Saito & Eichel (No 2)
[2023] FedCFamC1F 997
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saito & Eichel (No 2) [2023] FedCFamC1F 997
File number: SYC 5342 of 2020 Judgment of: CAMPTON J Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application as to the content of instructions to an agreed appointed single expert as to foreign law – Where the parties are contended to have interests in trusts established in State L USA – Whether the single expert is to be instructed to provide opinion evidence as to the content of the foreign law only or in additional thereto opinion evidence as to its application to facts and hypothetical facts – Application as to the content of instructions to agreed appointed single experts each as to Australian and USA taxation opinions – Applications as to other procedural orders as to the identity of single experts and as to disclosure Legislation: Evidence Act 1995 (NSW) ss 56, 80
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, rr 1.04, 7.13, 8.01
Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 69
Idoport v National Australia Bank (2000) 50 NSWLR 640
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 31; [2005] HCA 54
Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 24 October 2023 and 17 November 2023 Place: Sydney Counsel for the Applicant: Mr Henry SC Solicitor for the Applicant: Brown Abrahams Burreket Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 5342 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAITO
Applicant
AND: MR EICHEL
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The husband, within 14 days of the date of this Order, shall insert in the document titled “Propositions” being Annexure D to Annexure A1 of the Response to an Application in a Proceeding of the wife filed 8 September 2023 (“the Response”) admissions or denials of the propositions not the subject of an admission or denial in his Notice Denying Facts dated 31 March 2023.
2.The husband and the wife forthwith thereafter do all acts and things and sign all documents necessary to cause the following documents to be issued to the single C Trust Law Expert, Ms D:
(a)Letter of instruction – Annexure A1 to the Response (“Letter of Instruction”)
(b)Annexure A to the Letter of Instruction, being a list of documents to be included in the brief to Ms D;
(c)Annexure B of the Letter of Instruction, being a document setting out details of the relevant United States (“USA”) entities to be included in the brief to Ms D;
(d)Annexure C to the Letter of Instruction, being diagrams showing the structure of entities the subject of the Letter of Instruction; and
(e)Annexure D to the Letter of Instruction, being the document entitled “Propositions” and created pursuant to Order 1 above.
3.The content of the letter of instruction to the single Australian tax expert, Mr E, be completed and executed by the parties in terms of Exhibit 6, in accordance with the wife’s highlighting to that Exhibit as shaded yellow, and the green shaded portion of the husband be deleted.
(a)Page 2
(b)Page 16
4.The executed letter of instruction to the single Australian tax expert pursuant to Order 5 be forwarded to the expert within 21 days of the date of this Order.
5.The content of the letter of instruction to the single USA tax expert, Mr F, be completed and executed by the parties in terms of Exhibit 7:
(a)In the terms of the wife’s highlighting to that Exhibit, as shaded yellow, and those parts green shaded portion of the husband be deleted as to:
(i)Page 2
(b)In the terms of the highlighting to that Exhibit;
(i)Page 3 paragraphs (g) – (i) to be in terms as contained in the exhibit, (such that any yellow shading be ignored) so as to instruct the expert to opine (if possible) as to the future tax rates be included in the letter of instruction.
(ii)As shaded in green on page 3 sub paragraph (i) II subject to that instruction being amended to include a restriction for the expert to opine in the paragraph as to “any taxation effect on the husband”
(c)For the purposes of Annexure D, the Annexure shall include each of the assets identified in the current draft balance sheet prepared by the single expert Mr B, so as to instruct the expert to opine as to the attraction of a taxation liability in the USA arising from the status of the parties or otherwise in the event that each such asset is the subject of disposal.
6.The executed letter of instruction to the single USA tax expert pursuant to Order 5 be forwarded to the expert within 21 days of the date of this order.
7.The wife is to make available for viewing by the husband, personally, at the offices of her solicitors, within the next 42 days, any vision she holds by way of recording referrable to husband's daughter Ms G.
8.Subject to compliance with Order 7 and within 14 days of his inspection, the husband, should he elect, shall notify the wife with precision identified as to date, time period, length and subject matter in writing of vision he selects and the wife shall within 21 days of such notice in writing reproduce digital copies of such selected vision and shall disclose the selected vision of the recording to the husband in digital format.
