FEDERAL COURT OF AUSTRALIA

Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 6) [2011] FCA 1298

IN THE MATTER OF RODERICK NEIL SALFINGER

THE COURT ORDERS THAT:

1.        The whole of the affidavit affirmed by the respondent on 18 May 2011 and filed herein on 20 May 2011 and the whole of the affidavit affirmed by the respondent on 2 November 2011 (covering four pages and consisting of 26 paragraphs) and filed herein on 3 November 2011 be rejected.

2.        All of the annexures and exhibits to the said affidavits be rejected except Exhibit “RNS#05” to the first of those affidavits which shall be admitted into evidence and marked as Exhibit “1”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE MATTER OF RODERICK NEIL SALFINGER

REASONS FOR EVIDENTIARY RULINGS

1        The respondent seeks to read paragraphs 1-6 of the affidavit affirmed by him on 18 May 2011 and filed on 20 May 2011 (the respondent’s first affidavit). Initially, the respondent also sought to read paragraphs 19-22 of that affidavit, and to tender Exhibit “RNS#05” to that affidavit. The respondent did not press paragraphs 7-18 and 23-32 of that affidavit. Paragraphs 7-18 and 23-32 will therefore be rejected.

2        As a result of a sensible agreement reached between the parties, it is unnecessary for the respondent to press paragraphs 19-22 of the respondent’s first affidavit. The agreement reached between the parties has been reduced to writing and has become Exhibit “C”. Paragraphs 19-22 will therefore also be rejected.

3        Exhibit RNS#05 to the respondent’s first affidavit is sought to be tendered on behalf the respondent and it is now not objected to. It will become Exhibit “1”.

4        In addition, the respondent sought to read an affidavit which has not been filed, but which was handed up and tendered at the directions hearing held on 27 October 2011. This was an affidavit affirmed by the respondent on 26 October 2011 dealing with his answer to a Notice to Produce. In light of an exchange between the bench and Counsel, the point sought to be made by the applicant about the Notice to Produce has now been abandoned. The consequence of that abandonment is that the respondent does not now seek to read the affidavit affirmed on 26 October 2011.

5        Finally, the respondent seeks to read an affidavit which was affirmed by him on 2 November 2011 (covering four pages and consisting of 26 paragraphs) and filed on 3 November 2011 (the respondent’s second affidavit).

6        I shall deal with these affidavits in turn. In order to do so, it is necessary to refer to some extent to the procedural history of this matter in the Court. This is because the respondent has not made himself available for cross-examination today and is currently, apparently, in Canada. He is not present at the hearing today and does not intend attending the hearing today.

7        The present proceeding was commenced on 15 April 2011 by the filing of a Creditor’s Petition. It was returned before the Court in the Registrar’s list on 18 May 2011. On that day, it was referred by the New South Wales District Registrar to a judge. The matter was then placed in my docket. The first directions hearing before me took place on 8 June 2011. Prior to that time, as I have indicated in earlier rulings today, the respondent’s solicitor had filed two Notices Stating Grounds of Opposition. In addition, on 20 May 2011, the respondent filed his first affidavit.

8        On 8 June 2011, I made orders and directions in the following terms:

THE COURT:

1.    DIRECTS the respondent to file and serve by 24 June 2011 any further evidence in chief upon which he proposes to rely at the final hearing of the Petition.

2.    DIRECTS the applicant to file and serve any evidence in reply by 15 July 2011.

3.    GRANTS leave to applicant to approach Foster J in Chambers as soon as it may be advised for the purpose of seeking a request from this Court to the Supreme Court of Western Australia for the delivery to this Court of a particular Family Court file concerning the respondent, and for leave to issue subpoenas.

4.    ORDERS that the matter be listed for directions at 9.30 am on 24 August 2011.

5.    GRANTS liberty to both parties to apply on three days’ notice or on such shorter notice as a judge of this Court might direct.

6.    ORDERS that the matter be listed for hearing at 10.15 am on 29 September 2011 before Foster J on the basis that the hearing will take one day plus.

