Alden & Alden
[2023] FedCFamC1F 588
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alden & Alden [2023] FedCFamC1F 588
File number: CAC 1359 of 2022 Judgment of: CAMPTON J Date of judgment: 14 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – EXPERT EVIDENCE – Application to adduce expert evidence other than from a single expert witness – Application refused. Legislation: Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.3, 7.1.6, rr 7.02, 7.03, 7.08, 7.11, 7.13
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 13 July 2023 Place: Sydney Counsel for the Applicant: Mr Coleman SC Solicitor for the Applicant: King Cain Solicitors Counsel for the Respondents: Mr Matthews KC Solicitor for the Respondents: Orman Solicitors ORDERS
CAC 1359 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALDEN
Applicant
AND: MR ALDEN
First Respondent
B PTY LTD
Second Respondent
order made by:
CAMPTON J
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1.The husband and the wife shall do all such things as are necessary to instruct the single real property valuation expert (“the expert”), Mr C, to opine and report as to:
(a)a retrospective valuation report of “D Property” as at November 2006 and such other date as sought by either party; and
(b)the value of each portion of “D Property” in the event it was portioned or subdivided on the basis as proposed by the husband in his Further Amended Response to an Initiating Application filed 18 May 2023;
2.The expert be requested if possible to furnish the opinion within 28 days.
3.Either party shall utilise the processes identified in Div 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the purpose of clarifying the experts opinion on or before 25 August 2023.
4.The Application in a Proceeding of the husband filed 28 June 2023 otherwise be dismissed.
5.The wife’s costs of and incidental to the husband’s Application in a Proceeding filed 28 June 2023 be reserved to the trial listed to commence on 4 September 2023
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alden & Alden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Ms Alden (“the wife”) by way of an Initiating Application filed on 15 July 2022 sought orders for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between herself and Mr Alden (“the husband”). The husband sought different orders adjusting property in his Response to an Initiating Application filed on 15 September 2022.
The proceedings are in the Major Complex Financial Proceedings list, and were initially listed for final trial over five days commencing of 5 June 2023 in the City M Registry. Arising from judicial unavailability, that trial was vacated on 26 May 2023 and the proceedings transferred to the Sydney Registry.
The proceedings came before me on urgently 30 May 2023. By that date, all of the lay evidence had been filed. Orders were made listing the matter for final trial before me over five days commencing on 4 September 2023 in Sydney, and confirming that the parties would not be permitted to file or rely on any further lay evidence than that already filed. An order was made by consent joining B Pty Ltd as trustee for the B Trust as the second respondent to the proceedings. It is uncontroversial that B Pty Ltd is a discretionary trust of which the husband and the wife are the appointers and are the shareholders and officeholders of the corporate trustee. The trust has filed a Notice of Address for Service by way of its accountants, but otherwise is not participating in the proceedings.
Further orders were made on 30 May 2023 facilitating the husband serving his Application in a Proceeding filed on 28 June 2023, requiring the wife to file a response to that application, and listing the application for hearing before me on 13 July 2023. The application broadly sought orders that:
(a)The husband be permitted to adduce and rely on expert evidence from eight witnesses being other than single expert witnesses; and
(b)The wife pay to his solicitors litigation funding of either $339,445 or $209,754.
The wife filed a Response to an Application in a Proceeding filed 10 July 2023, and sought that the husband’s application be dismissed and costs.
During the course of the hearing on 13 July 2023, the following consent order that was made disposing of the litigation funding portion of the application:
1.By consent, Order 10 as made on 8 November 2022 be varied so that the parties may comply with Order 2 made today.
2.By consent, within 7 days of the date of these orders the parties shall do all such things as a necessary to cause a sum of $300,000 to be paid from the bank account of [E1 Pty Ltd] and for $150,000 of that withdrawal to be paid to each of the parties to be recorded as a debit to their respect loan accounts with that entity, such sum to be paid to the solicitors for each of the parties to be applied to their own costs and disbursements in respect to these proceedings.
These reasons determine the husband’s application pursuant to Div 7.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to adduce and rely on expert evidence other than by way of a single expert witness. For the reasons that follow, that application will be dismissed.
