Referee Inquiries: Evidence and Court Reports

Read the Reference and Define the Questions

Read the sealed reference order alongside the pleadings and identify every question the referee must answer. Record the proceeding number, appointed referee, relevant accounts, period and any express limits on the inquiry. Quote the referred questions in your working issue schedule so an accounting shorthand cannot change their meaning.

Section 54A permits the Federal Court to refer a proceeding or questions arising in it for inquiry and report. The referral can occur at any stage. Under rule 28.61, a question can involve fact, law or both. Read the actual order before assuming a legal issue remains outside the reference.

A referee’s mandate comes from the court. Mediation helps parties seek agreement. Private expert determination takes its mandate from the parties’ agreement. An ordinary expert supplies opinion evidence within their instructions, while a receiver has a distinct property-management role. None of those labels gives a referee authority beyond the reference.

For an account dispute, identify whether the question concerns a closing balance, the allocation of particular payments or entitlement to money. Those questions require different conclusions even when they use the same statements.

Prepare the Inquiry’s Procedure and Costs

Turn the directions into a timetable before assembling the substantive case. Identify who supplies records, how parties obtain access and whether witnesses attend. Record the format for submissions, response opportunities, meeting arrangements and the report deadline.

The Federal Court’s referral rules require the referee to follow the court’s directions. Rule 28.65 allows a party to seek directions before or after the inquiry starts. Without directions about its conduct, the referee can choose how to conduct the inquiry.

Resolve practical arrangements with the referee within that framework. If parties disagree about whether another account falls within the reference, record both positions and seek the court’s directions. An agreed spreadsheet format can organise the work. An agreement to investigate a different question needs authority under the court’s order.

Confirm the remuneration arrangements and who must pay during the inquiry. Rule 28.61 recognises court directions about remuneration, and rule 28.64 allows an application for security for a referee’s remuneration. Separate the referee’s fees from your own evidence-preparation costs and any eventual costs order.

Before work starts, make the next procedural action clear. If a required statement period is missing, identify its custodian and the permitted production process. If subpoena evidence is needed, address the authorisation contemplated by rule 28.65(1)(b).

Build the Financial Issues and Source Package

Give each referred financial question an issue number and assemble the records needed to answer it. Show each party’s contention beside the agreed inputs and disputed treatment. Keep the source index separate from advocacy so the same document remains accessible whichever interpretation succeeds.

For each issue, record the following information.

• The exact referred question and the proposed answer from each party.
• Bank statements, account ledgers and supporting agreements relevant to that answer.
• Agreed opening balances, account ownership and statement coverage.
• Disputed allocations, duplicate entries and assumptions affecting the calculation.
• Missing records and the specific calculation or inference each gap prevents.

Use transaction rows that identify the account, debit or credit, source filename and page. Record receipts separately from payments. Match transfers across supplied accounts so an internal movement does not become a second external receipt. Preserve both sides of the transfer and the matching basis.

Reconcile the schedule to the statement balances. A reconciling difference needs an explanation, such as an omitted fee or an incomplete statement period. Keep the original record when a later document contradicts a party’s allocation. Identify which document supports each alternative treatment.

FinTrace can handle the underlying bank-statement analysis for a document-heavy reference. Its searchable ledger and findings report connect transactions to the source PDF filename and page, giving the legal team direct access to the supporting evidence. Keep those factual findings identifiable when the file also contains an expert’s opinion or party submissions.

Present the Case Within the Inquiry

Give the referee and every other party your contended findings within the required timetable. Federal Court rule 28.65(7) requires a brief statement of the findings of fact and law each party contends for. Tie each proposed finding to the issue number and supporting record.

Under rule 28.65, the referee is not bound by the rules of evidence and can receive information in the way the referee thinks fit. Evidence can be oral or written. If the court requires it, evidence must be on oath, affirmation or affidavit. These provisions govern this federal inquiry. Other courts apply their own rules.

Follow the directions on responses and witnesses. Keep a record of disputed questions, objections and any procedural ruling affecting your case. If an unexpected document changes an allocation, identify the change and seek the opportunity to address it through the inquiry’s procedure.

Fictional Account-Balance Dispute

Assume the reference asks the referee to calculate a project account balance and identify disputed allocations. The complete statement shows an opening balance of $20,000, receipts of $80,000 and payments of $65,000. The closing balance is $35,000: $20,000 + $80,000 - $65,000.

One $15,000 payment within the $65,000 total is disputed. The payer says it discharges a project expense. The other party says it repays a separate loan. Both accept that the bank processed the payment.

Issue	Established Record	Disputed Treatment	Consequence
Cash balance	Statement and schedule reconcile to $35,000	None on these assumptions	Report the reconciled cash figure
$15,000 payment	Statement proves the debit	Project expense or separate loan repayment	Compare invoice, loan record and parties’ explanations
Entitlement	Payment and allocation evidence	Whether the payment satisfies the claimed obligation	Apply the referred legal question or identify the issue left for court

The allocation changes the project account analysis without changing the bank’s closing balance. A bank debit establishes movement of money. Its legal effect depends on the relevant obligations and evidence, within the questions actually referred.

Check the Referee’s Report Against the Reference

Compare each report answer with the corresponding referred question and supporting calculation. Under Federal Court rule 28.66, the written report must state the referee’s opinion and reasons. It must also attach the parties’ statements under rule 28.65(7).

Use a report-response schedule with the question number, report paragraph, disputed point and source reference. State the proposed next step beside the point. A missing answer calls for a different response from an arithmetical error or disagreement about a document’s meaning.

In the fictional example, deducting the $15,000 payment twice would produce $20,000 instead of $35,000. Identify the duplicated rows and show the corrected arithmetic. If the referee instead finds that the payment discharged a loan, identify the evidence and reasoning you dispute. Repeating the preferred balance alone does not explain that objection.

Check whether the report answers an unasked question or leaves a referred question unresolved. Preserve the submitted schedule version, contrary documents and procedural record so the response identifies what the referee had before them.

Return to Court and Verify the Result

Apply for the court’s consideration of the report through the applicable procedure. Delivery of the report does not itself establish the judgment or final account.

Federal Court rule 28.67 permits a party to seek adoption, variation or rejection of all or part of the report. The court can require an explanation through a further report or remit a matter for further consideration. The court can decide a matter using the evidence taken before the referee, with or without additional evidence. It can give judgment or make an order.

Rule 28.67(2) also prohibits a party from adducing in court evidence given in the inquiry. Plan the application under the rule’s actual procedure. Identify the order sought instead of simply attaching the inquiry bundle again.

When orders are made, compare them with the report and your response. Record which findings the court adopts, the final amount ordered and any issue that remains unresolved. Retain the reference, report, response and resulting order together. Use the separate trial preparation process for issues that still require a hearing, and carry forward the court’s actual conclusions into the final account.