A PRELIMINARY ISSUE: A QUESTION OF JUDICIAL NOTICE
75 As I have noted, the respondents argued that a plausible explanation for the Bankrupt transferring his interest in the Hunters Hill property and in the Shares was his concern that his assets might be imperilled by reason of a client seeking damages against him at some future time for professional negligence. The respondents submitted that I should take into account, in support of that contention, the decision of the Full Court of the Supreme Court of Victoria in Wraith v Giannarelli, handed down on 19 May 1987, and the grant on 14 August 1987 by the High Court of special leave to appeal from the Full Court decision. The Giannarelli litigation was said to support an inference that the Bankrupt's main purpose was not to prevent his property from becoming divisible among his creditors, in particular the Commissioner. This was so because the Giannarelli litigation showed that barristers could be exposed to liability for professional negligence and it was reasonable to infer that the Bankrupt was mindful of that risk. I have already set out the chronological course of the Giannarelli litigation.
76 The Trustees at no stage disputed that I could take into account the Giannarelli litigation for the purpose suggested by the respondents, although the Trustees disputed that any inference should be drawn that the Bankrupt was aware of or motivated by the litigation to take the action that he did in 1987. In written submissions filed after the hearing, the Trustees accepted that judicial notice could be taken of the Giannarelli litigation because the various judgments and orders were matters of historical record as to the existence of which there could be no doubt. Mr Coles appears to have had in mind the principle that a court may take judicial notice of historical events which are generally known to educated or well-informed people, or which can be ascertained after such investigations as are required to eliminate any doubt: Holland v Jones (1917) 23 CLR 149, at 153, per Isaacs J; Australian Communist Party v Commonwealth (1953) 83 CLR 1, at 196, per Dixon J; Deputy Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, at 806, per Evatt J.
77 It may be that a more secure basis for taking the judicial decisions into account on the question of the Bankrupt's motivation for the transfer of assets is the principle that domestic law is not a matter for proof or disproof: J D Heydon, Cross on Evidence (6th Aust ed, 2000), at [3075]. While this principle is usually invoked in relation to the judge's function in ruling on legal submissions, there appears to be no reason why it cannot apply to "an adjudicative fact", that is, a fact in issue or a fact relevant to a fact in issue: cf Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145, at 157, per McHugh J. An alternative approach may be to invoke s 144(1) of the Evidence Act 1995 (Cth) ("Evidence Act"), which provides that proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned. Since, however, the Trustees did not dispute that the Giannarelli litigation could be taken into account as an adjudicative fact, it is not necessary to identify the precise common law principle or statutory provision that justifies that course.
78 A more contentious issue arose in consequence of a belated submission made on behalf of the Trustees. During the hearing, I invited supplementary written submissions from the parties as to the additional tax or penalties to which the Bankrupt might have been exposed in 1987 by reason of his failure to lodge tax returns. The Trustees, in their supplementary submissions on that issue, referred without elaboration to the fact that on 2 April 1987 the Senate rejected for the second time the Australian Card Bill 1987 ("Australia Card Bill") which (according to the Trustees) was the precursor to the present compulsory tax file number system. The Trustees asserted that the Senate's rejection of the legislation had been "used as the basis" for calling the general election held on 11 July 1987, at which the Labor government was returned. The Trustees had previously made no reference whatever to the Australia Card Bill, whether in pleadings, in opening, in evidence or in submissions.
79 I took the view that the Trustees' reference to the Australian Card Bill in its supplementary submissions implicitly invited me to take into account the part played by the Bill in the 1987 election in determining whether the Bankrupt's "main purpose" in transferring assets in that year to Mrs Cummins and Aymcopic was that identified in s 121 of the Bankruptcy Act. In particular, the Trustees seemed to be suggesting that the proposed legislation (the objects of which included facilitating the administration and execution of the laws of the Commonwealth relating to taxation: cl 3(a)) provided an obvious motivation for the Bankrupt to divest himself of assets, independently of any concern about the Giannarelli litigation. Accordingly, I invited further submissions as to whether I should take the course I understood the Trustees to be suggesting, namely that I should take the terms of the Australia Card Bill into account in assessing the Bankrupt's main purpose.
