King & King

Case [2014] FCCA 163

FEDERAL CIRCUIT COURT OF AUSTRALIA

KING & KING [2014] FCCA 163

Catchwords:
FAMILY LAW – Practice and procedure – application to strike out Chapter 15 expert’s report – asserted apprehended bias of report writer – section 135 of Evidence Act 1995 – general discretion to exclude evidence – where any deficiencies can be tested in cross-examination – application refused.

FAMILY LAW – Practice and procedure – application to reopen and adduce fresh evidence – application granted.

Legislation:

Evidence Act 1995 (Cth), ss.79, 135

Family Law Act 1975 (Cth), ss.4AB, 60CC, 69ZN

Family Law Rules2004 (Cth), rr.15.64B, 15.65, 15.54(3)
Federal Circuit Court Rules 2001 (Cth), rr.15.06A, 15.07
Practice Note CM7 of the Federal Court of Australia as at 3 June 2013

Bass & Bass [2008] FamCAFC 67
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Johnson & Johnson (No.3) (2000) FLC 93-039
Kernot & Matson [2008] FamCA 756
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Nepean & Treloar [2010] Fam CA 781
Pownall and Anor v Conlan Management Pty Limitedas Trustee for the Kalbarri Trust (1995) 12 WAR 370
Spotlight Pty Ltd v NCON Australia Limited [2012] VSCA 232
Stephens & Stephens & Anor (Enforcement)
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Applicant: MS KING
Respondent: MR KING
File Number: WOC 803 of 2012
Judgment of: Judge Kemp
Hearing dates: 13 September 2013 and 31 January 2014
Date of Last Submission: 31 January 2014
Delivered at: Sydney
Delivered on: 7 February 2014

REPRESENTATION

Counsel for the Applicant: Mr G Richardson SC
Solicitors for the Applicant: Barkus Doolan
Counsel for the Respondent: Mr J Levy
Solicitors for the Respondent: Broun Abrahams Burreket
Solicitors for the Independent Children's Lawyer: Tiyce & Associates

THE COURT ORDERS:

  1. That the mother’s application to reopen and adduce fresh evidence for the hearing of her Application in a Case filed 28 August 2013 (“the subject application”), as sought in her Application in a Case filed 12 December 2013, be granted.

  2. That the subject application be dismissed.

  3. That the parties arrange for Dr S to interview Mr J and any other person(s) as considered by Dr S to be appropriate and to provide a further report to the parties and the Court, following such interviews.

  4. That a copy of these reasons be provided to Dr S by the Independent Children's Lawyer.

  5. That any issue as to costs referable to the applications referred to in order 1 above be reserved to the final hearing.

  6. The matter be listed for mention on 23 May 2014 at 9.30am.

  7. The parties have liberty to restore the matter on 7 days notice if Dr S’s further report is available prior to the adjourned date.

  8. Liberty to apply on 7 days notice.

IT IS NOTED that publication of this judgment under the pseudonym King & King is approved pursuant to s.121(9)(g) of the Family…

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King & King [2014] FCCA 163
Case
[2014] FCCA 163
Decision Date

CaseChat Overview and Summary

In the matter of *King & King*, Kemp J of the Federal Circuit Court of Australia considered an application to strike out an expert's report and an application to reopen the proceedings to adduce fresh evidence. The primary dispute concerned an expert's report, which one party alleged contained apprehended bias.

The court was required to determine whether the expert's report should be excluded from evidence due to asserted apprehended bias, and whether the proceedings should be reopened to allow for the admission of fresh evidence. The application to strike out the report invoked the court's general discretion under section 135 of the *Evidence Act 1995* (Cth) to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, misleading the court, or causing undue delay.

Kemp J refused the application to strike out the expert's report, reasoning that any perceived deficiencies or apprehended bias within the report could be adequately addressed and tested through cross-examination. The court noted that the expert's duty, as outlined in section 15.07 of the *Federal Circuit Court Rules 2001* and the Federal Court's Practice Note CM7, is to assist the court and not to act as an advocate for a party. The judge found that the report's contents did not warrant exclusion under section 135 of the *Evidence Act 1995*. However, the application to reopen the proceedings and adduce fresh evidence was granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 15.07 of the Federal Circuit Court Rules 2001 provides as follows:15.07 Duty to Court and form of expert evidenceFor an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.Note:While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:·an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise·an expert witness is not an advocate for a party·the overriding duty of an expert witness is to the Court and not to the person retaining the expert·if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement. Practice Note CM7 of the Federal Court of Australia as at 3 June 2013 provides as follows:Expert witnesses in proceedings in the Federal Court of AustraliaCommencement1. Omitted.Introduction2. Rule 23.12 of the Federal Court Rules 2011 requires a party to give a copy of the following guidelines to any witness they propose to retain for the purpose of preparing a report or giving evidence in a proceeding as to an opinion held by the witness that is wholly or substantially based on the specialised knowledge of the witness (see Part 3.3 - Opinion of the Evidence Act 1995 (Cth)).3. The guidelines are not intended to address all aspects of an expert witness’s duties, but are intended to facilitate the admission of opinion evidence, and to assist experts to understand in general terms what the Court expects of them. Additionally, it is hoped that the guidelines will assist individual expert witnesses to avoid the criticism that is sometimes made (whether rightly or wrongly) that expert witnesses lack objectivity, or have coloured their evidence in favour of the party calling them. Guidelines1.General Duty to the Court1.1 An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.1.2 An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.1.3 An expert witness’s paramount duty is to the Court and not to the person retaining the expert. 2.The Form of the Expert’s Report2.1 An expert’s written report must comply with Rule 23.13 and therefore must (a) be signed by the expert who prepared the report; and(b)contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Note; and(c) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and(d) identify the questions that the expert was asked to address; and(e) set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and(f) set out separately from the factual findings or assumptions each of the expert’s opinions; and(g) set out the reasons for each of the expert’s opinions; and(ga) contain an acknowledgment that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c) above[4]; and(h) comply with the Practice Note.2.2 At the end of the report the expert should declare that "[the expert] has made all the inquiries that [the expert]believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court."2.3 There should be included in or attached to the report the documents and other materials that the expert has been instructed to consider.2.4 If, after exchange of reports or at any other stage, an expert witness changes the expert’s opinion, having read another expert’s report or for any other reason, the change should be communicated as soon as practicable (through the party’s lawyers) to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.2.5 If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.2.6 The expert should make it clear if a particular question or issue falls outside the relevant field of expertise.2.7 Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the exchange of reports.3. Experts’ Conference 3.1Omitted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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