Blake v Scott  NZFC 7267
Published 27 August 2018
Admissibility of evidence — admissibility of affidavit — filing of affidavit precluded by Family Court Rules — application for leave to file out of time — application filed without notice — without prejudice communication as evidence — whether binding contract exists — settlement privilege — recusal — Evidence Act 2006, ss 9, 12A & 57 — Family Court Rules 2002, rr 24 & 52D — Property (Relationships) Act 1976, ss 1N & 21H — Brown v Sinclair  NZHC 3196 — Interlact Ltd v Fonterra TM Ltd  NZHC 1086 — Saxmere Company Ltd v Wool Board Disestablishment Company Ltd  NZSC 73.
The court was asked to grant leave for the applicant to file an affidavit which was otherwise precluded from being filed under rule 52D of the Family Court Rules; to grant leave to file the affidavit out of time. The affidavit not been filed with the application for leave required under s 52D(2) and was was later, incorrectly, filed without notice. The application was opposed by the respondent.
The court found that the affidavit was admissible on the grounds that the issues setout in the document appeared to be relevant issues and an important part of the applicant's case; the issue had been foreshadowed between counsel and the court saw it as giving effect to a just decision.
Having found that the affidavit was admissible, the court turned it's mind to whether a without prejudice communication was admissible under s 57 of the Evidence Act and whether an agreement or settlement was reached between the parties as contained in the without prejudice communication. The issues were considered together as the applicant sought to show that the without prejudice communications contained a confirmation that an agreement was reached.
The court examined letters and correspondence between the parties and found that a settlement or agreement between the parties had not been reached as the respondent viewed his offer as having been declined by the applicant and had proposed another option for resolution. The applicant had, therefore, purported to accept an offer that was no longer in existence.
The court found that the affidavit did not show the existence of a settlement between the parties and that the affidavit that the applicant sought to admit into evidence was therefore irrelevant for the resolution of the proceedings. Leave to file the affidavit was accordingly declined.
As the court had viewed the without prejudice communications, the respondent sought that the Judge recuse himself from the proceedings. The court declined to do so on the basis that there was no grounds for an objective observer to think that there was bias as Judges routinely see and hear evidence that must be put aside.
Judgment Date: 11 September 2017.
* * * Note: Names have been changed to comply with legal requirements * * *