Jandro & Waisner
[2024] FedCFamC2F 270
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jandro & Waisner [2024] FedCFamC2F 270
File number(s): ADC 1250 of 2022 Judgment of: JUDGE MCGINN Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – SINGLE EXPERT WITNESS – application for removal – earlier valuation for third party bank – independence of single expert– duties – non-disclosure of earlier valuation – materiality – selection of single expert – remediation if non-disclosure - application disallowed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Henderson v Amadio [1995] FCA 1300; (1995) 62 FCR 1
Voli v Inglewood [1963] HCA 15; (1963) 110 CLR 74 at 79
Division: Division 2 Family Law Number of paragraphs: 130 Date of hearing: 27 February 2024 Place: Adelaide Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Howe Jenkins Counsel for the Respondent: Mr Lindsay Solicitor for the Respondent: Gillian Marks & Company ORDERS
ADC 1250 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JANDRO
Applicant
AND: MR WAISNER
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
1 MARCH 2024
IT IS ORDERED:
1.That the Application in a Proceeding filed 1 December 2023 and sealed 5 December 2023 do stand dismissed.
2.That each party bear their own costs of and incidental to the said Application.
3.That the Application in a proceeding sealed 1 June 2023 do stand dismissed.
4.That this matter stand adjourned to 9:30 am on 30 May 2024 for trial directions.
5.There be liberty to the parties to apply by way of joint correspondence to the Associate to Judge McGinn to seek to vary the date and time of the hearing referred to in order 3.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
The applicant de facto wife’s Application in a Proceeding filed 1 December 2023 and sealed 5 December 2023 came before the Court for oral submissions on 27 February 2023.
By that Application the wife seeks:
(a)the discharge of orders made 16 May 2023 as to the appointment of a Mr B as single valuer to value the respondent’s real estate, plant and equipment;
(b)for the respondent de facto husband to pay the fees charged by the single valuer appointed pursuant to the orders of 16 May 2023; and
(c)for the purposes of order 2 of 16 May 2023 alternative valuers be appointed, that the applicant be granted leave to issue subpoenas and costs.
The application for orders as to the issuing of subpoenas had been dealt with on previous occasion by the Court.[1]
[1] Order 4 of 4 December 2023.
The Application does not seek to disturb orders made 16 May 2023 as to the appointment of a single expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I have determined that the Application should stand dismissed as the alleged non-disclosure of the single expert having performed an earlier valuation for a bank does not, in the absence of a conflict of duty, vitiate the discharge of the appointed valuer’s duty to the Court.
The Application is supported by an affidavit filed 1 December 2023.
The matter first came before a Judicial Registrar on 4 December 2023 who noted that the respondent de facto husband did not seek to file any Response to the Application.
At the commencement of oral submissions mention was made of a Response to the Application and supporting affidavit having been filed or at least provided to the applicant’s legal representatives. I determined in the light of earlier orders made by the Court that I would not have regard to these documents.
On 4 December 2023 the Court extended the time for the parties to participate in mediation to 30 March 2024 and for all outstanding applications to be listed before the Judicial Registrar for a procedural hearing on the 19 February 2024 and otherwise listed for mention before me on 1 February 2024.
On 1 February 2024, I listed the Application for argument before me on 27 February 2024, directed the filing of case outlines by 22 February 2024, vacated the hearing before the Judicial Registrar on 19 February 2024 and gave the wife leave to appear by Microsoft Teams by way of audio/video link at the hearing on the 27 February 2024.
I also adjourned on that day the question of trial listing and trial directions.
The Respondent sought to make submissions about the context of the proceedings as informing the determination of the present Application. I disagree that such matters are of any significant weight other than to understand how the present Application came about.
The substantive proceedings were commenced by an Initiating Application filed on 24 March 2022 on behalf of the applicant de facto wife seeking orders for:
(a)the declaration of the existence of a de facto relationship and that there is a child of the relationship; and
(b)the settlement of property, lump sum maintenance, lump sum child support and variation of periodic child support.
By his Response to Final Orders filed 31 May 2022 the respondent simply sought that the application be dismissed and an order for costs. By the affidavit supporting that Response the respondent acknowledged that there is a de facto relationship in South Australia that broke down after 4 December 2020 and that there is a child of the relationship.