DOCUMENTS RELIED UPON
The husband in support of his Application in a Proceeding filed 28 June 2023 relied upon an affidavit of his solicitor filed on the same date, and in so far as was necessary, the affidavits as filed (albeit without leave) of each of the proposed expert witnesses. The wife relied on her Response to an Application in a Proceeding filed 10 July 2023, the affidavit of her solicitor filed on the same date, and a Case Outline document filed on 12 July 2023.
BACKGROUND
The husband was born in 1964 and is currently 59 years old. The wife was born in 1966 and is currently 57 years old. They were engaged in 1996, commenced cohabitation shortly thereafter and were married in 1997. They separated on 27 May 2020. They have two adult children currently aged 22 and 20 years old.
In 2006 the wife’s mother became unwell. She passed away in 2006. In that year, the husband and wife took over the operation of two adjoining farms, located at:
(a)Parcels of land comprising over 1,000 acres at F Street, Town G, known as “D Property”; and
(b)Parcels of land comprising over 300 acres neighbouring D Property, known as “H Property”. This property was transferred from a company controlled and owned by the wife’s parents to the wife in 2006.
They purchased land adjoining H Property in 2006, being an over 400 acre property known as “J Property”. There is a home and some other fixtures on J Property.
In 2006, the husband and wife moved into the home at D Property. At that time, D Property was owned by E2 Pty Ltd as trustee for the K Trust. It seems uncontroversial that at her death, the wife’s mother was the sole director, secretary and shareholder of E2 Pty Ltd.
In 2008, the husband and wife acquired further land opposite D Property on F Street, then known as “L Property” and later renamed by the husband and wife to “B Property”. B Property comprises two parcels of land, being “Lot 1 B Property” and “Lot 2 B Property”.
By way intergenerational transfer in 2013, the title to D Property was transferred to the wife in her sole name.
It seems relatively uncontroversial that:
(a)The registered proprietor of J Property and Lot 1 B Property is B Pty Ltd;
(b)Lot 2 B Property is registered in the husband and wife’s names as joint tenants; and
(c)The wife is the sole owner of D Property and H Property.
At the hearing before me, the husband contended that the net pool of property available for adjustment between the husband and wife is in the range of $24 million. The wife did not put that contention in dispute for the purpose of this determination.
By way of her Amended Initiating Application filed 13 April 2023, the wife broadly seeks orders effecting a division of the available pool 80 per cent in her favour and 20 per cent in the husband’s favour. As part of her 80 per cent entitlement, she would retain D Property and H Property in specie, and the husband would retain J Property and B Property. In the alternative, if the husband does not seek to retain any of the identified real properties, the wife proposes to retain them all and make an adjusting cash payment to the husband.
By way of his Further Amended Response to an Initiating Application filed 18 May 2023, the husband broadly seeks orders effecting a division of the available pool 45 per cent in his favour and 55 per cent in the wife’s favour. As part of his entitlement, he seeks to retain B Property, H Property and part (although not the whole) of D Property, being some subdivided or partitioned blocks of land, which included “excising” the homestead, what he described as “the farm infrastructure hub” and part of an enclosed road. He would additionally retain B Pty Ltd, including all plant and equipment and livestock owned by it, and would make an adjusting payment to the wife.
The dispute as to the expert evidence
On 24 February 2023, orders relevant to this application were made by the then trial judge Wilson J as follows:
(a)Listing the proceedings for trial over five days commencing on 5 June 2023 in City M;
(b)Proscribing a process for obtaining updated expert evidence, as follows:
2.On or before 4:00pm on 24 April 2023 the parties must do all acts and things and must sign all documents necessary to jointly appoint a single expert to obtain updated valuations on the following –
(a)the “[D Property]” , “[H Property]” , “[J Property]” and “[B Property]” properties;
(b)any plant and equipment;
(c)the livestock;
(d)all crops, hay, grain, seed, and silage;
(e)the household furniture; and
(f)the husband’s guns
(c)Setting out a timetable for the filing material to be relied upon at the trial, including relevantly the following orders:
5.On or before 4:00pm on 8 May 2023, the respondent must file and serve upon all other parties –
(a)an amended response (if any) setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses;
(c)a financial statement that complies with Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021.
7.No party may file any further material other than as provided by these orders without my permission.
