effective, that would have prevented the damage to the plaintiff.
[53] In these circumstances, which were quite possibly the result of a tactical decision to avoid a possible plea of contributory negligence on the part of the plaintiff by the defendant, it would be quite wrong to draw an inference against the defendant. A Jones v Dunkel inference would not have availed the plaintiff in any event. A Jones v Dunkel inference can only make certain evidence more probable. It “cannot be used to make up any deficiency of evidence”. It follows that the trial judge's finding with respect to the assembly, inspection and maintenance of the compression equipment could not stand, as there was insufficient evidence to support the findings, either directly or by inference.
In Skye Helen O’Meara v Dominican Fathers [2003] ACTCA 24, the Supreme Court of the ACT Court of Appeal considered failure to call witnesses in the context of a negligence claim. A student had fallen from the first floor balustrade of a residential university college whilst at a college party which involved consumption of alcohol. The respondent failed to call witnesses to refute the applicant’s evidence that the college was aware of practice of unsafe behaviour and failed to take precautions. In deciding whether an inference should be drawn, Gyles and Weinberg JJ summarised the relevant law at paragraph 69:
[69] It is unnecessary, in this appeal, to set out in detail the authorities which govern the operation of that rule. It is sufficient to note simply the following propositions:
·the unexplained failure by a party to call witnesses may, in appropriate circumstances, lead to an inference that those witnesses would not have assisted that party’s case: O’Donnell v Reichard(1975) VR 916 at 929;
·the rule permits an inference that the uncalled witnesses would not have helped the party who failed to call them, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which those witnesses could have spoken;
·in particular, the rule entitles the trier of fact the more readily to draw the inference fairly able to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to call evidence. However, the rule does not permit an inference that the uncalled witnesses would in fact have been damaging to the party not calling them. In other words, the rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into evidence.
·the rule only applies where a party is ‘required to explain or contradict’ something: Jones v Dunkel at 321. What a party is required to explain or contradict depends on the issues raised by the pleadings, and by the course of evidence in the case. If a party bearing the burden of proof on an issue has called no evidence to support that party’s claim, the opponent is not required to answer.
·the rule does not require a party to give merely cumulative evidence.
[70] Evidence from only two supervisors for limited periods was an unsafe foundation for a finding of lack of knowledge (Jones v Dunkel per Kitto J at 308, Menzies J at 312 and Windeyer J at 320–322; Widera v Reid [2002] ACTCA 3 at [21]). This reflects the fundamental point that
[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted
(per Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 cited by Isaacs J in Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 178).
In our view, the present case was one that cried out for the respondent to meet the appellant’s contention that there was a regular practice of students sitting on the ledge that must have been known to at least some members of the College staff. Almost every witness called on behalf of the appellant gave evidence of this practice, and the respondent’s witnesses were cross-examined extensively upon the subject. The issue was raised in the pleadings, and the respondent could not claim to have been taken by surprise. There must have been a significant number of members of the College staff who were in a position to give evidence regarding their knowledge of this ‘practice’, yet with the exception of Father Fowler, none were called. There was no explanation for the failure to call these witnesses. The appellant could not have been expected to call them – they were very much in the camp of the respondent.
(Underlining mine)

