'Judgment' (iv) (rulings on evidence)
58 The principal matter dealt with in the published judgment of 8 August 2007 was rulings on evidence. The applicant had filed, and sought to rely upon, 12 affidavits, described by the Federal Magistrate as 'voluminous', to which extensive objections were taken. A further affidavit was filed before him on 3 August 2007. The last mentioned affidavit was admitted in its entirety subject to further consideration of relevance and weight. Those parts of the earlier affidavits which contained a 'narrative of events involving the personal respondents themselves and the particular conduct covered by her complaint to HREOC' were admitted, subject to further consideration in a final judgment 'as to their probative weight and relevance'. All of so much of 'the applicant's evidence in her first affidavit which affirms the absence of any mental condition, disability or impairment' was admitted. Some opinion evidence by the applicant 'which is of dubious admissibility' was also admitted.
59 However, the Federal Magistrate rejected, under s 135 of the Evidence Act 1995 (Cth) ('the Evidence Act') and Rule 15.29 of the Federal Magistrates Court Rules 2001 ('the FMC Rules') 'very extensive repetition and elaboration of … evidence … with reference to a multitude of factual circumstances having no … bearing on the issues in the proceedings' relating to matters about which evidence was given in the first affidavit and not challenged by any respondent as well as 'very extensive material which amounts to no more than submissions repeating the general contentions of fact and law made in the applicant's points of claim documents, her particulars and her written submissions'.
60 Rule 15.29(1) of the FMC Rules provides:
'(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.'
61 Section 135 of the Evidence Act provides:
'The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.'
62 It is also pertinent to draw attention to s 55(1) of the Evidence Act which provides:
'(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.'
and s 56 of the Evidence Act which provides:
'(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.'
63 The Federal Magistrate also excluded details of the conduct of numerous persons other than the personal respondents relating to matters which he had earlier ruled, on 17 November 2006 (Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792), were outside the scope of the matters before him and outside the scope of the FMCA's jurisdiction as granted by s 46PO of the HREOC Act. He stated that '[t]he applicant's evidence of these matters is therefore irrelevant and inadmissible insofar as she continues to pursue complaints which I had found not to be within jurisdiction'. He indicated that he would have excluded the evidence upon discretionary grounds in any event.
64 No matter of any substance has been advanced in support of the application for leave to appeal so far as those rulings are concerned. That circumstance alone dictates rejection of the application so far as it concerns rulings on evidence. There are other obstacles also.
65 An appeal may be brought in this Court against a 'judgment' of the FMCA (Federal Court of Australia Act 1976 (Cth) ('FCA Act') s 24(1)(d)) provided that, in the case of an interlocutory judgment, leave is obtained (FCA Act s 24(1A)). 'Judgment' is defined by s 4 of the FCA Act to mean 'a judgment, decree or order, whether final or interlocutory, or a sentence'. The words 'judgment, decree or order' have been held to have the same meaning as the words 'all judgments, decrees, orders' in s 73 of the Constitution (Ah Toy v Registrar of Companies (1985) 10 FCR 280; Moller v Roy (1975) 132 CLR 622). Judgments, accordingly, involve formal orders. An expression of reasons, for example, does not give rise, independently, to a right of appeal (Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; R v Ireland (1970) 126 CLR 321 at 330; Moller v Roy at 639).
66 Rulings made during the course of a proceeding may not be appealable (see generally The Commonwealth v Mullane (1961) 106 CLR 166 at 169). More specifically, there is room to doubt that, in most cases, a ruling on the admissibility of evidence will provide any opportunity to bring an interlocutory appeal. In criminal cases there is clear authority to the effect that a ruling on evidence made in advance of, or in the course of, a trial is not an interlocutory judgment or order (R v Steffan (1993) 30 NSWLR 633 at 639; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 670) although the general rule may give way to an exception in a 'rare case' where a ruling on evidence may form the basis for an appealable order - e.g. a stay of proceedings (Botzatsis v Spenakakis (1997) 97 ACrimR 296 ('Botzatsis') at 302 - 304). As Gleeson CJ observed in Botzatsis:
'One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.'
These remarks appear to apply equally to civil cases as to criminal ones.
67 In Ampolex Limited v Perpetual Trustee Company (Canberra) Limited NSWCA, unreported, 20 May 1996 Mahoney P (with whom Meagher JA and Cole JA agreed) said:
'I think the thrust of authority is that a ruling that evidence is admissible, that is, evidence should be received into a trial, given in the course of a trial, is not an order for the purposes of leave to appeal or appeal.'