9.In the event the parties fail to agree in writing as to the identity of any alternate single expert to be nominated pursuant to Order 3 made 22 June 2023 to value the contents at the H Property then the prior agreed experts, J Valuers and K Valuers, shall be appointed by way of implementation of the said order as those single experts.
10.The costs of each of the husband and the wife of an incidental to this determination be reserved to the trial.
11.Save and except as provided for by these orders, each of the Amended Application in a Proceeding filed 10 October 2023 by the husband and the Response to an Application in a Proceeding filed by the wife on 8 September 2023 are dismissed.
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 Saito & Eichel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These are proceedings in the Major Complex Financial Proceedings List scheduled for trial over ten days commencing on 6 May 2024. Directions as to the preparation of the matter for trial were first made on 15 July 2022. Orders made on 22 June 2023 flagged a dispute between the parties as to the instructions to be provided to appointed single expert witnesses.
By way of an Amended Application in a Proceeding filed 10 October 2023 Mr Eichel (“the husband”) sought procedural orders, including as to the content of instructions to be provided to some of the agreed single experts. Ms Saito (“the wife”) by way of her Response to an Application in a Proceeding filed 8 September 2023 seeks different procedural orders.
The hearing was initially conducted on 24 October 2023. Senior counsel appeared for each party. Some of the issues in dispute were the subject of completed submissions on that day and judgment was reserved as to those matters. It was anticipated that agreement could be reached as to the content of draft letters of instruction to be provided to single taxation experts and other issues in dispute. No submissions were made on that day as to those subject matters. An order was made for the anticipated consent orders compromising those matters to be considered in chambers.
The time for the parties to compromise matters that were not the subject of submissions on 24 October 2023 by way of the filing of consent orders to chambers was consensually extended. Ultimately, that compromise could not be achieved. Those remaining disputed matters were heard and submissions made on 17 November 2023.
These reasons determine the procedural matters in dispute.
DOCUMENTS RELIED UPON
The husband relied upon:
·His Amended Application in a Proceeding filed 10 October 2023;
·His affidavits filed 25 August 2023 and 10 October 2023;
·The wife’s Amending Initiating Application for Final Orders filed 17 February 2023;
·His Amended Response to Final Orders filed 17 March 2023;
·His Case Outline document filed 20 October 2023 (Exhibit 1); and
·His addendum to his Case Outline document filed 23 October 2023.
The wife relied upon:
·Her Response to an Application in a Proceeding filed 8 September 2023;
·Her affidavit and its annexed exhibits filed 8 September 2023; and
·Her Case Outline document filed 20 October 2023 (Exhibit 3).
BACKGROUND
The parties commenced cohabitation in mid-1998 and married in late 1998. They separated on 23 December 2018. In May 2020 an order for divorce was made in the Federal Circuit Court.
The wife was born in 1963 in the United States of America (“USA”), is currently 60 years old and has dual Australian and USA citizenship. The husband was born in 1962 in the USA, is currently 60 years old and is a USA citizen and an Australian permanent resident. There are three children of the marriage all of whom are now adults. The husband has one child from a previous marriage, who is also now an adult.
On 6 August 2020 the wife commenced proceedings for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband by way of a Response to Final Orders sought different adjustments as to property.
A single forensic accounting expert, Mr B, has been engaged by the parties to prepare a balance sheet recording each of their respective contentions as to their property and the value of each item of property. He has during since 24 October 2023 produced a draft balance sheet for the parties. That document is not yet in evidence. The wife contends that the value of the property of the parties is in the range of $237 million and the husband contends it is in the range of $190 million.
The parties primarily lived in State L USA from 2004 until 2008.
They established a number of trusts and limited liability corporations (“LLC’s”) in State M and State L.
The wife asserts that the interests of the parties in six of the trusts established by way of foreign law (“the C Trusts”) are the property of the parties and are amenable to s 79 orders, relying upon a long line of established authority as recited by the High Court in Kennon v Spry (2008) 238 CLR 366. The husband opposes this finding, contending that the said interests are not property for the purpose of s 79 of the Act. The wife seeks orders that directly affect the regulation of and the assets of the C Trusts.