THE HUSBAND’S CREDIT GENERALLY

The relevant claims made by the husband were alleged to be for kennelling expenses paid to the parties’ son, their brother in law Mr K, Mr S, Ms T and Mr M.
The husband swore in his affidavit of 21September 2006:
2 In relation to the proceedings which are currently before the Family Court of Australia at Newcastle relating to the use of invoice books in relation to kennelling costs, I say:
2.1Subsequent to the Order being made by the Court on 22 April 2003 I purchased two or three invoice books. I cannot recall how many.
2.2The “invoice books” were books which contained carbon sheets and were partially completed invoices. That is they were not a book that contained pages that were completed to the extent that they simply had to be signed and or dated. Each invoice would require completion by the addition of particulars so the reader would understand what the invoice was for.
2.3I used the invoice books to provide a receipt for payment in relation to the kennelling of […] dogs, brood bitches and pups, subsequent to me taking from my home at [U] some 27 dogs pursuant to an Order of the Court.
2.4I placed the animals at various premises subsequent to the removal of the dogs from [U].
2.5It was my usual habit to take the invoice book to where the animals had been placed and to have the person who provided the kennelling to sign the invoice book. This would be done after payment had been made. The use of the invoice books was not consistent. For example it is my recollection [Mr S] maintained his own invoice book which was completed and signed by him and a page given to me from the book in return for payment. With my brother-in-law and sister-in-law, [Mr and Mrs K], I would present them the invoice book already completed – that is, particulars of the number of dogs and the amount would be completed in the invoice book. It would be signed upon payment by [Mr K] (to the best of my recollection). That is, unlike [Mr S], [Mr K] and or [Mrs K] did not fill out the particulars for which the payment was received.
2.6I did not complete the writing on any of the invoice books whatsoever. To the best of my recollection the invoice books in relation to those animals with [Mr and Mrs K] were completed by my partner, [Ms LS], prior to me attending at [Mr and Mr K’s] home for the purpose of making payment.
2.7For those animals kept by my son at premises he rented at [G Road], the invoice book was completed by either (the son) or if he was not present by his sister (the daughter).
2.8For animals kept by [Mr S] and [K], [Mr S] completed the invoice at the time of payment. The invoice book used by [Mr S] was left with him. The invoice book completed at [G] was left with (the son). The invoice book for [Mr and Mrs K] was retained by me.
Well before the hearing of the property proceedings, the wife was seeking to have the husband specify the dogs in respect of which he was claiming kennelling expenses and identify which dogs were at which kennels. Her solicitors wrote to his solicitors on 30 April 2003 in the following terms:
Until such time as your client has confirmed:
a) which dogs are at which locations;
b) that can be independently verified; and
c)which services are being provided for which dogs at which locations,
my client has instructed me that no further payments are to be made. Does your client expect my client to bear all of the costs he is now incurring for his animals and is he prepared to concede such a contribution, if made, in the overall property settlement?
When the parties were before the Judicial Registrar on 12 September 2003, the wife’s legal representative was still complaining about the husband not having provided such information. He said:
It’s my client’s case that repeated requests for break down of the expenses being allegedly incurred by the husband have not been supplied or provided. Requests for details of which of the 27 dogs were there had not been supplied or provided and the husband’s evidence I accept, is that the invoices he received he claims is for the 27 dogs spread around various venues……..
But the wife was not successful in seeking to have the husband identify in respect of which dogs each alleged payment of kennelling expenses was made.
In October 2003 the husband wrote to the wife’s solicitor in response to a suggestion that if the invoices were forwarded direct to the solicitor, the solicitor could pay the kennel proprietors directly. He refused to agree to this. He said among other things in his letter:
Finally and most importantly, in order to maintain my … (indecipherable) well-being and safety, I am required to pay kennelling expenses on time to each of the kennel proprietors. Unfortunately, Mr Boyd, when acting on your client’s behalf, you have proven to be unreliable in meeting your …. (illegible) ordered obligations and I cannot trust that you will not prove equally unreliable in the future, so in the best interests of the proprietors of the kennels and my dogs, I will continue to pay kennelling expenses myself and submit invoices to you, then await your often times tardy repayment.
On 5 February 2004 the wife’s solicitors again wrote to the husband’s solicitors and in that letter said:
Recent press reports indicate that you client is training and racing some of the dogs and you are once again requested to obtain instructions as to which dogs are located at each of the kennels.
The husband did not provide any such information.
On 19 February 2004 the wife’s solicitors, in forwarding a trust account cheque in payment of $720 for alleged kennelling expenses paid by the husband in respect of the 3 different kennels, noted that the facsimile forwarding copies of the invoices was sent to the solicitors on 12 February, but all of the invoices were dated 13 February. They stated:
This only emphasises the farce surrounding these alleged expenses: what possible explanation could [the husband] have for presenting a series of post-dated invoices for expenses allegedly incurred in the past?
Apparently the husband steadfastly refused to provide any of the information the wife was seeking about the alleged payments.
It appears from the transcript of the hearing before Justice Rowlands quoted earlier, that when the husband gave evidence on 12 May 2004 he had not in that hearing identified the 27 dogs he says were removed from the property and identified to which dogs any alleged payment of kennelling expenses for which he claimed reimbursement from the wife, related.
From the transcript in evidence it is clear that on 12 May 2004 in cross examination before Rowlands J, the husband was evasive, argumentative and “smart”. He continued to resist requests for any information identifying the 27 dogs removed from the parties’ property under the interim orders or any dogs to which any particular invoice related.
The obvious way for the husband to have conducted his case before me would have been to answer the wife’s case, but also to be by evidence of himself and each alleged kenneller as to the alleged agreement with the kenneller, the dogs kennelled by the kenneller, the periods they were kennelled and the payments made. Corroboration by records and other documents could have been provided where available.
The husband in his affidavits did not testify as to precisely what amounts he paid to any of the alleged kennellers, except by reference to invoices. Not one of the four alleged providers of kennelling gave corroborative evidence in the husband’s case before me of any amount paid by the husband for kennelling.
On the contrary, in these proceedings the parties’ son gave evidence in the wife’s case that he did not receive any payment from his father for Kennelling his dogs, although invoices signed by him and his sister purported the father was charged kennelling fees over a period of more that 16 months to a total of about $16,000.
Evidence in Exhibit W3 and from cross examination of the husband’s de facto wife Ms LS establishes that at least 8 invoices she faxed to the wife’s solicitor (and for which reimbursement was paid) were faxed on a date prior to the date on the invoice. On 3 occasions she faxed 2 or 3 invoices allegedly from different kennellers and each invoice bore a date after the date it was sent. On each of those occasions invoices from 2 or 3 alleged kennellers were sent, each bearing the same date
Reimbursements paid by the wife’s solicitor were paid by cheques payable to the husband and drawn on the trust account of the solicitor. They were posted to the husband. The solicitor’s office is in Newcastle. The husband was residing at H, more than half an hour’s drive away.
Regulation 65 of the NSW Legal Profession Regulations 2005 requires such cheques not to be bearer cheques and “to be crossed ‘not negotiable’”. There is no evidence the solicitor did not comply with that. Ordinary prudence would dictate that the solicitor would not send uncrossed or bearer trust account cheques. It must be presumed the solicitor would not have been so negligent as to post uncrossed or bearer cheques. On the balance of probabilities the cheques sent were order cheques and were crossed and marked “Not Negotiable”.
Accordingly, on the balance of probabilities, the husband had a bank account to which, the cheques were deposited. He produced 3 deposit books for his accounts (pursuant to a Notice to Produce) in the proceedings before Justice Rowlands. He was asked whether he accepted that none of the books showed any cash deposits. He answered:
But I don’t get all the moneys in cash. Most of it is cheques. They – if they get it in money they might give me a couple of hundred, they might give me a half a win. Say, if they win at [MD] it’s 500, they’ll give me $250, and then when they come up – they might – don’t come up every day, they might come up once a month and give me a cheque for it and there might be a couple of hundred dollars cash with it, because they’ve won last night or yesterday.
From other evidence in these proceedings prize money of $1,000 or more is paid by cheque payable to the trainer nominated to the race track. His evidence above is that most of the money he receives from winnings of dogs registered in the names of others are also by cheque. In his evidence on 17 May 2004 the husband testified that without the cheques from the wife’s solicitors he did not have enough income to pay for 8 or 10 dogs to be kennelled.
On the balance of probabilities the income the husband received in cash for prize money was not so great, or so regular, to fund weekly kennelling payments of the amounts of up to $800 each week allegedly paid between March 2003 and August 2004 to an agreed total of $40,225.
It appears that if the husband paid all those amounts, as he alleges, he often had to obtain funds from his bank account. But the husband has not provided any cheque butts, bank statements, or other banking record of any funds accessed from his bank account to pay the alleged kennelling expenses.
The husband’s case did not include cash book entries, copies of income tax returns, or any other record of his of any of the alleged payments for kennelling, other. There is no evidence that he included that expense in any business record or income tax return or GST return.