9        On 15 July 2011, the matter was relisted before me at the request of the applicant because the respondent had failed to file any additional evidence-in-chief by 24 June 2011 as he had been directed to do by me on 8 June 2011. On 15 July 2011, the Court:

(1)    Extended the time within which the respondent was to file and serve any further evidence-in-chief upon which he proposed to rely at the final hearing of the Petition to 5 August 2011;

(2)    Extended the time within which the applicant was to file and serve any evidence-in-reply to 17 August 2011;

(3)    Ordered that the respondent not be permitted to rely upon any evidence at the hearing of the Petition filed after 5 August 2011 without the specific leave of the Court;

(4)    Granted leave to Mr James Johnson and Mr Thomas Glynn, both of whom are Australian legal practitioners, to inspect file number 1961 of 2009 in the Family Court of Western Australia, such inspection to take place under the supervision of the Associate to Foster J at such times and in such places as may be arranged with the Associate to Foster J;

(5)    Directed the solicitors for the respondent to notify the solicitors for the applicant if there was any objection to the solicitors for the applicant having access to any part of the file referred to in subpar (4) above, and, in the event that there was an objection to access, to notify those solicitors in writing of the specific documents to which objection was taken and the reasons for objection in each case, such notification to occur by no later than 2 August 2011.

10        It is therefore readily apparent that there had been an order made on 8 June 2011 for the filing of further evidence by the respondent and an extension granted on 15 July 2011 on terms that evidence filed after the date when that second extension expired (ie after 5 August 2011) could not be read at the hearing in the absence of specific leave being granted by the Court.

11        On 24 August 2011, the matter was again relisted before me at the instigation of the applicant because the respondent had, once again, failed to file and serve any additional evidence-in-chief by the due date (which, by then, was 5 August 2011). On 24 August 2011, Counsel who then appeared for the respondent sought yet a further extension of 14 days for the respondent to file any further evidence-in-chief. On this occasion, I reminded Counsel of the extensions which I had previously granted (especially that granted on 15 July 2011) and declined to grant any further extension.

12        On 15 September 2011, the hearing date which I had fixed on 8 June 2011 was vacated by the Duty Judge upon the application of the respondent.

13        On 20 September 2011, I refixed the final hearing for today and tomorrow. That date, I was told, was convenient to both parties and to their legal representatives.

14        On 4 October 2011, I held a further directions hearing in the matter when I made the following orders and directions:

THE COURT:

1.    DIRECTS the parties to exchange objections to affidavits by 14 October 2011.

2.    DIRECTS counsel or advocates briefed at the trial to confer during the week commencing 17 October 2011 in an endeavour to resolve in a bona fide fashion all objections.

3.    In the event that all objections are not resolved, DIRECTS the applicant to file and serve by 28 October 2011 a consolidated list of all objections to all affidavits intended to be read by both parties in which each objection is identified and a brief statement of the grounds of the objection in each case is set out.

4.    DIRECTS the applicant to file and serve by 1 November 2011 an outline of submissions.

5.    DIRECTS the respondent to file and serve by 4 November 2011 an outline of submissions in support of his opposition to the relief claimed in the petition which, in particular, should address each of the grounds of opposition to the petition set out in the Notice of Grounds of Opposition filed on 18 May 2011.

6.    GRANTS liberty to all parties to apply on three days’ notice.

7.    ORDERS that the Notice to Produce stand over to 19 October 2011 before Foster J at 9.30 am.

15        On 19 October 2011, I held a further directions hearing. On this occasion, the Notice to Produce to which I have just referred was adjourned yet again: This time to 27 October 2011. In addition to other orders which I made on 19 October 2011, I ordered that, by letter sent by no later than 26 October 2011, the solicitors for the respondent notify the associate to Foster J and the solicitors for the applicant:

(a)    Whether Mr McCordic was to be called as a witness at the final hearing;

(b)    Whether the respondent intended to give evidence at the final hearing; and

(c)    Whether the respondent intended to attend the final hearing.

16        I then noted that, if those orders were not complied with, I would consider striking out the Notice Stating Grounds of Opposition to Application, Interim Application or Petition filed herein by the respondent on 18 May 2011.

17        On 27 October 2011, I held yet a further directions hearing in the matter. The day before (ie, on 26 October 2011), my Associate was informed by the solicitor for the respondent that the respondent did not intend to attend the hearing and, as I understand it, the solicitors for the applicant were informed of the same fact. My Associate was also informed on 26 October 2011 that a witness who had apparently filed an affidavit, Mr McCordic, was not to be called at the final hearing.