The respondent then filed an Amended Response on 1 August 2022 agreeing that there was a child but that the child was not a child of a de facto relationship. At the same time in that Amended Response the de facto husband continued to maintain that there had been a breakdown of a de facto relationship.
The Respondent had alleged that the child of the parties was conceived in around 2019 before the Applicant came to live with him in 2019.[2] Any disquiet caused by that issue was resolved by the orders of 24 January 2023.
[2] Respondent's affidavit sealed 31 May 2022 [32, 33].
Orders were made on 24 January 2023 pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the parties and that there was a child of the de facto relationship.
On 24 January 2023 the Court also, amongst other things, directed that the parties were to confer as to the value of the assets and be in a position to advise the Court as to the valuations that were required by no later than the end of February 2023.
On 14 March 2023 the respondent filed a Further Amended Response.
By that Further Amended Response the respondent sought orders that the Court declare that it is not satisfied that it is just and equitable that any alteration of property interests be made in this matter and that, in the alternative, each party retain that which they have by way of settlement of property.
By May 2022, the parties had filed their respective affidavit material and Financial Statements setting out the respective understanding of their own and each other’s assets, liabilities and superannuation at various points of the relationship and currently. It is to be noted that the identification of liabilities by the applicant included the listing of the respondent’s mortgages.[3]
[3] Applicant’s affidavit sealed 24 March 2022 [51-55].
On 16 March 2023 Her Honour Judge Parker ordered an exchange of a copy of documents and the appointment of a single expert to value the respondent’s farming land and/or farming assets and any of the applicant’s assets in Western Australia. The valuers were to be agreed and for the reports to be obtained by 13 April 2023. The Court also ordered that each of the applicant and the respondent meet one half of the expert’s fees to prepare the reports. That order was not expressed to have been made with the consent of the parties.
By notation to orders of 20 March 2023 it appears that the Court had to give further consideration to the matters resolved by the orders of 16 March 2023 as there arose an issue that the applicant may not have provided consent to the orders made on 16 March 2023.
On 16 May 2023 orders were then made with the consent of the parties before her Honour Judge Parker as to an exchange of documents, the appointment of a single expert to value various assets - including land, companies, plant equipment and livestock - and nominating a Mr B of C Company as the single expert of real estate and plant and equipment and a Mr D to value company entities.
The appointment of Mr B in that order of 16 May 2023 was presaged by:
(a)a letter from the respondent’s solicitors of 10 March 2023 suggesting the appointment of Mr B to be the valuer;[4] and
(b)the orders of 16 March 2023 and 20 March 2023.
[4] Applicant’s affidavit sealed 1 December 2023 [5, 6]
On 26 June 2023 orders were made setting an interim application seeking various orders about provision of documents and valuation before a Senior Judicial Registrar on 7 August 2023. Other orders were made that day which appear to relate to the question of a mediation to take place no later than 30 September 2023.
On 4 August 2023 upon receipt of joint correspondence from the parties the hearing of 7 August 2023 was adjourned to 18 September 2023. From there the matter was adjourned to December 2023 from whence the present Application came to be listed before me on 1 February 2024.
To date, some 50 documents have been filed by one or other of the parties. Nine subpoenas have been issued by or on behalf of the applicant.
In respect of the present Application it appears that: –
(a)Mr B was proposed by the Respondent to be the single expert on 10 March 2023;
(b)Mr B prior to his appointment as a single expert had undertaken valuation of some of the respondent’s real property under a previous appointment by the Commonwealth Bank of Australia and Bank Group members[5] (“the bank”). I shall refer to this appointment by the bank as the “previous appointment”;
(c)it is asserted that Mr B was continuing under the previous appointment when he came to be appointed as a single expert under the orders made on 16 May 2023 with the consent of the parties;
(d)neither the previous appointment nor the valuation compiled under that appointment was made known by the respondent to the applicant;
(e)the previous appointment saw two valuations produced dated 13 September 2021;
(f)the September 2021 valuations (or “previous valuation”) contained Mr B’s opinion as to 3 properties said to be held under the ownership or control, at least partially, of the respondent and which 3 properties were the specific subjects of the orders of 16 May 2023;
(g)in May 2022 the husband had filed his Financial Statement in which he attributed value to the 3 properties in accordance with the figures provided by the two previous valuations;
(h)between 16 August and 6 October 2023, a unilateral communication took place between the respondent or someone on his behalf to Mr B in relation to the plant equipment and livestock items to be the subject of valuation;
(i)Mr B has prepared but not released the reports required of him under the instructions provided to him by the parties under the orders of 16 May 2023.
