Potter & Lloyd
[2022] FedCFamC1F 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Potter & Lloyd [2022] FedCFamC1F 214
File number(s): BRC 11323 of 2018 Judgment of: CAMPTON J Date of judgment: 23 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Where an expert property valuer was appointed jointly by way of orders of this court to value the parties’ real property interests – Where the applicant seeks to adduce evidence of further, fresh valuations of the properties from the same expert valuer – Where the respondent objected to that evidence – Non-compliance with the rules as to expert evidence – Objection allowed and fresh valuations struck out. Legislation: Family Law Act 1975 (Cth) s 90SM
Federal Circuit Court Rules r 15.9
Cases cited: Re v Watson, Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 23 March 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 11323 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR POTTER
Applicant
AND: MS LLOYD
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.Paragraph 4 and paragraph 5 of the applicant’s affidavit in reply filed 22 March 2022, including the reports exhibited at P-1, are struck out.
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 Potter & Lloyd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Mr Potter (“the applicant”) applies for adjustive orders as to property settlement to s 90SM of the Family Law Act1975 (Cth) arising from the termination of a de facto relationship between he and Ms Lloyd (“the respondent”). The respondent also seeks adjustive orders as to property settlement.
Three items of property jointly held by the parties are E Street Suburb B (collectively “the Suburb B properties”).
The applicant filed his affidavit in reply yesterday, 22 March 2022 (“the affidavit in reply”). Objection has been taken by the respondent to paragraph 4, exhibit PP-1 and implicitly paragraph 5 of the affidavit in reply. These paragraphs and the exhibit contain what the applicant identifies as further updated opinions from the real property valuation expert,
F Valuers, of the value of the Suburb B properties.
BACKGROUND
By way of orders made by Middleton J in the Federal Circuit Court (as it was then) on
12 November 2020, C Valuers were appointed as the real property valuation expert for the purposes of valuing the real property of the parties. Subsequent to the appointment of C Valuers, that firm declined to continue in the capacity of Court expert.
On 3 August 2021, orders were made by Jarrett J in the Federal Circuit Court (as it was then) at Brisbane providing that in the event the parties had not agreed to the value of any real property in which they had legal or equitable interests within 21 days, D Company were to be appointed single court experts pursuant to what was then r 15.9 of Federal Circuit Court Rules to value the said real property interests.
In September 2021, the appointed experts, D Company, advised that they had been acquired by F Valuers. On 10 September 2021, the parties sent a joint letter of instruction to F Valuers requesting that they opine as to the value of the Suburb B properties.
F Valuers produced three opinions as to the values of each of the Suburb B properties by way of reports dated 28 September 2021, being at $400,000 for Unit 1, $350,000 for Unit 3 and $325,000 for Unit 4.
Orders as to the preparation of this matter for trial were made by Alstegren CJ in Division 2 of the Federal Circuit and Family Court of Australia (“FCFCOA") on 28 January 2022. Directions were made as to the parties filing sequentially affidavits on which they sought to rely for the purposes of the final hearing. Specifically, the applicant was directed to file his affidavit evidence 21 days prior to today’s listing, the respondent was directed to file her affidavit evidence 14 days prior to today’s listing, and the applicant was to file an affidavit in reply addressing only the evidence presented in the respondent’s affidavit within seven days of the date of this hearing. The orders transferred the proceedings from Division 2 of the FCFCOA to this Court, Division 1 of the FCFCOA. The proceedings were listed for final hearing commencing today in the National Rolling List and the matter has come before me as part of that list.
Neither of the parties filed their documents in accordance with the directions. The applicant filed his primary affidavit on 9 March 2022. The respondent filed her primary affidavit on
18 March 2022, and the applicant filed his affidavit in reply yesterday, 22 March 2022.
The applicant in his primary affidavit purported to provide evidence as to a market assessment conducted by First National Real Estate on 14 February 2022 of the Suburb B properties. It was his contention that their value had substantially increased since that opined by F Valuers as the court expert.
