Berrell and Berrell - [2013] FamCA 676

FAMILY COURT OF AUSTRALIA

BERRELL & BERRELL

[2013] FamCA 676

FAMILY LAW – PROPERTY – Interim – Expert evidence – Where the parties agreed upon a single joint expert – Where the Wife is seeking permission to rely upon an adversarial expert.

FAMILY LAW – PROPERTY – Interim – Parties to equally share the costs of retrospective valuations.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Royce & Donovan [2012] FamCA 168

APPLICANT:

Ms Berrell

RESPONDENT:

Mr Berrell

FILE NUMBER:

BRC

10381

2010

DATE DELIVERED:

9 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood and Ms Oakley

SOLICITOR FOR THE APPLICANT:

Files Stibbe Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

James Noble Family Law

Orders

IT IS ORDERED THAT

The parties equally share the costs of the retrospective valuations as at April 2003 of the properties located at:
(a) A Drive, Suburb G; and
(b) H property.
The Wife’s application for permission to tender a report and adduce evidence of Mr B as an expert witness is dismissed.
Each parties’ costs of and incidental to the applications be reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Berrell 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 BRISBANE

FILE NUMBER: BRC 10381 of 2010

Ms Berrell

Applicant

And

Mr Berrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Berrell, whom I will refer to as “the Wife”, is currently 63 years of age and is the Applicant in these proceedings. The Respondent, Mr Berrell, whom I will refer to as “the Husband” is currently 67 years of age.
The parties met in November 1970, married in late 1971 and they disagree as to the date of their final separation. On the Husband’s case, separation occurred in and around March or April 2003 and on the Wife’s case, separation did not occur until January or February 2010. Thus, on the Wife’s case, their cohabitation relationship subsisted for some 40 years and on the Husband’s case, for some 33 years. There are two now adult children of the marriage.
The property pool for the purpose of the property settlement proceedings is estimated, for the purpose of today’s application, to be in the order of about $5 million. The trial of the property proceedings is set down to proceed on 12 November 2013.
A range of matters were agitated in applications set down for hearing today but fortunately it would seem consensus has been reached on most of them. For example, so far as disclosure is concerned, the Wife does not pursue an application to the effect that the matter proceed on an undefended basis by reason of the Husband’s failure to disclose and likewise, other matters so far as retrospective valuations and the like are agreed.
The two remaining issues for my determination concern retrospective valuations of two items of real property and the Wife’s application for permission to adduce evidence from an expert who may be conveniently termed an adversarial expert.
So far as retrospective valuations are concerned, as already noted, the Husband’s case is that the parties separated in 2003 and the Husband advances a case to the effect that an informal agreement was reached by the parties and that fundamentally the parties have acted upon that agreement in the period since. The Husband relies, in part, on authorities such as Woodland & Todd[1] for the purpose of arguing at trial that there is significant evidentiary value in the fact that an informal agreement was reached as at 2003.
[1] (2005) FLC 93-217.
I am informed that the cost of the subject valuations of the real property is in the order of about $3000. It seems to me that on a pool of $5 million or perhaps $6 million, it is a trifling, although still significant, amount involved but it seems to me that either way the costs so far as valuations for 2003 are concerned, may well be agitated in the substantive trial proceedings, depending on the success or otherwise of the Husband’s case or the relevance of that case. It seems to me that as all other property relevant to the Husband’s case has been either valued or agreement has been reached upon the values, it is sensible and fair that there be a sharing of the expenses now for the further valuations.
So far as the Wife seeking leave to rely upon an adversarial expert is concerned, I confirmed with Mr Hamwood, who appeared for the Wife with Ms Oakley, at the outset of the application, that in fact it is rule 15.49 of the Family Law Rules 2004 which is relied upon by the Wife for the proposition that the Wife ought be allowed to adduce evidence from Mr B at the trial. I gave leave at the outset of the application for the application to be amended to reflect that.
Part 15.5 of the Family Law Rules 2004 governs the use of expert evidence. In particular, rule 15.42 sets out the purpose of the relevant rules, which includes that parties obtain expert evidence only in relation to a significant issue in dispute and as per subrule (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. There is necessarily some concession by each party in the appointment of a single expert to give evidence because by that means the party, in effect, potentially abandons the prospect of simply obtaining leave on each side to obtain an adversarial expert.
The concern always on applications of this kind, is that if leave is given to one party in the face of a single expert to adduce evidence from an adversarial expert, there is the consequent risk that the other party may well also seek, in the interests of fairness and a level playing field, to obtain their own adversarial expert.
That aside, rule 15.49 is a specific provision as to the circumstances in which the Court may allow a party to later tender a report or adduce evidence from another expert witness on the same issue as an appointed single expert. Mr Hamwood confirmed in argument that neither subparagraph (2)(a) nor (2)(b) of rule 15.49 applies. That is, it cannot be said that there is any substantial body of opinion contrary to the opinion expressed by Mr T as the single expert witness, nor is it suggested that the proposed expert, Mr B, knows of any relevant matters not known to Mr T. The reliance agitated is on subparagraph (c), that is, that there is another special reason for adducing evidence from another expert witness.
There are authorities in this Court and I think it has now become trite that before making an application of this kind a party ought to have exhausted the mechanisms under the rules in relation to the single expert appointed.[2] That is, there are mechanisms for a party to ask questions of the appointed single expert witness and there is also the mechanism of convening a conference with the single expert witness.
[2] See Royce & Donovan [2012] FamCA 168 and the authorities cited therein.
In the context of this application, the evidence of Mr B is unsatisfactory in terms of establishing any special reason that the Wife can make out for adducing evidence from Mr B. His evidence only goes so far as to contend that the capitalisation rate adopted by Mr T in his yet to be updated report is, by inference, too low. The evidence of Mr B does not extend to any opinion by Mr B as to the capitalisation rate he would apply. He simply suggests that further inquiries need to be made to determine the “appropriate” capitalisation rate.
It seems to me that at this stage one of the important considerations for the Court in terms of exercising the discretion to allow expert evidence in the interests of justice is the timing of the application. Mr T’s report has now been available to the parties for many months. There was on the evidence no request of Mr B until many months after Mr T’s report was available and there is no apparent explanation for the delay by Mr B in furnishing his tentative opinion as referred to.
The problem with all of that is that if the Wife were given leave to adduce evidence from Mr B and I interpolate here, we do not know at this stage what that evidence would be, there would be the prospect that the trial is delayed because of as yet unknown difficulties with the expert evidence. For example, there may be a range of questions that the Husband would need to ask of Mr B, quite apart from any conference of experts, designed to resolve or minimise differences between the experts.
As the trial is not too far away, there are obviously difficulties with that course, but in any event, I am not satisfied within the meaning of rule 15.49(2), that the Wife establishes special reason for adducing evidence from Mr B.
Moreover, I am not satisfied within the meaning of rule 15.42(e) that it is necessary in the interests of justice for there to be adversarial expert evidence from Mr B on the evidence that is adduced on this application.
For these reasons I dismiss the application of the Wife to rely upon the adversarial expert evidence referred to.
Given the exchanges that have transpired in the course of the hearing of the application, I propose to Order that each party’s costs of and incidental to these applications be reserved to the trial judge who, at this stage, happens to be me.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 September 2013.

Associate:

Date: 10 September 2013