[5] Applicant's affidavit sealed 1 December 2023 (11)
Matters listed at (a) – (g) above go to the question of the single expert’s independence and consequently that expert’s partiality in undertaking the role assigned to them by a Court order and the nature of the information available to the applicant de facto wife in consenting to the orders of 16 May 2023 which saw the nomination and appointment of Mr B as the expert to value the land.
The matter listed at (h) above goes to a question about the effect of a failure to comply with the Rules of Court as to the conduct of the parties in respect of a single expert.
The matter listed at (i) above raises issues of how to move the matter forward from the present dispute reflected by the present Application.
THE APPLICANT’S WRITTEN SUBMISSION[6]: A LACK OF INDEPENDENCE?
[6] “Written submissions” in this judgment refers to the Applicant’s Outline of Case Document (Interim Hearing) sealed 22 February 2024.
The previous appointment that tasked Mr B to undertake the valuation of 3 properties was sought by the bank and accepted by Mr B. He did so, producing reports in September 2021.
It was acknowledged by the applicant, as it had to be, that Mr B was not acting on the instructions of any party in these proceedings.
It is to be observed that Mr B was acting on the instructions of the bank who were on the other side to that of the respondent for negotiations and or agreements to provide or refuse to provide financial accommodation to the respondent.
Mr B’s appointment for the purposes of the orders of 16 May 2023 came about as a result of a request, in the form of consent, of the parties to the Court and, more importantly, order of this Court.
After the order of 16 May 2023 was made the applicant came to learn of the previous appointment through a return and then inspection of documents produced by the bank in answer to subpoena to produce documents.
The applicant says that if she had been aware of the previous appointment she would not have consented to the appointment of Mr B or his firm being instructed as the single expert.[7]
[7] Applicant’s affidavit sealed 1 December 2023 [16].
The applicant does not say why in her affidavit but states in her written submission the previous appointment makes Mr B a person who is not independent.[8]
[8] Applicant’s written submission sealed 22 February 2024 [10].
In oral submissions, this silence as to the reason as to why the applicant would not have appointed Mr B was expanded upon to be said to be also founded upon a proper anxiety that would have been entertained by the applicant in knowing that the land subject to valuation had been earlier valued by Mr B for the bank. It was further submitted that that in preparing the previous valuations Mr B should be understood to have been conservative and that this conservatism can, in turn, be understood to be reasonably likely to influence the formation of Mr B’s present opinion of value.
In other words, not only was the applicant entitled to decline Mr B’s appointment, but such a declination was to be understood as being capable of being viewed as reasonably based.
I shall return to this alternative explanation as to why the respondent would not have consented to Mr B’s appointment below.
The requirement for Mr B or any other person to be “an independent person” is said by the applicant to arise under Rule 1.05.
This is taken to be a reference to the definition of “expert” in Rule 1.05 which states:
expert means an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.
The lack of independence in this matter can only have arisen in that Mr B has valued some of the land to be valued under the May 2023 order for another person, namely the bank, in September 2021.
The independence spoken of in Rule 1.05 is an independence of the parties and a lack of partiality towards one or both of them.
This is consistent with the description of an expert’s duty to the Court located in Division 7.1.5 of the Rules of this Court which emphasises the duty of the expert to assist the Court, which duty prevails over that which might otherwise be due to instructing or fee paying parties.[9]
[9] Rule 7.18(1) and (2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The duty is reiterated in Rule 7.18 (3) which states:
(3) The expert witness has the following duties:
(a)to give an objective and unbiased opinion that is also independent and impartial on matters that are within the witness’s knowledge and capability
When instructing a single expert witness instructing parties must “ensure” that the witness has copy of and has read, amongst other things, Division 7.1.5 of the Rules.[10]
[10] Rule 7.13(2)(a) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Any report from a single expert must contain an affidavit[11] confirming, amongst other things, that opinions expressed are independent and impartial and that the expert has read and understood Division 7.1.5 of the Rules and has used best endeavours to comply with them.