68 Consequently, in my view, there is a sound basis on which to conclude that the rulings about the admissibility of evidence contained in the judgment of 8 August 2007 (and in the transcript of proceedings) are not judgments within the meaning of s 24(1)(d) of the FCA Act. In any event, I have concluded that there is no sufficient basis to grant leave to appeal against the rulings assuming there is a power to do so.
69 I will endeavour to illustrate why that is so by reference to the material advanced again to this Court in connection with the application for leave to appeal, some of which, as I earlier explained, was copies of affidavits ruled inadmissible in whole or in part by the FMCA.
70 Exhibit C to the affidavit filed on 4 September 2007 is a copy of the affidavit filed initially in support of Ms Lawrance's application. 53 paragraphs in this affidavit were rejected as irrelevant. The essential complaint Ms Lawrance makes is that identified people, in her presence, put pens in their mouth as a gesture of discriminatory and offensive behaviour. Paragraph 1 of the affidavit of 14 June 2006 reads:
'The conduct the subject of this complaint is the placing of a pen in the mouth. In 2005 a number of employees of the Federal Court of Australia suddenly began engaging in this conduct in my presence.'
The first paragraph rejected by the FMCA in this affidavit was paragraph 19. It reads as follows:
'I have never experienced this type of behaviour in any of my friends - or people who are now former friends. In December 1998 a woman who was a social acquaintance of mine, and who I had met about twice before, did place her pen in her mouth within my line of vision. This occurred as I was on a boat on the Hawkesbury River, and she was in a small dingy, approaching the boat I was in. She was at a distance to me of around 100-200 metres, and had a pen sticking out of her mouth as her dingy approached the boat I was in. She removed the pen, before leaving the dingy. Her name is Jeanette. I do not know her surname. I believe she is, or was, an employee of Hornsby Council. I did not know her at all well, having only met her a couple of times previously. I did not for a moment understand her conduct to be aimed at me. I had met her through a person by the name of Valerie Motelb. Valerie, a person I met for the first time in 1996, had never behaved in any such manner towards me, nor in any other manner that was offensive. No other friend, former friend or social acquaintance has ever behaved in this way in my presence or in my line of vision. I have not been aware of the existence of any gossip or rumour in social circles or amongst friends, former friends and social acquaintances that would form the basis of any lewd conduct, nor that was of a sexual nature, in relation to myself. I met Valerie Motelb through a woman I had known as a social acquaintance since I was 18 years of age. Her name is Andrea Taylor. She is no longer a person I regard as a friend, nor am I on friendly terms with her. I have had cause in recent years to be very concerned at her conduct behind my back after being informed by a then mutual friend, Andrea Howard, in 2000, that Andrea Taylor had been sending emails about me. I do not know who the recipients of these emails was, the content of the emails, nor when they were sent.'
In my view this paragraph was rightly rejected. It does not deal with conduct which might be attributed to any respondent in the proceedings and refers to events which have no connection with the proceedings against the respondents.
71 It would be tedious and unproductive to set out, or deal separately with, each of the other 52 paragraphs which were excluded. They were all excluded as irrelevant and, in some cases, under s 135 of the Evidence Act and Rule 15.29(1) of the FMC Rules as well. Until a final judgment is given in the matter there will not be a satisfactory basis against which to test any particular allegation that excluded evidence should have been admitted. So far as any assessment can be made at the present moment, in my view an insufficiently cogent case is established with respect to this affidavit (using it as an example) to grant leave to pursue the matter at an interlocutory stage.
72 Exhibit D to the affidavit filed on 4 September 2007 in connection with the application for leave to appeal provides a further example of the character of the material upon which the FMCA was required to rule. I shall set it out in full (excluding the names of particular individuals to whom it refers).
'1. In relation to the issue of whether the conduct the subject of this complaint is properly characterised as conduct of a sexual nature, I wish to provide the following evidence.
2. I was interviewed by Ms X, the Principal Solicitor of Macarthur Legal Centre, in June 2001 for a position as a lawyer at the Centre. During this interview Ms X had briefly and unobtrusively raised her pen to her mouth. I did not understand this to be conduct that she was engaging in deliberately, nor did I understand it to be conduct of a sexual nature.
3. About two or three months after I commenced working at the Centre on 26 July 2001, I was given the file of a client of the Centre called Ms Y. Ms Y was a developmentally delayed young woman who had been sexually assaulted. She had written an account of the assault, which had involved oral sex. The account was written using horrifyingly graphic, crude, repellent language. It extended over several pages.
4. Several days after I had been handed this file, and as I read the complaint and dealt with the file, Ms X spent several days ostentatiously and loudly sucking on a chupa chup lollypop. She did this throughout the day, for several days on end, sitting down and walking around with the lollipop in her mouth and the little stick protruding from her mouth, and very noisily slurping on the lollipop.