It is the wife case that she and the husband jointly controlled of the assets of the C Trusts and the LLC’s prior to August 2020 and that steps taken by the husband between then and August 2021 have impacted on control of the trust’s assets such that it has shifted to others to whom it is reasonable to infer will act under the husband’s sole direction. These others include the husband’s fiancé and his friend. It is her case that they will each not act independently of the husband's direction.
The parties agree that the C Trusts’ structures are complex. They are in dispute as to questions as to the construction of the documents constituting the trusts and the consequential impact on the conduct of the trustees of the trusts. Additional complexity is generated from the USA and Australian tax consequences of the parties being ordered to take specific steps in relation to the C Trusts. The factual complexity of the proceeding, and specifically of these matters, is illustrated by:
(a)The wife serving on the husband a 321-paragraph with sub paragraphs proposition Notice to Admit facts and the authenticity of documents dated 15 February 2023 pursuant to r 8.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”);
(b)The husband’s detailed response to that Notice dated 31 March 2023 admitting in part and denying in part that contained within the wife’s Notice. The husband’s Notice included “commentary” accompanying his responses that he says was “input” from “US advisors” in making what he says are “substantial admissions” in his Notice. He added his “contentions” as to why the admissions sought were denied. This commentary includes a significant quantity of propositions of USA law. He gives evidence that he has expended $100,000 in costs in engaging with the wife’s Notice, implicitly incorporating the expert opinion advice he has sourced; and
(c)The wife’s subsequent changes to her 15 February 2023 Notice to Admit were later incorporated in her revision document dated 6 July 2023.
The parties agreed that the following be appointed as single experts in the proceeding:
(a)Mr E as to Australian tax;
(b)Mr F as to USA tax; and
(c)Ms D as to USA trust law.
CONSIDERATION
THE USA TRUST LAW EXPERT
Instructions to the USA trust law expert
As to the instructions to Ms D in so far as it relates to the C Trusts, both parties agree that:
(a)The single expert ought to be instructed to opine as to the content of the law that would be applied in the USA;
(b)The content of that foreign law is a question of fact to be determined in this proceeding. That question of fact informs the determination of other facts during the s 79 dispute; and
(c)There is a long held distinction between an expert opinion as to the content of a foreign law and an expert opinion as to the application of a foreign law once it has been ascertained, as identified by the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 31 (“Neilson”) citing Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 69 (“Allstate”). That difference is often described as “content evidence” and “application evidence”. The High Court in Neilson (at [220]) held that “The former is said to be admissible; the latter not”.
The dispute as to the instructions to the single expert is twofold. The first is as to the subject matters defining the scope of the expert opinion. The second is as to the documents to be provided to the expert.
The content of the subject matters of instructions to the USA law expert
The wife submits that Ms D’s single expert opinion should:
(a) identify and explain the principles of construction that would be applied by a US Court to decide whether each Proposition is correct;
(b)identify and explain any principles of substantive law that would be applied by a US Court to decide whether each Proposition is correct;
(c) for each principle of construction or of general law identified in the report, identify any relevant authorities or provisions of legislation establishing or explaining those principles;
(d) to the extent any principles identified in the report are not the subject of any authority directly on point, give an opinion as to what a US Court’s ruling would be if that particular principle arose for consideration;
(e) for any relevant provisions of legislation, identify any relevant authorities interpreting those provisions and the general principles of construction applied by a US Court; and
(f)explain the status of any identified authorities as a source of law.
The husband submits that the single USA law expert can, and in the circumstances of this case should, provide an opinion going beyond strictly giving evidence as to C Trust law. He identifies three exceptions to “content evidence alone” being:
(a)If the foreign law confers a discretion upon its courts, then the manner in which the discretion is exercised by reference to the pattern or course of decision is admissible;
(b)Principles of statutory construction or contractual interpretation are admissible to inform an understanding of the content of the applicable foreign law; or
(c)That identified by Einstein J in Idoport v National Australia Bank (2000) 50 NSWLR 640 at [44] (“Idoport”), where:
…the Court is concerned with foreign law as a subsidiary fact necessary to determine the rights and liabilities of the parties under the law of New South Wales. The essential curial function of this Court in this case is the administration of and the proper application of the law of New South Wales. Evidence of foreign law experts as to the effect of foreign law, where the effect of foreign law is relevant to the administration of domestic law, is not capable of usurping the function of the court any more than is evidence of any other fact relevant to the determination of the rights and liabilities of the parties under domestic law.