During March 2023 a chain of correspondence was initiated by the husband’s solicitors with the wife’s solicitors in relation to the adducing of expert evidence of the retrospective valuations D Property and H Property, and as to the fact and terms of a potential application to the relevant local government authority as the a partition or subdivision of D Property. A vast quantity of communications thereafter passed between the solicitors, including a number of telephone conversations. It seems relatively uncontroversial that agreement could not be achieved as to the appointment of single expert witnesses on these issues.
The terms of the disagreement expanded to whether expert evidence should be obtained as to other possible practical and financial aspects (including taxation and duty imposts) of the husband’s potential application to subdivide D Property.
It is uncontroversial that upon the matter being listed again for further trial management before Wilson J on 21 April 2023 the husband had not:
(a)filed any application to adduce single expert evidence as to the subject matters he now seeks to adduce; nor
(b)filed any application to adduce expert evidence other than by a single expert as to those subject matters.
Senior Counsel for the husband and King’s Counsel for the wife appearing before me yesterday were in dispute as to whether Wilson J had indicated at the listing on 21 April 2023 that he would consider any application to adduce expert evidence other than from a single expert witness at the commencement of the trial. The transcript of that day was not put into evidence before me. The orders made by Wilson J record that Mr McLeod of counsel appeared for the husband and Ms Orman, the wife’s solicitor, appeared for the wife. The orders made were by consent, and were directed to objections to subpoenas, extending the time for filing lay evidence, and listing the matter for a compliance hearing. Order 5 on that date extended the time for the husband to file his material, including any Amended Response to 4.00 pm on 18 May 2023.
It is to be observed that the husband’s contention as to Wilson J’s representation that any application to adduce expert evidence would be considered on the first day of the trial is not support by sealed orders as issued.
THE RULES
The adducing of evidence from an expert other than a single expert is restricted by operation of r 7.08 of the Rules, which provides as follows:
7.08 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
The Full Court has consistently not read down the circumstances where there are genuine issues in the proceedings that attract the attention of probative expert evidence. The view is often taken that r 7.08 must not be applied in a way that results in what may be a significant issue in the proceedings being foreclosed from effective challenge (at least on a practical level), or in a way that would compromise the interests of justice in preventing potentially relevant evidence being placed before the Court.
Should a party seek to adduce evidence of an expert witness other than a single expert, they must apply for the Court’s permission to do so. The content and determination of such application is governed by r 7.11 of the Rules:
7.11 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding.
(2) The affidavit filed with the application must state the following:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue;
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding;
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note:Despite an order under this rule, a party is not entitled to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 7.17).
The purpose of the rules relating to expert evidence are expressed in r 7.02 of the Rules, as follows:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
CONSIDERATION OF THE HUSBAND’S APPLICATION
The evidence relied upon by the husband to support the application coupled with the submission made in support of his application sufficiently canvass the subject matters identified in r 7.11(2) of the Rules. The submissions of the husband going to the considerations identified in r 7.11(3) of the Rules were focused on the relevance and content of the evidence of each of the experts for which leave is sought to issues in dispute in the proceeding.
At the outset of the hearing, counsel for the husband advised that he did not press to rely on the affidavit of Mr N of P Consulting.
Mr Q
The first expert witness upon whom the husband seeks to rely is Mr Q of R Valuers. His affidavit was affirmed on 26 June 2023 and filed and served the following day.
Mr Q is a real property valuer. His expertise and qualifications do not substantially differ from nor exceed those of the single real property expert engaged in these proceedings, Mr C. Mr Q’s affidavit records that he received a letter of instruction from the husband’s solicitors on 17 May 2023, and that he has been engaged to:
(a)Prepare a retrospective valuation report of D Property as at November 2006;
(b)Opine as to the value of D Property if it were to be subdivided as proposed by the husband; and
(c)Comment on the report of the single real property expert.