He acknowledged that his father from time to time gave him money for other purposes and also food for his father’s dogs, but he steadfastly denied that he was ever paid kennelling expenses that were documented by the invoices provided. He said that usually he filled out the invoice and included the number of his father’s dogs he had there. But he said, “I wasn’t charging anything. When I started doing it I was thinking I would receive money, but I didn’t.”
He said he would have charged less and did not think it would cost $30 per week to look after a dog. He had given evidence that in 2003/2004 he had 2 or 3 dogs kennelled with Mr S at $20 per week each. He said he introduced the husband to Mr S. But then he also conceded in cross-examination that most people charge “$30 to $50 per week plus 50/50 of prize money and this includes travel expenses, food and basic veterinary services, such as check ups.”
In submissions for the husband his counsel argued that the son’s evidence in his first affidavit that the husband provided the food for his dogs was inconsistent with the son’s evidence in his second affidavit that “My father occasionally gave me food for my dogs and bought food for his own dogs.” In cross examination the son was clear that the husband provided all of the food for the husband’s dogs. The statement in the second affidavit is ambiguous as to whether the word “occasionally” applied to “bought food for his own dogs” or only to “gave me food for my dogs.” This was not explored with the son in cross examination, and it is not clear whether he meant that the husband did not provide all the food for his dogs. The son’s evidence is not found to be inconsistent on this issue.
In cross-examination the son acknowledged that the statements of kennelling fees in the invoices he signed are inconsistent with his evidence in his affidavit and insisted that his affidavit is “true”. He acknowledged that when he signed the relevant invoices, he knew they were “untrue and defrauding the wife”. He said he was reluctant to do it and did not want to put his name on them, “That’s why I put ‘[G] Kennels’.” His evidence is that at one stage he told his father (falsely) he had lost the invoice book, but his father provided another one. The invoices show that 5 invoices were issued out of the first book, then the next invoice issued from a second book. It was dated 5 September 2003. He had written and signed the first 2 invoices in August, but the next 3 invoices were written and signed by the daughter. Then the 6^th invoice issued from the second book.
He agreed that by September 2004 his dogs were earning only modest amounts of prize money and conceded that he had “high hopes” for earnings from the husband’s dogs that he was training, “not at first, but after I had them”. He did not dispute that the prize money from the husband’s dogs did not get “high” till about August 2004.
He subsequently had an argument with his father over his share of prize money for dogs belonging to the husband that he had trained. He was short of money for rent and was forced to sell his boat and trailer. He had an argument with his father over $3,000 he was claiming from him. He then moved to a property at MD.
Counsel for the husband submits that the evidence in relation to the son’s finances in the period from 1 July 2003 to 4 September 2003 establishes that he could not have met his expenses if he had not been receiving kennelling fees. The evidence of the son’s expenses at the time is from his cross-examination and is as follows:
ItemWeekly
Rent$240
Food$ 50
Electricity$ 20
Car Expenses $ 40
Total$350 per week
In relation to the cash flow the husband’s received in that period, the evidence establishes the following amounts:
Income from prize money:
DogTrainer  Prize money              Son’s Share
[NM]Son  $2,860  $1,430
[A]Son  $1,500  $   750
[FD]Son  $3,490  $1,745
[MS]Son  $5,750  $2,875
[FL][Mr D]  $1,390  $   695
[NF][Mr I]   $4,300  $2,150
(Brisbane & Gold Coast)
[NF][Mr I]  $4,300           (NSW)           $2,150
[NF]Son  $480(NSW)              $   480
[IM]Son  $1,360           (NSW)           $1,360
Sale of boat and trailer  $2,500
Total cash flow to son from above items:        $16,135

The evidence of the funds the son had at his disposal during the period is incomplete, however, because of the absence of evidence as follows:

The liquid funds the son had at the start of the period. He testified that when he went to the G Road property, “I had plenty of money because NF was winning just about every week at the time”. He did not quantify the amount. Exhibit H5 shows that NF was racing in Queensland from 14 February 2003 to 9 June 2003 and in that period won 5 first prizes in Brisbane,1 first prize at another premises, 3 second prizes and 1 third prize. The amount of those Queensland prizes is not in evidence.
The son’s evidence is that he could not remember whether he received unemployment payments in the period, but if he did, it was only for 2 or 3 months. On the evidence there is the possibility that he did receive amounts by way of unemployment benefits. The evidence does not establish whether he did or did not, and if he did, the amount.
The son’s evidence is that in the period he trained the dogs “[ML]”, “[IL]” and “[CB]”. There is no evidence as to whether there was any prize money from those dogs and, if so, the amounts.
The son’s evidence is that he owned the dogs “[LE]” and “[RI]” and that they were leased out during that period and he was entitled to 50% of the prize money for those dogs. There is no evidence as to what prize money, if any, those dogs won in the period.
Exhibit H5 also shows that IM also competed in Victoria and in the period in question won 3 first prizes and one 3^rd prize, but the evidence does not disclose the prize money for its Victorian shows or the amount the son received.

