Cairns v Cairns

Supreme Court of NSW|2006-04-28|Before: Campbell J

CITATION : Cairns v Cairns [2006] NSWSC 364

DECISION : Affidavit permitted to be read.

CATCHWORDS : PROCEDURE - Supreme Court procedure - permitting affidavits to be read when deponent not available for cross-examination - factors relevant to exercise of discretion - PROCEDURE - Supreme Court procedure - affidavits read, but deponent subsequently declines to be cross-examined - retrospectively treating affidavits as not read - EVIDENCE - judicial discretion to admit or exclude evidence - deponent not available for cross-examination - factors relevant to discretion - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - evidence - lack of utility of evidence of minutiae of virtues and shortcomings of family members

Family Provision Act 1982 LEGISLATION CITED : Property (Relationships) Act 1984 Uniform Civil Procedure Rules 2005

CASES CITED : Russell Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unreported)

Diane Patricia Cairns - Plaintiff PARTIES : George Ernest Cairns (in the estate of the late George Hamilton Cairns) - First Defendant Debbie Doreen Cairns - Second Defendant Elaine Mary Durack - Third Defendant

E Cohen - Plaintiff COUNSEL : P Dowdy - First Defendant L Ellison SC - Second and Third Defendant

Colin Daley Quinn - Plaintiff SOLICITORS : Russell C Byrnes - First Defendant Haydon Fowler Corbett Jessop - Second and Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

1 HIS HONOUR: This matter took an unusual course yesterday afternoon. After the affidavits had been read, the plaintiff was the first witness who was called to give oral evidence. In the course of cross-examination, she gave evidence which extends over some two and a half pages of the transcript. In the course of that evidence she showed a significant either reluctance or inability to give direct answers to simple questions. She accused counsel cross-examining her, Mr Ellison SC, of twisting words, and of "using language to be verbose", when, in my view he was doing neither. On one occasion, when pressed to answer a question, she did not do so, but said that she had various problems, which she described as: "Sir, I've have been up since 6.30. I have had hardly any food. I am anaphylactic. I have got a cold sore. I have got 20 stitches in my lip. It's been a long day sir."

2 In response to another occasion when I intervened to ask if she could answer the question she said: "Take it sir that I can't articulate at the moment and that this gentleman [indicating Mr Ellison] is phrasing things. It's 3 o'clock in the afternoon. It's the same in society all over. Bullies."

I say immediately that, though Mr Ellison was seeking to get an evasive witness to answer questions, and did so with some repetition and insistence, the cross-examination did not remotely approach being a bullying one.

3 Once that evidence had been given, the plaintiff's counsel, Ms Cohen, requested a brief adjournment to speak to the plaintiff, which was granted. After it, Ms Cohen informed the Court that the plaintiff was very tired, and the case then proceeded, by consent, with the cross-examination of other witnesses.

4 This morning, the plaintiff did not come to court. Ms Cohen sought an adjournment to a day next week, to give the plaintiff time to recover. There was evidence from her solicitor, Mr Milgate, that he had telephoned the plaintiff this morning at 7.15 am, and enquired how she was. He was told that she was unable to attend to give evidence. She said to him: "You don't understand. I just can't get dressed."

She also said: "I am not going back into the jungle."

5 She also told him at that stage that it will take her some days to be in a position to give evidence.

6 Mr Dowdy, counsel for the executor, submitted to me, correctly, that the plaintiff's demeanour yesterday was not one of timidity, but rather of assertiveness and anger that she was required to be here and answer questions at all. He submitted that I could not conclude that there would be any point in granting the adjournment.

7 After a further brief adjournment this morning, the plaintiff's solicitor spoke to her again. She told him that she will never come in to be cross-examined. At the time of that telephone call, which occurred around 11 am, it appears that she had been to see her medical attendant, Dr Lahood, who had sent her to see Dr Wade. There is in evidence a very brief statement from Dr Lahood that in his view she is unable to attend court to give evidence today.

