Morris & Morris (No 6)
[2023] FedCFamC1F 976
•6 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morris & Morris (No 6) [2023] FedCFamC1F 976
File number: SYC 4955 of 2021 Judgment of: CAMPTON J Date of judgment: 6 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife objects to a single expert report, together with questions to that expert and their response being admitted into evidence – Whether a single expert witness has the requisite expertise to provide the opinion contained in the report – Specialised knowledge can be derived from a combination of many things – Whether the opinion is wholly or substantially based upon the expert’s specialised knowledge – Whether the absence of reasoning points to a lack of any sufficient connection between the opinion and his specialised knowledge – Whether the process of reasoning can be linked to his opinion – Where a reading of a whole of the report implicitly establishes how the specialised knowledge of the expert leads to the opinions expressed and does not lead to a conclusion that the process of reasoning cannot be linked to the opinion – Where the weight to be attached to the opinion is a different matter – Report and letter of questions and the response of the single expert witness admitted and marked collectively as an exhibit. Legislation: Evidence Act 1995 (Cth) s 79
Family Law Act1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 7.22
Cases cited: DasreefPty Ltd v Hawchar (2011) 243 CLR 588
Morris & Morris (No 5) [2023] FedCFamC1F 940
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 6 November 2023 Place: Sydney Counsel for the Applicant: Mr Richardson SC and Mr Roberts of counsel Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondents: Mr Kelly SC with Mr Smallbone and Dr Parkinson of counsel Solicitor for the Respondents: Prime Lawyers ORDERS
SYC 4955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MORRIS
Applicant
AND: MR MORRIS
First Respondent
D2 LIMITED
Second Respondent
F LIMITED ATF THE D TRUST (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The report of the single expert witness Mr JJ dated 22 October 2023, the letter from the husband’s solicitors to the expert dated 27 October 2023 and the answers from the expert dated 5 November 2023 are admitted into evidence and as collectively marked as Exhibit 14.
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 Morris & Morris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
During this trial an application has been made to tender a report from Mr JJ, a single expert witness, dated 27 October 2023, together with questions administered by the solicitors for the husband to the single expert dated 27 October 2023, and answers from the expert to those questions in writing, dated 5 November 2023. The wife objects to the documents comprising the report, the questions and answers being admitted into evidence. These reasons assume familiarity with Morris & Morris (No 5) [2023] FedCFamC1F 940 (“Morris (No 5)”).
It is helpful to consider the matters canvassed in that determination and the orders made so as to give context to this determination. As identified in the prior reasons, Mr JJ was instructed to opine as a chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), single expert as to the likely effect on the share price of an ASX‑listed corporation, B Limited, should orders be made in terms as sought by the wife requiring the husband and the other respondents to sell quantities of shares they hold in that entity so as to meet their obligations in default pursuant to orders made by s 79 of the Family Law Act1975 (Cth) (“the Act”).
The primary objection to adducing the report, the questions in writing, and the answers from the expert into evidence is that Mr JJ has not established that he is seized with specialised knowledge to provide an opinion as to the subject matter of his instructions. Section 79 of the Evidence Act 1995 (Cth) (“the Evidence Act”) clearly requires that evidence of an opinion of an expert nature may only be admitted if that opinion is based wholly or substantially on specialised knowledge which is in turn based on a witnesses training, study, and experience. It is accordingly necessary to establish on the balance of probabilities that quite apart from the requirement as to relevance that the witness has:
(a)Specialised knowledge; and
(b)That the specialised knowledge is based on the witnesses or person’s training, study, or experience; and
(c)That the opinion of the witness is wholly or substantially based on that specialised knowledge.
The wife identifies that the requirements of s 79 are mandatory and absent the evidence satisfactorily meeting those thresholds it ought be rejected.
As an adjunct to the objection taken by the wife to the admission of Mr JJ’s report and the supplementary documents into evidence, application has been made by the husband to ask questions of the expert on the voir dire going to the matters germane to the wife’s objections. The wife, for her part, opposes the questions being put to the witness by way of voir dire.
The husband has identified three different authorities which he contends support the application to adduce further oral evidence from the expert on the voir dire, so as to underscore the admissibility pursuant to s 79 of the Evidence Act of the relevant report and other documents. It is his submission that any determination as to the admissibility of that evidence must be considered after further evidence-in-chief is adduced from the expert witness. He highlights that the imposition on the parties of chapter 7 of the Rules directing the obtaining of single expert evidence is a relevant factor to take into account for the purposes of the application to further obtain oral evidence from the witness prior to determining the admissibility of the material sought to be adduced or tendered.
The husband, to his credit, concedes that the content of the questions to be put to the single expert would be not dissimilar from those disallowed as determined in Morris (No 5).
The wife, in opposing the application for the witness to give further evidence by way of voir dire, identifies the determination of the High Court in DasreefPty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”). She submits that an onus rests by way of a positive burden with the party proposing to tender the relevant expert evidence to demonstrate the requirements of s 79 of the Evidence Act have been met from the evidence as it currently exists, and it ought not be by way of cross-examination, either by way of the voir dire or later in the trial.
