Walters and Walters

Case [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 of 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

  1. Orders made  13/3/03

  2. Orders made  2/5/03

  3. Exhibit W18 from hearing before Rowlands J – wife      April/May 2003

  4. Orders made  12/9/03

  5. Orders Made  11/11/03

  6. Husband’s Affidavit worn 19/11/03, para 82
               (Appeal Book 1 page 112-113) – wife  19/11/03

  7. Appeal Book 5 transcript pages 320-333 – wife              12/5/04

  8. Appeal Book 5 transcript pages 423-425 – wife              13/5/04

  9. Judgment of Rowlands J, Appeal Book 1,
               pp.11-17 – husband  19/11/04       

  10. Orders and Reasons of Full Court  15/3/06  

  11. Application of wife (79A)  7/4/06

  12. Response of husband  11/5/06

  13. Affidavit of the son– wife  10/3/06

  14. Financial Statement – wife  3/4/06

  15. Affidavit of…

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Walters and Walters [2007] FamCA 832
Case
[2007] FamCA 832
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CaseChat Overview and Summary

In *Walters and Walters*, Justice Mullane of the Supreme Court of New South Wales was required to consider directions for the further hearing of a Section 79A Application. The specific nature of the dispute between the parties, beyond the application itself, is not detailed in the provided text.

The central legal issue revolved around the application of the rule in *Jones v Dunkel*, specifically concerning the inferences a court may draw from a party's failure to call a witness. The court needed to determine what constitutes a satisfactory explanation for such a failure, thereby preventing the adverse inference from arising.

Justice Mullane, referencing *Cross on Evidence* and *Cadwallader v Bajco Pty Ltd*, outlined that the rule in *Jones v Dunkel* does not apply if there is a valid explanation for the failure to call evidence. Such explanations can include the witness's absence with a reasonable justification for not compelling attendance, illness, unavailability, loss of memory, or refusal to waive privilege. Furthermore, the rule may not apply if the witness is the opposing party's child, is hostile, or if calling them would cause jeopardy or grave prejudice. The explanation must be established by evidence, not presumed. The court noted that the civil penalty nature of proceedings, potential for subsequent penalties, or a contemporaneous Royal Commission were not satisfactory explanations. A belief that the opposing party's evidence is insufficient is also not a valid excuse. The significance of the inference is also dependent on the closeness of the absent witness's relationship with the party who failed to call them, with a cessation of that relationship and commencement of a new one with the opponent potentially negating the inference. The onus of establishing unavailability rests on the party against whom the inference might otherwise operate.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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