Giacobetti & Giacobetti (No 2)

Case [2023] FedCFamC1F 1091

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Giacobetti & Giacobetti (No 2) [2023] FedCFamC1F 1091

File number(s): SYC 5998 of 2021
Judgment of: CURRAN J
Date of judgment: 7 November 2023
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Interim Hearing – Expert Evidence – Application to rely on further expert evidence as to the value of a real property where a single expert witness has been appointed to opine on that matter – Where the Court is not satisfied that any matters identified in r 7.08(2) of the Rules apply – Whether the valuers adopt a differing or alternative methodology – Where both experts adopt a comparable sales methodology in valuing the subject property – Where the experts rely on different properties – Where there are differences between the experts in what they consider to be directly comparable sales – Where the wife did not seek clarification of the report pursuant to the Rules – Where the proposed adversarial expert did not have a substantial body of opinion – Where the difference in value itself is not a special reason as identified by the rule to ground leave to adduce evidence from an adversarial expert – Where after consideration of all relevant matters the application is refused – Application dismissed
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pt 7.1, div 7.1.6, rr 7.02, 7.08, 7.25, 7.26

Cases cited:

Aon Risk Services v Australian National University (2009) 239 CLR 175

Artinos & Artinos (No 6) [2023] FedCFamC1F 652

Bass & Bass (2008) FLC 93-366

Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6

Lambard & Lambard (No. 4) [2021] FamCA 47

Moretto & Cosola [2022] FedCFamC1F 433

Neales & Neales (2022) FLC 94-079; [2022] FedCFamC1A 41

Salmon and Ors & Salmon [2020] FamCAFC 134

Simonsen & Simonsen [2009] FamCA 698

State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146

Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521
Division: Division 1 First Instance
Number of paragraphs: 74
Date of hearing: 6 November 2023
Place: Sydney
Counsel for the Applicant: Mr Harper
Solicitor for the Applicant: Uther Webster & Evans
Counsel for the Respondent: Ms Dart
Solicitor for the Respondent: Newnhams Solicitors

ORDERS

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GIACOBETTI

Applicant
AND:

MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

7 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 20 October 2023 is dismissed.

2.The husband’s costs of an incidental to the Application in a Proceeding filed 20 October 2023 are reserved.

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…

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Details
AGLC
Giacobetti & Giacobetti (No 2) [2023] FedCFamC1F 1091
Case
[2023] FedCFamC1F 1091
Decision Date

CaseChat Overview and Summary

In the matter of Giacobetti & Giacobetti (No 2), the Federal Circuit and Family Court of Australia was tasked with deciding whether the wife, the applicant, could adduce evidence from an adversarial expert witness to challenge the valuation of a property by the single expert appointed to assess the value of the asset. The husband, the respondent, opposed the application on the basis that the wife had not demonstrated any of the exceptional circumstances necessary to justify the appointment of an adversarial expert. The court was required to determine if there was another special reason for allowing the wife to present evidence from the adversarial expert under r 7.08(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The court considered the factors cited by the wife, including the significant drop in value between the two reports, the magnitude of the difference as a proportion of the asset pool, and the differences in the methodology or application of the direct comparison model by the experts. The court noted that while there were differences in the experts' opinions, these were differences of opinion rather than differing methodologies. The court also noted that the wife had not sought clarification of the report under the rules and that the adversarial expert's report did not present a substantial body of opinion contrary to the single expert's opinion. The court held that the wife had not demonstrated any exceptional circumstances to justify the appointment of an adversarial expert. Consequently, the court dismissed the wife's application to adduce evidence from the adversarial expert.

The court further determined that the areas of difference between the experts could be adequately addressed through cross-examination at trial, informed by the adversarial expert's report. The court concluded that it was in the interests of justice and consistent with the intention of the rules to deny the wife's application. The costs of the application were reserved to the trial. The court's decision was based on the principles established in previous cases, which emphasised that expert evidence from adversarial experts is not to be adduced in the usual course and only in exceptional circumstances. The court found that the wife's application did not meet the criteria for exceptional circumstances as outlined in the rules and case law.

Orders

Orders of the court

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GIACOBETTI

Applicant

AND:

MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

7 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 20 October 2023 is dismissed.

