Chishty and Bali

[2020] FamCA 95

FAMILY COURT OF AUSTRALIA

CHISHTY & BALI [2020] FamCA 95

FAMILY LAW – PRACTICE AND PROCEDURE – Where an Application is made for an extension of time to ask questions of the single expert valuer – Where orders were made on 2 September 2019 providing for the wife to submit questions of the valuer within six (6) weeks of the date of those orders – Where questions were not submitted within the provided time period – Whether the Court should exercise discretion in granting further relief form those orders and from time limits set out in the Family Law Rules 2004 – Where the Court is not persuaded that the reasons for the questions not being asked within the six (6) period are such that judicial discretion should be exercised to grant an extension of time – Where the Application for an extension of time is dismissed.

Family Law Rules 2004 r. 1.04, 11.02(2)(g), 11.03(2), 11.07, 11.08, 15.64B, 15.65. 

APPLICANT: Ms Chishty

RESPONDENT: Mr Bali

FILE NUMBER: SYC 3269 of 2014

DATE DELIVERED: 12 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 12 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Layson of Sydney Bevan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Battley

SOLICITOR FOR THE RESPONDENT: Harish Prasad & Associates

Orders

1. The Application by the wife to extend the time specified in Order 7 of Orders made 2 September 2019 is dismissed.

2. Pursuant to r 11.07 of the Family Law Rules 2004 (Cth) (‘the Rules”), within 14 days, the solicitor for the husband is to file and serve on the solicitor for the wife a Notice to Admit Facts in respect to those facts and assumptions which the valuer has relied in arriving at the valuation of the properties in Country B and the facts that formed the basis of the valuers conclusion.

3. If the wife wishes to contest any fact contained in the Notice to Admit Facts she shall, within 14 days of receipt of that Notice, serve a Notice Disputing the Fact or Document upon the other party, in accordance with r 11.08 of the Rules.

4. The issue of costs is reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3269 of 2014

Ms Chishty

Applicant

And

Mr Bali

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an Application made by the solicitor for Ms Chishty (“the wife”) for an extension of time in respect to Order 7 made on 2 September 2019. That order relevantly provides that the wife was to submit any questions of the valuers, who valued the properties owned by the parties in Country B, to the valuer within six (6) weeks from the date of the orders.

2. That Order, made on 2 September 2019, effectively varied, to the extent to which it was necessary, the requirements set out in r 15.64B and 15.65 of the Family Law Rules 2004 (“the Rules”). Those Rules prescribe the time within which it is permissible for parties to seek additional information from a single expert, in respect to their report.

3. By way of summary, r 15.64B of the Rules provides that, within 21 days after receipt of the report of a single expert, the parties may enter into an agreement about conferring with the expert witness for the purpose of clarifying the report. The rule relevantly provides that:

   Conference

   (1)  Within 21 days after receipt of the report of a single expert witness, the parties may enter into an agreement about conferring with the expert witness for the purpose of clarifying the report.

   (2)  The agreement may provide for the parties, or for one or more of them, to confer with the expert witness.

   (3)  Without limiting the scope of the conference, the parties must agree on arrangements for the conference.

   (4)  It is intended that the parties should be free to make any arrangements for the conference that are consistent with this Division.

   Note: For example, arrangements for a conference might include the attendance of another expert, or the provision of a supplementary report.

   (5)  Before participating in the conference, the expert witness must be advised of arrangements for the conference.

   (6)  In seeking to clarify the report of the expert witness, the parties must not interrogate the expert witness.

(7)  If the parties do not agree about conferring with a single expert witness, the court, on application by a party, may order that a conference be held in accordance with any conditions the court determines.

1. Further, by way of summary, r 15.65 of the Rules provides a mechanism by which a party has seven (7) days after the conference, or, if no conference is held, within 21 days after receipt of the single expert report, to submit questions to the single expert. That rule relevantly stipulates:

   Questions to single expert witness

   (1)  A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule:

   (a)  within 7 days after the conference under rule 15.64B; or

   (b)  if no conference is held, within 21 days after receipt of the single expert witness's report by the party.

   (2)  The questions must:

   (a)  be in writing and be put once only;

   (b)  be only for the purpose of clarifying the single expert witness's report; and

   (c)  not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.