The evidence of the son’s commitments and income, such as it is, does not assist the Court in determining whether the son received any kennelling payments from the husband in the period.
The son testified that he moved to live in the former matrimonial home with his mother in December 2005, and it was subsequent to that when she told him she had hired a forensic expert in relation to the documentation concerning the kennelling expenses, that he told her that he did not receive any money; only dog food.
The daughter was very enthusiastic in her support of her father’s case. She gave evidence purporting to testify that the number of dogs stated on the invoices/receipts she provided to the husband correctly referred to the number of dogs on the premises at the time, but she gave no evidence as to how she ascertained that and she also testified in the same affidavit that her recollection of exactly which dogs were at the property at any particular time “is very vague”. She gave evidence that when the son took the husband’s dogs to the veterinary surgeon, the son charged the fees to the husband’s account. But she never accompanied the son and her evidence was at best hearsay.
In cross examination the daughter was extremely vague and generally not convincing.
It was the husband’s evidence and the evidence of the son that in the industry kennelling fees included provision of feed for the dogs. In cross-examination before Rowlands J, when he was asked what his son and daughter did for the dogs to charge $30 each the husband said, “Feed them, water them”. When it was later put to him, “So (the daughter) and (the son) were billing their own father to look after dogs for him?”, he answered, “Well, they had to feed them. They’ve got to get a feed.”
When it was put to the husband in cross examination, that his understanding of the meaning of the words “kennelling expenses” in the orders of March 2003 was that they included food for the dogs, he repeatedly avoided the question before finally conceding the proposition. The son also testified that kennelling includes food. But the husband in his affidavit answering the son‘s evidence in his affidavit of 10 March 2006 did not deny that the son provided no food for the dogs and the husband swore in his affidavit that he regularly provided his son food “for my animals”. In an affidavit he said he provided the food twice per week and in cross examination he said, “at least on a weekly basis”. The daughter’s evidence of her father bringing food for his dogs is consistent with the son’s evidence.
In cross examination when the husband was reminded of his prior evidence about food, he gave different evidence. He said “for (the son’s) racing dogs”. When pressed to say whether what he said in his affidavit was true, he avoided the question and said that he provided some beef for his racing dogs. The husband’s evidence about him supplying dog food to the son is inconsistent. On the balance of probabilities he supplied sufficient food for all his dogs. That is more consistent with him not paying kennelling fees.
The husband’s evidence in his affidavit of 10 May and at the hearing also departed from evidence before Justice Rowlands implying that the son and the daughter were both undertaking the care of the dogs.
The daughter swore in her affidavit of 10 May in the husband’s case:
4.17I am aware that (the son) would take dogs to the vets and ask the vet to put the bill on my father’s account.
In his affidavit sworn 10 May 2006 the husband swore “I also paid vet bills related to the dogs kept by (the son).” The daughter also related that at (the son’s) she heard the son tell the father, “The dog needs to go to the vet, I need some money”. She said there were many discussions of that type.
The son swore in his affidavit of 25 May 2006:
4.17 I also took my father’s dogs to the vets. (The daughter) did not come with me at any time. I had my own account for the bills incurred with the vet and I did not require, or ask for, assistance from my father to pay vet bills for me.
The son’s evidence in cross examination was that kennelling fees usually cover basic veterinary expenses. He denied the husband paid any veterinary fees for the dogs. He was not asked directly, though, whether the husband ever reimbursed him for veterinary fees he paid for the husband’s dogs.
The finding on the balance of probabilities is that the husband sometimes paid veterinary fees for his dogs by reimbursing the son.
There is serious inconsistency in the husband’s statements as to what he paid his son for kennelling fees and how the payments were made:
1)In his letter of October 2003 to the wife’s solicitor, he said, “I am required to pay kennelling expenses on time to each of the kennel proprietors”. He implied that he was doing this.
2)In his cross-examination before Rowlands J on 12 May 2004 he testified on oath that he was charged $30 per week per dog and paid it to his son or daughter who were both living at G Kennels.
3)In his affidavit of 10 May 2006 (the same day as an affidavit by the parties’ daughter) he swore, “I regularly paid (the son) sums of money and provided food for my animals. I did this on at least a weekly basis.” But he also swore that the regular arrangement was to leave cash of $250 with (the son) on Tuesdays and “then later in the week I would provide him with the balance of the moneys”. He testified in the same affidavit that “Monies were paid of a Tuesday and the following weekend. This was a regular pattern. Receipts were normally provided by (the son) on a Tuesday.”
4)There are 59 invoices allegedly from the son on which reimbursement was obtained. None of the dates of the invoices was a Tuesday. 56 are dated with a date that was a Friday. One only is dated with a Saturday date and 2 have Thursday dates.
5)He testified he gave (the son) an invoice book (and possibly a second) and the son gave him receipts for the moneys he paid. He said that sometimes the son was not present, so he would leave the money with the parties’ daughter if she was there and otherwise leave it in the microwave oven. He swore also that sometimes the parties’ daughter “signed the receipt for moneys provided”.
6)After the son disputed some of this evidence in a subsequent affidavit, the husband swore on 21 September 2006 that the practice with the invoices was that an invoice was provided after the payment had been made.
6)In cross-examination in these proceedings the husband gave sworn evidence that he paid the son for kennelling the dogs and “an extra $200 per week”.
When the husband gave this evidence that he paid the kennelling charges plus an extra $200 per week, he volunteered, “I have lots of witnesses. His friends were there sometimes.” But his case did not include evidence by any such witnesses to corroborate his allegation of payments. He did not provide any explanation for his failure to call such evidence. The wife was not present on those occasions and there is no evidence that she has any knowledge of who these witnesses are. These are witnesses whose evidence, according to the husband, could elucidate kennelling payments to the son. One would expect him to have one or more of them swear an affidavit in his case. Under the rule in Jones v Dunkel the husband’s failure to call them and failure to provide any explanation for that, lead the Court to infer that the evidence of such witnesses would not have assisted the husband to prove any such payments.
There is also inconsistency between the evidence of the husband and the parties’ daughter about what and how he paid for kennelling at G Road. The daughter’s sworn evidence in her affidavit implied that each invoice was issued on the occasion of payment of the weekly kennelling fee. In cross examination she testified he gave her the money claimed for each invoice she gave him. She did not testify there were any part payments. She did not testify that there was any occasion when $200 extra was paid. She did not say there was ever an occasion when $250 was paid on a Tuesday and the balance on the following weekend. That is not consistent with his evidence of payment of $250 on Tuesday and the balance on the weekend, or his version of paying $200 additional.
The husband has not produced any business record of his, any record of his of kennelling expenses paid, any banking record or a copy of any of his income tax returns for 2002/2003, 2003/2004, or 2004/2005. Nor has he given any explanation for his failure to do so. Under Jones v Dunkel the court adopts an inference that there is no such document or record that would corroborate the alleged payments.
The last invoice is dated 4 September and coincided with the funds with the wife’s solicitors being depleted. On the evidence, once the funds were exhausted no further invoices were issued and the husband made no payments to the son for kennelling dogs. But the dogs of his remained in the son’s care. If the son had previously been charging the husband for kennelling, it is unlikely that they would then revert to the arrangement the husband alleges (sharing prize money from the dogs), but without receipts for payments to the son so that the husband could substantiate them as deductible expenses for income tax purposes.
In the period September – November 2003 when the sister was not living at the property, the son issued only 3 weekly invoices in a period of more than 7 weeks. If he were being paid for the kennelling he would be less likely to fail to render regular weekly invoices. Also, when his sister was living on the property he did not write many of the invoices. These matters and his evidence about the circumstances surrounding the husband giving him a second invoice book are all more consistent with his version of not being paid kennelling expenses and being reluctant to participate in a deception or fraud on his mother.
Under the rule in Jones v Dunkel the court finds that the husband has in his possession or control no documents or other records that would assist him to prove the alleged kennelling payments to the son, and his bank’s records of his bank account would not have assisted him to prove those alleged payments.
Overall the evidence establishes on the balance of probabilities that the husband did not pay any of the amounts stated in the invoices from “[G] Kennels” for which the husband received reimbursement from the wife’s solicitors. His evidence in the previous proceedings that he did pay them was false.

