Draft ground 13: Denial by his Honour to the Plaintiffs right to cross-examine deponents of the affidavits
22 Draft grounds 4-7 challenge the manner in which his Honour dealt with the affidavit evidence of the Commonwealth. Draft ground 9 complained that his Honour, in effect, assisted the Commonwealth's case by suggesting that the affidavit evidence be read in the matter. Draft ground 13 makes a complaint in respect of his Honour's refusal to permit cross-examination. These matters overlap to some extent and are conveniently dealt with together.
23 During the course of the hearing, the Commonwealth sought to tender an affidavit of Ms Wikramanayake, the solicitor with the carriage of the matter for the Commonwealth. The affidavit annexed an affidavit of Ms Doreen Muirhead, a Legal Officer employed by the Department of Community Services. The affidavit had been filed in proceedings No 20698 of 2000, being proceedings brought by Dragan Markisic against the Department of Community Services and the State of New South Wales. Ms Wikramanayake stated that she believed the contents of Ms Muirhead's affidavit to be true. The documents which had been exhibited to Ms Muirhead's affidavit were exhibited to Ms Wikramanayake's affidavit.
24 Ms Muirhead's affidavit referred to the Family Law (Child Abduction Contravention) Regulations (the Regulations) pursuant to which the Director-General, Department of Youth and Community Services was appointed to be the State Central Authority for New South Wales for the purposes of exercising the functions and obligations of the Commonwealth under the Hague Convention on the Civil Aspects of Child Abduction. Ms Muirhead stated that in practice, when the Commonwealth Central Authority received an application in accordance with the Hague Convention for the return of a child, it forwarded the application to the State Central Authority for the State in which it believes the child is living. The State Central Authority then files an application under the Regulations in the Family Court.
25 Ms Muirhead stated that she annexed a copy of an application filed on 20 July 1998 by the State Central Authority to which Dragan Markisic was the respondent. That document is a pro forma Family Law Court document which bears the words 'Name of Document'. The word "Application" has been written in handwriting next to these words. Immediately under this, the pro forma words "Sworn by" and underneath that, "On" appear. A name has been written in handwriting beside the words "Sworn by" and the date 16 July 1998 has been written beside the word "On". There is attached to that form a document headed "Application". There is then an affidavit verifying the application by the person whose name appears on the front of the document.
26 The documents exhibited to Ms Wikramanayake's affidavit and which had been exhibited to Ms Muirhead's affidavit included copies of the various orders made by the Family Court.
27 Ms Muirhead is now deceased.
28 During the course of the hearing before his Honour, the Commonwealth sought to tender Ms Wikramanayake's affidavit. His Honour indicated that he thought that the affidavit should be read, rather than being tendered. Pursuant to that indication, the affidavit was read into evidence. His Honour's approach was perfectly orthodox. An affidavit is a means by which evidence, to which a person has sworn in the proceedings, is admitted. That is done by the affidavit being read. Documents or other items of property are tendered in evidence. His Honour's statement to the Commonwealth that he considered that the affidavit should be read was one of the matters upon which an application for bias was made by the applicants. As his Honour's approach was correct, this aspect of the bias challenge is not supportable.
29 In any event, the affidavit relied upon by the Commonwealth was the affidavit of Ms Wikramanayake. That document in turn annexed Ms Muirhead's affidavit together with its annexures and exhibited copies of the Family Court documents. Leaving aside the applicants' challenge to the validity and authenticity of those various documents, there were no contentious facts contained in either of the affidavits. His Honour observed that the Evidence Act 1995, s 157 makes provision, relevantly, for the admission into evidence of copies of documents such as a judgment, Act or other process of an Australian court. In that circumstance, his Honour held, at [51], that in the face of the copies of judgment and orders of the Family Court, apparently signed and sealed and regular, it could not be said, at least in the course of interlocutory proceedings and probably for the purposes of a final hearing, that there was no arguable case that judgment and orders were made by the Family Court. Accordingly, the various documents which were either annexed or exhibited to the two affidavits could have been tendered in evidence. We see no error in his Honour's approach.
30 At [57], his Honour stated that for the purposes of the hearing of the application for summary judgment, his task was not to determine whether the documents referred to above were to be preferred over the evidence of Mr Dragan Markisic, who disputed the validity and authenticity of the documents. His Honour remarked that there was, without any doubt, support for the Commonwealth's defence that the child was taken pursuant to the orders of the Family Court. His Honour's approach to the hearing of a summary judgment reflected in this paragraph was correct: see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.
31 Draft grounds 5, 6 and 7 were directed to his Honour's acceptance of and reliance upon the evidence of Ms Muirhead, who is deceased. There are two responses to this. First, a court is entitled to read the affidavit evidence of a deceased person: see Curley v Duff (1985) 2 NSWLR 716; UCPR, Pt 32, r 2. Whether it will do so will depend upon whether the court is of the view that it is appropriate that such evidence be admitted without there being an opportunity for the opposing party to cross-examine the deceased person. In this case, his Honour did not permit cross-examination of any of the witnesses. This is a common practice in interlocutory matters.
32 Whether or not a judge permits cross-examination in an interlocutory proceeding is a matter for that judge's discretion. An appellate court will only interfere with a discretionary decision if an error of the kind referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 is established. Further, the Courts will be slow to allow an appeal which relates to matters of practice and procedure: In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323.
33 The evidence in Ms Muirhead's affidavit comprised an explanation of the processes which the Commonwealth and the State followed under the Hague Convention and the annexing and exhibiting of documents. In this case, Ms Muirhead's affidavit was an exhibit to the affidavit of Ms Wikramanayake. Ms Wikramanayake deposed that she believed the content of the affidavit of Ms Muirhead to be true. The statements as to the processes under the Hague Convention were not what would usually be considered in legal proceedings to be contentious. The documents which were annexed were admissible under the Evidence Act. The documents that were exhibited to Ms Wikramanayake's affidavit were likewise admissible under the Evidence Act.
34 Having regard to the nature of the interlocutory proceedings that his Honour was determining, and the nature of the evidence contained in the affidavit of Ms Muirhead annexed to the affidavit of Ms Wikramanayake, there would have been no error had his Honour not permitted cross-examination of Ms Muirhead, had she been alive, and there was no error in not permitting cross-examination of Ms Wikramanayake.
35 The applicants also contended that UCPR, rr 36.15 and 36.16 required witnesses to be orally examined as part of the requirement under those rules that an applicant show "sufficient cause". This is not a correct construction of the rules. An application under those rules is an interlocutory application in respect of which the court has a discretion as to whether cross-examination is required. For the reasons already given, his Honour did not err in admitting the affidavit evidence without permitting or requiring cross-examination.
36 Finally, on an application for summary judgment, the court is not concerned with determining whether the evidence of one party should be preferred over the other. Rather, the court is concerned to determine whether there is an arguable defence.
37 His Honour made reference to this on several occasions during the course of his judgment. His Honour did not disregard the evidence of eyewitnesses in preference to false and misleading evidence of a deceased person. Rather, as his Honour stated, at [51], in the face of the judgment and orders of the Family Court which appeared to be regular, it could not be said that there was "no arguable case" that judgment and orders were made by the Family Court: see judgment of Davies J at [83], where his Honour clearly had at the forefront of his consideration the test to be applied when determining an application for summary judgment.
38 The applicants have failed to persuade us that leave should be granted in respect of any of these draft grounds of appeal.