Percy and Percy (No 2)

[2012] FamCA 1150

FAMILY COURT OF AUSTRALIA

PERCY & PERCY (NO 2) [2012] FamCA 1150

FAMILY LAW – Single expert witness not appointed – each party entitled to have their own expert

APPLICANT: Mr Percy

RESPONDENT: Ms Percy

FILE NUMBER: MLC 3934 of 2010

DATE DELIVERED: 23 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Bick QC with Mr Thompson

SOLICITOR FOR THE RESPONDENT: Grice Legal

Orders

IT IS ORDERED THAT:

1.By not later than 12.00 noon on 28 June 2012 the husband file and serve any evidence in response to the wife’s evidence, including her affidavit sworn on 24 April 2012.

2.On or before 12.00 noon on 4 June 2012 the wife file and serve any expert evidence upon which she relies from Mr B, accountant, as discussed this day.

3.By not later than 12.00 noon on 2 July 2012 the husband file and serve any expert evidence in response to the evidence of Mr B.

4.In the event that the husband retains an expert to give evidence on the matters now sought to be adduced by the wife from Mr B and he wishes that expert to confer with Mr B, the husband’s solicitors provide promptly the wife’s solicitors with details of that expert.

5.Any conference of experts, including Mr B, take place and be concluded by Monday 9 July 2012 and the parties do all acts and things necessary to ensure that this occurs.

6.In the event that the experts confer, at the conclusion of such conference, the experts prepare a memorandum in which they set out any matters of disagreement between them and what difference their respective positions would make to the question that they are required to answer, such memorandum to be published to the parties and their practitioners by not later than 12.00 noon on Thursday 12 July 2012.

7.The times for compliance provided for in paragraph 5 of the Order made on 5 March 2012 as to the filing of a list of documents, a list of assets and a summary of argument be extended so that:-

a)the applicant husband file and serve such documents by not later than 12.00 noon on Friday 13 July 2012; and

b)the respondent wife file and serve such documents by not later than 12.00 noon on Monday 16 July 2012.

8.There be liberty to apply reserved to each party for further directions for trial.

9.The costs of both parties be and are hereby reserved.

10.The mention date listed for 27 June 2012 at 9.00 am be vacated and in lieu thereof the mater be listed for mention on 17 July 2012 at 9.00 am and I reserve to the parties liberty to seek jointly that that mention date be vacated if there is nothing outstanding in relation to the preparation of the matter for trial and neither party seeks any further directions for trial.

11.The reasons for decision this day be transcribed and when settled copies be made available to the parties and placed on the Court file.

12.Otherwise the Application in a Case filed by the wife on 21 May 2012 and the response thereto filed by the husband on 21 May 2012 be dismissed.

AND IT IS NOTED BY THE COURT that this matter remains listed for final hearing to commence on 19 July 2012 at 10.00 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Percy & Percy 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 MELBOURNE

FILE NUMBER: MLC 3934 of 2010

Mr Percy

Applicant

And

Ms Percy

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. An Application in a Case filed by the wife on 21 May 2012 in which she seeks the appointment of Mr B, accountant, as a single expert witness.  The application is made in the context of the final hearing of this matter being listed for 19 July 2012.  That is not the first time the matter has been listed for final hearing.  An earlier hearing date in May 2012 was vacated.

2. The husband opposes the application and in his response to an Application in a Case filed on 21 May 2012 seeks that the application be dismissed.  In the event that he is unsuccessful and the court accedes to any evidence being adduced of the nature of that’s now sought by the wife, he seeks an opportunity to adduce evidence from an expert other than a single expert witness.

3. I have read the wife’s affidavit sworn on 16 May 2012.  I’ve read the husband’s affidavits affirmed on 21 May 2012.  I have perused, briefly, the affidavit of Mr B which was filed effectively on 22 May 2012 – it being the case that it was delivered to court during the running of the matter.

4. I have heard submissions from Mr Bick QC on behalf of the wife, and Mr Bartfeld QC on behalf of the husband, and the parties have been in court.

5. Mr Bick informs the Court that the application is based on part of his client’s entitlement pursuant to Part VIII being a lump sum from which she may provide for herself by way of income a period equivalent to the rest of her life expectancy.  He says that these figures are appropriately the purview of a single expert witness and that regard should be had to them, by the Court, when determining the wife’s claim for alteration of property interests and lump sum spousal maintenance.

6. Mr Bartfeld’s response on behalf of the husband is that the adducing of the evidence is misconceived and based on a false premise. 

7. The asset pool is somewhere in the vicinity of $19 million, according to Mr Bartfeld.  Mr Bick is not sure but is prepared to adopt that amount for today’s purposes.

8. It is the husband’s case that the wife ought have a 50 per cent entitlement to the pool of divisible assets, which, in the broadest of terms and acknowledging that valuations are not what they were in September of last year, the wife would have something in excess of $9 million, inclusive of real property and superannuation interests.  Mr Bartfeld submits that from that sum the wife can make proper provision for her to support herself.  That submission may ultimately prove to be correct, but it’s not a submission that I can accept at this point in time.

9. I am not persuaded to give either party what, in fact, they seek today, but to take a midcourse which has the advantage of ensuring that the hearing will remain on track and the matter can be heard on 19 July 2012, whilst everybody, in effect, preserves their position and has what evidence they may or may not need at the hearing.  Obviously, issues of costs may well flow from this course of action, but that is a matter for the parties in their conduct of their cases.

10. The Family Law Rules provide for single expert witnesses.  It is thought by some, and in fact proves to be the case, that this reduces the amount of trivial or irrelevant disputes between experts in cases.  The advent of the single expert rules do not abrogate the court’s responsibility to accept relevant evidence.

11. I wish to avoid a situation where there is a single expert witness and then each party wants their own expert as well. 

12. The most reliable course, having regard to the date for final hearing fast approaching, is to disregard the single expert witness rules in the interests of justice and the economical conduct of the case and the expedient conduct of the case, and to entitle each party to rely upon expert evidence other than from a single expert witness.  There’s provision for that in Law 15.51 of the Family Law Rules.

13. The application was introduced by Mr Bick on the basis that Mr B’s evidence could be available by 31 May.  However, upon quickly perusing some of Mr B’s affidavit, that deadline was predicated on him having instructions by 21 May, which was two days ago.  Therefore, quite reasonably, Mr Bartfeld extends the time in which Mr B’s evidence could be filed to 4 June.

14. Mr B will be the witness for the wife.  She will be responsible for the expense of having him prepare a report and having him give evidence.  Likewise, if the husband wants to have an expert witness he will bear those costs subject to any application either of them make at the hearing.  

15. My view is that these orders are cutting matters very fine as far as the timetabling of documents is concerned.  The husband’s evidence-in-chief will not be filed until 28 June.  Having regard to the late filing of the wife’s evidence, Mr Bartfeld seeks that any expert evidence upon which the wife relies from Mr B must be filed within the extended time frame that they say is appropriate, and if it isn’t filed by then it can’t be relied upon.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 May 2012.

Associate: 

Date:  19 July 2012