mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: cited
In Williams v Grant [2004] FCAFC 178 no explanation was offered for the failure to adduce particular evidence before the primary judge. That was regarded as relevant when leave to adduce further evidence was refused. Similarly, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Court refused to receive further evidence, essentially because there was no suggestion that it had been unavailable prior to trial. 70 In B &amp; M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B &amp; M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B &amp; M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.)
Case: Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624
Outcome: followed
In that regard I should explain that his Honour was invited by counsel for Mr Lofthouse to follow the decision of Young CJ in Eq in Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 (approved by the New South Wales Court of Appeal in Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72).
Case: Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72
Outcome: followed
In that regard I should explain that his Honour was invited by counsel for Mr Lofthouse to follow the decision of Young CJ in Eq in Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 (approved by the New South Wales Court of Appeal in Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72).
Case: Marchesi v Apostoulou [2006] FCA 1122
Outcome: cited
It was common ground before me that Ms Owens had the onus of establishing the existence of the trust that she asserted. The only conceivable way that she could do so, in this case, would be to have the declaration of trust not merely accepted as genuine, but also construed as manifesting the intention to declare a trust. The failure to take any steps beyond executing the document meant that no other form of trust could arise: see Marchesi v Apostoulou [2006] FCA 1122 at [13] [28] and the cases cited therein. 48 In those circumstances, Mr Lofthouse had no choice other than to initiate proceedings in the Federal Magistrates Court in order to clarify the ownership of the properties. The appellant elected not to place any evidence before that Court explaining why she had contended for so long that the properties were beneficially owned by her. 49 Even if one were to accept the document purportedly executed by Ms Owens on 20 December 2000 as authentic, it cannot, in my view, be regarded as a valid declaration of trust. It goes without saying that the document is poorly drafted. At the very least, it demonstrates that Ms Owens was unclear as to precisely what she intended at the time. A declaration of trust does not speak of the trustee (in this case Ms Owens) having "agreed to transfer" her interest to a third party (in this case the Richardson Trust). The fact that at two points in the document the words "declaration of trust" are used cannot be regarded as conclusive of that having been the appellant's intention (just as the failure to use those precise words would not be conclusive against her having had that intention). 50 In addition, the operative provision of the document is completely at odds with what may be described as "the recitals". It is true that equity has traditionally allowed a measure of latitude towards those who create documents which purport to constitute express trusts. However, there is no authority of which I am aware that suggests that the Court should, in effect, entirely reconstruct a document which is as badly drawn, and unclear, as this. 51 It may be, as the respondent acknowledges, that McInnis FM did not always keep clear the distinction between the principles that govern a declaration of trust, and those that govern the creation of a trust by transfer. Nonetheless, his Honour's factual findings, and his willingness to receive evidence of the subsequent acts of the appellant as bearing not only upon the authenticity of the document but also whether, as drawn, it reflected a genuine intention to declare a trust, are in my view unimpeachable.
Case: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Outcome: cited
Section 27 has been considered in a number of recent cases. In Williams v Official Trustee in Bankruptcy [2000] FCA 304 the Full Court observed (at [34]) that it was necessary for the proponent of the further evidence to establish that it could not, with reasonable diligence, have been discovered before trial. However, in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 the Full Court expressly stated (at [7]) that it was unnecessary to decide whether, in the proper exercise of the Court's discretion, the party seeking to adduce further evidence had to satisfy that requirement.
