Batstone and Batstone

[2013] FamCA 1079

FAMILY COURT OF AUSTRALIA

BATSTONE & BATSTONE [2013] FamCA 1079

FAMILY LAW – PROPERTY – Expert Evidence - Interim Hearing - Where permission sought pursuant to Family Law Rule 15.49 to permit the tendering of a report or adduce evidence – Where another expert has already been retained to give opinion on the same issue as a sole expert – Where application indefinitely adjourned – Where there is not yet any report in existence or a précis of the evidence of the alternate witness - Where legitimate concerns of retained experts opinion.

Family Law Rules 2004 (Cth) r 15.49

APPLICANT: Mr Batstone

RESPONDENT: Ms Batstone

FILE NUMBER: TVC 1309 of 2011

DATE DELIVERED: 26 August 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 26 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITORS FOR THE APPLICANT: Murray Lyons Solicitor

COUNSEL FOR THE RESPONDENT: Mr. Morezone QC

SOLICITORS FOR THE RESPONDENT: Boulton Cleary & Kern

Orders

1. The Application in a Case filed 17 June 2013 be adjourned sine die.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Batstone & Batstone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1309 of 2011

Mr Batstone

Applicant

And

Ms Batstone

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me is an application seeking leave pursuant to Family Law Rules Rule 15.49 to permit the husband to tender a report, or adduce evidence, from another expert on the same issue as an expert has already been retained to give opinion in relation to as a sole expert.

2. The circumstances of this application are a little different to those in most other cases. Here, contrary to the ordinary case to which rule 15.49 has application, there is not yet in existence a report or even a précis of the evidence of the alternative expert. It appears as though the prospect of an additional expert has been examined for some time by the husband, and the relevant expert is likely to be a Mr B. However, the application as it is presently cast does not even restrict the scope of the leave to Mr B. The application as cast would potentially enable the husband to call any expert who was prepared to give an opinion in relation to those matters dealt with in the application.

3. It is interesting to consider the language of rule 15.49 which is as follows:

   APPOINTING ANOTHER EXPERT WITNESS

   15.49(1)        If a single expert witness has been appointed to prepare a report or give evidence in relation to an issues, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

   15.49(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 that the contrary opinion is or may be necessary for determining the issues;

   (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.

4. I particularly focus upon the words “tender a report” if the court is satisfied of one of the three matters in the subsections.  There is simply no material before me which enables me to identify whether or not there ultimately will be an opinion contrary to that of the single expert.  Moreover, it is difficult in the absence of any report, to be able to identify any special reason as to why additional evidence should be able to be led.

5. That is not to say that there are not legitimate criticisms in relation to the expert opinion thus far of Mr D.  Indeed, there appear to be some substantial flaws with it, at least in relation to his out-of-hand rejection of contentions of fact by the husband.  It would have been far more useful if, rather than merely rejecting factual matters out of hand, he had been prepared to provide alternative assessments and opinions depending upon which of the factual scenarios prevailed.  Given the substantial sums in question as to the value of the shareholdings in the relevant companies, one can readily understand why it is that the husband is so concerned about the opinion of Mr D.

6. However, those concerns of themselves and without more are not presently sufficient to discharge the onus under rule 15.49. Rather, the proper course here is for an alternative opinion to be obtained, and to the extent that it may be materially different to that of Mr D, the court be asked to permit that report to be used, rather than permitting a report the contents of which is undetermined to be used.

7. It is useful to consider the purpose behind the restriction of expert evidence, which is to ensure that expert evidence is limited to that which is necessary to resolve or determine a case, amongst the other matters listed in 15.42.  At the moment the order that is sought would not necessarily restrict expert evidence to that which is necessary to resolve or determine the case;  it would permit there to be a raft of potentially conflicting evidence that would not otherwise be necessary to resolve the case.

8. So for those reasons the application will not be granted; however, I should make it clear that it seems to me to be useful to nonetheless keep the application alive pending the husband being able to obtain a report from Mr B, or some other appropriately qualified expert, with a view to it being used to either challenge Mr D’s report, or to be used to assist him to come up with an opinion which is both defensible and satisfactory to the husband. 

9. So my present inclination is not to dismiss the application but rather to adjourn it indefinitely.  It may be that come the trial it has never seen the light of day again and it can be then dismissed, but at the moment there are sufficient concerns in relation to Mr D’s opinion that it occurs to me that at some stage the application is likely to be agitated assuming, of course, that an alternative opinion can be had.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 August 2013.

Associate: 

Date:  05 November 2013