MR S

When it was put to the husband the first time in cross-examination that he did not ever pay any money to Mr S for his dogs to be kennelled, the husband avoided the question. It was only when he was directed to answer the question that he denied the proposition.
In oral evidence the husband conceded that when the wife went to Mr S’s property seeking to see what dogs of the husband were there, Mr S ordered her to leave the property before she could do that. The husband denied he instructed Mr S to do this.
There are invoices alleged to be rendered by Mr S to the husband for kennelling dogs of the husband for a total of more than $10,000 for the year ended 30 June 2003 and a total amount of nearly $14,000 for the year ended 30 June 2004.
A subpoena was served on Mr S requiring him to produce various records (including tax returns) in relation to the alleged payments to him. It was returnable before Justice Waddy on 13 June 2006. Mr S attended. He gave evidence that he had no statements, passbooks or deposit books relating to moneys received by him and/or B Kennels from the husband for the period 1 August 2003 to 31 December 2004. In answer to questions he said that the name “[B] Kennels” is not a registered business name but is a name he uses for the property. He produced no copies of income tax returns. In answer to questions from counsel for the wife, he said he has no income tax returns for himself or B Kennels for the years ended 30 June 2004 or 30 June 2005 with an accountant.
The husband has produced invoices allegedly from Mr S covering a substantial period. The amounts of the invoices total more than $20,000 over 2 tax years. The husband’s evidence is that he had a commercial relationship with Mr S for that period to kennel some of his dogs.
On the evidence the wife had met Mr S on only 1 occasion when she went to his property to see what dogs of the husband were there. Mr S ordered her to leave the property before she could do that.
There was an issue in these proceedings as to whether the payments were actually made to Mr S and the husband was well aware of that. The husband did not offer any evidence of Mr S in his case and did not offer any evidence of Mr S in his case and did not offer any explanation for that omission. The husband would have been expected to have Mr S swear an affidavit in his case, and the wife would not. In particular, the wife did not have a relationship with Mr S and in her case, she was alleging that Mr S kept issuing invoices, but was not being paid the kennelling fees in the invoices.
In the circumstances the rule in Jones v Dunkel is applied to the husband’s failure to call Mr S and the Court draws an inference that Mr S would not have given evidence to assist the husband’s case.
When asked if he had any documents, whether originals or copies, of statements regarding moneys received either by him or B Kennels from the husband for the period 1 August 2003 to 31 December 2004, Mr S answered, “No. Only them invoice books you got.” He said there were no bank passbooks in respect of any such moneys. He denied having any bank deposit books or copies relating to any moneys received by him from the husband between 1 August 2003 and 31 December 2004. He denied there are any copies of any income tax return for him or B Kennels for the year ended 30 June 2004 and similarly for the year ended 30 June 2005. The effect of Mr K’s evidence was that he has no record in relation to receipt of any of the alleged kennelling payments from the husband.