It is the wife’s submission that the failure to meet the s 79 thresholds goes directly to the admissibility of the evidence and are not matters as to the weight to be given to the evidence. She further submits that it is imperative that an objection of that taken be determined as quickly as possible in the trial process. It is her submission that the determination ought be made “on the material as it stands”.
In response the husband indicates that the determination sought to be pressed by the wife absent further oral evidence from the expert is requiring a determination of matters as to the expert’s compliance with r 7.22 absent hearing further as to whether the expert as complied with those obligations, being mandatory for the expert to set out the reasons for their conclusions, to set out the statement about the methodology used in the production of the opinions contained within the report, and to identify the material relied upon the ground that methodology and its application.
For the purposes of the determination of this matter, as will become evident by way of these reasons, I do not propose to allow any further oral evidence from the expert on the voir dire for the purposes of admissibility of the report.
The specialised knowledge of Mr JJ grounded from his training, study or experience is identified on page 3 of his report, as follow:
I have [over 15] years’ experience in Australian equity capital markets and investment banking, having worked for [KK Financial Services], [LL Financial Services], [MM Bank] and [NN Financial Services]. Since 2014, I have had substantial involvement in the execution of >40 primary and secondary equity capital markets transactions in ASX-listed companies, including numerous block trades and on-market share sales, raising a combined total of >A$30 billion. My involvement in those transactions included discussions with investors and issuer companies regarding the appropriate pricing/discount, and determining the final price, of those transactions. I hold [two relevant] degrees from [PP Univeresity].
This experience is at least inferentially supported by other references in the material sought to be the subject of tender, being his “lead” in the progression and execution of a number of ASX market share sales and, similarly, his “lead” in a number of ASX block trades. It is relatively uncontroversial that specialised knowledge may derive from a combination of many things, and that combination of formal qualifications and study and of experience will depend on the field of knowledge in question. I am satisfied on the balance of probabilities from the material that has been identified that Mr JJ has specialised knowledge of the identifiable kind referred to in these reasons.
The second aspect of the wife’s objection is that the expert has failed to explain how his field of specialised knowledge has grounded his opinion, or putting it another way, how the opinion is wholly or substantially based upon the expert’s specialised knowledge.
This objection in part leads to the third objection to the expert’s material, in that the wife contends there is an absence of explanation in the reasoning process of Mr JJ such that the formation of his opinion is not exposed.
Identifying what the High Court said in Dasreef, it is her submission that Mr JJ’s opinion lacks reasoning and that the absence of reasoning points to a lack of any sufficient connection between the opinion and his specialised knowledge. It is her submission that this matter goes directly to the admissibility of the opinion and not the weight not to be attached to it.
It was strongly submitted on behalf of the wife that the opinions as contained by the expert in his initial report and that identified in the further material in his answers to questions was broad and absent particularity. It was her submission that, notwithstanding an opportunity to clarify his opinion, the answers provided by the expert gave little insight as to how his specialised knowledge informed his opinion and that there was a shadowing to his reasoning with an absence of visibility as to how he correlated transactions identified in tables to the subject matter of his opinion.
The submissions give some indication as to the gravamen of the reality of the objection in that there is “no real insight” or “things are not clear”. It was further identified that some parts of the answers to the questions administered by the husband to the witness in fact lead to further uncertainties that than expressed in the opinions contained within the report.
The husband strongly submits that the wife’s criticisms as to this last aspect of admissibility are as to weight. He identified in submissions the pathway by which the witness exposes his reasoning, using a process of comparable transactions, identifying some similarities and features of those transactions to the subject opinion and, thereafter, projecting as to the likely impact arising from those comparisons as made to ground the opinion. It is the husband’s submission that the combination of the report and the further material “ticks the boxes for admissibility”.
While it is apparent in many cases, as identified in Dasreef, that the reasoning process can be transparently identified from the contents of the report, in some cases that requirement is not quickly or easily achieved. In this matter, a reading of a whole of the report, at least to my mind, implicitly establishes how the specialised knowledge of the expert leads to his opinions and, additionally, does not lead to a conclusion that his process of reasoning cannot be linked to his opinion.
In making this determination, I have endeavoured to avoid adopting a too narrow approach to the interpretations of s 79 of the Evidence Act and attempted to balance the necessity of establishing the specialist knowledge required to be shown and for the opinions to be wholly or substantially based on that specialised knowledge such that, to my mind, it is not impossible at this time to comprehend the connection between each, nor is it impossible to link the reasoning process by which the conclusions are opined by the witness.
That said, the weight to be attached to this evidence is another matter.
For all of the above reasons, I will admit into evidence and mark as Exhibit 14 the report of the single expert witness Mr JJ dated 22 October 2023 together with the letter from the husband’s solicitors posing questions to the expert dated 27 October 2023 and the answers from the expert dated 5 November 2023.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 November 2023
SCHEDULE OF PARTIES
SYC 4955 of 2021 Respondents
Fourth Respondent:
E LIMITED ATF THE D TRUST
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