2. The husband’s costs of an incidental to the Application in a Proceeding filed 20 October 2023 are reserved.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Neither the adversarial report nor the evidence read in support of the application provides any evidence of a “substantial body of opinion contrary to any opinion given by the single expert witness”, and thus, is not admissible under that rule on that ground and it would not be an appropriate exercise of discretion to admit it under that rule.IS THERE “ANOTHER SPECIAL REASON FOR ADDUCING EVIDENCE FROM ANOTHER EXPERT WITNESS”? The wife contended that the combination of three identified factors, cumulatively constitute a special reason for adducing the evidence under r 7.08(2)(c). Those three factors, being the significant drop in value between the two reports, the magnitude of the difference as a proportion in the asset pool, and the matters of differing methodology (or difference of view as to the way in which a direct comparison model should be applied to this type of property) were cited. As identified by counsel for the husband in her Case Outline at paragraphs 11(a)-11(c), the determination of whether there is another special reason for adducing evidence from another expert witness has been considered in a number of authorities. In Simonsen, Murphy J, in considering the Full Court decision in Bass, held that the word “special” has real meaning, and that evidence from any expert is “not something which ought occur in the usual course, or simply by application made by a party.” His Honour then went on to make further comment in relation to the (then) Rules:13.It is important to understand that Part 15.5 of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert.14.Thus, expert evidence obtained by a party on their own account can be used, for example, to significantly inform the cross-examination of a single expert witness at a trial. The restriction inherent in the rules is a restriction related to the adducing of evidence from the expert or experts retained by a party. McClelland DCJ also considered the application of the Rules (by reference to the provisions in the former rules) in Lambard & Lambard (No.4) [2021] FamCA 47, where his Honour said at [14], “I construe the word “special” as requiring a reason which is more than “the ordinary.” In Dovgan & Dovgan [2021] FamCA 306, Harper J held that different or contrary opinion based on the same methodology would not constitute another special reason. At [175] his Honour stated that “competing valuations of real property are frequent, if not routine” and that a “different or contrary opinion based on the same methodology would not constitute ‘another special reason’”. In Neales at [30]-[32], the Full Court said:30.Ground 1.2 as expanded through the Summary of Argument asserted that the primary judge failed to give reasons as to how the husband would be able to challenge the expert evidence other than through cross-examination, and failed to deal with the procedural difficulties the husband would face in the absence of an adversarial expert.31.This contention presupposes that a trial judge accepts without question, in the absence of other expert evidence, the opinion of a single expert. As the Full Court in Georgeson and Georgeson (1995) FLC 92-618 reminds at 82,218–82,219:Expert evidence may be adduced as to the proper method to be adopted, in the circumstances of a particular case, to assist the Court in forming an independent judgment on the issue of valuation by the application of the appropriate principles. Whilst an expert may thus suggest an approach as being appropriate in a particular case, before accepting it, the Court must come to its own conclusions as to whether that approach is appropriate in the circumstances.32.The Court informs its conclusion as a consequence in part of the testing of the evidence. Such is the art of advocacy.

Decision

Reasons for decision

There are some obvious differences between the single expert report and that of the adversarial expert. The adversarial expert has included a local market overview at page 17, which identified two properties on the same street as the property, which he considered to be inferior and not worthwhile comparable sales. As stated above, these are differences of opinion, not differences of methodology. CONCLUSION Having considered each factor, including the difference in value, the drop in value and magnitude of the change together with the differences in each expert’s application of the direct comparison methodology, and also having considered the 1/3 interest held by the husband, and having had regard to the evidence relied upon, there appears no basis for the wife to fall within the categories of discretions outlined by way of r 7.08(2) of the Rules. In the present case, the areas where the experts differ can be the subject of cross-examination of the single expert by counsel for the wife at trial, informed by the other expert’s report, as Murphy J observed in Simonsen. The wife will have the opportunity by way of cross-examination to attempt to test, and to obtain a shift, in the single expert’s opinion grounded from the matters identified in her expert’s report. In the course of cross-examination, the wife can put to the expert each of the additional property sales identified by Mr C and can test the single expert’s foundations for his opinion grounded from his other comparable sales and contest the weight that he gives them. In all the circumstances, I am also not satisfied that, as required by r 7.08(2)(c), there is a special reason for adducing evidence from the other expert. After considering each of the matters identified individually and cumulatively, for the reasons identified, it is in the interests of justice and consistent with the intention of the Rules, the wife’s Application in a Proceeding be dismissed. Costs of this application are reserved to the trial.

Ratio Decidendi

Legal Principle Established

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