From the invoices in evidence, it appears that the husband alleges he paid kennelling expenses of about $10,600 to Mr S in the 2002/2003 tax year and almost $14,000 in the 2003/2004 tax year. Income at such levels would render Mr S liable to lodge an income tax return. There is no evidence that he did.
From the husband’s failure to put into evidence any records or other documents of his, the inference that the Court adopts under Jones v Dunkel is that the husband has no records that would assist him to establish any of the alleged payments of kennelling fees to Mr S. His unexplained failure to rely upon any records from his bank in relation to his account leads to an inference ion the circumstances that the bank’s records in relation to the husband’s account would not assist him to prove any payments of the kennelling fees alleged to have been paid to Mr S.
In cross-examination the husband’s evidence was that as far as he is aware Mr S has not kennelled other dogs. However, the son testified that he introduced the husband to Mr S and Mr S had previously kennelled 2 or 3 of (the son’s) dogs for $20 per week each. The husband said he purchased 3 or 4 invoice books at the same time and he did not ask Mr S whether he had an invoice book, “I just took one out on the first day in case he didn’t – he lives a long way out of town”. Later the same day the husband was reminded that he said he had bought Mr S an invoice book and was asked whether that was correct. He replied, “I’m not sure, I think I did”. He was reminded that he had testified earlier that same day that he did. He then replied, “Yes, I probably did”. He said that Mr S kept the book.
The husband denied he asked Mr S to write invoices for him in order that he could obtain money from the wife. In his oral evidence the husband confirmed his version that the original of each invoice was signed by Mr S when the husband paid him the money.
If the husband had paid Mr S weekly from 28 November 2003 to 12 March 2004 (inclusive), there would have been 16 invoices. Instead there are only 15.
The invoices from Mr S dated November or December 2003, and January, February and early March 2004, are dated as follows:
Invoice number  Date  date altered from
117 /11/03
1214/11/03
1321/11/03
1428/11/03
155/12/03  2/12/03
169/12/03
1716/12/03  19/12/03
1826/12/03  23/12/03
1920/12/03  2/12/03
206/1/04
2116/1/04  13/1/04
2230/1/04  20/1/04
236/2/03  27/1/03
243/2/04
2520/2/04
2627/2/04
275/3/04
Invoices 19 and 23 were not issued in sequence. Also, the issue of the invoices has been erratic. They have been invoices for weekly charges, but invoices 23 and 24 are dated only 3 days apart, invoices 22 and 24 are only 4 days apart and invoices 15 and 16 are dated only 4 days apart. Invoice 22 is dated 2 weeks after the previous invoice.
The invoices for the period 21 March 2003 to 5 December 2003 are in sequence and there is an invoice dated for every Friday of the period except the week of 15 August.
After the pattern of invoices dated only on Fridays, invoice 15 was originally dated on a Tuesday, only 4 days after the previous payment. If payments were being paid as the invoices were issued, it is extremely unlikely that the husband would have made the mistake of paying 2 weekly invoices only 4 days apart. Also invoice 16 is dated on Tuesday 9 December, 7 days after the original date of invoice 15, but only 4 days after 5 December, the altered date of invoice 15. It is extremely unlikely that the husband would have paid another weekly payment only 4 days after paying invoice 15. On the balance of probabilities the date on invoice 15 was not altered until after invoice 16 had been dated. The dates of invoices 16 and 17 are both Tuesdays and inconsistent with the prior sequence of payments on Fridays. Invoice 18 was originally dated 23/12/03 (a Tuesday) 7days after the original date of invoice 17. But the date was later changed to 26/12/03, 10 days after the amended date of invoice 17. On the balance of probabilities invoice 18 was dated and then amended, both after the amendment to the date on invoice 17.
Invoice 19 was originally dated 2/12/03 and then changed to 20/12/03. If one assumes that the alteration was made to correct an error, then it is likely that care was taken to substitute the correct date. But 20/12/03 was a Saturday, so that is inconsistent with weekly payments on Fridays, and the date of 20/12/03 is out of sequence (dated 6 days before the altered date of invoice 18) and is dated only 4 days after the altered date of Invoice 17. It is extremely unlikely that the husband would pay weekly payments twice only 4 days apart.
Invoice 20 is dated 6/1/04. That is a Tuesday. It is also 11 days after the date of the last prior invoice, invoice 18. The original dates of Invoices 21, 22, 23 and 24 followed the date of invoice 20 in weekly sequence (except for an error on invoice 23 stating the wrong year) and the dates were all Tuesdays. The dates of 21, 22, and 23 were later altered to 16/1/04, 30/1/04 and 6/2/03 (should be 04). Those dates are all Fridays but invoice 21 is dated 10 days after the previous invoice date, and 22 is dated 14 days after the date of 21. Also 23 is then dated 3 days after the date of the subsequent invoice, 24. Quite apart from being out of sequence, it is highly improbable that the husband would pay a weekly invoice only 3 days after the previous weekly payment. Invoice 25 is dated 20/2/04 (Friday) 14 days after the last previous invoice date. Invoices 25, 26, 27 & 28 are in weekly sequence and all have Friday dates.
On 3 March 2004 the husband submitted for reimbursement invoice 27 from Mr S dated 5 March 2004.
But the unexplained absence of evidence by Mr S in the husband’s case, the absence of any other records or documents as to the source of the funds or what was done with them after payment, the absence of any business or tax records of the husband or Mr S regarding the payments, the findings regarding the alleged payments to Mr K and the parties’ son, and the husband’s poor credit and dishonesty all combine to result in a finding on the balance of probabilities that the husband did not make any relevant payments to Mr S for kennelling. The evidence in the previous hearing that he did was false.

