Knight & Knight - [2007] FamCA 263

FAMILY COURT OF AUSTRALIA

KNIGHT & KNIGHT

[2007] FamCA 263

FAMILY LAW - PROPERTY – EXPERT EVIDENCE – Division 15.5.3 Family Law Rules 2004 (Cth) – Appointment of Adversarial Expert Witness – Valuation of Business
FAMILY LAW - PROPERTY – Partial Property Order – Cost of vehicle
FAMILY LAW - COSTS – Barro Order – Costs of preparation for hearing and further adversarial expert witness

Family Law Rules 2004 (Cth) Division 15.5.3
Family Law Act 1975 (Cth) s 117

Zschokke and Zschokke (1996) FLC 92-693

APPLICANT:

MRS KNIGHT

RESPONDENT:

MRS KNIGHT

FILE NUMBER:

MLF

3163

2002

DATE DELIVERED:

14 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

14 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R.J. Spicer

SOLICITOR FOR THE APPLICANT:

Septimus Jones and Lee

COUNSEL FOR THE RESPONDENT:

Mr N.A. James

SOLICITOR FOR THE RESPONDENT:

BM Legal

Orders

That pursuant to Division 15.5.3 of the Family Law Rules 2004 (Cth) the wife be granted permission to adduce evidence and tender a report from Mr L, Forensic Accountant and Director of S Accountants, an expert witness appointed by the wife.
That Mr L be provided with all information and documents reasonably requested by him to prepare a valuation of the Respondent Husband’s interest in businesses collectively known as the Knight Family entities referred to as the “businesses”.
That the Respondent Husband do all things necessary to instruct the accountant and/or the Financial Controller of the businesses to provide all financial information and documents sought by Mr L.
That Mr L be entitled to have access to the Knight Family Entities Business premises and be provided with copies of any document or documents reasonably required by him for the purposes of preparing his valuation report.
That a report be filed and served following his investigations, no later than 16 March 2007.
Pursuant to rule 15.69, following the filing and service of the report of Mr L, the parties must arrange for Mr L and Mr H to confer at least fourteen (14) days prior to the Pre-Trial Conference for the purposes of identifying those parts of their evidence that are in issue in the proceedings.
At the completion of that conference, the experts must prepare a joint statement specifying the following matters:
(a)identifying the issues that are agreed and not agreed;
(b)if practicable, reaching agreement on any outstanding issues;
(c)identifying the reason for disagreement on an issue; and
(d)identifying what action, if any, may be taken to resolve any outstanding issues.
A copy of that joint statement must be delivered to all parties and the Applicant must lodge the joint statement with the court at least three (3) clear business days before the Pre-Trial Conference, if all parties intend to tender it by consent at trial as evidence of matters agreed upon and to identify the issues on which evidence will be called.
That within seven (7) days the husband and wife sign all documents necessary to pay the sum of $34,000 from monies held in…

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 Knight & Knight

Details

AGLC: Knight & Knight [2007] FamCA 263
Case: [2007] FamCA 263
Decision Date: 14 February 2007

CaseChat Overview and Summary

In this matter before Chief Justice Bryant, the wife sought permission to adduce evidence and tender a report from a forensic accountant, Mr L, concerning the valuation of the husband's interests in certain business entities. The dispute centred on the need for this expert valuation to assist in determining the parties' financial resources and property interests.

The court was required to determine whether to grant the wife permission to engage an expert witness, Mr L, and to establish the terms and conditions under which Mr L would conduct his valuation and present his findings. This included considering the necessity of the expert evidence, its potential impact on costs and the progression of the case, and the appropriate procedures for expert conferencing and joint statement preparation.

Chief Justice Bryant applied the principles outlined in Division 15.5.3 of the Family Law Rules 2004 (Cth), particularly rules 15.51 and 15.52, which govern the adducing of expert evidence. The court considered the purpose of expert evidence rules, which is to ensure that such evidence is obtained only in relation to significant disputed issues, is restricted to what is necessary, and aims to avoid unnecessary costs. The court granted the wife permission to engage Mr L, ordering that he be provided with all necessary information and access to business premises. The court also mandated a process for Mr L to confer with the husband's expert, Mr H, to prepare a joint statement identifying agreed and disputed issues, and specified timelines for the filing of reports and attendance at a pre-trial conference.

