Xin & Qinlang (No 2)
[2023] FedCFamC1F 980
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xin & Qinlang (No 2) [2023] FedCFamC1F 980
File number(s): CAC 1782 of 2018 Judgment of: GILL J Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a single expert – Credibility evidence – Presumption against self-incrimination – Where a party seeks the appointment of a handwriting expert to examine signatures that had the effect of removing her as a director of a corporate entity – Where the second respondent alleges that the signatures were forged by the first respondent – Whether this is relevant for credibility purposes – Single expert appointed however first respondent not compelled to participate in examination – Application for costs by first respondent refused Legislation: Evidence Act 1995 (Cth) – ss 102, 103
Family Law Act 1975 (Cth) – s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – r 7.10
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 10 November 2023 Place: Canberra Solicitor for the Applicant: Excused from attendance Counsel for the First Respondent: Dr Smith Solicitor for the First Respondent: Dobinson Davey Clifford Simpson Counsel for the Second Respondent: Mr Mellas Solicitor for the Second Respondent: Lander & Rogers ORDERS
CAC 1782 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR XIN
Applicant
AND: MS QINLANG
First Respondent
MR B XIN & MS WANG
Second Respondent
P COMPANY, P GROUP PTY LTD & P HOLDINGS PTY LTD
Third Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.I direct that the parties are at liberty to seek the urgent relisting of this matter on short notice to each other in the event that further directions are required to maintain the current trial dates.
2.The second respondent is entitled to call evidence from Dr V as an expert appointed pursuant to rule 7.10 and is granted leave to rely upon Dr V’s evidence subject to the usual rules of evidence.
IT IS FURTHER ORDERED THAT
3.I withdraw the orders previously made in relation to the appointment of the expert witness and substitute the following orders.
4.That Dr V of W Services (“the Handwriting Expert”) is appointed as an expert for the purposes of conducting a forensic examination of the foreign signatures in the following documents (“the signatures”):
(a)notification by officeholder of resignation or retirement, being “Annexure [MW]-1” annexed to the affidavit of the second respondent of 16 October 2023; and
(b)letter to ASIC dated 3 January 2017, being “Annexure [MW]-2” annexed to the same affidavit.
5.The handwriting expert shall provide an expert report (along with an affidavit) and leave is granted for such to be filed in these proceedings and adduced in evidence, subject to their compliance otherwise with the rules of evidence addressing whether the signatures are likely to be signed by the second respondent.
6.That the handwriting expert’s costs be paid for by the second respondent in the first instance and the issue of costs to be a matter for the trial.
IT IS NOTED THAT
7.The second respondent served the first respondent wife with a notice to admit facts in relation to the signatures on 9 March 2023 and the first respondent wife responded by serving a notice disputing fact or document on 26 April 2023.
IT IS FURTHER ORDERED THAT
8.The application for costs on the part of the first respondent is dismissed.
9.I direct that an interpreter be made available for the conduct of the trial in this matter.
10.I direct that the second and third respondents file and serve points of claim in relation to their various equitable claims that they may make in this matter by 4 pm on 17 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under pseudonym, Xin & Qinlang, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
Permission has been granted for the appointment of an expert by the second respondent. The uncontentious scope of the expert’s report is to cover the question as to whether the signatures on annexure MW-1 and MW-2 of the second respondent’s affidavit of 16 October 2023 are those of the second respondent. This is put forward as a matter of some significance by the second respondent as those signatures had the effect of removing her as a director of a corporate entity, the P Group Pty Ltd, being an entity that in turn owned or owns T Franchise, Suburb H and T Franchise, Suburb X. This is a highly contentious matter as the second respondent denies having executed the document by which her directorship was retired and accuses the first respondent of having forged each of those signatures.
As noted above, it is uncontentious that the second respondent can obtain expert evidence going to the question of whether or not the signatures on the relevant documents were executed by her. However, the second respondent seeks to take it a further step with the expert and that is to ask the expert to determine whether or not the signatures upon those documents are the signatures of the first respondent wife.
