Gemmell & Gemmell - [2009] FamCA 29

FAMILY COURT OF AUSTRALIA

GEMMELL & GEMMELL

[2009] FamCA 29

FAMILY LAW - PROPERTY - Value of property - Expert evidence – where parties appoint a single expert to value professional practice – where husband applied for rule15.49 permission to adduce expert evidence from another expert on the same issue – significant difference in the two valuations – rule 15.49 grounds established – it does not automatically follow that permission to adduce evidence from another expert – the husband ought to have convened a r 15.64(b) conference between the two experts – Husband’s application dismissed

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) r 15.44, 15.51, 15.49, 15.64

Spencer v The Commonwealth (1907) 5CLR 418
Daniels v Walker (2001) WLF 1382

APPLICANT:

Mr Gemmell

RESPONDENT:

Ms Gemmell

FILE NUMBER:

(P)NCF

329

2005

DATE DELIVERED:

2 February 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Honourable Justice Ryan

HEARING DATE:

29 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T.Bates

SOLICITOR FOR THE APPLICANT:

Attwaters

COUNSEL FOR THE RESPONDENT:

Mr Sullivan

SOLICITOR FOR THE RESPONDENT:

Mullane & Lindsay

Orders

That the husband’s application for Order 2 contained in his Application in a Case filed 14 October 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gemmell & Gemmell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCF329 of 2005

MR GEMMELL

Applicant

And

MS GEMMELL

Respondent

REASONS FOR JUDGMENT

In his Application in a Case filed 14 October 2008, Mr Gemmell (“the husband”) applied for permission pursuant to r 15.51(1) of the Family Law Rules 2004 to call expert evidence concerning the value of his professional practice. This application is brought in the context of contested s 79 proceedings for the adjustment of property in which the other party is Ms Gemmell (“the wife”). At the commencement of the hearing the husband’s counsel presented his case reliant upon r 15.49(2) in lieu of r 15.51. Because the parties have previously appointed a single expert to investigate and report upon this issue I agree that the application invokes r 15.49(2) considerations and not r 15.51(1). The wife opposes the husband’s application.
Rule 15.49 is as follows:
(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(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 issue;
(b)another expert witness knows of matters, not known to
the single expert witness, that may be necessary for determining the issue; or

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gemmell & Gemmell

Details

AGLC: Gemmell & Gemmell [2009] FamCA 29
Case: [2009] FamCA 29
Decision Date: 2 February 2009

CaseChat Overview and Summary

In the Family Court of Australia, Justice Ryan considered an application by the husband in *Gemmell & Gemmell*. The dispute concerned the valuation of a professional practice, a key asset in property settlement proceedings. The parties had previously agreed to appoint a single expert to provide a valuation.

The primary legal issue before the court was whether the husband had established sufficient grounds under Rule 15.49 of the *Family Law Rules 2004* (Cth) to adduce expert evidence from a second expert on the same valuation issue, given the significant difference between the initial expert's valuation and the husband's own assessment.

Justice Ryan found that while the grounds under Rule 15.49 may have been established, this did not automatically grant permission to adduce further expert evidence. The court held that the husband ought to have first convened a Rule 15.64(b) conference between the two experts to attempt to resolve the discrepancies in their valuations. As this step had not been taken, the husband's application was dismissed.

Orders

Orders of the court

That the husband’s application for Order 2 contained in his Application in a Case filed 14 October 2008 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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