Catanzariti v Romano as executor of the estate of the late Francesco Marando & The Registrar-General of the Australian Capital Territory & Marando & Marando [2009] ACTSC 38 (30 March 2009)

Last Updated: 19 May 2009

GIUSEPPE CATANZARITI v DOMENICO ROCCO ROMANO as EXECUTOR OF THE ESTATE OF THE LATE FRANCESCO MARANDO & THE REGISTRAR-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY & ROCCO MARANDO & GIUSEPPE MARANDO

[2009] ACTSC 38 (30 March 2009)

PRACTICE AND PROCEDURE – proceeding started by originating application – direction made for affidavit evidence – substantial dispute of fact – order that proceeding continue as if started by originating claim – order that evidence be given orally in open court

EVIDENCE – requirement that evidence at the trial of a proceeding started by originating claim must be given orally in open court – circumstances in which affidavit evidence may be adduced – affidavit evidence generally inappropriate where substantial dispute of fact

Court Procedures Rules 2006, div 2.2.1, r 33, 34, 35, 39, 6700, 6701

Supreme Court Rules (repealed), o 2, r 1

Evidence Act 1995 (Commonwealth), s 37

Odgers, Uniform Evidence Law, 8th edition, 2009, Lawbook Co.

No. SC 342 of 2006

Judge: Master Harper

Supreme Court of the ACT

Date: 30 March 2009

IN THE SUPREME COURT OF THE )

) No. SC 342 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GIUSEPPE CATANZARITI

Plaintiff

AND: DOMENICO ROCCO ROMANO as EXECUTOR OF THE ESTATE OF THE LATE FRANCESCO MARANDO

First defendant

AND: THE REGISTRAR-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Second defendant

AND: ROCCO MARANDO

Third defendant

AND: GIUSEPPE MARANDO

Fourth defendant

ORDER

Judge: Master Harper

Date: 30 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The proceeding continue as if started by originating claim.

2. The evidence at the trial of the proceeding be given orally in open court.

1. At the commencement of the hearing of this action, I ordered pursuant to rule 39 of the Court Procedures Rules 2006 that the proceeding continue as if started by originating claim, and directed that the evidence at the trial be given orally in open court (see rule 6700). These are my reason for doing so.

2. The action requires a determination as to whether a Crown lessee, now deceased, validly transferred his interest in a house at Ainslie to his grandson, or whether the house remains an asset in his estate.

3. The Court Procedures Rules came into force on 1 July 2006. The present proceedings had been commenced earlier that year by originating application, as required by order 2 rule 1 of the Supreme Court Rules as then in force.

4. The Court Procedures Rules provide in division 2.2.1 that some proceedings in the court must be started by originating claim, others must be started by originating application, whilst still others may be started by originating application. Rule 34 provides that a proceeding must be started by originating application if a Territory law (including the Court Procedures Rules) requires the proceedings to be started by originating application. A note to rule 34 lists a number of rules which require proceedings to be commenced by originating application. It is not suggested that there is any rule or other Territory law which would have required the present proceeding to be started by originating application if it had been commenced after 1 July 2006.

5. Rule 35 provides as follows:

35 When originating application may be used

(1) A proceeding may be started by originating application if—

(a) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or

(b) there is no opposing party to the proceeding or it is not intended to serve anyone with the originating process; or

(c) there is not enough time to prepare an originating claim because of the urgent nature of the relief sought; or

(d) a territory law allows the proceeding to be started by

originating application.

(2) Without limiting subrule (1), a proceeding may be started by originating application if—

(a) the only or main issue in the proceeding is the interpretation of legislation and a substantial dispute of fact is unlikely; or

(b) the only or main issue in the proceeding is the interpretation of a deed, will, contract or other document and a substantial dispute of fact is unlikely; or

(c) the relief sought is a declaration of right and there is no opposing party to the proceeding; or

(d) for a question or matter in relation to the estate of a deceased person or a trust, without administration of the estate or trust—

(i) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or

(ii) there is no opposing party to the proceeding or it is not intended to serve anyone with the originating process.

(3) Also, a proceeding may be started by originating application if—

(a) a territory law requires or allows a person to apply to the court for an order or another kind of relief; and

(b) a particular kind of originating process (other than an originating claim or originating application) is required or allowed under a territory law.

6. Rule 33 provides that a proceeding must be started by originating claim if a Territory law (which includes the Court Procedures Rules) requires the proceeding to be started by originating claim. Also, a proceeding must be started by originating claim unless a Territory law requires or allows the proceeding to be started by originating application.

