Rigby & Kingston (No 2)
[2020] FamCA 467
•2 June 2020
FAMILY COURT OF AUSTRALIA
| RIGBY & KINGSTON (NO. 2) | [2020] FamCA 467 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made an application to rely on an expert report at the commencement of trial – Where the husband opposed the application – Where the wife directly invited the husband on three separate occasions to engage a jointly appointed expert – Where the husband failed to take up the invitation without explanation – Where the wife appropriately addressed the required matters in r 15.52(2) of the Family Law Rules 2004 (Cth) – Where without the expert report, the Court has no expert evidence to determine one of the issues identified by the parties as an issue for trial – Application granted for the wife to adduce evidence from the expert witness. |
| Family Law Rules 2004 (Cth), rr 15.42, 15.51, 15.52 |
| APPLICANT: | Mr Rigby |
| RESPONDENT: | Ms Kingston |
| FILE NUMBER: | BRC | 12882 | of | 2016 |
| DATE DELIVERED: | 2 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 1 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby |
| SOLICITOR FOR THE APPLICANT: | HopgoodGanim |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk QC |
| SOLICITOR FOR THE RESPONDENT: | Hartley Healy |
ORDER
The wife be granted permission pursuant to r 15.51 of the Family Law Rules 2004 (Cth) to tender a report or adduce evidence from an expert witness, namely, Mr W, at the trial commencing on 1 June 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Kingston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 12882 of 2016
| Mr Rigby |
Applicant Husband
And
| Ms Kingston |
Respondent Wife
EX TEMPORE REASONS FOR JUDGMENT
At the commencement of the trial yesterday, an application was made by the wife to rely upon a report prepared by an expert, Mr W, who provides evidence in relation to remuneration received by the husband at a particular time during the marriage. The relevance of this evidence arises as a result of it being one of the issues that was agreed upon by the parties on 13 December 2019, when this matter was set down for trial. The particular issue to which this evidence relates is expressed in the following terms:
4. Was the husband underpaid for the work he did when employed as a contractor for the [Kingston Group]?
The application is necessary because it is not a report that was commissioned jointly by the parties but, rather, by the wife alone. In such circumstances, the wife requires the leave of the Court pursuant to r 15.51 of the Family Law Rules (“the Rules”) to rely upon the evidence of an expert witness who is not a single expert witness. Part 15.5 of the Rule sets out the purpose and general requirement that expert evidence be provided by a single expert witness engaged jointly by the parties and provides:
15.42 The purpose of this Part is:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
When considering an application for leave to rely upon an expert who is not a single expert, the applicant must address a number of matters that are set out in r 15.52:
(1) …
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness's evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
…
Relevantly, for present purposes, the husband says at paragraph 86 of his affidavit of evidence-in-chief:
Throughout the seven years working for the [Kingston Group], I was engaged on a contract and not as an employee. I was underpaid, did not receive termination payments or other moneys related to the work I performed for the [Kingston Group]. As a family member, I was not remunerated at commercial rates.
In response to that contention, the wife says in her affidavit of evidence-in-chief:
163. I am not a remuneration expert and I do not know whether the $40 per hour plus 10% that [Mr Rigby] was paid post 1995 or whether the $40,000 per annum he says he was paid prior to that are appropriate.
164. I have therefore engaged a remuneration expert, [Mr W] of [W Firm] to provide an independent report of [Mr Rigby's] remuneration and its appropriateness. [Mr W's] report dated 6 May 2020 is included in the tender bundle to this Affidavit. [Mr W] will also shortly be filing his Affidavit annexing this report.
…
167. Should [Mr Rigby] require this evidence to be provided by a jointly appointed expert then I will cooperate and do so as a matter of urgency.
A copy of Mr W’s report was included in the annexures to the wife’s affidavit and served upon the husband. I leave aside the fact that, as leave had not been granted, it should not have been annexed to the affidavit but that is not relevant for present purposes or, at least, not determinative. The point is that the husband had a copy of Mr W’s report on or about 12 May 2020 and the affidavit of Mr W annexing the report was then served on the husband on 14 May 2020. At the time of service of Mr W’s affidavit, a letter from the wife accompanied it which included the following:
As foreshadowed in our client’s affidavit at paragraph 167, please, could you let us know whether your client requires that the parties engage a jointly appointed expert as soon as possible.
On 15 May 2020, the husband responded to having received the affidavit of Mr W:
Please disclose the evidence which is the basis for the matters raised in your correspondence to [Mr W] dated 5 May 2020.
