20.06.2016 By Amanda Millyard

Issues of Evidence: When decisions are made on what you don’t say

We are all familiar with legal shows on TV in which a barrister in dramatic fashion elicits a damning statement from a witness for the benefit of their client’s case. In this instance, it is the oral evidence of the witness on a particular issue that the judge considers in making their decision.

In practice, judges also consider what is not said by witnesses on an issue that is within their power to give evidence about.

Not leading evidence on a relevant issue in a case is a risk. It may result in an adverse finding by the Court against your client, as did occur recently in the High Court of Australia decision of Hall v Hall [2016] HCA 23.

In Hall’s case, a wife appealed a decision of the Full Court of the Family Court in relation to the stopping of an interim spouse maintenance order made in her favor by the trial judge.

The Husband had net assets of $21 million. The Wife owned two luxury cars, which her brothers had bought for her, and an “interest” of an unknown value in the estate of her late father that related to a family business (“the Group”) founded by her late father and controlled by her brothers.

The legal issue to be determined was whether the Wife was unable to support herself adequately.

There was evidence before the Full Court of the father’s wishes for his deceased estate; firstly that the Wife should receive from the Group a lump sum cash payment of $16,500,00 in the event of her divorce from her Husband and secondly that the Wife should receive from the Group an annual payment of $150,000 until the date (if any) of the lump sum payment.

The Wife’s evidence was that she had not received any income or capital payment from her father’s estate.

However, the Wife did not give evidence whether she had asked for payment from the Group.

The High Court dismissed the Wife’s Appeal. By majority, the High Court held that the Full Court’s finding that the Wife would have received the annual payment had she requested it was “well open” on the evidence before it.
The High Court held the Wife was able to support herself adequately. The Wife was left without spouse maintenance and with a costs order made against her.

The Wife’s case strategy and evidence (including the lack thereof) did not put her in a good light before the majority of the High Court. The tone of the judgment of the majority is rather scathing.

The majority [at paragraph 48] talked about the “evidentiary gap” that was within the power of the Wife to fill by leading evidence to provide some explanation.

The majority said [at paragraph 50] that the Wife’s challenge to the Full Court’s finding that she could support herself had “an air of unreality”.

The majority also said [at paragraph 44]:

“Throughout the proceedings at first instance and on appeal, the wife was on notice of the risk of a finding being made that she would have received the annual payment of $150,000 if she had asked. The fair inference is she chose to run that risk, hoping that it would not eventuate and conscious that such evidence relevant to that finding as she might adduce would not assist her case.”

A lack of candor in evidence did not pay off for the Wife.


Amanda Millyard