The court further ordered the payment of $34,000 from a solicitors' trust account towards the wife's costs, including the costs of engaging Mr L, and an interim property settlement payment of $11,000 to the wife for the purchase of a motor vehicle. The trial judge is to characterise the $34,000 payment at trial. The costs of the proceedings were reserved.

Orders

Orders of the court

That pursuant to Division 15.5.3 of the Family Law Rules 2004 (Cth) the wife be granted permission to adduce evidence and tender a report from Mr L, Forensic Accountant and Director of S Accountants, an expert witness appointed by the wife.

That Mr L be provided with all information and documents reasonably requested by him to prepare a valuation of the Respondent Husband’s interest in businesses collectively known as the Knight Family entities referred to as the “businesses”.

That the Respondent Husband do all things necessary to instruct the accountant and/or the Financial Controller of the businesses to provide all financial information and documents sought by Mr L.

That Mr L be entitled to have access to the Knight Family Entities Business premises and be provided with copies of any document or documents reasonably required by him for the purposes of preparing his valuation report.

That a report be filed and served following his investigations, no later than 16 March 2007.

Pursuant to rule 15.69, following the filing and service of the report of Mr L, the parties must arrange for Mr L and Mr H to confer at least fourteen (14) days prior to the Pre-Trial Conference for the purposes of identifying those parts of their evidence that are in issue in the proceedings.

At the completion of that conference, the experts must prepare a joint statement specifying the following matters:

(a) identifying the issues that are agreed and not agreed;

(b) if practicable, reaching agreement on any outstanding issues;

(d) identifying what action, if any, may be taken to resolve any outstanding issues.

A copy of that joint statement must be delivered to all parties and the Applicant must lodge the joint statement with the court at least three (3) clear business days before the Pre-Trial Conference, if all parties intend to tender it by consent at trial as evidence of matters agreed upon and to identify the issues on which evidence will be called.

That within seven (7) days the husband and wife sign all documents necessary to pay the sum of $34,000 from monies held in BM Legal Solicitors Trust account on behalf of the parties to Septimus Jones & Lees Trust Account, such sum to be utilised on account of the costs of the Wife in prosecuting her claims in these proceedings, including the costs of engaging Mr L to assess the husband’s business interests, property and financial resources in the proceedings and the wife’s legal costs.

10.

That the trial judge characterise the said sum specified in Order 9 hereof at trial.

11.

That within seven (7) days the husband and wife sign all documents necessary to pay $11,000 to the wife from monies held in trust on behalf of the parties in BM Legal Solicitor’s Trust account such sum to be utilised by the wife to purchase a motor vehicle.

12.

That the said sum of $11,000 is to be paid to the wife by way of partial or interim property settlement and to be brought into account by her in that sum in the asset pool for consideration at trial.

13.

The parties and their lawyers must attend a Pre-Trial Conference on 20 April 2007 at 9:30am.

14.

Each party file a compliance certificate in accordance with the approved form by 13 April 2007.

15.

The costs of both parties in relation to the proceedings today be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Rule 15.51 provides:- 15.51 Permission for expert’s reports and evidence (1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness. (2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission. Rule 15.52 goes on to state:- 15.52 Application for permission for expert witness (1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case (Form 2). Note 1 A party who files a Form 2 must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02 (1)). Note 2 The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01). (2) The affidavit filed with the application must state: (a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not; (b)the name of the expert witness; (c)the issue about which the expert witness’s evidence is to be given; (d)the reason the expert evidence is necessary in relation to that issue; (e)the field in which the expert witness is expert; (f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and (g)whether there is any previous connection between the expert witness and the party. (3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account: (a)the purpose of this Part (see rule 15.42); (b)the impact of the appointment of an expert witness on the costs of the case; (c)the likelihood of the appointment expediting or delaying the case; (d)the complexity of the issues in the case; (e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and (f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience: (i)relevant to the issue on which evidence is to be given; and (ii)appropriate to the value, complexity and importance of the case. (4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order. Note Despite an order under this rule, a party is not entitle to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 15.58). Rule 15.42 sets out the purpose of Part 15.5 which deals with expert evidence:15.42 Purpose of Part 15.5 The purpose of this Part is: (a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; (b)to restrict expert evidence to that which is necessary to resolve or determine a case; (c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; (d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and (e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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