Case: Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577
Outcome: cited
In Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577 Stone J, after discussing a number of relevant authorities, said (at [6]) that the evidence "must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial". 37 As part of the process of determining whether to receive the appellant's further evidence in this case, I indicated that I would hear what both she, and her daughter, had to say on a provisional basis, without at that stage ruling upon the admissibility of the affidavit material. I did so because I regarded the cogency of the proposed further evidence highly relevant to the exercise of my discretion. Both the appellant and her daughter were cross-examined. Indeed, the appellant was cross-examined a second time. Ms Johansson, whose affidavit was filed at a later point in time, was also cross-examined. 38 I can deal with the evidence of the appellant's daughter very briefly. In her affidavit she deposed to having been informed by her mother of the "declaration of trust" shortly after it was executed (which she stated was 20 October 2000 rather than 20 December 2000). It soon became clear, under cross-examination, that she had no recollection whatever of this event. Nor did she have the slightest understanding of anything that may have occurred. Her only knowledge of a trust appeared to relate to the Richardson Trust. Her evidence could not possibly provide any support for the appellant's claim that the declaration of trust was executed in December 2000. I therefore declined to receive her evidence pursuant to s 27. 39 I turn next to the appellant's two affidavits, which were affirmed on 13 November 2007 and 3 December 2007 respectively. The first thing to note about the affidavit affirmed on 13 November 2007 is that the version served on the respondent contained a number of errors. In that version Ms Owens said that she prepared and signed the declaration of trust on 20 October 2000 (rather than on 20 December 2000, the date the document bears). In other words, she made precisely the same mistake regarding this critical date as did her daughter. She repeated that error on several occasions. However, the version that was eventually filed with the Court on 20 November 2007 contained handwritten amendments which changed the references from "October" to "December". 40 In her 3 December 2007 affidavit, the appellant again misstated the date upon which the declaration of trust had been executed, this time saying that it was 20 December 2007. Plainly, that was a typographical error, though it illustrated a degree of laxness on the part of the appellant towards the accuracy of material filed with the Court that seems to have permeated almost all of her many affidavits filed in relation to her bankruptcy.
Case: Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632
Outcome: cited
The traditional constraints which govern the reception of "fresh evidence" on appeal, at common law, are that the party seeking to adduce that evidence must show that reasonable diligence was exercised to procure the evidence for the trial, and that it is tolerably clear that had it been available, and led, an opposite result would have been achieved: Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635 and 640.
Case: Re Cozens [1913] 2 Ch 478
Outcome: referred to
Young CJ in Eq acknowledged that it was possible to create a trust by declaration without communication to any person. However, he noted that in Re Cozens [1913] 2 Ch 478 it had been held that the absence of any such communication raised a strong inference against an intention to create such a trust. In the end, he concluded that the evidence taken as a whole clearly established that, despite the execution of the declaration of trust, Mr Yazbek had not genuinely intended to hold the shares on trust for anyone. In a telling observation, his Honour stated (at [86]): "The proper conclusion is that Mr Yazbek and his advisors were seeking the best of all worlds. The trust deed was in existence, but it was never seriously considered until the time came for it to be given significance about the time of Robert Yazbek's bankruptcy." 59 The appeal to the New South Wales Court of Appeal was dismissed. Hodgson JA (with whom Mason P and Handley JA agreed) stated (at [45] [46]): "I accept that the signing of the declaration, and having it witnessed, is some evidence of the required intention, and that there was an onus on Mr. Leroy to rebut that intention. However, this onus on Mr. Leroy was an evidentiary onus, and the ultimate onus remained on the appellants to prove the creation of a trust. The existence of this ultimate onus had some significance in this case, where there was substantial evidence tending to rebut an intention to create a trust. The substantial evidence against an intention to create a trust in this case was the passage of over five years, when (with small exceptions) all documents that were created by Mr. Yazbek, and/or Mr. Alexandrou or Mr. White on Mr. Yazbek's instructions, relating to the Trust and Aldora, were inconsistent with the existence of a trust, and consistent only with beneficial ownership of the shares by Mr. Yazbek." 60 On 4 February 2005 the High Court declined to grant special leave to appeal from the decision of the New South Wales Court of Appeal. 61 Dr Glover, who appeared on behalf of the appellant, submitted firstly that Hyhonie was not binding upon me, and next that it was wrongly decided. He submitted that the judgments at first instance and in the Court of Appeal were per incuriam because they ignored the parol evidence rule. That submission must be addressed. 62 The parol evidence rule is regarded as a rule of substantive law, and not a rule of evidence: see S Odgers, Uniform Evidence Law (7 th ed, Lawbook Co, 2006) at [1.3.200]. It is not affected by the enactment of the Evidence Act 1995 (Cth).
