FEDERAL COURT OF AUSTRALIA

Foyster v Australian & New Zealand Banking Group Ltd [2000] FCA 1346

EVIDENCE – leave to rely on fresh evidence refused

Duralla Pty Ltd v Plant (1984) 2 FCR 342

CDJ v VAJ (1998) 157 ALR 686

Australian Bank Employees Union v Australian & New Zealand Banking Group Ltd (1990) 94 ALR 667

LLOYD FOYSTER V AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

N 374 OF 2000

JUDGES:                       BEAUMONT, MARSHALL & LEHANE JJ

DATE OF ORDER:      31 AUGUST 2000

PLACE:                          SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Leave to rely on fresh evidence referred to in the notice of motion dated 29 August 2000 is refused. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BEAUMONT J:

1                     Before the Court is an appeal against a sequestration order.  When the appeal was called on, the appellant, pursuant to an indication given to the Court yesterday, sought leave to move to adduce further evidence in the proceedings before us.  The material consists of an affidavit of the appellant’s solicitor, Michael Patrick King, sworn 29 August 2000, an affidavit of the appellant himself sworn 30 August 2000 and an affidavit of the appellant’s son, David Lloyd Foyster, sworn 30 August 2000. 

2                     Some reference should be made to the substance of that material.  In Mr King’s affidavit, evidence is given as to events occurring after the date of the judgment below, which was given on 31 March 2000.  The events deposed to by Mr King were the transmission by him, on behalf of his client, to the respondent of several bank cheques.  Mr King also gave evidence as to the amount of costs the subject of orders made against the appellant and taken into account by the primary Judge.  There is annexed to the affidavit a schedule, which describes the present position in terms of taxation and other information of that kind.  One would expect that subject to it being relevant, and that is another matter which will no doubt be agitated in the appeal itself, there would be no reason to suppose that most of the facts deposed to by Mr King were contentious. 

3                     The affidavit of the appellant, however, is of a different order, although it does make a passing reference to the question of costs and to the fact that some amounts, of a substantial order, have been paid to the bank.  The affidavit purports to provide evidence by way of a conclusion that the appellant is solvent and able to pay his debts.  The affidavit also states (para 3):

“I am a Director of Tasmanian Titanium Pty Limited (‘TT’) and the beneficial owner of 44% of the issued share capital of Foyster Holdings Pty Limited (‘FH’) which presently owns 60% cent of TT.”

4                     The affidavit of David Lloyd Foyster, sworn 30 August  2000, is of a different order again.  It provides more detail of the share capital of TT and FH and provides information as to arrangements in relation to the disposition of shares in those companies.  It also speaks of an informal arrangement formalised by FH on 5 April 2000, again after his Honour’s judgment. 

5                     The affidavit annexes an earlier affidavit sworn by Mr Foyster on 14 June 2000.  In that affidavit more information is given as to the position with respect to FH and TT and there is annexed to that affidavit what purports to be some expert evidence dealing with a metallurgical test program of bulk samples from King Island.  It is apparent from that description alone, which was necessarily no more than a summary, that much of the material, now sought to be relied upon, may be expected to be contentious. 

6                     The application to adduce the further evidence is opposed.  His Honour’s judgment, as I have said, was given on 31 March 2000.  The appeal was lodged shortly thereafter and yet the respondent and the Court were not informed of the attempt to bring this further evidence until yesterday.  It is true that the affidavit sworn on 14 June 2000 by David Lloyd Foyster may have been available earlier, although its purpose would not have been known.

7                     It is clear that an appeal before this Full Court is an appeal in the strict sense:  see Duralla Pty Ltd v Plant (1984) 2 FCR 342 per Smithers J at 349 to 350, where his Honour refers, inter alia, to the decision of the High Court in Victorian Stevedoring & General Contracting Pty Ltd v Dignan (1931) 46 CLR 73.   Duralla v Plant was a decision of the Full Court and it has been followed on many occasions since.

8                     On behalf of the appellant, we were referred to the decision of the High Court of Australia in CDJ v VAJ (1998) 157 ALR 686 where fresh evidence in a custody matter was permitted.  The majority judgment given by McHugh, Gummow and Callinan JJ at 710 says:

“Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable.  In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.”

9                     Their Honours refer, inter alia, to the Victorian Stevedoring Case, and go on at 710 – 711 to point out that custody cases, in any event, stand in a special position, noting that the relevant circumstances, as Lord Fraser put it in G v G [1985] FLR 894 at 901, “may change dramatically in a short period of time”.

10                  In the present case, the real issue before the primary Judge, and the real issue that appears to emerge before us on the appeal itself, is that of the solvency of the appellant.  The present evidence is, as I have indicated, of events that occurred after the making of his Honour’s orders.  In my opinion, that material would not be relevant for our purposes and I would have refused the application on that ground alone, but there are additional considerations to be taken into account in the exercise of the Court’s discretion.

11                  It has been said that, in the authority referred to by Marshall J in the course of argument, this power to receive further evidence is a special one and to be exercised exceptionally.  No valid reason has been advanced, to my mind, why that power should now be exercised, since, in my view, it cannot throw any light on the question whether his Honour’s approach to the matter was or was not correct. 

12                  Furthermore, I am deeply troubled by the lateness of the arrival of this material.  It is apparent that much of it would be contentious.  I have no doubt that Mr Street, Counsel for the respondent, would need to cross-examine upon it.  That scenario alone would have been, in my mind, sufficient reason as a matter of discretion to refuse the application.

13                  For those reasons I would refuse leave to adduce the further evidence. 

MARSHALL J: 

14                   I agree.  I only wish to add some short observations and they are as follows.  

15                  One should take especial care not to transpose the circumstances referred to at p 711 in CDJ v VAJ to those currently before the Court.  In that case, the High Court was examining the circumstances that applied in the exercise of the appellate jurisdiction of the Family Court in a custody matter, where the appeal was effectively by way of re-hearing.  As Justice Beaumont has indicated, the appeal currently before us is not of that type;  therefore, it is more important to have regard to the authority of Australian Bank Employees Union v Australian & New Zealand Banking Group Ltd (1990) 94 ALR 667 at 672, where Northrop J said that the power conferred by s 27 of the Federal Court of Australia Act 1976 (Cth) is to be “exercised rarely and in exceptional circumstances only”.  I note that Keely and Gray JJ agreed with his Honour’s observations. 

16                  I will also refuse to admit the further evidence which Mr Aitken sought to rely upon.

LEHANE J: 

17                   I also agree with the presiding Judge.  I would only add this by way of reinforcement of the view, expressed by the learned presiding Judge, that he was troubled by the lateness of the appearance of this further evidence.  It is worth noting, in that respect, that every one of the events deposed to in the affidavit occurred, and every one of the documents annexed to them is dated, what is, in the context, rather a long time before today.  By that I mean that in each case the relevant date is, so far as I can see, at least two months ago.  In that context the circumstance that this material arrived by fax, and in a somewhat jumbled form, only last evening, is to my mind more than troubling. 

18                  I agree with the order proposed.

BEAUMONT J:  

19                  The order of the Court, therefore, is that leave to rely on fresh evidence referred to in the notice of motion dated 29 August is refused. 

Associate:

Dated:              October 2000