Attar & Melidi
[2023] FedCFamC1F 342
•5 May 2023
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:
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”).
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.
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 week i.e. during the trial. On this basis, the husband submitted that his application should be considered after the single expert provided his answers. It was submitted on behalf of the wife that there were a number of fundamental difficulties with the husband’s application and as such it should be dealt with and not delayed. Accordingly, I proceeded to hear the submissions for and against the husband’s application to adduce evidence from an adversarial expert and dismissed his application, and reserved my reasons, which I now provide.
WHY IS LEAVE NECESSARY?
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) require a single expert to be used in most circumstances. It is important to note the purpose of the single expert rules which are set out in r 7.02 and are 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 case;
(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; and
(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.
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.
As observed by the High Court in Dasreef Pty Ltd v Hawchar[2]
It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily.
(Footnotes omitted) (Emphasis added)
[2] [2011] HCA 21.
Other than state that he has been a real estate agent since 2005, predominantly selling prestige properties in E Region and that he has sold 40 properties in Suburb F, Mr G provides no evidence of any specialised knowledge based on any training, study or experience, which would permit him to provide an opinion as an expert valuer. Further, Mr G does not state that his opinion is wholly based on his specialised knowledge, nor how any specialised knowledge applies to the facts assumed or observed so as to produce the opinion expressed.
Does the proposed evidence comply with the Rules relating to experts
Rule 7.21 of the Rules requires an expert’s report to be addressed to the Court or to the party providing the instructions. This has not been done. Rule 7.21 further requires an expert’s report to have attached to it a summary of the instructions given to the expert. This has not been done.
Rule 7.22(1) of the Rules requires an expert’s report to state the reasons for the expert’s conclusions and include a statement about the methodology used. Neither of those requirements are satisfied. To the extent that a “range of opinion” is expressed, r 7.22(2)(f) of the Rules requires that the report include the basis for that opinion. If the opinion as expressed by Mr G as to the “vicinity” within which the property “should sell” might be regarded as a “range of opinion” then the report fails to comply with the requirements of this rule also.
Does the proposed evidence establish a basis for its admission?
As already noted, r 7.08 permits a party to tender a report or reduce evidence from another expert on the same issue if one or more of three bases are satisfied.
There is no evidence that there is a “substantial body of opinion contrary to any opinion given by the single expert”.
Other than a possible sale of a property that might be considered comparable on a date after the date of the single expert’s valuation, there is no evidence that has been identified as being known by Mr G that is not known to the single expert witness. As to this sale, Mr G provides only a very brief description. Even within that very brief description he identifies that it holds more frontage than the subject property although does not identify what frontage it has. The subject property has a very narrow frontage. I cannot be satisfied on the evidence that this property would be regarded as comparable to the subject property.
Finally, I am not satisfied that there is “another special reason for adducing the evidence from another expert”.[3]
[3] For example see Bass & Bass (2008) FLC 93-366; Simonsen & Simonsen [2009] FamCA 698; Royce & Donavan [2012] FamCA 168.
While the rules place restrictions on the tendering of another expert’s report or adducing evidence from another expert in proceedings, a party is not precluded from obtaining a report from another expert per se in order to better inform themselves in the conduct of their litigation. As Murphy J in Simonsen & Simonsen[4] observed:
The general thrust of the Rules has been referred to by the Full Court in Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word “special” as used in rule 15.49 [now 7.08(2)(c) FCFCOA (Family Law) Rules] has real meaning.
It is important to understand that Part 15.5 [now Part 7.1] of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert.
Thus, expert evidence obtained by a party on their own account can be used, for example, to significantly inform the cross-examination of a single expert witness at a trial. The restriction inherent in the rules is a restriction related to the adducing of evidence from the expert or experts retained by a party.
[4] [2009] FamCA 698 at [12]–[14].
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.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 5 May 2023
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