Case: Sobey v Nicol and Davies [2007] FCAFC 136
Outcome: cited
I note that the discretion to receive "further evidence" on appeal is conferred by s 27 of the Federal Court of Australia Act 1976 (Cth). That discretion must be exercised judicially, consistently with proper process and in the interests of justice: Sobey v Nicol and Davies [2007] FCAFC 136 at [71] .
Case: Starr v Starr [1935] SASR 263
Outcome: discussed
In Starr v Starr [1935] SASR 263, Napier J referred to Jolliffe , and stated (at 266): "It may well be that a court of co-ordinate jurisdiction might regard the authority of that case as impaired by the emphatic dissent of Isaacs J., but I think that I am bound by the principle upon which the case was decided." 70 In B &amp; M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B &amp; M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B &amp; M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.) 72 Dr Glover also submitted that both Starr v Starr and B &amp; M were wrongly decided. I reject that submission. I cannot see how the parol evidence rule can apply, with full rigour, in circumstances where the actual state of mind of the declarant must be ascertained. If the submission were correct, it would lead to peculiar outcomes. For example, evidence could not be received of a contemporaneous oral statement by a declarant that, despite the use of the term "declaration of trust" in a document then executed, no such trust was actually intended. That would be contrary to what the majority in Jolliffe identified as the task to be undertaken in determining whether a declaration of trust had been made.
Case: Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415
Outcome: cited
Dr Glover submitted, albeit only formally, that the majority judgment in Jolliffe did not state the law correctly, and that the dissenting judgment of Isaacs J should be preferred. He acknowledged, however, that the majority judgment was binding upon me. That is obviously so, particularly since Jolliffe has been cited without disapproval in later High Court decisions. It has also been applied by the Full Court of this Court. See, for example, Baker v Official Trustee in Bankruptcy , Federal Court of Australia, unreported, 3 August 1995 per Burchett, Ryan and Carr JJ; and Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422.
Case: Williams v Grant [2004] FCAFC 178
Outcome: cited
In Williams v Grant [2004] FCAFC 178 no explanation was offered for the failure to adduce particular evidence before the primary judge. That was regarded as relevant when leave to adduce further evidence was refused. Similarly, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Court refused to receive further evidence, essentially because there was no suggestion that it had been unavailable prior to trial.
Case: Williams v Official Trustee in Bankruptcy [2000] FCA 304
Outcome: cited
Section 27 has been considered in a number of recent cases. In Williams v Official Trustee in Bankruptcy [2000] FCA 304 the Full Court observed (at [34]) that it was necessary for the proponent of the further evidence to establish that it could not, with reasonable diligence, have been discovered before trial. However, in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 the Full Court expressly stated (at [7]) that it was unnecessary to decide whether, in the proper exercise of the Court's discretion, the party seeking to adduce further evidence had to satisfy that requirement.
Case: Gibbons v Wright [1954] HCA 17 ; (1953) 91 CLR 423
Outcome: referred to
provisions of O 43 r 13 are triggered if the person to be served is a 'person under disability'. Where it is said that the person is a 'mentally disabled person' rather than an infant or minor the relevant question is: Is the person concerned a person who, owing to mental illness, is incapable of managing his or her affairs in respect of the proceedings? The words 'in respect of the proceedings' are important because they focus upon the person's ability to bring or defend proceedings rather than whether the person is able to manage his or her affairs generally or in relation to some other transaction. Such an approach is consonant with the common law approach to capacity. For example, in Gibbons v Wright [1954] HCA 17 ; (1953) 91 CLR 423 the High Court said (at 437): 'The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.'