[11] Rule 7.21(2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
There was no evidence as to whether the undertaking of the single expert role by Mr B was otherwise regulated by any standards set by any professional body.
On 9 August 2023 a joint letter of instruction was forwarded to Mr B.[12]
[12] Applicant’s affidavit sealed 1 December 2023 [21].
The forwarding of that letter by the parties permits the inference, that I draw, that the parties, through their respective legal representatives, have ensured that the Rules relating to informing a single expert of his duties and of ensuring that the reading and understanding of those duties has been completed and undertaken. There is no evidence or submission to the contrary.
The terms of the joint letter of instruction are not in evidence before the Court other than a portion which contained a request of the parties that Mr B provide an estimate of anticipated fees before he commences work in respect of his valuation.[13]
[13] Applicant’s affidavit sealed 1 December 2023 [21].
Such an estimate has not been provided but no issue is raised in relation to that.
There is no evidence that leads me to infer that Mr B has seen any lack of independence on his behalf that he has considered would preclude him from fulfilling his requested task.
There is no evidence of a conflict of interest on behalf of Mr B nor that he is subject to influence or capable of being influenced by either of the parties or that his personal interests give rise to an interest in the litigation before the Court.
The submission that Mr B lacked sufficient independence or was not an “independent person” for the purposes of the Rules is rejected. Any submission founded upon that submission is not to be regarded as successful.
THE APPLICANT’S SUBMISSION: HAVING DONE AN EARLIER VALUATION FOR THE BANK
As referred to above, the applicant maintained in oral submissions that she would not have consented to Mr B being the single expert if she had known he had undertaken the September 2021 valuation as his earlier valuation for a bank would have been properly been regarded by her as having been conservative and then necessarily influencing Mr B’s thought processes in undertaking the valuation required by the orders of May 2023.
This submission presumes that Mr B cannot genuinely comply with instructions given to him that may have been from a bank for one purpose and then from another, unrelated person for a different purposes when it comes to expressing an opinion of value of the same item.
I disagree. A valuer can undertake valuations for different purposes and with different goals in mind and only have proper regard to past valuations. For example, a valuer can receive and act on instructions to express an opinion of value of property both historically and currently or in various states of improvement or disrepair or if subdivided or not and accept instructions from persons who have differing hopes, fears and expectations in requesting a valuation.
It is not unreasonable to anticipate that an expert valuer of land will have valued property for a range of instructors from financiers to vendors to purchasers to government agencies and that the various types of instructions contribute to the experience that may be called upon either consciously or unconsciously by an expert to express an opinion.
In having accepted instructions from a bank in the past, it is reasonable to contemplate that any market value opinion then expressed may, but not necessarily would, have been sought for mortgage security purposes and/or for the reliance of a mortgage insurer.
It is to be observed that a valuer in undertaking valuation for mortgage purposes undertakes its role whilst owing to their instructor, in carrying out their duties, to exercise reasonable skill, care and diligence.[14]
[14] Voli v Inglewood [1963] HCA 15; (1963) 110 CLR 74 at 79; Henderson v Amadio [1995] FCA 1300; (1995) 62 FCR 1.
The same would be for any other instructor.
That requirement would be more zealously enforced in undertaking the role of expert appointed by the Court.
There is no evidence that allows the formation of the view that Mr B has done other than discharge his duty to previous clients or that he would not be likely to do so in his role as an expert in this Court.
I am not prepared to draw the inference on the evidence before me that the commercial character of a provider of instructions to a valuer influences the opinion as to the market value (if that is what is sought) and that an opinion having been so expressed contaminates or should be seen as being at risk of contaminating later opinions for different purposes sought by different and unrelated parties under a distinct and different set duties.
It cannot be for the purposes of the present application that the mere fact that Mr B has previously valued part of the land that is to be valued for the purposes of the present proceedings can be a reasonable basis for him to be precluded from fulfilling the role of an expert witness.