The husband submitted that Mr Q’s evidence was fundamental to the exercise of discretion in discharging the s 79 mandate, and that his evidence was the “die in the ditch” relief sought by this application, in that it would:
(a)Permit an assessment of the contributions of the husband and wife insofar as they pertained to D Property as at 2006 and in years that followed;
(b)Put evidence before the Court as to the impact of the husband’s final relief sought D Property be subdivided, including as to the value of the portion of D Property proposed to be excised by the husband; and
(c)Ground further expert evidence as to the value of various capital gains taxation imposts in the event of the disposal of all or parts of the real properties, in circumstances where the title of the properties were transferred by way of intergenerational succession arrangements to the wife between 2006 and 2013.
The husband emphasised in submissions that this evidence was of pivotal significance to the form of the orders to be made at the conclusion of the four-step process in s 79 of the Act, and in determining the merits of each of his and the wife’s competing claims to retain D Property and H Property in specie. He contended that a failure to accede to his application on this subject matter would affect the proceedings with appellable error, before the trial had even started.
The husband submitted that it was crucial that his solicitor had diligently sought to procure evidence on these subject matters from the single real property expert in communications by seeking assent from the wife’s solicitor, but had been unsuccessful.
There was no explanation in the husband’s evidence or in his submissions as to why he had not simply made application pursuant to the Rules for orders that the parties instruct the single real property expert to opine as to the disputed subject matters. That application could have been made during the three month period of voluminous communications between the respective solicitors. It could have been made to Wilson J on 21 April 2023.
The husband’s evidence failed to engage with r 7.02(c) of the Rules, or with the considerations identified in r 7.03(3)(b), (c) or (d). The wife made a number of cogent and probative submissions as to why the husband should not achieve the leave sought, including that permitting the husband to rely on Mr Q would require her to obtain further evidence from her own expert, and thereby incur further expense and delay.
Without determining the matter, having regard to the submitted importance of the evidence to the case now prosecuted by the husband, it was suggested to the parties during the course of the hearing that they might instruct the current single real property expert to opine on the matters identified above, pursuing a process as set out in r 7.13 of the Rules. This was sensibly agreed by each party. Orders will be made to that effect, requiring a letter of instruction to Mr C to be settled and sent within seven days of this judgment, setting out each of the husband and wife’s alternate contentions. That letter should include a request that the opinion be furnished, if possible, within in four weeks thereafter.
If either party requires further clarification of Mr C’s evidence, they have at their disposal the processes set out in Div 7.1.6 of the Rules. In light of the upcoming trial dates, insofar as is necessary, the time limits prescribed in that division shall be abridged.
The relief of the husband to adduce and rely upon the expert evidence of Mr Q will be refused.
Mr S
Mr S is a consultant. He is the Principal in Charge of T Company. His affidavit was affirmed on 18 May 2023 and filed and served on 23 May 2023.
His affidavit records that he received a letter of instruction from the husband’s solicitors on 17 March 2023, requesting that he produce a report as to the husband’s contributions to the improvement and operation of the farms, and that he opine “in general terms” on issues including:
1. What you see and how it translates into an operating Farming Enterprise.
2. Trading results.
3. Productivity and profitability.
4. And any comparisons you are able to make from your knowledge of the properties (‘[D Property] and '[H Property]') prior to when they were taken over by [the husband and wife] in around 2006.
5. Your knowledge of [the husband’s] former property also known as [B Property] at [Town U].
6 . How the properties managed by [the husband] and the Rural Enterprise’s trading results compare to similar farming operations in the area.
It was submitted on behalf of the husband that should Mr S’s evidence not be admitted as expert evidence, it would otherwise be admissible as lay opinion evidence, in that it is founded on Mr S’s own observations of the farming properties over many years, including prior to 2006. I do not accept that characterisation of his evidence. He is opining, by way of his skills, qualifications and experiences, as to the matters identified in the letter of instructions (see s 79 of the Evidence Act 1995 (Cth)). If it were to be accepted as lay evidence, then the husband submitted that no prejudice could arise to the wife in being permitted to rely on his affidavit notwithstanding that it was filed outside of the trial directions, in that the delay was of only four days, and the trial has since been adjourned to commence on 4 September 2023.
The husband did not identify why the opinions or beliefs of someone other than an expert would be relevant. In the event the evidence was contended to be of Mr S’s observations alone, it was not explained how the matters on which he was asked to opine as identified above, could be said to be other than evidence of an expert character.
