Attar & Melidi

Case [2023] FedCFamC1F 342

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Attar & Melidis [2023] FedCFamC1F 342

File number(s): BRC 3102 of 2020
Judgment of: CAREW J
Date of order: 2 May 2023
Catchwords: FAMILY LAW – PROCEDURAL – Application for leave to adduce evidence from an adversarial expert – Application dismissed
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Bass & Bass (2008) FLC 93-366

Dasreef Pty Ltd v Hawchar [2011] HCA 21

Royce & Donavan [2012] FamCA 168

Simonsen & Simonsen [2009] FamCA 698

Number of paragraphs: 21
Date of hearing: 2 May 2023
Date reasons delivered: 5 May 2023
Place: Brisbane
Counsel for the Respondent: Mr Shoebridge
Solicitor for the Respondent: Stewart Family Law
Solicitor for the Applicant: Mr Senior as solicitor advocate, Senior Legal Pty Ltd

ORDER

BRC 3102 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ATTAR

Applicant
AND:

MS MELIDIS

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

2 MAY 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 26 April 2023 by the applicant husband to rely upon an adversarial expert is dismissed.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CAREW J:

  1. On the first day of trial between Mr Attar (“the husband”) and Ms Melidis (“the wife”) concerning the division of their property consequent upon the end of their marriage, the applicant husband in the proceedings sought leave to adduce evidence from an adversarial expert in relation to the valuation of the former matrimonial home situated at B Street, City C, in the D Region in Queensland (“the property”).

  2. On 31 January 2023, the parties jointly appointed an expert to undertake a valuation of the property for the purposes of these proceedings. The property was inspected by the single expert on 10 March 2023 and a valuation report issued on 23 March 2023 valuing the property at $2,200,000.

  3. On 28 April 2023, the husband, through his lawyer, sent a list of questions to the single expert, who apparently indicated his capacity (notwithstanding the late request) to respond to those questions by Wednesday evening or Thursday morning this…

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AGLC
Attar & Melidi [2023] FedCFamC1F 342
Case
[2023] FedCFamC1F 342
Decision Date

CaseChat Overview and Summary

The case of Attar & Melidi involved a husband seeking leave to adduce evidence from an adversarial expert, specifically a real estate agent named Mr G, in the context of a family law dispute. The husband aimed to challenge the valuation of a property, which was a central issue in their proceedings. Mr G, who had previously held a real estate license but whose license had expired, provided an appraisal indicating a belief that the property should achieve a sale result between $2,600,000 and $3,000,000. However, his license had expired, and he had not yet renewed it, casting doubt on his status as a qualified expert.

The court had to determine whether Mr G qualified as an expert under s 79(1) of the Evidence Act 1995 (Cth), and whether the proposed evidence complied with Rule 7.08(2) of the Rules. The court also needed to consider whether the admission of the proposed evidence was justified under the specified bases in the Rules. The husband argued that Mr G's extensive experience in the real estate market and his recent activities in the area warranted his testimony. However, the court found that Mr G's expired license and lack of a current qualification undermined his claim to expert status. Furthermore, the court noted that the evidence proposed by Mr G did not meet the criteria set out in Rule 7.08(2), as the sales he cited were not unknown to the single expert already appointed in the case.

In its decision, the court emphasised the importance of adhering to the single expert rules in family law proceedings to avoid an imbalance and potential escalation of costs. The court dismissed the application, finding that it was not in the interests of justice to allow the husband to rely on an adversarial expert. The court concluded that the proposed evidence did not meet the necessary criteria and that permitting such evidence would undermine the purpose of the single expert rules.

The final orders of the court were that the husband's application to rely upon an adversarial expert was dismissed. The court's decision underscored the strict adherence to the qualifications and procedural rules governing expert evidence in family law cases.

Orders

Orders of the court

1. The Application in a Proceeding filed 26 April 2023 by the applicant husband to rely upon an adversarial expert is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Rule 7.08(2) of the Rules provides that 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 that the contrary opinion is or may be necessary for determining the issue;(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 PROPOSED EVIDENCE The husband seeks to rely upon the affidavit and report of a real estate agent, Mr G, who contends that he has been acting as a real estate agent and selling real estate in Queensland since 2005, predominantly selling “prestige properties in [E Region] and more specifically [in D Region]”. Mr G contends that he has “sold approximately 40 properties in the [area] known as [Suburb F]” (where the subject property is located). Mr G does not have a current licence to sell real estate. His licence expired in early 2023. Mr G contends that he has paid his application fee for the renewal of his licence and annexes to his affidavit a tax invoice from the Department of Justice and Attorney General indicating that the fees for “renewal application POA – IND” and incidental costs have been paid. Mr G annexes to his affidavit an “appraisal” for the property. He does not purport to provide a current valuation but rather an opinion as to his “belief” that the property “should achieve a sale result in the vicinity of $2,600,000 to $3,000,000”. Mr G’s affidavit expresses his opinion slightly differently in that he contends that it is his opinion that the property “would sell between at least $2,600,000 and $3,000,000”. The appraisal includes a document headed “comparable sales” which sets out six properties. Of those six properties all bar one[1] represents a sale prior to the date of valuation by the jointly appointed expert. Accordingly, on the face of the evidence, it cannot be said that the sales were not known to the single expert. Only one of the six properties was included as comparable by the jointly appointed expert. The one property sold after the date of the valuation by the jointly appointed expert is noted by Mr G to “hold more [frontage]” than the subject property. DISCUSSION[1] This is a property at H Street Suburb F which is said to have sold in early 2023, however in the body of Mr G’s affidavit he says that the “most recent sale … in [Suburb F] is the property located at [J Street]” which sold two weeks earlier.Is Mr G an expert? The husband has failed to establish that Mr G is an expert such as to make his opinion evidence admissible pursuant to s 79(1) of the Evidence Act 1995 (Cth) which provides:(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Decision

Reasons for decision

While the interests of justice must ultimately be the overarching consideration, if one party is permitted to reply upon another expert it necessarily leaves open the very real prospect of yet a third expert being involved; all of which defeats the purpose of the single expert rules. As Kent J in Royce & Donovan,[5] observed:In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance.[5] [2012] FamCA 168 at [82].CONCLUSION The application to adduce evidence from another expert is dismissed. In summary, the application fails for the following reasons:(a)It has not been established that Mr G is an expert;(b)The proposed evidence does not comply with the Rules;(c)The admission of the proposed evidence is not justified on one of the bases set out in r 7.08.

Ratio Decidendi

Legal Principle Established

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