Morris & Morris (No 6) - [2023] FedCFamC1F 976

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).

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 Morris & Morris (No 6)

Details

AGLC: Morris & Morris (No 6) [2023] FedCFamC1F 976
Case: [2023] FedCFamC1F 976
Decision Date: 6 November 2023

CaseChat Overview and Summary

In the matter of Morris & Morris (No 6), the Federal Circuit and Family Court of Australia (Division 1) was tasked with resolving a dispute regarding the admissibility of a single expert witness report. The applicant, Ms Morris, contested the admission of the report from Mr JJ, dated 22 October 2023, along with a letter of questions sent by the husband's solicitors to Mr JJ on 27 October 2023, and his subsequent answers dated 5 November 2023. The key legal issues before the court involved whether the expert witness possessed the requisite expertise to provide the opinions contained in the report and whether the opinion was sufficiently based on the expert’s specialised knowledge. Additionally, the court needed to determine if the lack of explicit reasoning in the report pointed to a disconnection between the expert’s opinion and their specialised knowledge.

The court examined the content and context of Mr JJ's report, noting that his expertise appeared to derive from a combination of various factors. It was established that the absence of detailed reasoning in the report did not necessarily indicate a lack of connection between the opinion and the expert's specialised knowledge. The court concluded that the report, when read as a whole, implicitly demonstrated how the expert’s specialised knowledge led to the expressed opinions. The reasoning process, though not explicitly detailed, could be inferred and linked to the expert's opinion. Consequently, the court found that the report, the letter of questions, and the responses were admissible as evidence, collectively marked as Exhibit 14.

The court further acknowledged that the weight to be assigned to the expert's opinion remained a separate matter, to be considered during the substantive proceedings. The decision to admit the evidence was made in the context of the procedural fairness and the relevance of the expert's insights to the case. The court's ruling ensured that the evidence was available for consideration in the broader context of the family law dispute, without prejudging the ultimate weight of the expert's opinion.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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