Hyber and Hyber

[2010] FamCA 1205

FAMILY COURT OF AUSTRALIA

HYBER & HYBER [2010] FamCA 1205

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of adversarial witness

Family Law Act 1975 (Cth)

APPLICANT: Mr Hyber

RESPONDENT: Ms Hyber

FILE NUMBER: MLC 7999 of 2009

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Gillian Coote Family Law

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Pearsons Barristers & Solicitors

Orders

1. That pursuant to Rule 15.49, the husband is given leave to file an affidavit by an expert witness concerning the value of the property at H.

2. That as soon as practicable, the single expert witness in the proceedings and the adversarial witness referred to in paragraph 1 hereof confer and prepare a report to be provided to the parties and the Court as to the difference in their opinion.

3. That the application in a case filed 3 December 2010 is otherwise dismissed.

4. That the costs of the parties of this day are reserved to the trial.

5. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7999 of 2009

MR HYBER

Applicant

And

MS HYBER

Respondent

REASONS FOR JUDGMENT

1. I am proposing to grant the application in this case, and I do so for the following reason:  clearly, in real estate disputes, one has to rely on the subjective judgment of an expert who, as in this case, is relying on comparable sales.  One of these valuers, if the market was ultimately tested, would have to be wrong, but until that time, both of them are presumably right.  Each of them has had ample opportunity to look at what the other is looking at, and each seems to maintain that their position is subjectively right.  Rule 15.49 requires a party to show that there is a substantial body of opinion contrary to the opinion of the single expert witness, and the contrary opinion is or may be necessary to determine the issue.

2. I do not think that part of the rule is relevant, because it is hard to argue in this case that there is a substantial body of opinion.  The two valuers have clearly adopted their subjective opinions based upon their experience and the information they have gathered, and in this case, it seems the information they have gathered is much the same.  Rule 15.49 therefore means that the applicant needs to point to some other special reason for adducing evidence from another expert witness.  I can draw some assistance from rule 15.52, which sets out how a party may apply to tender a report or adduce evidence from an expert witness, and in that rule, one of the matters that the Court must consider is the purpose of the Part.

3. The attention of the Court is drawn to rule 15.42.  Rule 15.42 says that the purpose of the Part is, amongst other things:

   (c)  to ensure that, if practicable and without compromising the interests of justice, expert ... is given on an issue by a single expert witness. 

   But the rule says that its purpose is to enable a party to apply for permission to tender a report, if necessary, in the interests of justice.  The dilemma in this case seems to me to be twofold.  First, the subjective judgment of both parties would require the Court to consider an alternate opinion to that of the single expert witness.  The unusual feature of this case is that the single expert witness has already had the opportunity to be cross-examined about his methodology by being tested by some alternate propositions, and he has maintained his position.  That being the case, the opportunity to cross-examine him again in the witness box seems somewhat pointless.  It is unlikely to change.

4. The second thing is that if a litigant is entitled to only put evidence before the Court for the purposes of section 79(2) making a decision which is just and equitable, it is hard to imagine how that litigant could walk away from a court and say that the Court appropriately applied the provisions of section 79(2) if he was denied the opportunity to call evidence where the single expert witness’s evidence had already been tested by the letter that he has been sent, and where he has maintained his position.

5. Effectively, what that means is that the litigant is being shut out.  Now, that, to a very large degree, is exactly why the rule was put in place. 

6. The dilemma I have here is that the gap in this case is almost 25 per cent of the value of the property.  That just cannot be right, and whilst it is only 10 per cent in terms of the total pool of assets, it is not the total pool of assets that I need to look at, but the value of the asset.  In the section 79 process, the very first step is to determine the pool of assets and attribute values to the various assets within it.  On that basis, I do not think I could comfortably say that the husband was given an opportunity to place evidence before the Court to enable the decision to be made under section 79(2) unless this exercise was undertaken.

7. That does not mean, in my view, that the two experts ought not meet, notwithstanding there seems to have been some preliminarily discussion.  I will make an order for a conference of valuers. 

8. In this case, pursuant to rule 15.49, the husband is given leave to file an affidavit by an expert witness concerning the value of the property at H, and, as soon as practicable, the single expert witness and the adversarial witness confer and prepare a report to be provided to the parties and the Court as to the differences in their opinion.

9. I will reserve the costs of both parties this day, and (5) I will order the reasons transcribed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 December 2010.

Associate: 

Date:  31 December 2010