80 In response to that invitation, the Trustees contended that the introduction of the Australia Card Bill into Parliament and its rejection by the Senate were "notorious facts", of which judicial notice could be taken. They also submitted that the fact that there had been a double dissolution of Parliament in 1987 in consequence of the Senate's rejection of the Australia Card Bill fell into the same category.
81 A matter of which a court can take judicial notice is not "evidence strictly so called": Woods v Multi-Sports Holdings, at 157, per McHugh J, citing Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663, at 691, per Lord Denning. The court takes notice of notorious facts of which ordinary persons are presumed to be aware: R v Henry (1999) 46 NSWLR 346, at 364, per Spigelman CJ. The court may be "reminded" of what it knows by reference to appropriate documentary material: R v Henry, at 364; Saul v Menon [1980] 2 NSWLR 314, at 325, per Moffitt ACJ. But the material to which the court is referred is not evidence in the ordinary sense: Saul v Menon, at 325.
82 Had the matters now relied upon by the applicants been referred to at an earlier stage of the proceedings, I have little doubt that it would have been appropriate to take judicial notice of them. The fact that important legislation such as the Australia Card Bill was introduced into Parliament and was rejected by the Senate is a matter of public record and is easily verifiable. So is the fact that both Houses of Parliament were dissolved on 5 June 1987 in consequence of the rejection by the Senate of the Bill: see Commonwealth Gazette, 5 June 1987, at 13187/87. That the court might have to "remind" itself of these facts is no barrier to judicial notice being taken of them as "adjudicative facts". In any event, the applicants could have relied on s 144(1) of the Evidence Act as the basis for the Court taking the facts into account. The facts relied upon are "not reasonably open to question" and are "capable of verification by reference to a document, the authority of which cannot reasonably be questioned".
83 The difficulty facing the Trustees is that they failed to refer to the Australia Card Bill or the double dissolution of 1987 until after the hearing of the no case submissions had concluded. The respondents elected to call no evidence on the basis of the case pleaded and presented by the Trustees. The respondents made their election without having received any notification prior to completion of the Trustees' case in chief, whether by way of particulars, submissions or otherwise, that the Trustees wished to rely on the Australia Card Bill to support the contention that the Bankrupt's main purpose was to prevent the transferred assets becoming divisible amongst his creditors. It seems to me that the respondents would be unfairly prejudiced in relation to their no case submissions if the Trustees were now entitled to invite the Court to take judicial notice of the Australian Card Bill and its role in the 1987 election. Perhaps the unfairness might be overcome if the respondents were permitted to withdraw their election not to call evidence, but neither party has suggested this course.
84 In my view, although facts of which judicial notice can be taken are not strictly evidence, the position in the present case is analogous to that which applies where a party seeks to reopen its case for the purpose of adducing fresh evidence. In such circumstances, the court has a discretion whether to permit the fresh evidence, to be adduced and ordinarily must exercise its discretion in the interests of justice: see Cross on Evidence, at [17220], [17225]. For the reasons I have given, I do not think it would be in the interests of justice to permit the Trustees, on the no case submissions, to rely on the Senate's rejection of the Australia Card Bill and its role as the "trigger" for the 1987 double dissolution as adjudicative facts relevant to the issue of whether the Bankrupt's main purpose was to defeat or delay his creditors.
85 If the question is to be addressed by reference to s 144(1) of the Evidence Act, rather than the common law doctrine of judicial notice, I think a similar analysis would apply. Section 144(4) of the Evidence Act provides that the judge is to give a party such opportunity to make submissions, and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. If it is impossible to take into account knowledge of the kind referred to in s 144(1) without unfairly prejudicing one of the parties, I would read s 144(4) as authorising the Court to decline to take that knowledge into account, even if the requirements of s144(1) otherwise appear to be satisfied.
86 Accordingly, I do not propose to take into account either the fact that the Australia Card Bill was rejected by the Senate in 1987, or the fact that it provided the "trigger" for the dissolution of both Houses of Parliament in June 1987. The exclusion of these facts perhaps can be regarded as making an already somewhat artificial exercise even more artificial, since it is hard to imagine that the Bankrupt, who for decades had flouted his obligation to file taxation returns, could have been unaware of the significance of what the Explanatory Memorandum to the Australia Card Bill called a "national system of identification". Fairness in the conduct of litigation demands, however, that I put the facts to which I have referred out of my mind.
TRANSFERS TO DEFEAT CREDITORS