MS T

There was one invoice submitted by the husband to the wife’s solicitors purporting to be for “Kennelling Rental” of $240 for one week in advance. It is dated 21 March 2003 and unsigned. It does not indicate the number of dogs. Ms T did not give evidence. There is no corroboration of the husband’s evidence that he paid Ms T that $240.
The husband’s de facto wife gave evidence that, “a number of bitches were placed with a lady outside of [M], [Ms T]”. She testified the bitches were there only a short period and she attended there on occasions with the husband. To the best of her recollection the invoices were from an invoice book the husband brought with him.
Her evidence is that the dogs had to be moved because Ms T was selling the property and the kennels at her property were then moved to Mr and Mrs K’s property. She did not testify that she ever saw the husband pay Ms T any money.
Ms T did not give evidence. There is no documentary or other corroboration of any payment to Ms T. However, there is only 1 invoice of $240 from Ms T and in the circumstances, no inference can be justified under the rule in Jones v Dunkel because the legal costs of pursuing the issue in respect of that 1 invoice would be out of all proportion with the amount at stake.
On all the evidence the court is not satisfied on the balance of probabilities that the husband paid Ms T the $240. But the Court is not satisfied on the balance of probabilities that he did not. The Court is not satisfied that his evidence in the previous hearing of paying that amount to Ms T was false.