Case: Kirby v Leather [1965] 2 QB 367
Outcome: referred to
ability to properly instruct an advisor was also referred to by Lord Denning MR in the limitation case of Kirby v Leather [1965] 2 QB 367. In upholding the trial judge's decision that the plaintiff was of unsound mind so as to prevent the relevant period of limitation from running against him, his Lordship said, at 384: 'After a time he was to some extent able to appreciate (from being told by others) something of what had happened to him, and indeed to his scooter. But he could not concentrate on it for any length of time: not long enough to be able to appreciate the nature and extent of any claim that he might have. In particular he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement.'
Case: Masterman-Lister v Brutton &amp; Co (Nos 1 and 2) (CA) [2003] 1 WLR 1511
Outcome: applied
Masterman-Lister v Brutton &amp; Co (Nos 1 and 2) (CA) [2003] 1 WLR 1511 Chadwick LJ illustrated the point (at 1538-9) by reference to the case of In Re C (Adult: Refusal of treatment) [1994] 1 WLR 290: 'C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983. He was subsequently diagnosed as suffering from gangrene in the foot. Acting by his next friend he sought an injunction to restrain the hospital from amputating. Thorpe J held that C had the requisite mental capacity to make a decision to refuse treatment. As he put it, at p 295: "Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice." Nevertheless, it was never in doubt that C was a patient for the purposes of the procedural rule which required that his suit could not have been brought except with the interposition of a next friend. There is no inconsistency between the requirement that a party to legal proceedings comply with Order 80 and a decision that he has an understanding of the nature, purpose and effects of the medical treatment which is under consideration in those proceedings. The test is issue specific; and, when applied to different issues, it may yield different answers. '
Case: Mason v Tritton (1994) 34 NSWLR 572
Outcome: referred to
the present case it is important to have regard to the second 'presumption' mentioned above, namely that the law presumes a person's state of mind to continue unchanged. Such a presumption is one application of the more general 'presumption of continuance', which Kirby P discussed in Mason v Tritton (1994) 34 NSWLR 572 at 587 588. In its application to mental illness, Wigmore explained the role of that principle in the following way: 'A condition of mental disease is always a more or less continuous one, either in latent tendency or in manifest operation. It is therefore proper, in order to ascertain the fact of its existence at a certain time, to consider its existence at a prior or subsequent time. The degree of continuity varies infinitely in various cases, and hence there can be little certainty in the inference from one period to another. Nevertheless, since it can never be known beforehand to what variety the case in question belongs in this respect, the facts of prior and subsequent existence cannot be absolutely known beforehand to be relevant. Much must depend on the type of insanity, as preliminarily indicated by the person's conduct at the time in question. There is also a further element of uncertainty in criminal cases, in that the accused has a strong motive to feign insanity after the act charged; and thus particular scrutiny is required in weighing the evidence of the accused person's subsequent insane conduct. In spite, however, of these uncertainties and difficulties, Courts are to-day universally agreed that both prior and subsequent mental condition, within some limits, are receivable for consideration; stress being always laid on the truth that these conditions are merely evidential towards ascertaining the mental condition at the precise time of the act in issue . ' (Emphasis added) (See J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law , 3 rd edn, Little Brown &amp; Co., Boston, 1940, Vol 2 par SS233.) In relation to the presumption of continuance generally, Wigmore said (at SS437): 'The opponent... may always attempt to explain away the effect of the evidence by showing that in the meantime other circumstances have occurred to raise a probability of change instead of continuance.' In the present case Ms Cross' representatives bear the burden of proving that Ms Cross was incapable of managing her affairs in respect of the proceedings as at the time of service of the Creditor's petition. The best way to discharge that burden would be by expert evidence in proper form directed to the test of capacity under the FCR, including the matters set out at [61] supra, and focussed upon Ms Cross' state of mind at the time of service.