Mr B is not to be regarded as somehow or other being unreasonably fettered by his earlier experience and knowledge of some of the land that is to be valued. Familiarity with the subject matter of a valuation and the considerations that are to be brought to account valuing that subject matter can be of assistance to a valuer fulfilling the role of an expert witness. It could be regarded as a useful aspect of the repository of relevant specialised knowledge arising out of experience which an expert should possess. Ultimately, the assistance or detriment of that experience could well be a matter for trial.
The presence of such influence is a matter of evidence to be obtained through questioning of the expert witness and, if need be, at trial.
There is no evidence that an enquiry has been made of Mr B as to whether he has considered that he would be unable to fulfil the obligations of being an expert witness or a single expert witness.
There was reasonable opportunity available to the applicant to do so and there appears to be no impediment upon the applicant or her legal advisers to have made such an enquiry.
No enquiry was made.
I do not accede to the applicant’s submission that having received instructions from a bank to value some of the relevant property on an earlier occasion Mr B is unable to properly fulfill duties as an expert witness in this Court or should be regarded, on the present evidence, as being incapable of doing so.
The applicant’s submission that Mr B should be or could reasonably be or could have been regarded as unsuitable to be the expert valuer by reason of having undertaken the previous valuation for the bank and is not an “independent person” is rejected.
A RIGHT TO CHOOSE?
At paragraph 16 of the applicant’s affidavit sealed 1 December 2023 she says:
Had I been made aware of [Mr B]’s prior valuations, I would not have consented to him, or the firm [C Company], being jointly instructed as a Single Expert Valuer.
Although that statement carries with it the inference that the existence of previous valuations were a proper reason for the applicant to exclude Mr B from appointment as the single expert (with which I do not agree), the statement also appears to carry with it an implication that the applicant’s agreement as to the identity of the single expert was a necessary prerequisite for such an appointment. In other words, the appointment of single experts can only come about with the consent of all the parties to the litigation.
That implication, if present, cannot be accepted.
The scheme for the appointment of a single expert witness to the exclusion of a number of expert witnesses is a regime established by the Rules as part of the practice and procedure of the Court.
The purpose of that Part of the Rules creating a constriction upon how expert evidence comes before the Court makes it plain that the appointment of a single expert witness on an issue is done when it is practicable and in the interests of justice.[15]
[15] See in particular Rule 7.02 (c) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The Rules as to the appointment of single expert witnesses is a departure from the position that each party to litigation is entitled call witnesses of their choosing in presenting their case to a court.
The Rules permit a limited and not an exclusive right to the parties to have a say in the appointment of a single expert and, in particular, who that expert might be. Parties are entitled to make an informed but reasonable decision on the appointment of single expert and should they fail to do so it is open to a court to, in effect, impose a single expert of its choice.[16]
[16] Rule 7.04 and in particular Rule 7.04 (3) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
To recognise otherwise would be to permit the process of the selection of a single expert to become a competition nominating experts thought to favour a party’s cause rather than promoting a process whereby a single expert is to be utilised to minimise areas of dispute and maximise areas of potential resolution.
It was submitted on behalf of the applicant that had the fact that Mr B had completed the previous valuations been known to the applicant, she would have not agreed to his appointment because it would have created an unnecessary anxiety and, by implication, Mr B would not have enjoyed the applicant’s full confidence in discharging his role as single expert.
For the reasons stated above I am not satisfied that such an anxiety would be reasonably based.
There is no evidence which demonstrates in my view that Mr B is not otherwise possessed of the relevant capacity to undertake the role of a single expert in respect of those matters identified in the order of 16 May 2023 or that he would not discharge his duties to the Court as a single expert.
As such, I do not consider that the wife’s statement of her position set out at paragraph 16 of her affidavit is a matter of decisive weight or is binding upon the determination the Court must make in relation to her present application.
MATERIAL NON-DISCLOSURE
The applicant submits that the respondent’s failure to have disclosed the previous valuations and more particularly Mr B’s involvement in their creation is a material non-disclosure.[17]
[17] Applicant’s written submission sealed 22 February 2024 [8].
The previous valuations were not made known to the applicant.
The submission begs two, related questions:
(a)were the previous valuations something the respondent should have disclosed for the purposes of the decision to nominate a single expert valuer; and
(b)were the previous valuations to be properly considered as “material” to a decision to nominate Mr B as the single expert?
