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) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated, 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. Trial directions were made on 7 September 2021 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, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

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 … (…)

Advertisement

[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 … ). (…)

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … (…)

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).