(Emphasis added)
The husband submits that “evidence of the meaning and effect of [C Trust] law on the propositions disputed by the husband will undoubtedly assist the court in forming its own view on all the facts in issue necessary to determine the case.” He identifies the potential relevance of the evidence in that context of some of his propositions that involve both mixed questions of fact and law and mixed hypothetical questions of fact and law.
While conceding that the single expert on his proposed content of instructions is not being directed to opine so as to apply the foreign law to determine whether the C Trusts are property of the parties pursuant to s 79 of the Act and if so whether such property can be divided, he submits that such evidence would assist but not bind the court in finding the meaning and effect of the foreign law as an “anterior step” in the ultimate s 79 determination.
The wife submits that that any opinion on the additional subject matters as sought in the terms promoted by the husband would be, as determined by binding High Court authority, to instruct the single expert to prepare opinion evidence that cannot be adduced into evidence and is inadmissible. She forcefully submits that if Idoport says to the contrary, it is wrong. The wife additionally identifies that the additional “conscription” process sought by the husband to be costly, both financially and by way of time, resources, and effort, for each of the parties, their lawyers and the expert. She submits it to be burdensome and wasteful.
Her alternate position is that even if the evidence were admissible, it would be little more than an advisory legal opinion on any issue in the case, such that the court will be required to form its own conclusions by reference to the content of the foreign law as is found to apply to the facts as found in the case. The wife described this evidence to be little more than a submission.
The husband submits that he obtained input from USA advisors in making what he says are substantial admissions in his Notice disputing facts, and where dispute was recorded, set out his contentions as to why the admissions sought could not be agreed. It is his contention that the path he has adopted was an endeavour to narrow issues.
Idoport was a determination of pre-trial motions at first instance in the NSW Supreme Court. The consideration was in the context of a set of proceedings claiming damages in various parts of the world including the United Kingdom, the USA and Japan. The evidence was relevant to whether the plaintiff’s claimed commercial opportunities claimed either did not exist or were not opportunities of the nature and extent claimed. The determination considered the interplay between ss 56 and 80 of the Evidence Act 1995 (NSW) and pre–Evidence Act authorities, including Allstate.
The husband submitted that Idoport has not been overruled in any subsequent decisions. He did not identify where it had been expressly adopted in any reported subsequent determinations, but referred to two other first instance decisions in the Victorian Supreme Court and the Federal Court that cited the principle identified in Idoport but did not thereafter, for different reasons, rely on it or apply it.
The judgment of the High Court in Neilson citing Allstate post-dated Idoport by five years.
I accept that wife’s approach to instructing the single C Trust law expert is entirely orthodox and consistent with long established principle. I do not accept that sufficient persuasive foundation was elucidated by the husband to permit a primary judge to depart from, or not be bound by, longstanding High Court authority on this subject matter. Such departure should only occur cautiously in circumstances where that judge is convinced that the longstanding High Court authority is wrong, and the circumstances of the case require such avenue. This is not such a case.
I accept that the terms of the instruction to the single USA law expert requires an opinion as to:
·The content of the relevant law that would be applied by a USA Court with jurisdiction to decide the correctness of each disputed proposition, so that the Court in Australia is in a position to apply that law if the correctness of the disputed propositions needs to be determined in the proceedings;
·Identify and explain the principles of construction that would be applied by a USA Court to decide whether each proposition is correct;
·Identify and explain any principles of substantive law that would be applied by a USA Court to decide whether each proposition is correct;
·For each principle of construction or of general law identified in the report, identify any relevant authorities or provisions of legislation establishing or explaining those principles;
·To the extent any principles identified in the report are not the subject of any authority directly on point, give an opinion as to what a USA Court’s ruling would be if that particular principle arose for consideration;
·For any relevant provisions of legislation, identify any relevant authorities interpreting those provisions and the general principles of construction applied by a USA Court; and
·Explain the status of any identified authorities as a source of law.