On 18 May 2020, the husband filed an affidavit in reply to the wife’s affidavit. He did not respond to paragraphs 163, 164 and 167 of the wife’s affidavit (set out above). He did, however, provide some evidence relating to the hotel at which he was engaged under contract at paragraph 31 of his reply affidavit which the wife then provided to Mr W who was asked whether the information affected his report.
By letter dated 19 May 2020, the husband was informed that Mr W had been provided with the relevant part of his affidavit and that an error was noted in the information previously provided to Mr W, which had been rectified. The letter also included the following:
Please advise whether a joint expert is required to be engaged in relation to this issue.
No response was received from the husband on whether or not a joint expert was required.
Mr W provided a further affidavit on 25 May 2020, stating that the further information provided to him by the wife did not affect his opinion and a copy of that affidavit was also served on the husband.
The first the wife knew that Mr W’s evidence was objected to was when a list of objections was received from the husband on 27 May 2020. At no time prior had the husband responded to the request as to whether the husband required a joint expert. The husband had nearly three weeks to respond to the wife’s inquiry but did not do so.
On the first day of trial, the husband opposed leave being granted for the wife to rely upon the evidence of Mr W for a number of reasons including the following:
i)Mr W’s evidence was commissioned solely by the wife;
ii)The wife failed to establish, in accordance with r 15.52(2)(a), whether she had attempted to agree on the appointment of a single expert and if not, why not;
iii)Contrary to the intention of Pt 15.5 of the Rules, the wife had presented the Court with, in effect, a fait accompli;
iv)Instructions should have been provided jointly to an expert and were not in this case;
v)The instructions that were provided contained errors;
vi)There is at least some uncertainty about whether or not the documents provided to Mr W were provided to the husband;
vii)To permit the report to be relied upon would be contrary to the interests of justice;
viii)While the evidence may be of assistance, it is not necessary, as is required by r 15.52(2)(d);
ix)There is no evidence that the expert was provided with a copy of the most recent version of and has read Divisions15.5.4, 15.5.5 and 15.5.6 of the Rules; and
x)The trial will take longer if the report is received as cross-examination of the expert will need to be extensive.
When considering whether or not to permit a party tender a report or adduce evidence from an expert witness, I have taken into account the matters, so far as relevant, listed in r 15.52(3) of the Rules which provides as follows:
(1) …
…
(3)When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b)the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f) whether the expert witness has specialised knowledge, based on the person's training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
While there can perhaps be some criticism of the wife engaging an expert before inviting the husband to agree to the appointment of a joint expert, it has to be remembered that this was an issue raised in the husband’s case and led to the inclusion of it as an issue on 13 December 2019. The husband then confirmed that it remained an issue in his affidavit of evidence-in-chief filed 5 May 2020 and there was a trial due to commence on 1 June 2020. Had the husband elected to take up the wife’s clear invitation, a single expert could have been jointly commissioned to prepare a report. The fact that there was not falls squarely on the husband, and he provided no explanation as to why he did not seek the appointment of a joint expert.
In any event, the wife provided evidence relevant to the husband’s case on this issue to the expert and Mr W’s response is contained in his second affidavit.
Mr W directly addresses and acknowledges his obligations to the Court as an expert and the matters set out in Divisions 15.5.4, 15.5.5 and 15.5.6 of the Rules.
If there are issues as to the reliability of the information provided to the expert or, indeed, any challenge to the evidence of Mr W he can be cross-examined about them.
With the agreement of the parties on 13 December 2019, this matter was set down for a series of trial dates commencing with the 4 days which started yesterday. Unless the parties resolve their dispute, there will be other trial dates. Conceivably, then, I could make an order for the appointment of a single expert but given this was an issue identified for consideration in this first part of the trial, I am not prepared to delay the hearing of this issue, particularly in circumstances where the husband has provided no explanation for his failure to take up the wife’s invitation to advise if he required a joint expert.
In my view, the wife has appropriately addressed the matters she is required to address in r 15.52(2). The wife directly invited the husband on three separate occasions commencing on 12 May 2020 to advise her if he wanted a jointly appointed expert rather than Mr W.
Finally, I reject the submission that receiving the evidence of Mr W is contrary to the interests of justice for the reasons already discussed but also because without Mr W’s evidence, I will not have evidence before me to determine one of the issues identified as requiring my determination.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 June 2020.
Associate:
Date: 9 June 2020
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