Fletcher and Maloney

[2007] FamCA 433

FAMILY COURT OF AUSTRALIA

FLETCHER & MALONEY [2007] FamCA 433

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Application to adjourn trial – Order that matter commence

APPLICANT: Ms Fletcher

RESPONDENT: Mr Maloney

FILE NUMBER: SYF 3168 of 2005

DATE DELIVERED: 29 March 2007

PLACE DELIVERED: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 29 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Meldrum QC

SOLICITOR FOR THE APPLICANT: Withnalls Solicitors

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Maleys Solicitors

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Fletcher and Maloney.

Orders

(1)That this matter remain in this circuit for hearing.

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: SYF 3168  of 2005

MS FLETCHER

Applicant

And

MR MALONEY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed for trial in this circuit.  It has not yet been reached but on current indications it should be reached early next week.  As to whether, even apart from what has been agitated before me today, the matter would then be able to conclude in this circuit is uncertain.

2. In any event, why the matter has been called on before me today was primarily because of the husband's concerns at the report of the single expert witness instructed in this case. 

3. This was a matter where both parties urged the Court to list it in this circuit, albeit everyone was aware that the single expert witness' report was not yet to hand.  I suspect, as I indicated during submissions, that what both parties thought and hoped was that there would be no issues arising out of the report of the single expert witness and thus its late receipt would not impact upon the hearing of the matter in this circuit.  Unfortunately, that is not the case, at least from the husband's point of view. 

4. The report has only now been received.  I recall that it was going to be received some time earlier but obviously something held it up, but the fact of the matter is it has only now been received.

5. There is no issue, as I understand it, with the first part of the report, which deals, I am told, with the valuation of the legal practices.  The report is split into two parts and it is before this Court by way of separate affidavits.  The second part of the report contains a valuation of a number of entities including, in particular, the T Trust which has investments in M Pty Ltd trading as V Company and A Pty Ltd trading as C Company. 

6. Ms Pyke QC, who appears for the husband, has taken me carefully through the second part of the report and identified where the single expert herself has put riders and made disclaimers in relation to the report as a result of she saying that she has not been supplied with all of the necessary information to enable her to complete her report or, more particularly, to conclude her opinion of value.  I have also been directed to parts of the report where the expert says things like she has proceeded on certain assumptions, yet those assumptions may or may not be valid, depending upon further information which may or may not be forthcoming.  This is the first aspect of the report that the husband is concerned about.

7. The second aspect is that the husband says that he takes issue with some of the assumptions made by the single expert and he challenges her findings in certain respects and he wants the opportunity to not only provide the single expert with the information which he says she has not received, but also to raise matters with the single expert witness in relation to the areas that he feels he can properly put more information to the expert to satisfy her concerns.  In the normal course of events the husband would have had that opportunity.  By that I mean the report would have been available, not necessarily well before, but certainly before trial in sufficient time for the husband to take advantage of the Rules of the Court which allow for questions to be asked of the single expert witness. 

8. The husband also says that he wants to investigate and obtain advice about the calling of other witnesses, presumably dependent upon what the reaction of the single expert is to the further information that the husband wants to put to her or questions he wants to ask her.  Further, he has raised the prospect of an application being made for an adversarial expert to give evidence in the case.

9. As I say, the problem the husband has is that there would have been sufficient time to attend to those matters if this case had taken the usual course of the report being received before trial. What has happened is the trial has been set and we are on the cusp of the matter starting.  However the report has only just been received and the husband raises these issues. 

10. My response to that should be the husband has had his opportunity to consider that and presumably he took a considered position in relation to what the report may or may not say and he has now burnt his bridges.  However, I cannot necessarily take that stance because the wife through her Counsel has conceded that the husband should have the opportunity to put further information and ask questions of the independent expert.  Her concession, rightly, does not go as far as anything to do with the involvement of a shadow expert.  As I have indicated, that does not concern me and that is not a reason why I would not require this matter to start.  Nor indeed the calling of further witnesses necessarily.  Thus we have a situation where it is accepted by both parties that there are matters that certainly the husband should be allowed to pursue with the single expert witness before the case commences in relation to the issue of the valuations performed by the single expert.

11. Despite this, the wife tells me through her Counsel that she is satisfied to proceed with the case now on the basis of the valuation that has been presented by the single expert.  I suspect that comes more from the desire to have the matter concluded than otherwise because it seems to me there are also issues that should concern the wife about the valuations in terms of information that the expert might still need to form a concluded view.  Indeed to not put too fine a point on it, if this matter is forced on in a sense with this report as it is, will I be in a position as the trial Judge to make findings as to the valuations, and in particular, how should I deal with the disclaimers and the reservations that the expert herself has put on her valuation when one party is saying they need to be clarified, the other party is saying they do not.  Thus that is an obvious problem in requiring this case to start now with the report as it stands.

12. In any event, they are the respective positions of the parties.  I should add that Mr Meldrum QC has taken me through some subpoenaed documents which he says impact upon the bona fides of the husband in raising this issue at this point.  Whether that is the case or not, I am not in a position to make any findings about that now.  If it remains an issue the husband will obviously have to have the opportunity to deal with those matters and presumably that will be the subject of cross-examination at the very least in the course of the hearing. 

13. As I put to Counsel, it seems to me that in the circumstances there are three options that I have.  Firstly I can adjourn the matter entirely out of the list.  Secondly I can allow the case to start to the point where the wife concludes her case and then adjourn the matter to enable the husband to better prepare his case in relation to the issue of valuation and presumably undertaking the steps I have mentioned, namely, firstly, providing the expert with the further information sought, putting questions to the expert witness about her methodology and the like and then making a decision about calling other witnesses and/or making an application for an adversarial expert to give evidence.  Thirdly I can proceed with the case insofar as it can proceed on all issues except that of the valuations which are the subject of the independent expert's report.  That would entail the wife giving her evidence insofar as it relates to contribution issues and Section 75(2) issues and the husband doing likewise and then adjourning part-heard to enable the issue of the valuation to be further explored in the way that I have indicated.  Obviously the wife would have the opportunity to address any issues that she might have about the valuation as well in that context.

14. In response to me putting these options to Counsel Ms Pyke's instructions are to adopt the second proposal and Mr Meldrum has sought to promote the last alternative.  For my part, I am extremely reluctant to adjourn this matter entirely out the list.  No-one has put that as their first priority and it certainly is not mine.  This matter has been awaiting hearing for some time.  It was anticipated that it could be dealt with in this circuit.  It might still be able to be dealt with in this circuit, but I think given the issues that have now been raised, on whatever basis the matter commences, it has to be adjourned part-heard.  Without going into the detail, given the circumstances of this circuit and the Judges who will be conducting upcoming circuits, it is a matter that has the prospect of not being relisted again this year if it does not start now.  Although that may be the fault of the parties themselves that result does not attract me.  I consider I should start this case but on the basis that both parties have agreed that at the stage it becomes part-heard it can resume in Adelaide and any witness from interstate can give evidence by way of videolink or indeed, depending on the circumstances, actually come to Adelaide.

15. The next question is on what basis I start this case.  Frankly, although this might be putting off the evil day, I propose to start the case and then at the point that either party says the matter needs to be adjourned, I will consider it at that point.  Perhaps to assist the parties, I am not convinced at this stage that the case should go beyond the wife giving her evidence.  In any event I want to assess it at the time.

I certify that the preceding
15 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 29^th day of March 2007.

……………………………………….
Associate