Neales & Neales

Case [2021] FamCA 525

FAMILY COURT OF AUSTRALIA

Neales & Neales [2021] FamCA 525

File number(s): CAC 959 of 2019
Judgment of: GILL J
Date of judgment: 21 July 2021
Catchwords: FAMILY LAW – EVIDENCE – Expert evidence – Application to discharge single expert – Whether expert departed from terms of engagement – Whether expert report admissible opinion evidence – Whether expert of closed mind – Application to appoint adversarial expert – Whether difference in valuation methodology between single expert and proposed adversarial expert constitutes substantial body of contrary opinion – Whether a “special reason” justifies appointment of adversarial expert – Application dismissed.
Legislation:

Evidence Act 1995 (Cth) s 79

Family Law Rules 2004 (Cth) rr 1.04, 15.42, 15.49, 15.52, 15.65
Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Padnall & Padnall [2014] FamCA 904

Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521
Number of paragraphs: 55
Date of hearing: 24 June 2021
Place: Canberra
Counsel for the Applicant: Mr Campton
Solicitor for the Applicant: Macphillamy’s
Counsel for the Respondent: Ms Eldershaw
Solicitor for the Respondent: Farrar Gesini Dunn

ORDERS

CAC 959 of 2019
BETWEEN:

MR NEALES

Applicant
AND:

MS NEALES

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

21 JULY 2021

THE COURT ORDERS THAT:

1.The husband’s application in a case filed 31 March 2021 is dismissed.

2.Either party is at liberty to apply to the Registrar within 7 days of the delivery of this judgment for the relisting of this matter to deal with any issue arising as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neales & Neales has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

  1. These proceedings involve consideration of the adjustment of the property of the parties subsequent to the breakdown of their relationship.  In determining a property adjustment the parties were of the common view that a central issue is the value to be ascribed to 13 commercial properties that the parties are associated with.

  2. In order to deal with this issue the parties jointly appointed a single expert, Mr B of C Real Estate.  Mr B was tasked with valuing the 13 commercial properties which, depending on the method of valuation used, in his estimation had a combined value of either $33,835,000 or $34,190,000.

  3. Mr B's terms of engagement are recorded at page 44 and following of exhibit H1.  Mr B’s report is contained at exhibit H3.  His responses to questions that were asked of him by way of clarification on 1 October 2020 and 13 November 2020 appear…

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Neales & Neales [2021] FamCA 525
Case
[2021] FamCA 525
Decision Date

CaseChat Overview and Summary

In *Neales & Neales*, the husband applied to the Federal Circuit and Family Court of Australia for the discharge of a single expert witness, Mr B, and for permission to appoint an adversarial expert witness, Mr D. The dispute concerned issues of evidence, specifically the admissibility and reliability of expert opinion evidence in family law proceedings.

The court was required to determine whether Mr B, the single expert, had demonstrated a closed mind, thereby warranting his discharge. Additionally, the court had to consider whether, even if Mr B was not discharged, there were grounds to permit the introduction of evidence from a second expert, Mr D, to cover the same issues. This involved assessing whether the difference in valuation methodologies between the single expert and the proposed adversarial expert constituted a substantial body of contrary opinion, or if any other "special reason" justified the appointment of a second expert.

Justice Gill dismissed the husband's application. The court found that Mr B had not demonstrated a closed mind, noting his responsiveness to questions and that a failure to amend an opinion did not inherently indicate a closed mind. Regarding the appointment of a second expert, the court applied the principles outlined in the *Family Law Rules 2004* (Cth), particularly rule 15.49, which governs the appointment of additional expert witnesses. The court held that the husband had not satisfied the criteria under rule 15.49(2), which requires a substantial body of contrary opinion, knowledge of new matters, or another special reason for admitting evidence from a further expert. The overarching purpose of the Rules, to ensure just and timely resolution of cases at reasonable cost, was also considered.

The husband's application was dismissed. The parties were granted liberty to apply to the Registrar within seven days of the judgment for the relisting of the matter to address any issues arising as to costs.

Orders

Orders of the court

CAC 959 of 2019

BETWEEN:

MR NEALES

Applicant

AND:

MS NEALES

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

21 JULY 2021

THE COURT ORDERS THAT:

1. The husband’s application in a case filed 31 March 2021 is dismissed.

2. Either party is at liberty to apply to the Registrar within 7 days of the delivery of this judgment for the relisting of this matter to deal with any issue arising as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The husband also sought the exclusion of Mr B’s evidence on the basis that he has demonstrated a closed mind by virtue of his answers to the questions that he has been asked. Firstly, such a closed mind is not apparent, given his at face value responsiveness to that which he was asked. Secondly, if reliance is placed upon a failure to amend an opinion, such does not of itself indicate a closed mind. Such may simply result from the correctness of the opinion proffered in the first place.Conclusion It has not been established that Mr B should be discharged as a witness, nor that his evidence should be excluded.APPOINTING ANOTHER EXPERT WITNESS The second aspect was as to whether, even if Mr B is not discharged, permission should be given for expert evidence to be taken from Mr D, a step that would involve evidence being taken from multiple experts to cover the same ground.Principles The application of the rules in relation to expert evidence is to be informed by the purpose of Part 15.4 as elaborated in r 15.42. In short, expert evidence must relate only to a significant issue in dispute, be restricted to evidence necessary to resolve or determine a case, be given by a single expert witness where practicable and without compromising the interests of justice and be directed to avoid unnecessary costs arising from the appointment of more than one expert.[6] These considerations, which are generally directed to ensuring that expert evidence is appropriately limited in scope and is given only by a single expert, are further tempered by r 15.42(e) which allows evidence from a further expert to be admitted “if necessary in the interests of justice”.[6] Family Law Rules 2004 (Cth) rr 15.42(a)–(d). Part 15.4 operates in the context of the overarching purpose of the Rules, which is toensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.[7] [7] Ibid r 1.04. In Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 (“Tsoutsouvas”) Kent J observed that:It is readily apparent from those rules that there is recognition that the demands of justice and the management of cases are not limited to the particular case before the Court. There is recognition that disproportionate time spent on one case might cause delay and consequent injustice for other cases.[8] [8] Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521, [18] (“Tsoutsouvas”). In Tsoutsouvas, Kent J observed that where the application involves additional expert evidence to a single expert, the applicable rule is r 15.49.[9] Given that the application for the discharge of the single expert has not been acceded to, the application is for the appointing of another expert witness under r 15.49, rather than pursuant to r 15.52.[9] Ibid [15]. Rule 15.49 is in the following terms:Appointing another expert witness(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.(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:(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or(c) there is another special reason for adducing evidence from another expert witness.

Ratio Decidendi

Legal Principle Established

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