Mr V
Mr V is a barrister. He has expertise in Australian taxation law. His affidavit was affirmed on 19 May 2023 and filed and served on 22 May 2023. It records that he received a letter of instruction on 18 May 2023, requesting that he advise as to the Division 7A liabilities arising from the withdrawal of funds from E1 Pty Ltd and the Capital Gains Tax other taxation liabilities that may be incurred should the Court make orders as sought by the husband on a final basis. Further instructions were provided by the husband’s solicitor on 18 May 2023.
It was submitted on behalf of the husband that Mr V’s evidence was crucial to a consideration of the justice and equity of any final orders adjusting property between the parties. He said that Mr V’s evidence was not bound to benefit the husband, but could also assist the wife (or alternatively, neither of them).
In resisting the husband’s application to rely on Mr V’s evidence, the wife observed that the possible outcomes of the s 79 determination which Mr V was asked to consider and upon which he opined were not consistent with the relief sought by the husband in his Amended Response to an Initiating Application filed 18 May 2023. She further identified that in order to properly test Mr V’s evidence, she would be required to consider and likely put on her own evidence as to the same subject matters with differing foundations. The wife contended, and I accept, that this process could not be achieved between now and the trial and would cause significant additional cost, delay and complexity, all but ensuring the trial could not be completed in the allocated time.
The wife did not dispute the value of some of Mr V’s evidence dependent on the integrity of its foundations. It cannot be disputed that expert evidence as to some of the identified subject matters would relevant and of assistance to the Court. That said, I accept the wife’s submissions that if such an expert is not instructed jointly as a single expert, it would increase the costs of the parties and the length of the trial (in requiring the assessment of possibly competing expert opinions).
Mr W
Mr W of X Company is a Town Planner. His affidavit was sworn on 18 May 2023 and filed and served on that day. It records that he received a letter of instruction from the husband’s solicitor on 17 April 2023 and 16 May 2023, requesting that he opine as to “whether the rural property known as '[D Property]' is able to be subdivided in the manner sought by [the husband]”.
It was submitted that his evidence would be required by the Court to determine what is or is not permissible under the relevant legislation should orders to subdivide D Property be entertained as sought by the husband.
Similar considerations apply to Mr W’s evidence as those that applied to the evidence of Mr V. It may be that the evidence will assume relevance and be of assistance in the Court’s assessment of the just and equitable outcomes available at the conclusion of the s 79 process. However, the prejudice to the wife and to other litigants before the Court of permitting expert evidence on these matters other than from a single expert by way of delays and increased costs, at this late stage of the proceedings, weighs against permitting reliance on Mr W’s evidence (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”)).
It was further, and compellingly, submitted by the wife that it is undesirable for this Court to engage in a process of town-planning or to put itself in the shoes of a Land and Environment Court or Local Court, and envisage what subdivisions or proposals may or may not be permissible in those jurisdictions. This is a sizeable and complex area of dispute, only raised in the shadow of the trial.
Mr Y
Mr Y of Z Consultants is a consultant and data analyst. His affidavit was sworn, filed and served on 23 May 2023. It records that he received a letter of instruction on 9 May 2023, and was asked by the husband’s solicitors to prepare a report “showing satellite imagery incorporating [the farming properties] as at 2004, March 2006… [and] current imagery”.
Mr Y’s evidence is plainly expert opinion evidence, and goes to the developments and improvements occasioned to the properties over 2006 to date, to the extent that there is any dispute between the parties on this matter.
The wife submitted with some force that Mr Y’s evidence would not assist the Court in the event, as was agreed, that the single real property expert was asked to prepare retrospective valuation reports for the rural properties. She said that the information available to Mr Y and the opinions he would issue would be encompassed by the valuations of the single real property expert. In those circumstances, she submitted that permitting Mr Y’s evidence would unnecessarily extend the length of the trial and result in overlaps in expert evidence to be given on the same subject matter, contrary to the purpose of the Rules as identified in r 7.02(c).
Mr AA
Mr AA of BB Company is a Stock and Station Agent. His affidavit was sworn and filed on 30 May 2023, and served on 27 June 2023. There was no explanation given for the delay in serving his affidavit on the wife. His affidavit records that he is “professionally familiar” with the husband and was engaged as the Stock and Station Agent for the farms for a number of years, and previously worked for the husband’s father.