   (3)  The party must give a copy of any questions to each other party.

   Note: A party may cross-examine a single expert witness (see rule 15.50).

2. The legal representatives for the wife did not seek to ask questions of the valuer despite notifying the Court and the husband, on 26 June 2019, that the wife had concerns with the methodology of the valuations provided in the single expert reports. When the matter returned to the Court for directions on 2 September 2019, the Court nonetheless made orders granting relief or, more accurately, varying the effect of those rules, to which I have referred, by extending the period within which questions could be asked of the expert to six (6) weeks. 

3. From the bar table, as opposed to by way of Affidavit, the legal representative for the wife has stated that the delay in complying with Order 7 made on 2 September 2019 related to internal office, procedures or events within his firm of solicitors in circumstances where he had been appointed as case guardian for the wife. That reason, with respect, lacks substance in circumstances where Mr Layson, the solicitor for the wife, appeared in his capacity as case guardian on 2 September 2019 when Order 7 was made.

4. In considering an Application for procedural orders, the Court has a broad discretion and is guided by the purpose and intent of the Rules, as set out in r 1.04 of the Rules, as follows:

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

   This is also reiterated in r 11.02(2)(g) of the Rules.

5. In the exercise of any discretion a judicial officer is required to act, as the High Court has said on many occasions, according to proper principle and not according to the notion of "palm tree justice."[1] Acting in accordance with proper principle includes having regard to relevant legislative guidance in respect to the exercise of the particular discretion. In that respect, r 11.03(2) of the Rules provides that, in considering whether I should grant relief from a time limit prescribed in an order or the rules, I may consider the following:

   [1]Stanford v Stanford 247 CLR 108; [2012] HCA 52 at [38].

   (a)  whether there is a good reason for the non-compliance;

   (b)  the extent to which the party has complied with orders, legislative provisions and the pre-action procedures;

   (c)  whether the non-compliance was caused by the party or the party's lawyer;

   (d)  the impact of the non-compliance on the management of the case;

   (e)  the effect of non-compliance on each other party;

   (f)  costs;

   (g)  whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and

   (h)  if the application is for relief from the effect of subrule 11.02(1)--whether all parties consent to the step being taken after the specified time.

   Note 1: This list does not limit the powers of the court. See also subrule 1.12(3).

6. With respect to Mr Layson, he has not addressed those considerations save to the extent to that which I have earlier referred in this decision. Again, with respect, that advice as to the reasons why clarification has not been sought within the six (6) week period previously ordered is not such that it persuades me that it is necessary or appropriate to grant relief from the order imposing the six (6) week time limit.  Accordingly, I dismiss the Application for an extension of time within which to ask questions of the valuer.

7. As I indicated to the parties during the course of the proceedings, while I have not been persuaded that there are grounds for me to exercise my discretion to grant an extension of time to ask questions to the valuer, that may well result in an unfortunate situation at the final hearing of this matter.

8. In the event that there is a successful challenge to the validity of the reasoning and methodology of the single expert valuer, the Court may be without persuasive evidence regarding the value of the properties in Country B.

9. Accordingly, I would encourage the parties to continue to confer with a view to attempting to resolve the question as to the value of the properties in Country B.

10. In that context, the orders I will make will include an order that, within 14 days, the solicitor for the husband serve on the solicitor for the wife a Notice to Admit Facts and Authenticity of Documents setting out those facts and assumptions upon which the valuer has relied in arriving at the valuation of the relevant properties in Country B, together with, insofar as it is asserted that they are  accurate, the facts that form the basis of the valuer's conclusions and ultimately the value placed upon the relevant property.

11. I note, in that respect, r 11.08 of the Rules provides a period of 14 days within which the wife has to respond to the Notice to Admit.

12. As the parties would be well aware, the purpose and intent of such a Notice to Admit is that, in the event of a party not succeeding in establishing that which they have asserted or, indeed, that which they have disputed, that party may be held responsible for paying costs in respect to the unsuccessful position that they have taken. This is particularly relevant where there may be considerable expense associated with obtaining evidence from overseas witnesses.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 12 February 2020.

Associate: 

Date:  20 February 2020