Orders will be made for the subject matter of the instructions to the single C trust law expert be in the terms as sought by the wife because:
(a)I am not satisfied as to admissibility of the subject matter of the instructions as sought by the husband at this stage;
(b)To instruct the expert in the terms as sought by the husband would be putting to the single expert for consideration the forensic conclusions of the unidentified USA advisors contained in his commentary to the wife’s notice as amended. This may be contrary to the import of ch 7 of the Rules. The wife’s proposal currently implements the purpose and objects of ch 7 of the Rules;
(c)The terms of the subject matter of the instructions as promoted by the wife implicitly implement the mandate identified in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and r 1.04, being to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible; and
(d)In the event this determination is in error as to admissibility, it may be, subject to other considerations, that other evidence can be adduced from the expert at trial.
What documents ought to be provided by way of instructions to the USA law expert
The competing relief on this subject matter is identified in Orders 1, 3, 4 and 5 of the Minutes of Order of the husband as contained in Exhibit 1 and Orders 1 and 2.5 of the Minutes of Order as sought by the wife in Exhibit 3. The position of each party as to what documents the single expert is to be provided with is as follows:
…
1.2 Whether [Ms D] is to be provided with:
(a)(as the Wife contends) a document that sets out each of the propositions involving questions of foreign law for which the Wife now contends, and identifies which of those propositions the Husband admits or denies; or
(b) alternatively (as the Husband contends), a document comprising the propositions asserted in the Wife’s previously served Notice to Admit Facts, the detailed comments on those propositions provided in the Husband’s Notice Denying Facts and further comments on each proposition to be provided by the Wife; or
(c) in the further alternative (as the Husband contends in the alternative), a document setting out each of the propositions involving questions of foreign law for which the Wife now contends incorporating the detailed comments on those propositions provided in the Husband’s Notice Denying Facts and further comments on each proposition to be provided by the Husband and by the Wife.
As a starting point on this issue, the husband seeks that the wife provide him with responses to the commentary contained in his Notice dated 31 March 2023. The gravamen of what he seeks is whether the wife accepts or reject the contents of his Notice (including opinions and contentions) and for her to provide the reasons why they are either accepted or rejected. He implicitly contends that the contents wife’s revision document dated 6 July 2023 are insufficient. He says that the now disregarded steps in the wife’s Notice dated 15 February 2023 as identified in the wife’s revision document have some relevance.
Then, after the wife has responded in the terms sought, he proposes that the expert be instructed with each of the wife’s Notice dated 15 February 2023, his Notice dated 31 March 2023 including his commentary, the wife’s revised document dated 6 July 2023 and the wife’s further responses to his commentary as to whether she accepts or rejects the contents of his Notice and the reasons why they are accepted or rejected. He says that pursuant to r 7.13(5) it is appropriate for the expert to have an apprehension of the case advanced by each party.
The wife opposes the making of an order that she provide a further response to the husband’s Notice dated 31 March 2023. She opposed the provision to the single USA law expert of the bundles of Notices and responses there to. The wife says that her revised document dated 6 July 2023 are based on revised propositions from that in her original Notice. They reflect corrections and changes in her position since the original Notice was served. She contends there is no probative value in providing her commentary and opinion on the husband’s commentary and opinion. I accept this submission.
The wife proposed that the expert be instructed with a letter that is Annexure D to Annexure A1 to her Response to an Application in a Proceeding filed 8 September 2023. That letter incorporates the propositions consistent with that as now amended and contended by the wife of 230 propositions. It seems uncontroversial that 21 propositions and subparagraphs to propositions in that letter differ from that contained in the wife’s Notice dated 15 February 2023, and that each is identifiable in Annexure D by the absence of an admission or denial from the husband, being instead marked as “[insert]”. Propositions which were included in the wife’s Notice dated 15 February 2023 have not been included because they are no longer pressed. The wife’s Outline of Case document (Exhibit 3) sets out with particularity some of the changes.
The husband alternate proposal is that Annexure D incorporate “narrations” as identified in his Notice dated 31 March 2023 and further narrations in response to the additional “21 propositions”.