The answer to the first question is, on the evidence presented, “no”.
The obligation to disclose is that duty set out in Rule 6.01 in relation to “information relevant” to a proceeding. That duty is specifically imposed in financial proceedings by virtue of Rule 6.06.
Rule 6.06 also identifies certain documents that need be provided and served on the other party to the proceedings.
Rule 6.03 informs parties that disclosure of documents applies to relevant documents that are or have been in the possession or under the control of a party.
There is no evidence that satisfies me that the previous valuations were either in the possession of or under the control of the respondent or that he was possessed of information contained in the reports beyond the values stated in reports.
The applicant has not taken the Court to any reference in subpoenaed material or otherwise that discloses the valuation reports were provided to the husband or that he could demand and be provided with a copy of those reports from the bank or that he had been made privy to the information in the reports or whether a demand could be so made and, if so, to what extent.
The provision of material in the form of documents covered by Rule 6.06 was also stipulated by orders made by the Court on 2 May 2022, 16 March 2023 and 16 May 2023.
In addition, those orders also provided for an exchange of documents which supported the information contained in the parties’ Financial Statements.
Concomitant with those orders was the obligation imposed by Rule 6.01 that related to “information”. This requirement extends beyond just documents.
It is, at best, said by the applicant to be implied that the September 2021 valuations were known to the respondent as in his Financial Statement of 31 May 2022 he had then attributed the specific values found in the previous valuations to the properties referred to in the valuation. This submission would be of weight if the inference could be said to extend to possession of information that the valuations had been compiled by Mr B.
The disclosure of the valuations and the role of Mr B in their preparation of those valuations arose.
As and from 31 May 2022, given the orders then in existence[18] and subsequently made and the duties created by the Rules, it needs to be shown (including by inference) that the respondent had been informed by the bank of the existence of the previous valuations and that Mr B was the valuer concerned.
[18] Order 2 of 2 May 2022; order 4 of 24 January 2023, order 1.3.1 of 16 May 2023.
If such evidence is available, say amongst the subpoenaed material from the bank, then it has not been put into evidence by the applicant.[19]
[19] The subpoena to The Proper Officer Commonwealth Bank of Australia, sealed 1 August 2023, refers at [5] to “All documents in relation to banking facility approvals…” for the respondent or any entity in which he holds an interest… for the period 1 February 2019 to the date of this subpoena” may have seen the production of correspondence between the Bank and the respondent.
In the absence of such evidence I am not prepared to draw the inference that the respondent had knowledge of Mr B as the valuer providing the basis for figures in his Financial Statement or that the respondent then had the previous valuations to then provide to the applicant verifying what was in his Financial Statement.
The fact that in March 2023 the respondent nominated Mr B for the role of expert, betrays a knowledge that Mr B at least possessed of the necessary knowledge to undertake the role of an expert witness. That may be so, but it is another thing for it then to be implied that it was then known to the respondent that Mr B had previously undertaken the banks September 2021 valuations.
Even assuming the respondent had knowledge of the September 2021 valuations and of Mr B undertaking the valuations, it is not clear that the knowledge was or could be so “material” as to amount to a “material non-disclosure” in respect of the appointment of Mr B for the reasons stated above.
As such, the answer to the second question set out above in paragraph 91 would be ‘no”.
It was not raised in the course of argument as to whether the view to be adopted as to the materiality of the non-disclosure of the previous valuation was to be informed by the requirement set out in Rule 7.11[20], that an affidavit filed in support of an application for permission to tender evidence from an expert witness had to state, amongst other things, whether there is any previous connection between the expert witness and the party. Suffice to say, that Rule is directed towards the introduction of expert evidence from other than a single expert witness where concerns of partiality or the “expert for hire”[21] would need to be particularly considered. That is not the case here.
[20] See Rule 7.11(2)(g) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[21] See discussion in Ian Freckelton, Expert Evidence, Law, Practice and Advocacy(Thomson Reuters, 7th ed, 2024) [1.0.05].
THE EFFECT OF COMMUNICATION WITH THE SINGLE EXPERT
Rule 7.03(3) provides that a party must not communicate unilaterally with a single expert witness except as permitted by the Rules.[22]
[22] For example, Rule 7.01(2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to an Independent Children's Lawyer communicating with a single expert witness.
