Watkins & Watkins

Case [2004] FamCA 381

[2004] FamCA 381

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   Appeal No. EA14 of 2003

File No. NCF 2067 of 2002

IN THE MATTER OF:

STANLEY JOHN WATKINS

Appellant Husband

- and -

BEVERLEY ANNE WATKINS

Respondent Wife

REASONS FOR JUDGMENT

BEFORE:  Finn, Warnick and Mushin JJ
DATE OF HEARING:        26 June 2003
DATES OF FURTHER WRITTEN SUBMISSIONS:

15 October 2003; 10 November 2003; 28 November 2003.

DATE OF JUDGMENT:     4 May 2004  

APPEARANCES:                Mr Murphy of Counsel (instructed by Barry & Nilsson Lawyers, Level 21, 215 Adelaide Street, Brisbane QLD 4000 – DX 145 Brisbane QLD) appeared on behalf of the appellant

Mr Tregilgas of Counsel (instructed by Annette Nicholson & Associates, 80 Albert Street Taree, NSW 2430 – DX 7012 Taree NSW) appeared on behalf of the respondent

APPEAL SUMMARY

MATTER:WATKINS

APPEAL NUMBER:  EA 14 of 2003 (NCF 2067 of 2002)

CORAM:Finn, Warnick and Mushin JJ

DATE OF HEARING:  26 June 2003

DATE OF WRITTEN SUBMISSIONS:    15 October 2003, 10 November 2003 and 28 November 2003

DATE OF JUDGMENT:  4 May 2004

CATCHWORDS:                FAMILY LAW – APPEALS – Application by the respondent to the appeal to re-open the hearing of the appeal before the delivery of the Full Court judgment in order to adduce further evidence – Discussion of the principles to be applied by the Full Court – Hearing of the appeal re-opened to permit the respondent to adduce further evidence in order to support the order of the trial Judge. 

FAMILY LAW – APPEALS – Property settlement – Whether trial Judge erred in treating a bank deposit in the name of the appellant husband’s mother, the interest on which was received by the husband, as either property or a financial resource of the husband – Trial Judge had erred on the evidence available at trial – error rectified by subsequent evidence adduced by the wife.

Caselaw cited:

Allesch v Maunz (2000) 203 CLR 172

CDJ v VAJ (1998) 197 CLR 172

Application to re-open the appeal granted

Application to adduce further evidence granted

Appeal dismissed

Directions made for the filing of written submissions as to costs

REPORTABLE
Introduction

  1. This is an appeal by the husband against an order for property settlement made by Lawrie J on 30 January 2003.  The effect of her Honour’s order was to divide the assets of the parties (which were situated in Australia and which were found by her Honour and agreed before us to have a value of $227,377) in the proportions of 80% to the wife and 20% to the husband.

  2. The appeal was heard by us on 26 June 2003.  At the conclusion of the hearing of the appeal we reserved our decision.

  3. On 4 August 2003, while our decision was still reserved, the wife filed an application seeking orders that:

    ·    “the handing down of the Reserved Judgment in the Appeal be stayed”; and

    · “the wife be granted leave to re-open her case and pursuant to…

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Watkins & Watkins [2004] FamCA 381
Case
[2004] FamCA 381
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal before Finn, Warnick and Mushin JJ, where the wife sought to admit further evidence to support an order made by the trial judge. The wife's application relied on passages from the High Court's judgment in *CDJ v VAJ*, which discussed the scope and application of section 93A(2) of the relevant Act.

The central legal issue was the proper exercise of the discretion conferred by section 93A(2) to admit further evidence on appeal, particularly when that evidence is sought to support, rather than overturn, an order made at first instance. The court was required to consider the principles governing the admission of further evidence in appellate proceedings, including the purpose of such a power and the factors that weigh in its exercise.

The court's reasoning, drawing from *CDJ v VAJ*, emphasised that the discretion under section 93A(2) is broad and not subject to strict requirements like "special grounds" or "special leave." It is a remedial power designed to prevent miscarriages of justice and can be used to support existing findings, not solely to set aside erroneous ones. While factors such as finality and discoverability are generally relevant, the court highlighted that in cases involving the interests of third parties, such as children, these may be outweighed. The court noted that the discretion is particularly relevant in appeals from original jurisdiction, where the appellate court considers the law as it exists at the time of the appeal. The court also indicated that undisputed evidence, especially relating to events post-trial, may be readily admitted if it can be evaluated without a rehearing, with its likely effect on the appellate court's view being the primary consideration in such circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In support of the application to have the further evidence admitted on the appeal in order to support the order made by the trial Judge, Counsel for the wife relied on various statements (which we will emphasise) in the following passages from the judgment of the High Court majority (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172, paragraphs 104 to 114:The scope of s 93A(2) 104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake (See R v Watt; Ex parte Slade [1912] VLR 225 at 239, 245; see also Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 494; Totterdell v Nelson (1990) 26 FCR 523 at 529; Makhoul v Barnes (1995) 60 FCR 572 at 576-577), although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. …107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the sub-section contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that "special grounds" or "special leave" be shown before the evidence can be adduced (See for example Supreme Court Act 1970 (NSW), ss 75A (8), 75A(9); Rules of the Supreme Court (WA), O 63 r 10(1); Supreme Court Civil Procedure Act 1932 (Tas), s 48(3)). Nor, in contrast to the common law position, must the motion to receive the evidence be designed to set aside the verdict at first instance. Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made. …109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. …111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original (Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283). In Attorney-General v Sillem ((1864) 10 HLC 704 [11 ER 1200]), Lord Westbury LC pointed out that "[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below." ((1864) 10 HLC 704 at 724 [11 ER 1200 at 1209]) Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable (Ponnamma v Arumogam [1905] AC 383 at 388; Victorian Stevedoring (1931) 46 CLR 73 at 109). In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal (Victorian Stevedoring (1931) 46 CLR 73 at 107). Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a "trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence." (In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505) Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. …114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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