I accept the submission of the wife that the process she proposes will require only a modest amount of work by the husband and his advisors, that the evidence of the expert in the form she proposes will be of greater assistance to the court at trial, in that it will be directed to propositions that the wife currently contends rather than those identified in her former position, and that to adopt the approach of the husband would be inconsistent with the determination that the expert be provided with instructions that sets out each of the revised maintained propositions involving questions of foreign law and not more. An order will be made as sought by the wife.
An additional issue in dispute between the parties is as to the construction of the diagram illustrating the C Trusts’ structure to be provided to the expert. No submission was made as to the inaccuracy of the document, forming part of Annexure D.
Orders will be made in terms of paragraphs 1 and 2 of the Minutes of Orders as sought by the wife in Exhibit 3.
The content of letters of instructions to the Australian tax expert and the USA tax expert and the timing of when each expert is to be asked to commence their report
The dispute between the parties on this issue was distilled to that contained in Exhibit 6, being the draft letter of instruction to Mr E the Australian tax expert and Exhibit 7, being the draft letter of instruction to Mr F, the USA tax expert. The wife’s versions of instructions in each letter were reduced to that shaded in yellow and the husbands in each letter reduced to that shaded in green.
The resolution of the dispute in Exhibit 6 pivoted on the determination of the content of the instructions to the USA trust law expert. Arising from the determinations made above, orders will be made for the wife’s version of Exhibit 6 to be provided to the expert.
The first dispute in the letter of instruction to the USA tax expert was on page 2 of Exhibit 7. It pivoted on the determination of the content of the instructions to the USA trust law, expert. Arising from the determinations made above, orders will be made for the wife’s version on page 2 of Exhibit 7 to be provided to the expert.
The second dispute was that the husband posed an additional question on page 3 of Exhibit 7 being for the provision of an opinion as to the consequential impacts personally on the husband's position as to a change in status of specified trusts. The wife correctly identified that the opinion sought from the expert was not as to USA taxation, and hence would appear outside the specialised knowledge of the expert. The husband, by way of reply, identified that any aspect as to admissibility, or confusion, could be rectified by limiting to the opinion as to “any taxation effect on the husband” arising from the additional subject matter for which an expert opinion was sought. I accept the husband's submission on this issue, and the letter of instruction to the expert will be amended to include that limitation.
The third disputed issue in Exhibit 7 was that the husband sought that the USA taxation expert opine as identified on page 3 paragraphs (g) – (i) inclusive as to the estimated annual tax liability on income streams for the N Trust, at future tax rates that would be applicable and current tax rates that would be applicable depending on differing factual foundations. The wife identified that the inquiry was for an undefined future period and was grounded from wholly speculative matters. She submitted that there was an absence of apparent relevance to the expert opinion sought, and if relevance could be identified, the speculative nature of the opinion would attract minimal weight. In that circumstance, she took the approach that if the evidence was to be obtained, the husband should meet the cost at the first instance. The husband opposed to him solely meeting that cost. It was his contention that each of the parties were well resourced, and that any costs thrown away by this exercise could be the subject of solace at the final hearing.
Having regard to the wife’s concession as to the husbands capacity to seek that opinion, and the financial circumstances of the parties, orders will be made as sought by the husband on this issue with the starting position being as identified in the Rules for each party to meet the cost of that opinion with the expert being instructed to separately identify the cost of the provision of that portion of the opinion, as identified in paragraphs (g) – (i) on page 3 of Exhibit 7.
The fourth dispute as to the instructions in Exhibit 7 was as to the contents of “Annexure D” to the letter. The wife’s proposal was that the husband select from Mr B’s draft balance sheet the assets he proposed be disposed of, the wife would then select the assets that she would propose to dispose of, and the opinion as to any taxation impost arising on those selected disposals would be the subject of the opinion. The husband's proposal was that the expert should be instructed to opine as to whether any of the assets identified in the current draft balance sheet will attract a taxation liability in the USA arising from the status of the parties.
The husband’s proposal has merit in the construction of the balance sheet identifying the property of the parties and any liabilities that may form part thereof, dependent on the terms of the relief sought. The terms of the expanded opinion he seeks would also have apparent relevance to the adjustment to the contribution findings. In the circumstances, orders will be made as sought by the husband, as to the content of “Annexure D” to Exhibit 7.