Rule 7.03(4) provides that any communication between a party and a single expert witness must, at the same time, also be provided to all other parties engaging that single expert witness, except as permitted by the Rules.
The evidence before the Court permits the inference, to be drawn, that there had been unilateral communication between the respondent or on his behalf and the single expert and at the time of that communication a copy had not been provided to the applicant or her representatives.
There has been no application to dispense with these requirements of the Rules.
The wife’s written submissions and her affidavit do not disclose what prejudice has arisen as a result of the communication between the respondent and/or on his behalf with the single expert between 16 August and 6 October 2023.
There is no evidence in the applicant’s affidavit as to the correspondence that has been forwarded by the respondent and/or on his behalf to the single expert between 16 August and 6 October 2023 so as to be able to determine the possible effect of any such correspondence.
Whilst the conduct of the respondent’s representatives in this regard is more than a matter of regret, it does not advance the Application.
IF THERE HAS BEEN A MATERIAL NON-DISCLOSURE CAN IT BE AND SHOULD IT BE REMEDIED?
At the close of the course of argument I raised with parties that should the Court be satisfied that there be found that there was a material non-disclosure so as to cause the discharge of orders of May 2023 appointing Mr B (which I do not find to be the case), would such a non-disclosure be capable of remedy other than by recommencing valuations with another single expert valuer?
The applicant said a material non-disclosure of Mr B having completed the earlier valuation was not a matter to be remedied in some way. The process of valuation had to be recommenced by the valuers she nominated in her application for new valuers.
The respondent’s submission was that the effect of an alleged non-disclosure could not be known until Mr B’s valuation created pursuant to the May 2023 orders was produced and considered.
I find favour with the respondent’s submission in this regard.
If I were wrong in rejecting the applicant’s submissions that there was material non-disclosure, then the effect of that non-disclosure is that the Mr B would necessarily depart from his duty as a single expert. Such a departure from duty would be a matter that could be made apparent though questioning of Mr B and, if need be, the introduction of other evidence. The alleged influence arising from a previous valuation is not beyond revelation and ascertainment. Given that valuation of land remains ultimately a task for the Court in the light of the evidence that is presented to it, that the Court is not bound by the single expert evidence and that presence of bias or influence can be allowed for in the Court making a finding of value (or if cannot, ordering sale of the property) at trial, any departure from duty can be allowed for in the determination of value even if it means the valuation is revealed as so hazardous or uncertain that sale should be stipulated.
Given the delay and expense[23] that the parties have sustained to date, I consider that even if there were a material non-disclosure, that the valuation of Mr B should now be obtained in the manner stipulated by the earlier orders and examined and, if need be, refined through the questioning and conferencing processes available under the Rules.
[23] Costs Notices of each party both filed 27 February 2023.
CONCLUSION
For all of the above reasons I would dismiss the Application in a Proceeding.
This means that earlier procedural orders, including those relating to valuations, remain in effect and are to be complied with.
COSTS
Neither party sought to make detailed submissions as to costs and left the matter to be otherwise determined by me on the material and submissions presented in the course of the consideration of the Application.
Although the Application has ultimately proved unsuccessful, I note that there has not been compliance with the Rules on the respondent’s behalf. Both are matters which I could bring to account under s 117(2A) of the Act in determining whether I should form the opinion under s 117(2) that I should make an order as to costs.
Having considered matters, I am not persuaded that I should be of that opinion and that the position set under s 117(1) should prevail.
FURTHER DIRECTIONS
This matter was also listed before me on 27 February 2024 for trial directions. Given that the parties required a determination of the Application and that mediation identified in the earlier orders of the Court was still to occur I did not then invite submissions from the parties in that regard.
I will list this matter for trial directions before me in three months with leave granted to the parties to seek by way of joint, written correspondence to my associate a date that is suitable to the parties.
I note that an Application in a Proceeding sealed 1 June 2023 and filed on behalf of the applicant mother seeking orders for exchange of documents and appointment of a single expert (including the appointment of Mr B as a single expert) has not been dismissed despite earlier orders having been made on that application and appearing to exhaust it. I will now formally dismiss that application.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mcginn. Associate:
Dated: 1 March 2024
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