THE OBJECTION TAKEN BY THE RESPONDENT
The applicant in his affidavit in reply has exhibited at paragraph 4, what he describes as updated valuations from F Valuers in respect of each of the Suburb B properties. These opinions are dated 15 March 2022 (“the March 2022 valuations”). The opinions were obtained unilaterally by the applicant. I enquired of the applicant by way of exchanges as to whether a request was made to the respondent to update the F Valuers opinions. The applicant initially advised there was no such request, then identified potentially an email sent by him to the respondent dated
12 February 2022. In circumstances where that email and any response to it are not placed in evidence before me, it is unclear as to whether it contained a request for an updated valuation or a fresh valuation of the Suburb B properties. The applicant’s affidavit in reply exhibits a letter from the applicant’s solicitors to the respondent dated 8 March 2022 requesting her consent to the “re valuation” of the Suburb B properties prior to the trial by F Valuers. The letter recorded that absent the provision of her consent by close of business the following day that the “re valuation” would be obtained unilaterally.
The documents recorded at paragraph 4 and exhibit P-1 of the affidavit in reply are not, by way of their construction and form, updated opinions. On my reading they appear to be fresh valuations and opinions. The letters of instruction to F Valuers to provide an urgent valuation of each unit were prepared by solicitors acting for the applicant and were dated 10 March 2021. They provided to F Valuers the market assessments conducted by First National Real Estate on
14 February 2022 as a foundation to ground the opinions sought. The same valuer who conducted the 28 September 2021 valuations and prepared those reports is the author of the March 2022 valuations.
The respondent first received the March 2022 valuations of the Suburb B properties yesterday, the day before the trial is scheduled to commence. There is no explanation from the applicant as to his failure to serve them upon the respondent on the date they were produced, being 15 March 2022, some eight days ago.
The objected to March 2022 valuations record a value of Unit 1 at $525,000, Unit 3 at $500,000, and Unit 4 at $560,000. The difference in the value of the Suburb B properties on an in globo basis between each set of valuations is $415,000.
The respondent contends that:
(a)the March 2022 valuations were obtained without the benefit of her agreement or instructions; and that
(b)additional matters ought to have been put to the valuers for the purpose of the opinions, including updated Arkistruct material as to the cost of rectification of defects and other matters as to damages to at least one of the units occasioned by tenants subsequent to the 2021 opinions.
It is self-evident from the content of the March 2022 valuations that the valuer did not attend the subject properties for the purposes of inspecting them to facilitate those opinions.
The rules of Court are specific as to instructions for court experts to originate from the parties. In the event there is a difficulty, obstruction, or failure to facilitate the obtaining of single expert evidence or updated expert opinion evidence, then the proceedings should be the subject of relisting so that appropriate orders and directions sought can be made.
No application was made in the circumstances to relist the proceedings for such case management or relief.
The applicant contends he has relied on advice from his lawyer as to the process whereby an appropriate approach was to be made to the respondent and to the court for the purposes of facilitating updated expert valuation opinions. With respect, that is a matter between the applicant and his lawyer. It is not an adequate foundation for failing to comply with the rules and fundamental aspects of procedural fairness.
It is clear and obvious that the intention of the rules is to ensure that consistent with the rules of natural justice, parties have notice of the case they are required to meet.
The High Court of Australia has said on a number of occasions that this Court, as the superior court of record, is obliged to afford procedural fairness to all parties and not to act in a manner that can be described as “dispensing palm tree justice” (see Re v Watson, Ex Parte Armstrong (1976) 136 CLR 248).
Any litigant before this Court is entitled to receive fair and appropriate notice of matters to be agitated before the Court. In the circumstances I have outlined, and consistent with the principles of procedural fairness, it seems to me that the Court would be riding rough-shot over the respondent’s entitlement to that procedural fairness, which is a fundamental right of all litigants, to allow in circumstances the applicant to rely on these further valuations served on the day prior to the final trial.
On that basis, I uphold the objection of the respondent to paragraphs 4 and 5 of the applicant’s affidavit in reply and reject the documents identified as exhibits P-1.
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 April 2022