The dispute as to the timing as to the provision of instructions to the tax experts seemed to have dissipated. Those instructions, having regard to the approaching trial dates, ought to be sent as soon as is possible and in any event within 21 days of the date of these orders.
Disclosure of emails, photos and videos
The husband identifies that in paragraph 137 of the wife’s trial affidavit filed 1 June 2023 as to evidence adduced from a video recording in her possession in digital format. The evidence records that vision was converted from a camcorder to a CD and then into digital format that filled a significant number of CD’s, implicitly for many hours. The evidence appears to be relevant to contributions allegedly made by the wife to the parenting of the husbands’ daughter, Ms G.
The husband by letter from his solicitor has called for disclosure and production of “any further videos held by [the wife], in her possession or control and referrable to [Ms G]”. The wife identifies that the husband’s order sought is not limited by category, event, or period. That said, she confirmed that her evidence as to this subject matter and that part of it sourced from the recordings could not be said to be irrelevant. The nature and content of this apparently disproportionate issue may be indicative of the failure of the parties to comply with the mandate identified in r 1.04.
An order will be made for the wife to make available for viewing by the husband, personally, at the offices of her solicitors, within the next 42 days, any vision she holds by way of recording “referrable to [Ms G]”. Upon the husband completing that inspection, he is at liberty within 14 days of the inspection to identify with precision in writing directed to the wife to reproduce digital copies of that selected precise vision and within 21 days after such notice being received the wife shall disclose the selected parts of the recording to the husband in digital format.
As to the emails, the wife advises, and the husband accepts, that she has no other documents of the category identified in paragraph 25 of her trial affidavit filed 1 June 2023 to produce, other than those that have been disclosed to date.
Exhibit 8 – An issue revisited – the identity of the single expert(s) to value the H Property contents
Order 3 made on 22 June 2023 provided as follows:
Within 60 days of the date of this Order, the husband shall nominate three valuers to prepare a valuation of the household contents […] situated at the [H Property] and the wife shall within a further 7 days select one of the valuers nominated by the husband who shall be appointed by the parties as a Single Expert pursuant to Division 7.1.2 of the Rules, noting the single expert shall be instructed to complete the valuation on or by 29 February 2024 ([H Property] contents valuer).
Order 4 made on the same day required the parties to instruct the H Property contents valuer no later than 1 December 2023 and for the valuation to be completed on or by 29 February 2024. Unsurprisingly, the parties are not in agreement as to historical matters implementing Order 3 made 22 June 2023 as to the H Property’s content valuer. The husband says that the parties agreed to instruct two experts, J Valuers and K Valuers, and that they agreed not to proceed to instruct those experts after a quote was received for the preparation of their opinions. The wife denies that there was any agreement for the agreed nominated experts not to proceed.
The husband contends that he has nominated two or three alternate experts in the shadow of, if not the day before, the further hearing on 17 November 2023. He proposes that the wife select one of the three he has nominated.
The wife says that the costs of the experts now nominated by the husband are unknown.
It does both parties little credit, having regard to the calibre of their legal representation, their property and financial resources, and their real-life experience, that the court is required to revisit this issue. The contest is to be determined on the basis of what has been or can be agreed. In the event the parties are unable to agree as to the identity of another expert to provide an opinion as to the value of the H Property contents within seven days of the date of these orders, the prior agreed experts, being J Valuers and K Valuers, will be confirmed as appointed to value the H Property contents by way of implementation of the 22 June 2023 order.
Other matters
No further submissions were made by either party as to relief by way of discovery of documents or information. Any remaining relief as to that subject matter will be dismissed.
Both parties sought an order for the other party to pay their costs of this Application and the Response thereto. It is premature to make any determination as to those costs at this time. The question of costs can be revisited at the conclusion of trial once the relevance and utility of the expert opinion is known. The appropriate course is for the determination of costs to be reserved to the conclusion of the final hearing.
The matter will remain listed for further case management on 5 February 2024 at 9.30 am by Microsoft Teams.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 23 November 2023