MR M

The evidence shows the following “accounts” purporting to be from Mr M to the husband for “boarding fees” at his premises at W:
28/3/03 to 4/4/03, 5 [dogs] @ $35 each           $175
5/4/03 to 11/4/03, 8 [dogs] “for one week”
@ $30 each$240
12/4/03 to 18/4/03, 8 [dogs] “for one week”
@ $30 each$240
19/4/03 to 25/4/03, 8 [dogs] “for one week”
@ $30 each$240
25/4/03 to 2/5/03, 5 [dogs] @ $30 each  $150
2/503 to 9/5/03, 5 [dogs] @ $30 each  $150
9/5/03 to 16/5/03, 5 [dogs] @ $30 each           $150
16/5/03 to 23/5/03, 5 [dogs] @ $30 each  $150
23/5/03 to 30/5/03, 5 [dogs] @ $30 each  $150
30/5/03 to 6/6/03, 5 [dogs] @ $30 each  $150
6/6/03 to 13/6/03, 5 [dogs] @ $30 each  $150
13/6/03 to 20/6/03, 5 [dogs] @ $30 each           $150
20/6/03 to 27/6/03, 5 [dogs] @ $30 each  $150
27/6/03 to 4/7/03, 5 [dogs] @ $30 each  $150
4/7/03 to 11/7/03, 5 [dogs] @ $30 each  $150
11/7/03 to 18/7/03, 5 [dogs] @ $30 each  $150
18/7/03 to 25/7/03, 5 [dogs] @ $30 each  $150
25/7/03 to 1/8/03, 5 [dogs] @ $30 each  $150
Total$2,995
The invoices are typed and not numbered. They do not acknowledge receipt of any payment. They purport to be signed by Mr M. The documents were not produced by Mr M in answer to a subpoena. Ms LS gave evidence that she received the invoices by fax. There is no evidence they were sent by Mr M. There is no evidence by Mr M or anyone else to authenticate the invoices. Ms LS did not attend Mr M’s property. She was not involved in any payments to Mr M. She did not give any evidence as to the source of the funds.
Mr M’s property, according to the husband, is at W near N. It would be a drive of about 300 kilometres from the husband’s home at H. The husband’s evidence before Rowlands J, when asked why he had dogs kennelled so far away was that he had 14 days to place 27 dogs and “[Mr M] – he looks after – and that’s all he does, he’s a breeder. I know he would look after some of the older brood bitches until I could find a spot back here, close, where I could keep an eye on them”.
On 20 April 2003 in a letter to the husband’s solicitors the wife’s solicitors stated:
I note that as a sign of my client's good faith, more than $2,000.00 has already been paid to your client yet there seems to be no acceptance by him that he has obligations to confirm the nature of the expenses which he is allegedly incurring and the dogs which those expenses are allegedly being incurred.
When I sought further information from one of the kennel proprietors ([Mr M]) it was obvious that not only was the invoice to cover actual "kennelling" but also all of the expenses relating to feeding, exercising and providing veterinary services for those dogs. I do not believe it has ever been envisaged by the Court that [the wife] would be liable for all of the costs associated with the raising of what [the husband] alleges are his animals.
The letter also stated:
Until such time as your client has confirmed:
a)        which dogs are at which locations;
b)        that can be independently verified; and
c)        which services are being provided for which dogs at which locations,
my client has instructed me that no further payments are to be made. Does your client expect my client to bear all of the costs he is now incurring for his animals and is he prepared to concede such a contribution, if made, in the overall property settlement?
There was no response by the husband or his solicitors as to those matters raised, except that when the wife stopped the payments, the husband later took proceedings against her and she was found to have contravened the orders of 23 March 2003 and 2 May 2003 without reasonable excuse. She was released upon entering a bond to be of good behaviour for 12 months and comply with the Court’s orders.
The husband in cross examination said Mr M “sent the invoices and I paid him”. Later he said Mr M rendered invoices “only when I paid him.” He denied he ever received an invoice before payment and said “I’m sure.” After some evasion he conceded Mr M sometimes sent batches of invoices, and he volunteered “but after payment”. The fact that all of Mr M’s invoices are invoices or accounts and none of them acknowledges that the payment has already been made is not consistent with the husband’s evidence that every ‘invoice” issued only after the fees in it were paid. Indeed the invoices for 28/3/03 to 4/4/03, 5/4/03 to 11/4/03, 12/4/03 to 18/4/03, and 19/4/03 to 25/4/03 all describe the fees stated as “total now due”.
The evidence as to when some particular Mr M invoices were submitted for reimbursement is in Exhibit W6 and is as follows:
Period of Kennelling
Claimed by Invoice  Date Faxed
12/4/03 to 18/4/03  15/4/03
25/4/03 to2/5/03  1/5/03
16/5/03 to 23/5/03  20/5/03
23/5/03 to 30/5/03  30/5/03
30/5/03 to 6/6/03  4/6/03
6/6/03 to 13/6/03  11/6/03
13/6/03 to 20/6/03  18/6/03
20/6/03 to 27/6/03  25/6/03
27/6/03 to 4/7/03  3/7/03
18/7/03 to 25/7/03  23/7/03
25/7/03 to 1/8/03  31/7/03
In every case the reimbursement was claimed for the week before the week had expired. So if the husband had already paid the charges before the received the invoice, he paid them during or before the week to which the charges related. And as Mr M sometimes sent batches of invoices, then on the husband’s evidence the husband sometimes paid for several weeks in advance. But there was no evidence of his de facto wife of ever receiving more than one invoice at a time and no evidence that she ever submitted more than one invoice at a time for reimbursement.
The husband did not give evidence in the 2004 hearing or this hearing as to how any payment was made to Mr M nor in his affidavits in these proceedings or his cross examination. There is not in evidence any banking or other record of any cheque presented, direct payment or funds drawn for any payment or any banking, business or other record of receipt of any payment.
There is no evidence of the husband travelling to W property or Mr M travelling to see him. There is no evidence as to dogs being moved to Mr M’s care of them being observed to be there, except that in cross examination on 19 January 2006 the husband said that after the exclusive occupancy order dogs were taken to Mr M at W. He did not testify that he has been there or took any dog there. There is no evidence he visited his dogs there.
In cross-examination of the husband by Ms Bridger on 12 May 2004 the following evidence occurred:
Ms Bridger: Are there any dogs for which you have claimed kennelling expenses from [B] Kennels, [G] Kennels, [Mr M], [Mr K] or [Ms T] for dogs that weren’t at those kennels?
Husband: No….
Mr M did not give evidence in the 2004 hearing or in these proceedings. There is no documentary or other corroboration of any payment to Mr M. The signatures on the invoices have not been identified as signatures of Mr M and there is no direct evidence that he sent these invoices; only an inference.
Under the rule in Jones v Dunkel, the Court draws the following inferences:

The husband has no documents or other records that would assist his claim that he paid the alleged invoices from Mr M for kennelling fees.
The husband’s bank has no records in relation to the husband’s account that would assist the husband to prove that he paid any of the invoices alleged to be from Mr M.

The wife has never met Mr M. The husband alleges he had a commercial relationship with Mr M whereby Mr M for payment provided kennelling for dogs of the husband. Mr M would have been able to give evidence in respect of the husband’s claim that the husband paid Mr M kennelling fees. The husband did not obtain any affidavit from Mr M and provided no explanation for his failure to do so. Under the rule in Jones v Dunkel, the Court draws an inference that Mr M would not have been able to give evidence that would have assisted the husband’s case.
In the context of the other findings about the husband’s poor credit, dishonesty and false claims of kennelling expenses, the finding on the balance of probabilities is that the husband did not make any of the alleged payments of kennelling fees to Mr M and his evidence that he did was false.

CONCLUSIONS

The Court has found that the husband’s evidence in the property proceedings of payment of kennelling expenses to Mr and Mrs K, his son, Mr S and Mr M for which he was reimbursed by the wife’s solicitors was false.

_______________________

The Hon Justice Mullane

7 August 2007

Category	Inv # Range	Kennel	Comment
1	1-4	[CSL]
2	1-100	[CSL] [G]	#1-50 #51-100
3	51-53	[CSL]
4	254701-254725	[G]
5	1-27	[K]
6	255501-255524	[K]
7	4	[Ms T]	Only 1

INVOICES DATE(S)	No. OF DOGS PW
28/3/03 to 18/4/03	19
18/4/03 to 25/7/03	22
1/8/03	27
8/8/03	27
15/8/03	12
22/8/03 to 21/11/03 Excepting weeks of 3/10/03 and 10/10 03 when	26 18
28/11/03	28
5/12/03	24
9-12/12/03	24
19/12/03	34
20 & 26/12/03	34
2 & 6/1/04	24