Campbell & Diboll (No 2)
[2021] FedCFamC1F 120
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Campbell & Diboll (No 2) [2021] FedCFamC1F 120
File number(s): WOC 455 of 2013 Judgment of: GILL J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – EVIDENCE – Application for leave to adduce evidence of an expert witness other than a single expert – Leave granted for evidence to be taken from the expert witness – Objections made to the affidavit of the expert witness dismissed Legislation: Evidence Act 1995 – s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – r 7.02, 7.11
Cases cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 8 October 2021 Place: Canberra Counsel for the Applicants: Mr Lipp Solicitor for the Applicants: Chamberlains Law Firm Counsel for the Respondent: Mr Moller Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
WOC 455 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR X
First Applicant
MR Z
Second Applicant
AND: MS DIBOLL
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.Permission is granted for evidence to be taken from Mr E in relation to the conduct and propriety of the litigation undertaken by the applicant in these proceedings.
2.The objections made to the affidavit of Mr E are dismissed.
IT IS FURTHER ORDERED THAT
3.In the event that the applicant seeks to file evidence in reply, then any such affidavits relied upon in reply are to be filed and served by 4 pm on Friday 22 October 2021.
4.The matter is then to be listed on a date to be fixed before a Judicial Registrar for the giving of further directions to complete the trial of this matter, noting that on that occasion it will be incumbent upon the parties to advise whether or not, if material has been filed purportedly in reply, it is accepted as being in reply and further to advise the court as to the time that would be required to deal with any further cross-examination either of Mr E or any witness in reply or argument about the issue of reply and extent of closing submissions.
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 Campbell & Diboll is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
This issue concerns an application for leave made by the respondent to adduce evidence from an expert witness other than a single expert pursuant to rule 7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The expert evidence scheme under the rules provides a preferential arrangement for the appointment of single experts. Where a single expert is appointed no permission is required from the court to be able to adduce evidence from that expert. However, where a single expert is not appointed then permission is required. The operation of all of those provisions is to be understood in the light of rule 7.02, which sets out the purposes of the part.
In these proceedings the respondent previously sought the appointment of a single expert, a matter which was successfully then resisted by the applicant liquidators in the proceedings. That having been resisted the respondent has engaged an expert and a report has been produced by that expert and filed in accordance with the filing timetable that was set out for the preparation of this matter for hearing.
The report by the expert is addressed to the central contentious factual matter in the proceedings which relates to whether the amounts charged by the liquidator fall within the description compelling payment by the respondent of amounts, being that the amounts are proper as described by Deputy Chief Justice Faulks in his orders imposing the obligation upon the respondent.
The litigation context is that the applicant liquidator carries significant expertise in the field of conducting liquidation and in the question of what is or is not a proper cost incurred in engaging in those exercises. To meet the evidence which has been led by the applicant, clothed in his status as a liquidator, the respondent now seeks permission to adduce evidence from another person similarly qualified to deal with that central factual issue.
In considering the application I am to bear in mind the matters contained at rule 7.11. It may be seen that the appointment of such an expert may extend, or in fact will extend the conduct of the proceedings. The appointment of such a person will probably cause there to be an adjournment of the proceedings, at least because the proceedings may not be able to be completed within the time within which they were listed. The evidence of that person is addressed to the central factual issue that is in dispute which is technical in its nature and in relation to which the court will be assisted by the adducing of expert evidence addressed to those technical matters. There is some complexity in assessing those matters.
There is no current option for a single expert to be appointed, such step having previously been refused. The particular expert who the permission is sought for has the relevant specialised knowledge, being a qualified liquidator himself and the fact of his possession of that specialised knowledge is not a matter of contest. The fees incurred in respect of the preparation of the report are approximately $5,000 at this point, a reasonably modest sum for the acquisition of expert evidence in proceedings within this court.
In determining whether or not to grant the permission I am to bear in mind the matters contained at rule 7.02 which set out the purposes of the provision. Those purposes may be seen to centre around issues involving the interests of justice. In particular the purpose set out at 7.02(e) is important to the resolution of the current application. Here where the proceedings involve a matter that is technical in its nature, which is central to the resolution of the dispute, which requires expertise, where such expertise is held inherently by one of the parties but not by the other, where that raises an issue as to the equality of arms they bring to the contest as to the facts in the matter, it is appropriate that permission be granted for evidence to be taken from Mr E, the proposed expert witness, on the question of the propriety of the conduct and charging for that conduct of the liquidators that they now pursue the respondent for in order to obtain their remuneration.
Accordingly, it is ordered that permission is granted for evidence to be taken from Mr E in relation to the conduct and propriety of the litigation undertaken by the applicant in these proceedings.
The respondent relies upon an affidavit and report prepared by Mr E, a qualified liquidator. Her reliance on that report attracts the opinion rule and the specialised knowledge exception at s 79 of the Evidence Act 1995. A number of objections have been made to Mr E’s affidavit and report and a number of the paragraphs in that report have not been read. The challenges made that remain in relation to the report are primarily in relation to a table and conclusions drawn from that table. The challenges fall into two broad categories, one being of relevance and the other being a combination of a challenge to the adequacy of the reasoning or explanation, or a failure to sufficiently identify particulars or a failure to identify the aspects of the underlying material being dealt with or the making of mere bold propositions. Those challenges are in the context of the unavoidable acceptance of Mr E’s specialised knowledge as a liquidator being applied to the subject matter of these proceedings. What is required pursuant to s 79 is explained by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 as follows (at 602–3 [32]):
To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.
It may be observed that the High Court there extracted directly from the terms of s 79(1). The High Court majority then went on to explain as follows (at 604 [37]):
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 High Court then went on usefully to explain what may or may not be required by this particular aspect of the rule. It explained it in the following terms (at 604 [37]):
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. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and 20 experience, and has identified the subject matter about which the opinion is proffered.
The table which is the subject of the majority of the direct criticism is explained at sections 5 to 7 of the report. Those sections set out the process and the principles applied to the material subsequently identified in the table by Mr E. When understood in that manner each of the impugned opinions offered by Mr E, leaving aside for the moment the specific relevance objections, may be seen to fall within what was described in Dasreef in s 79. That is, they are demonstrated to be applications of his expertise as a liquidator applied to the file and work of another liquidator applying defined and identified standards in order to draw the conclusions that he has expressed. To the extent that the various criticisms of the conclusions drawn by Mr E may have merit they are not such as to impugn the admissibility of those opinions but rather, if successfully made, may go to the weight that is to be attributed to those.
As to the issue of relevancy part of this was directed to Mr E’s description of the conduct of the creditors meetings wherein there was approval of the expenses and fees associated with the liquidator. The issue of whether or not that is relevant or those matters are relevant is dependent upon the case that the liquidator makes in terms of reliance upon those meetings as justifying or establishing that the recompense is appropriate and the work undertaken by the liquidator has been proper. Those aspects of the report should not be excluded in advance of determination of that matter.
Other aspects of the challenges to relevance noting that relevance is assessed on the basis that evidence, if accepted, would be relevant potentially bear upon whether the charges and disbursements can be described as proper, either directly or by inference.
Accordingly, the objections made to the affidavit of Mr E are dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 October 2021
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