FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saito & Eichel (No 3) [2024] FedCFamC1F 247
File number: SYC 5342 of 2020 Judgment of: CAMPTON J Date of judgment: 16 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks to pose questions to a single expert witness pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife objects to the majority of the questions on the basis – Consideration as to the scope of the rule and the terms of the instructions provided to the expert – Questions objected to by the wife disallowed. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, div 7.1.6, rr 7.24, 7.26, and 7.27
Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 69
Morris & Morris(No 5) [2023] FedCFamC1F 940
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 31; [2006] HCA 12
Saito & Eichel (No 2) [2023] FedCFamC1F 997
Division: Division 1 First Instance Number of paragraphs: 22 Date of last submissions: 9 April 2024 Place: Sydney Solicitor for the Applicant: Broun Abrahams Burreket 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:
16 APRIL 2024
THE COURT ORDERS THAT:
1.Pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the husband:
(a)Be allowed to pose questions 1, 4, 5, 6, 9, and 10, to the single ch 7 foreign law expert, Ms D, as contained in the letter from his solicitors to the expert dated 19 March 2024; and
(b)Not be permitted to put questions 2, 3, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 24, 25, and 26 to the expert as contained in that letter.
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:
These reasons…
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CaseChat Overview and Summary
The court evaluated the husband's questions, noting that several were closed, leading, and sought to expand on matters not covered by the expert's instructions. Questions that were open and non-leading were permissible, whereas those that assumed subsidiary findings or operated from specific document content were disallowed. The court determined that the majority of the husband's questions were not permissible as they did not fall within the narrow scope of clarification intended by r 7.26.
In light of this reasoning, the court allowed the husband to pose specific questions that were open, non-leading, and aligned with the purpose of clarification. Conversely, the court disallowed the majority of the husband's questions as they sought to expand the expert's report or challenge its content. This decision adhered to the established interpretation of r 7.26, ensuring that the expert's role remained one of clarification rather than interrogation. The court's order reflected this determination, permitting only those questions that met the criteria for clarification.
Orders
Orders of the court
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:
16 APRIL 2024
THE COURT ORDERS THAT:
1. Pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the husband:
(a) Be allowed to pose questions 1, 4, 5, 6, 9, and 10, to the single ch 7 foreign law expert, Ms D, as contained in the letter from his solicitors to the expert dated 19 March 2024; and
(b) Not be permitted to put questions 2, 3, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 24, 25, and 26 to the expert as contained in that letter.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The judgment in Morris & Morris(No 5) [2023] FedCFamC1F 940 records:34The purpose of Pt 7 Division 7.1.6 is to limit single expert opinions prior to trial to clarification and to not permit interrogation…35The Rules do not permit the asking of simply any question, and the construction of the division in ch 7 is a narrow concept including to remove ambiguity. 36To “clarify” means “to make something clearer or easier to understand”. To my mind, the rule is constructed and expressly envisages questions that “clarify” contents of the report and do not permit questions that may be legitimately put to a witness in cross examination. 37The object in clarification is to make something clear from the opinion that is not clear on its face. The rule is not constructed to permit an expansion of the contents of a report or to challenge matters contained within the report. CONSIDERATION Both parties submit that the reasons for judgment and orders made 23 November 2023 in Saito & Eichel (No 2) and the nature and scope of r 7.26 scaffold this determination. The wife submitted that the questions posed by the husband are a process of expanding the scope of the opinion or are designed to elicit opinions in a form that is inconsistent with reasoning of Saito & Eichel (No 2). She submits that the questions seek to re-agitate some of the issues determined previously, being that they impermissibly seek an opinion as to the application of foreign law to the facts, rather than an opinion as to the content of the foreign law alone. The husband submitted that his questions go to the seven points identified in Satio & Eichel (No 2) as outlined above at [4], and that the questions “are very much of a clarifying nature and do not ask the expert to express a conclusion as to any of the propositions”. The letter of instruction to the single expert recorded:You are not instructed to provide an opinion in your report as to whether the Propositions are correct or to apply the principles you have identified to the Propositions or to the facts of the case. Your opinion in your First Report should be confined only to the matters expressly identified above. It is possible that you may subsequently be instructed to provide a further report giving your opinion as to whether or not the disputed Propositions, or some of them, are correct. If such a further report is required this will be the subject of separate instruction.(Emphasis added) An evaluation of questions 2, 3, 7, 8, 11, 12, 13, 18, 19, 24, 25 and 26 posed by the husband reveals them to be generally closed and leading in their construction, seeking to expand on matters that were not the subject of instructions to the expert. By way of limited contrasting examples, questions 4, 5, and 6 are open and non-leading, not being the subject of objection. This grouping of questions pose enquires grounded from foundations of subsidiary findings that may be made, including illustrative examples. Questions 13 and 19 are crafted from assumptions made from the content and operation of specified documents.