In aid of so doing, the second respondent seeks orders from this court that would direct the wife to provide certain samples of writing to aid in the assessment process to be engaged in by the expert. That course of action is opposed by the first respondent.
In support of the application the second respondent identified the use to which such evidence would be put, being evidence that it is the wife who is the author of each of those signatures.
The second respondent advanced credibility as being one use to which the evidence would be put and otherwise asserted a more general relevance without descending to articulate how it is that it would otherwise be used in the case.
It may be accepted that the fact of the second respondent not having executed the documents may be an important matter in determining the issue as to whether or not she was substantively involved in the P Group Pty Ltd, again a matter of hot contention.
Whether or not the wife executed those documents does not so clearly go towards establishing any particular fact in issue in relation to the causes of action that are otherwise pursued by the parties. I pause to observe that the justification that the evidence would be used for credibility appears at face value to not be an allowable purpose.
Section 102 of the Evidence Act 1995 (Cth) sets out the credibility rule in the following terms:
Credibility evidence about a witness is not admissible.
That rule is subject to exceptions and the particular exception contained at s 103 is in the following terms:
(1)The credibility rule does not apply to evidence adduced in cross-examination of a witness of if the evidence could substantially affect the assessment of the credibility of the witness.
Although it was suggested that recourse could be had to this exception in obtaining this evidence and producing it before the court, at this stage that does not appear to be so to me. If the evidence was to be adduced from the expert it would not be evidence adduced in cross‑examination. Further, the production of the expert report or the document which would evidence the expert report would not be a matter about which the wife could be cross-examined without the court being assured of that material entering otherwise into evidence. That is, the report would not be adduced in cross-examination.
Accordingly, the adduction of the report for credibility of purposes appears to be excluded by the operation of s 102 and not allowable under the operation of s 103(1). These matters tell strongly against taking the step of compelling the wife to cooperate with the preparation of the report insofar as it relates to whether or not the signature on each of the documents is hers. Bearing in mind the primary purpose of the rules this tells against the grant of that application.
There is, however, a further important matter which also tells against it. That is, what is alleged against the wife is that she has engaged in criminal conduct in the forging of signatures which were subsequently lodged to effect the retirement of the second respondent as a director of that corporate entity.
The nature then of the application is to compel the wife to cooperate in the prosecution of the second respondent’s case against her. This calls into play the privilege against self‑incrimination.
The wife objects to participating in that process and under circumstances where she is clothed with a privilege against self-incrimination this is a telling matter against the grant of relief.
Accordingly, for the reasons identified above the relief is refused.
COSTS
An application is made on behalf the first respondent for costs in relation to today’s proceedings. I note the operation of s 117 which sets, as a starting position, that each party will bear their own costs subject to circumstances as identified pursuant to s 117(2A) justifying a different course of action.
To justify that different course of action, the wife points to the lack of success on the part of the second respondent, labelling it as the second respondent being wholly unsuccessful in their application.
That description of the second respondent’s success in the proceedings, or lack thereof, is not unreasonable. The position that was different between the parties, it seems, is predominantly as to whether or not Dr V would be appointed as a single expert or simply as an expert, and whether or not the wife, the first respondent, would be caused to participate with what it was that he was sought to produce an opinion about in relation to her.
In this case it may be observed that the second respondent was unsuccessful in the sense that they obtained no relief other than that which was conceded effectively by the first respondent. Usually this would be sufficient to justify an order for costs.
There is, however, another aspect to this which unfolded as the matter was discussed. It was the arid nature of the dispute as to whether or not the expert would be appointed as a single expert or simply as an expert in the proceedings.
Both sides identified that there was no practical difference between those two outcomes, save as to some procedural considerations that would also require suspension in order for the matter to proceed to trial.
Under those circumstances I decline to depart from the usual rule that each party bears their own costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 November 2023
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