Evidence – Trial judge’s enforcement of direction for single, consolidated affidavit material procedurally unfair where subsequent direction permitted reliance on multiple affidavits
In Krupin [2022] FedCFamC1A 136 (1 September 2022) Tree J (sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia) heard an appeal from a decision of Judge Young, which divided property 51.5 per cent to the husband and 48.5 per cent to the wife, but dismissed the husband’s case that the wife’s mother held property on trust for the husband and the wife.
After the original trial dates were vacated due to Covid-19, trial directions were made on 6 November 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).
Those directions scheduled a trial that was also vacated. Further trial directions were made on 7 September 2021 by a different judge, which permitted the parties to rely on all affidavits previously filed in the proceedings.
When the trial commenced, the primary judge insisted on compliance with the 2020 directions as to consolidated material, notwithstanding that the husband’s case outline sought to rely on 11 previously filed affidavits; and the wife’s outline sought to rely on 13 affidavits ([33]). The parties then sought an adjournment by consent, which the Court dismissed.
Tree J said (from [35]):
“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit contemplated by the 7 September 2021 orders. … [T]he primary judge permitted the parties to tender bundles of additional primary documents they relied upon, but the earlier affidavits were not amongst them. …
[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (‘Aon Risk’) at [94]).
( … )
[39] … Crucially, the 7 September 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. Because the 6 November 2020 orders were expressed to be ‘until further order’, to the extent there was any inconsistency, the 7 September 2021 orders prevailed, and particularly, order 2 of the 6 November 2020 orders was superseded.
[40] Quite properly, between 7 September and 24 November 2021, all parties believed, and prepared their cases on the legitimate, court sanctioned basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and without any forewarning, a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. More, since the 6 November 2020 order for one consolidated affidavit had been superseded, it was no longer in effect, and the primary judge was wrong to conclude otherwise. …
[41] Nor was the unfairness theoretical. In the case of the appellant, he was deprived of his properly anticipated recourse to a considerable body of affidavit material …
[42] Indeed this point was tellingly illustrated by the first respondent’s Summary of Argument in this appeal, where, in reply to the appellant’s arguments that many factual findings of the primary judge were contrary to the evidence, it was said that the material relied on by the appellant was not before the primary judge, and yet it was that very material which the appellant was denied the opportunity to put in to evidence.
( … )
[45] … Whilst the primary judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, and correctly indicated such a procedure was contrary to good case management, that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.”
The appeal was allowed, orders discharged and the matter was remitted for re-hearing.