8 After the second conversation the plaintiff had with her solicitor, Ms Cohen's application for an adjournment was, if not abandoned, then at least far less strongly pressed.

9 Even treating the application as still being on foot, I would not accede to it. There is no medical evidence of there being any particular condition which the plaintiff suffers from which would inhibit her ability to give evidence. There is evidence from a medical organisation connected with the Department of Education and Training that, after the plaintiff had been assessed by a medical officer and a consultant psychologist on 8 March 2004, no medical or psychological conditions were identified which would preclude the plaintiff from meeting the inherent demands of her position as a "Support Teacher Learning Assistance".

10 Under those circumstances, I see no reason not to take the plaintiff at her word, and to accept that she will never come in to be cross-examined. Thus, I would decline the adjournment.

11 That raises a question of what should then happen to the case. The case has now reached the stage where cross-examination of all witnesses except the plaintiff is complete except on one topic, which is likely to be brief. The court has power, under Uniform Civil Procedure Rules 35.2, to permit affidavit evidence to be used where reasonable notice of a requirement to be cross-examined has been given, and the deponent does not attend for examination, even if the deponent is still alive.

12 The factors that one takes into account in assessing whether such leave should be granted include the ambit of dispute which there is in the case which is capable of resolution by cross-examination, and as well the fundamental requirement for the court to exercise its discretion in a way which results in the just, quick and cheap resolution of the real issues between the parties.

13 In the present case, the ambit for dispute about matters which are fundamental to the plaintiff's claim does not strike me as great. The fundamental facts about the family relationships and the financial and domestic circumstances of the family members are not in dispute. There are some matters which are traversed in affidavits, but they do not seem to be at the core of the case. They provide another example of the practice, encountered far too often in both Family Provision Act 1982 cases and claims under the Property (Relationships) Act 1984, of affidavits setting out the deponents' versions of small details of the domestic virtues or shortcomings of each other. Where the truth lies concerning such matters very often does not help the Court at all in deciding whether to make an order, and if so what order. Very often, one finds that such detail is not referred to at all by counsel in written submissions or oral address. Putting that sort of detail into affidavits has no effect but to increase costs unnecessarily. For example, in the present case, I doubt that I will be assisted in reaching a conclusion by finding whether the plaintiff did, or did not, refuse to clean the bathroom and toilet.

14 The costs of the case are already estimated to be of the order of $115,000 for all parties, and there is evidence before the court of the financial circumstances of all members of the family who are involved in this particular case. This litigation is already litigation which they can ill afford.

15 Mr Ellison urged upon me the decision of Master McLaughlin, as he then was, in Russell Caldar v Public Trustee of NSW (27 October 2004, unreported). In that case, the learned Master dismissed a Family Provision Act 1982 application after the plaintiff, Mr Caldar, had refused to permit himself to be cross-examined by counsel for the defendant. Mr Caldar did so because the cross-examining counsel was counsel for the Public Trustee, and Mr Calder took the view that the Public Trustee had not been correctly appointed as legal personal representative of his mother's estate, and for that reason ought not have been heard in the case. That view was simply untenable. Once that attitude of Mr Caldar became apparent, the learned Master (correctly, in my respectful view) in effect decided that the earlier reading of Mr Caldar's affidavits had occurred on the assumption that Mr Caldar would be available to be cross-examined on them, and that once that assumption was shown to be incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read. On that review, the learned Master decided that, in the circumstances of the case before him, the affidavits should be treated as not having been read. Once that decision had been made, the case failed for lack of evidence.

16 In this particular case, when the issues between the parties in this case are in large measure not ones requiring to be resolved by cross-examination, I would not follow that course.

17 In all these circumstances, the preferable course is to permit the plaintiff's affidavits to continue to be read, even though she has absented herself from cross-examination. That will, of course, leave it open to counsel for the defendants to make such submissions as they wish about the weight which should be accorded to her evidence in light of her refusal to be cross-examined.

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