Pearce and Pearce

[2013] FamCA 284

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE [2013] FamCA 284

FAMILY LAW – EVIDENCE – EXPERT EVIDENCE – consideration of whether to receive affidavit evidence of an expert where that expert has not been instructed by both parties as provided for in the Family Law Rules 2004 (Cth) – affidavit received.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pearce

RESPONDENT: Mr Pearce

FILE NUMBER: DNC 462 of 2009

DATE DELIVERED: 8 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 8 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Cater & Blumer

COUNSEL FOR THE RESPONDENT: Mr Looney SC

SOLICITOR FOR THE RESPONDENT: Withnalls Lawyers

Orders

1. The Court receives the affidavit of Mr G which was filed on 13 March 2013 setting out his retrospective valuations.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 462 of 2009

Ms Pearce

Applicant

And

Mr Pearce

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. As mentioned in my earlier ruling about receiving exhibit 3, there seems to be some dispute as to the basis upon which the retrospective valuation by Mr G was obtained on behalf of the wife following the hearings before the Registrar in 2013. 

2. The matter which I have to determine, however, is whether in these circumstances the rules which require the consideration of receiving expert evidence should, in this case, bring about a situation where the evidence of Mr G is not before the Court.

3. It would seem clear on the face of it that it would have been much more appropriate and in accordance with the rules and practices of this Court for there to have been an application to the Court for there to be single expert evidence from Mr G, notwithstanding the lateness of the application and notwithstanding that he had previously been appointed a single expert.

4. However, the rules have to be seen in the clear understanding that it is available to the Court on an application made at any stage of the proceedings to give consideration to whether it should receive the affidavit evidence of the expert, even if that expert has not been instructed by both parties in the more appropriate method provided for in the rules. 

5. It is clear that the opinion of Mr G expressed as to the retrospective valuation of the properties has been prepared solely on the information supplied to him on behalf of the wife, and that he did not receive information from the husband, nor from the husband’s solicitors.  They were not given an opportunity to do so, nor was Mr G given a copy of the valuation details prepared for the bank by C Proprietary Limited in April 2005.

6. I have received that document at the insistence of the husband’s counsel to assist in relation to the background material which allows me to determine whether Mr G’s affidavit should be before the Court.  Obviously receiving his affidavit does not have any bearing upon the fact that he will be required to present himself and be appropriately questioned in relation to the basis of the report and any matters which might relate to the validity of that report.  The veracity of his expert conclusions can be tested.

7. The valuation supplied to the bank for the purposes of the mortgage determination is dated 19 April 2005.  It clearly refers to the property at D Street, Suburb F.  There is other material now before the Court in relation to the application by the husband for a loan from the bank using the property as mortgage security.  The details in relation to that valuation for mortgage purposes indicate that it is made for the purposes of the mortgage application and is “not to be used for any other purpose”. 

8. There is some history in relation to the material which was considered for the valuation, which is relative to the information which relates to some of the information which has been provided to Mr G in preparation of his affidavit.

9. Significantly, my attention has been drawn to the additional comments on the last page of the exhibit which highlights the fact that at the date of inspection, the subject property was, “found to be currently under some renovation and extension work”.  The valuation was made on an “on completion” basis.  There are further remarks in relation to the validity of the report, depending upon the passage of time and other factors, and making particular reference to a “prudent lending clause” and the prudent lending guidelines. 

10. I have received the exhibit.  It is relevant to issues that are yet to be determined by the Court, if the matter proceeds to a final hearing, as to what was the value of the property at the time of the consent orders or the knowledge or information or beliefs of the various parties.

11. That is something I cannot determine and should not determine on this application currently limited to consideration of whether I should receive the affidavit of Mr G. 

12. I do not consider that the valuation prepared for mortgage purposes which was made available to the parties apparently pursuant to a subpoena issued in these proceedings is a matter which automatically requires the Court not to receive the affidavit of Mr G.  If the matter proceeds to a determination on a final basis, Mr G’s evidence will, in the usual manner, be tested by appropriate questioning.

13. What is of concern is whether receipt of the affidavit of Mr G, would inappropriately disadvantage the husband in these proceedings.  There is no doubt that the affidavit and valuation were supplied late in these proceedings, which have been outstanding for a considerable period of time, was only prepared on the basis of instructions from the wife and the husband was not given any opportunity to supply his information or to challenge the information provided by the wife.

14. However, in view of the material that has been previously alleged in the affidavit material filed by the parties and supporting this application, the question of the valuation of the properties at the time of the consent orders was clearly an issue outstanding at that time. 

15. I also take into account that, if it is appropriate and necessary at the time to give the husband opportunity to obtain his own evidence or to call other evidence in to contradict the evidence of Mr G, either before or after he has had an opportunity for his counsel to cross-examine Mr G, that those matters would also have to be considered in balancing the fairness to both parties.

16. The rules clearly state at the commencement of the rules, that the Court has the power to vary the rules and to dispense with compliance with the rules where it is appropriate and otherwise just to do so. 

17. In terms of the costs which have been incurred in preparing this matter for trial and having the matter heard in an appropriate manner, I consider it essential that the Court has available to it all appropriate relevant information.  In that regard I consider that the expert valuation of Mr G is material that should be provided to the Court, notwithstanding the failure to comply with the rules.

18. The issue as to whether Mr G’s evidence is tainted by information supplied to him by the wife’s solicitors in relation to other sales and related information, is a matter which is clearly the type of matter which should be determined after receiving all of the evidence in that regard, and the challenge put to Mr G’s evidence in cross-examination.  Therefore, at this stage I do not consider it appropriate to reject the affidavit entirely.  What weight is given to the evidence of Mr G in due course will be a matter which needs to be determined in the appropriate manner.  I therefore propose to receive the affidavit of Mr G which was filed on 13 March 2013 setting out his retrospective valuations.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 8 April 2013.

Associate: 

Date:  19 April 2013