18        On 27 October 2011, the question of whether or not the respondent would give evidence by way of videolink or audiolink was raised in front of me for the first time. When that matter was mentioned, the following exchange occurred between Counsel who then appeared and me:

HIS HONOUR: As far as Mr Salfinger is concerned, if he chooses to seek an order that his evidence be given by video link, he will have to make a formal application supported by an affidavit, and I should indicate now that that affidavit will need to address why it is that such an application is being made so close to the hearing. I will then consider whether I entertain the application or not.

MR TAYLOR: May it please the court.

HIS HONOUR: At this stage, though, I should also indicate that it would be unlikely that I would allow his evidence to be read if he wasn’t here and he wasn’t available on video link. I should also indicate that, although no application has been made, I would be inclined to the view that, were he to make an application, he would have to give an undertaking to the court, secured by funds, that the cost of the exercise would be borne by him in the first instance. The court is not going to pay for somebody making an application of this kind so close to the hearing. So you need to tell him that. If he doesn’t want to put that money up, then don’t bother with the application.

MR TAYLOR: Very well. Thank your Honour. Would your Honour be assisted by that proposed order?

HIS HONOUR: I will have a look at them, Mr Taylor…

19        Subsequently, I informed Counsel that I would not make the orders which he had handed up in the form of Short Minutes of Order on that occasion. In those Short Minutes, Counsel proposed that the evidence of the respondent be given by videolink or audiolink.

20        The history that I have taken some time to explain demonstrates that the first time that the respondent notified the Court and the legal representatives of the applicant that he would not be attending the hearing was 26 October 2011. He then indicated that he might make an application that his evidence be given by way of videolink or audiolink.

21        On Thursday of last week (3 November 2011), the respondent filed such an application. I fixed the hearing of that application for Friday 4 November 2011 at 4.15 pm and informed the parties’ solicitors accordingly. When the matter was called on at that time, there was no appearance either by or on behalf of the respondent. For that reason, I dismissed the respondent’s application that his evidence be taken by videolink or audiolink. After that application had been dismissed, Counsel for the respondent arrived at Court, very recently briefed, apparently, to attend on that occasion (and on that occasion only) by the solicitor for the respondent. No application or request was made at that time by Counsel for the respondent that I should reconsider or reopen the decision which I had just made dismissing the respondent’s application that his evidence be given by videolink or audiolink. No such application was subsequently made.

22        That history indicates that, time and again, the respondent was given an opportunity to supplement his evidence by such further evidence as he may be advised and that, even after 15 July 2011, it was made clear that any application to read further affidavit evidence would be dealt with on its merits in light of all of the circumstances at the time that that application was made.

23        I have gone through that history because it bears very directly upon whether or not the respondent’s second affidavit should now be permitted to be read but also bears upon whether or not the paragraphs to which objection is taken in the respondent’s first affidavit should be admitted.

24        It seems to me that I should not allow the respondent’s second affidavit to be read because it has been filed way outside all of the limits which I have set and no explanation for that circumstance has been offered. Furthermore, most of the paragraphs in the affidavit are sought to be read in answer to an affidavit filed by the applicant which has not now been read. The remaining paragraphs contain material that should have been put on long ago.

25        In the circumstances, I reject the respondent’s second affidavit because the respondent has not made himself available for cross-examination. I should make it clear that I would have rejected that affidavit in any event, even if the respondent had been available for cross-examination. It has been filed and served far too late.

26        I reject paragraphs 2-26 of the respondent’s first affidavit because the respondent is not available for cross-examination and has not made any endeavour at all to make himself available for cross-examination. In any event, I would also have rejected paragraphs 2-6 of the respondent’s first affidavit on the grounds that those paragraphs are bad in form.

27        If evidence of the kind to which those paragraphs is directed had been intended to be called, it should have been in proper form, that is to say, it should have specified with particularity the facts upon which the conclusions which are expressed in those paragraphs have been reached.

28        Accordingly, for all of those reasons, I reject paragraphs 2-6 of the respondent’s first affidavit. Paragraph 1 should also be rejected because, on its own, it is of no evidentiary value. I also reject the whole of the respondent’s second affidavit.

Associate:

Dated:    14 November 2011