It was submitted by the husband that Mr AA, if not permitted to give expert evidence, would also be able to give lay evidence as to the nature, quality and characteristics of the contributions of the husband and wife during their relationship. His evidence otherwise would go to a “dominant issues” of how the real properties could be ‘carved up’.
Again, the same considerations which applied to Mr S’s evidence apply to that of Mr AA. His evidence, to my mind, is not lay opinion evidence insofar as it is grounded from his particular skills and experience.
Mr CC
Mr CC of DD Company is a consultant. His affidavit was sworn, filed and served on 18 May 2023. It records that the husband’s solicitors sent him a letter of instruction on 14 April 2023, and that he was requested to opine as to the commercial viability and impact on the farming operations in the event final orders were made as sought by the husband.
A similar complaint was made by the wife as to the foundations of Mr CC’s evidence as was made in respect of Mr V, being that the various scenarios on which he was asked to opine were inconsistent with the husband’s relief sought by way of his Amended Response to an Initiating Application filed 18 May 2023.
CONCLUSION
The wife identified that the process by which each of the proposed additional experts had been engaged by the husband was haphazard and contrary to the import of r 7.02 of the Rules. I do not accept that the husband was unable to make a timely application for the appointment of single experts going to the relevant subject matters that he has identified. As recorded in [36] above, the husband has not achieved many of the considerations identified in r 7.03 of the Rules.
I further accept the wife’s submission that if the evidence sought to be adduced by the husband were allowed, she would be required to engage her own expert witnesses to respond to that evidence, and that process (if she were able to complete it prior to the trial) that would occasion delay, cost, and complexity.
It was submitted on behalf of the husband that to the extent that any prejudice was occasioned to the wife by acceding to his application to rely on the additional witnesses, that prejudice was outweighed by the prejudice to the husband of not permitting their evidence. I do not accept that submission. It is significant, to my mind, that the husband was prepared to run the trial initially listed to commence on 5 June 2023, without much of the expert evidence now sought to be relied upon and knowing the possibility that a belated application to rely on the expert evidence then available would be refused. This would seem entirely inconsistent with the submissions made on his behalf that the proposed evidence is so fundamental to the determination of the case, that an exercise of discretion by this Court in its absence would miscarriage in its absence.
To my mind, in all of the circumstances in this case, the potentials for delay should the husband’s application be acceded to occasions actual prejudice to the wife of the kind identified by the High Court in Aon Risk. The decision of the High Court in Aon Risk provides authority for courts to take into account case management principles when exercising discretion in procedural applications such as this, even to the prejudice of a party to a particular proceedings.
The husband’s process of amending his substantive relief sought in the immediate shadow of the trial, and then haphazardly seeking to adduce expert evidence in a manner not wholly consistent with the Rules, is contrary to the provisions of s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), obliging parties to act consistently with the overarching purpose to facilitate the just resolution of their dispute as quickly, inexpensively and efficiently as possible.
I am further not satisfied on evidence before me that the husband is foreclosed on a practical level from prosecuting the issues to which the proposed evidence is directed, so as to compromise the interests of justice. The husband has engaged highly skilled legal representatives with significant expertise in dealing with disputes similar to that between the parties. They ought to be aware of the raft of alternate forensic processes available to the husband by way of the Rules, the Act and the Evidence Act 1995 (Cth), which would allow him to establish the relevant factual findings which he contends for at trial.
Many of those processes can be applied to avoid occasioning prejudice to the wife, or causing the trial to be prolonged such that it will not conclude within the allocated five days. It is not clear, for example, whether all of the factual issues in relation to which the husband sought to adduce expert evidence, were disputed by the wife. It may be that the parties will be able to reach an agreed position on some of these issues.
In the event the husband takes the view that the raft of alternate processes are not appropriate, or occasion such prejudice to him such that he would be unable to adequately prosecute his Amended Response, he has a capacity to make such further applications as he considers appropriate, including (although this is not to be seen as an invitation) to adjourn the trial.
For all of the above reasons, the husband’s Application in a Proceeding filed 28 July 2023 shall be dismissed and orders shall be made as set out at the forefront of this judgment.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 14 July 2023
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