7. The principal practical difference between proceedings commenced by originating claim and proceedings commenced by originating application is that evidence at the trial of the former must be given orally in open court, whereas evidence at the trial of the latter must be given by affidavit, unless the court otherwise orders or some other legislative provision provides otherwise: rule 6700. This is subject to rule 6701, which permits the parties to a proceeding started by originating claim to agree that evidence at the trial be given by affidavit. Such an agreement must be made and notified to the court before the proceeding is set down for trial. The evidence will then be given by affidavit unless the court orders otherwise.

8. It has been apparent from an early stage in the present action that there would be a vigorous dispute between the parties as to questions of fact. The plaintiff’s case is pleaded by a statement of claim, and the defendants have delivered defences which have defined the issues. The real issues are in dispute between the plaintiff on the one hand and the third and fourth defendants on the other. The first and second defendants were excused from further attendance at the commencement of the trial.

9. The action has been listed numerous times in the Registrar’s directions list. Early in the piece the solicitors for the parties asked the Registrar, as part of a timetable, to fix periods for the filing and service of affidavits. As far as I have been able to ascertain there was no specific order made that the evidence in chief at the trial be upon affidavit, but the solicitors thereafter conducted the preparation of the case on that footing. By the time the action was listed for hearing a large number of voluminous affidavits had been filed and served.

10. It is apparent from rule 35 that the intention behind the rules is that if there is likely to be a substantial dispute of fact, the proceedings should be started by originating claim, with the corollary that evidence will be given orally in open court. A proceeding should be started by originating application, other than where there is some specific requirement that that course be adopted, only where a substantial dispute of fact is unlikely.

11. One of the reasons for this is that adducing the evidence in chief of witnesses in a disputed-fact case by affidavit deprives the court of the opportunity to observe the witnesses giving their evidence without the assistance of leading questions: see section 37, Evidence Act 1995 (Commonwealth) and the annotations to that section in Odgers, Uniform Evidence Law, 8th edition, 2009, Lawbook Co. at [1.2.3120] and following. In the present case some of the witnesses were not sufficiently fluent in the English language to give oral evidence without the intervention of an Italian-language interpreter. Nevertheless, in some cases, their affidavits ran to many pages of well-expressed descriptive prose in the English language.

12. Where an assessment of the evidence requires conclusions to be drawn about the accuracy of memory of witnesses about events of a number of years ago, even the fact that the affidavits were prepared detracts from the persuasiveness of the evidence of the deponents. The suspicion of the tribunal of fact is aroused that at least some of the witnesses may have seen copies of the affidavits of other witnesses, and that this may have wittingly or unwittingly affected their own evidence.

13. This is a case where it should have been plain that it was inappropriate for the evidence in chief of the opposing parties and their witnesses to be given on affidavit.

14. The circumstances of this case were no doubt affected by the fact that the Court Procedures Rules came into force a few months after the proceeding was commenced. I am in no way critical of the Registrar or Deputy Registrar who made the consent order in the context of a timetable for the filing and service of affidavits. The order sought was not an order that the evidence in chief at the trial be given by affidavit. Further to that, in a routine directions list on a busy court day, the Registrar should be able to proceed on the assumption that the solicitors for the parties are familiar with the requirements of the Court Procedures Rules and are doing their best to comply with them.

15. For future reference, the profession should proceed on the basis that the general rule is that originating applications are for proceedings involving, for example, the construction of a piece of legislation or a deed; and originating process is for proceedings where there is likely to be a substantial dispute as to the facts. There will remain occasions where it is appropriate for the parties to agree, or the court to order, that some of the evidence in an originating process matter be by affidavit: for example where the affidavit will set out some undisputed facts and perhaps express an admissible opinion about them. But an affidavit will generally be inappropriate as a means of adducing evidence about disputed facts, particularly where there may be an issue as to the credibility of the deponent.

16. For those reasons, being satisfied for the purposes of rule 39 that the proceeding might more conveniently continue as if started by originating claim, I ordered that it continue in that manner, with the corollary that the evidence in chief has been, and will on the resumed hearing be, given orally in open court.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 30 March 2009

Counsel for the plaintiff: Ms HL Donohoe SC

Solicitors for the plaintiff: Ken Cush & Associates

Counsel for the first defendant: Dr DA Hassall

Solicitors for the first defendant: Romano Satsia Kordis Legal

Counsel for the second defendant: Mr JG Henry

Solicitors for the second defendant: ACT Government Solicitor

Counsel for the third and fourth defendants: Mr WL Sharwood

Solicitors for the third and fourth defendants: Hansteins Lawyers

Date of hearing: 30 March 2009

Date of order: 30 March 2009