5. Ms X's conduct was abnormal, as was, by that stage, much of the conduct of employees of the Centre was, or had become. She did not do anything else along these lines, however, for example raising her pen to her mouth.
6. Whilst I found Ms X's conduct to be extraordinary, I had no reason to think that this had anything to do with me, in the details of what was occurring. What I mean by this is that I had no reason to think that the subject of oral sex was one that persons would associate with me. However, I was deliberately isolated in that workplace by other employees who refused to establish a rapport with me, and I did notice - it was impossible not to - Ms X's extraordinary conduct.
7. I did not realise I was being imputed with a paranoid personality disorder. It is clear to me now that this is what was happening. It is clear now, too, that Ms X's conduct during the job interview was engaged in deliberately. Had I been aware of this at the time, I would not have remained at the interview, and I certainly would not have accepted any offer of employment. It is clear to me now, after the graphic conduct engaged in by Mr Z, and staff and registrars of the Federal Court, that Ms X's conduct at the job interview was intended to be understood as conduct of a sexual nature - lewd.'
In my view the contents of this affidavit were correctly rejected. They predate matters, the subject of the proceedings, do not deal with conduct that might be attributed to any respondent and are wholly speculative in nature.
73 Exhibit F to the affidavit of 4 September 2007 contained 147 paragraphs in 98 pages. It was rejected in its entirety by the FMC by reference to Rule 15.29(1) of the FMC Rules and ss 55 and 135 of the Evidence Act. Having regard to the objections taken to this affidavit (summarised by the Federal Magistrate as 'relevance, submission not evidence, repetitive, r.15.29(1)) and to the provisions of the FMC Rules and the Evidence Act set out earlier, I infer that the affidavit was rejected because its contents might all be described as, in one way or another, irrelevant, unnecessary, prolix, argumentative or likely to cause or result in undue waste of time. No part of this affidavit has been identified which might justify the conclusion that one of those epithets at least ought not be applied to it.
74 Exhibit G to the affidavit of 4 September 2007 is a 154 page affidavit. All but five paragraphs were rejected upon the same bases, and in response to the same objections, as applied to the affidavit which is Exhibit F. The same observations may be made about it as I made about the previous affidavit.
75 Exhibit L to the affidavit of 4 September 2007 is an affidavit by Ms Carmody. This is described in item (iv) as 'a CRS affidavit'. After witnesses subpoenaed by Ms Lawrance had been examined on 9 August 2007 Ms Carmody, who is the fourth respondent, was called by counsel appearing for all respondents but the State of New South Wales. Counsel sought to read some parts, but not all, of the affidavit which is Exhibit L to Ms Lawrance's affidavit of 4 September 2007. However, objection was taken by Ms Lawrance to the whole of Ms Carmody's affidavit on the grounds of relevance and other grounds. It was provisionally admitted into evidence over Ms Lawrance's objection. Ms Carmody then gave some short oral evidence in chief and was cross-examined by Ms Lawrance. It is apparent from the record of proceedings on 9 August 2007, that a final ruling about the admissibility of this affidavit has not yet been made. In my view the provisional ruling is clearly not a 'judgment' or 'order' but even if it was able to be appealed, leave should not be granted. This also appears to me to be a matter which must be taken up in the light of any final judgment rather than at an interlocutory stage.
76 Ms Lawrance has not sought leave to appeal against the ruling admitting into evidence the affidavit which is Exhibit M to the affidavit of 4 September 2007 but to complete the picture of proceedings on 8 and 9 August 2007 I shall mention it again briefly. After Ms Carmody's evidence, counsel for the State of New South Wales sought to read the affidavit which is Exhibit M to Ms Lawrance's affidavit of 4 September 2007. Objection was taken to the entirety of the affidavit. It was admitted as relevant when Ms Lawrance indicated to the FMCA that if it was excluded, as she sought, she would make a submission relying on the fact that the State of New South Wales led no evidence in response to her complaint. The deponent of this affidavit was then cross-examined by Ms Lawrance on the contents of the affidavit.
77 As I earlier indicated, even if, contrary to my present view, any of the rulings on evidence could properly be regarded as 'judgments' it is not appropriate to grant leave to appeal from them. Apart from the fact there is no cogent reason advanced to impugn their correctness, or doubt the proper application of the provisions by reference to which they were excluded (or, provisionally in one instance, admitted), there is, in my view, no utility in allowing these matters to be pursued at an interlocutory stage when the proceedings are close to finality. When a final judgment is available Ms Lawrance will have an opportunity to relate any complaint she wishes to make about evidentiary issues to particular aspects of the judgment, if any appeal is then pursued.