Manesh & Manesh (No 3)

[2021] FedCFamC1F 293

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Manesh & Manesh (No 3) [2021] FedCFamC1F 293

File number(s):	MLC 8955 of 2019
Judgment of:	JOHNS J
Date of judgment:	25 November 2021
Catchwords:	FAMILY LAW – PROCEDURE – application to rely on  evidence from another expert – evidence concluded – eighth day of hearing – valuation of property – single expert rules – husband failed to engage in valuation process – husband seeks to rely upon alternate valuation – application refused
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 7.08, 7.26
Division:	Division 1 First Instance
Number of paragraphs:	21
Date of hearing:	25 November 2021
Place:	Melbourne
The Applicant:	In Person
Counsel for the Respondent:	Mr Puckey QC
Solicitor for the Respondent:	Freeman Family Law
Counsel for the Independent Children's Lawyer:	Mr Ham
Solicitor for the Independent Children's Lawyer:	Macgregor Solicitors

ORDERS

MLC 8955 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MANESH

Applicant

AND:

MS MANESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	25 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Husband’s application to adduce the evidence of Mr G is dismissed.

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 the pseudonym Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Manesh makes an application today, on the eighth day of the final hearing, seeking leave to adduce evidence from another property valuer, Mr G.  He relies upon the affidavit of Mr G filed 21 November 2021.  The evidence proposed to be adduced is evidence as to the valuation of the husband's interest in a property in Country C. 

2. As I have already noted earlier in the proceedings, the wife has adduced evidence from a valuer, Mr D, in relation to that property. 

3. On the first day of hearing I granted leave for the wife to rely upon the valuation evidence of Mr D.  At that time, detailed submissions were made by Mr Puckey QC on behalf of the wife as to the circumstances in which Mr D was engaged. 

4. The history of the matter, as noted then and as I will repeat briefly now, is that on 17 May 2021 I made orders and trial directions fixing this matter for final hearing.  As part of those orders, I made orders in relation to the process for the engagement of a single expert valuer to value property the subject of dispute. 

5. The parties engaged in that process to arrange a valuation report in respect of the Country C property.  They appointed a single expert valuer who prepared a valuation and produced a report.  For reasons known to that valuer, he refused to execute an affidavit confirming the contents of his valuation report. 

6. Given that circumstance, the wife sought the husband's cooperation and agreement to the tender of the first valuation report.  The husband refused to provide consent to the tender of that document.  In those circumstances the wife instructed her lawyers to commence the process of engaging another valuation expert to ensure that there was appropriate evidence before the Court as to the value of the Country C property.

7. The history of the wife's efforts to engage the husband in the appointment of a new single expert valuer is set out in detail in her affidavit affirmed on 8 November 2021.  I refer to the chronology and correspondence in that affidavit which sets out the history of the attempts to engage the husband in the process.

8. In short, what occurred was that requests were made for the husband to participate and select a valuer.  Three valuers were identified and proposed as appropriate valuers to value the property.  However, the husband did not respond to correspondence requesting him to nominate one of those valuers to value the property.  It was in those circumstances that the wife proceeded to brief Mr D to prepare a valuation report.  It is that report annexed to his affidavit that the wife sought leave to rely upon at the first day of the hearing.  Upon hearing submissions I ruled that leave should be granted for the filing of and reliance upon that affidavit. 

9. During the hearing, Mr D was called to give evidence.  He was cross-examined for a period of approximately one hour, if not longer, by the husband over the course of two days, due to difficulties with the Microsoft Teams connection to Mr D in Country C.

10. The husband cross-examined Mr D in relation to his qualifications.  He challenged the information relied upon by Mr D for the preparation of his valuation report.  The husband also cross-examined Mr D in relation to the methodology applied by him. 

11. Having regard to those matters I am satisfied that the husband has had ample opportunity to appropriately challenge the evidence of Mr D.

12. Now, on the final day of hearing, the husband seeks to reopen evidence and rely upon an affidavit of another valuer in relation to the property.  He complains as to issues of procedural unfairness surrounding the appointment of Mr D.  He complains that he did not have the opportunity to communicate with Mr D or to participate in the valuation process.  He does not accept the value attributed to the Country F property by Mr D.  He says that it is a matter of significant unfairness to him to be shut out from adducing evidence of his own valuer in relation to that property. 

13. The application made by the husband is opposed by the wife.  She points to the efforts made by her in an endeavour to have the husband participate in the appointment of a single expert valuer.  She says that there was no procedural unfairness to the husband as to the manner in which Mr D was engaged to prepare a valuation report. Having regard to the chronology I have identified and as is set out in the wife's affidavit, I accept that submission. 

14. The wife says that there is no proper basis under the rules of court that would enliven the husband's opportunity to adduce what is, essentially, an adversarial witness. In his submissions the husband relied upon Rule 7.08(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in support of his application to adduce evidence from another expert. Rule 7.08(2)(c) provides as follows:-

    (2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

    …

    (c) there is another special reason for adducing evidence from another expert witness.

15. The husband submits that there is “another special reason for adducing evidence from another expert witness”.   However, having made that submission the husband does not identify any fact or matter that would support his contention.

16. It is of note that in his opposition to the application originally made to adduce evidence from Mr D, Mr Manesh made a submission to the effect that the valuation processes in Country C are “corrupt”.  In opposing the admission of Mr D’s affidavit the husband submitted that he would be able to obtain a number of valuations at any price he wished.  It is in my view ironic, given his expressed views as to the alleged dishonest valuation practices in Country C, that the husband now seeks to adduce evidence from his own valuer.

17. There is no evidence before the court as to what communications or correspondence have been entered into by the husband with his proposed valuer.  Given his earlier submissions as to the process of valuation in Country C, and absent evidence of the information provided to that valuer or the amounts paid to him, I have significant reservations at this late stage in admitting evidence in those circumstances. 

18. There has been no attempt by the husband to engage with the wife in relation to the appointment of a single expert valuer, nor has the husband sought to clarify the evidence of Mr D by way of questions in accordance with Rule 7.26 of the Rules.

19. I note that procedurally this matter has concluded its evidence; if I were to admit the evidence sought by the husband now it would of necessity result in further delay in the proceedings.  I would be required to make orders for a conference of expert valuers with the probability that there would need to be evidence and opportunity to cross-examine a second witness. 

20. The single expert rules have been formulated so as to avoid delay in proceedings, to streamline the process by which valuation evidence is obtained and to ensure that issues such as property value can be addressed in a just and timely fashion.

21. Having regard to all of those factors and absent any evidence as to the existence of a special reason that would justify the admission of evidence from another expert, the husband’s application is refused. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex parte Reasons for Judgment of the Honourable Justice Johns delivered on 25 November 2021.

Associate:

Dated:       20 December 2021