Shelby & Rylan

[2021] FamCA 319

FAMILY COURT OF AUSTRALIA

Shelby & Rylan [2021] FamCA 319

File number(s):

LEC 701 of 2018

Judgment of:

HOGAN J

Date of judgment:

11 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to adduce expert evidence sought and granted.  

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Number of paragraphs:

27

Date of hearing:

6 & 7 May 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Hodgson

Solicitor for the Applicant:

Tyndall & Co. Lawyers

Counsel for the Respondent:

Mr Priestley 

Solicitor for the Respondent:

Family Law Solutions

ORDERS

LEC 701 of 2018

BETWEEN:

MS SHELBY

Applicant

AND:

MR RYLAN

Respondent

ORDER MADE BY:	JUSTICE HOGAN J
DATE OF ORDER:	11 MAY 2021

THE COURT ORDERS THAT:

1.The Respondent has leave to adduce the evidence of Mr D, being that part of his report dated 13 February 2021 that provides definitions of terms and his report dated 3 May 2021, provided that an affidavit from Mr D, exhibiting the reports and a curriculum vitae, is filed and served by no later than 4.00 pm on 14 May 2021.

2.In the event that the Applicant wishes to rely on any evidence to respond to Mr D’s report, any such affidavit shall be filed and served by no later than 4.00 pm on 11 June 2021.

3.If the Applicant causes an affidavit to be filed and served in accordance with Clause 2 of this Order then the parties cause Mr D and the expert from whom the Respondent has obtained affidavit evidence to confer for the purpose of identifying common ground and matters in dispute by no later than 25 June 2021 and cause a jointly signed statement from the experts outlining their areas of agreement and their areas of disagreement in relation to their respective opinions to be filed and served by no later than 4.00 pm on 30 June 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelby & Rylan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Hogan J

1. By Application in a Case filed by leave on 6 May 2021 (albeit an application foreshadowed on 5 May 2021), the Respondent sought leave to rely on a report prepared by a Mr D, that report being dated 3 May 2021. 

2. The leave sought was vehemently opposed by Mr Hodgson, who appeared for the Applicant, on the following bases: 

   (a)it was too late in time, given that the trial of this proceeding had first started on 15 February 2021 and had proceeded until 18 February 2021 before resuming on 5 May 2021; and

   (b)permitting the Respondent to rely on Mr D’s report at this late stage would prejudice the Applicant and, at the time such submission was made, would likely result in a further continuation of the trial because it would result in the Applicant potentially engaging her own expert to respond to the contents of Mr D’s report;  and 

   (c)the Respondent had provided inadequate explanation for the lateness of the Application for leave to rely upon Mr D’s 3 May 2021 report and/or for the provision of the same to the Applicant given that the trial had been, as I have already mentioned, adjourned part-heard on 18 February 2021;  and

   (d)it had previously been agreed by Counsel who appeared for the Respondent that he, on behalf of the Respondent, would not press the receipt of a report prepared by Mr D – this being a concession made during the February 2021 tranche of the proceedings;  and 

   (e)the Respondent had failed to follow the procedures established by Part 15.5 of the Family Law Rules 2004 which, by way of overview, provide for the engagement of a single expert witness to deal with an issue in dispute rather than permitting, as a starting point, parties to engage their own expert – as it was submitted the Respondent had done; and

   (f)as the Family Law Rules 2004 provide avenues for a party seeking the engagement of a single expert witness to act in circumstances where the other party opposes the engagement of the same, the Respondent should not be permitted, in essence, to circumvent such procedures by allowing him to adduce the unilaterally obtained report by Mr D.

3. The Application for leave to adduce Mr D’s report was pressed by Counsel for the Respondent on the following bases: 

   (a)the Respondent did not seek to rely upon Mr D’s report dated 13 February 2021 – which was the subject of the concession made on 17 February 2021 that it would not be relied upon – other than for the definition of terms subsequently used in Mr D’s 3 May 2021 report (see those on page 4 of the 13 February 2021 report);  and

   (b)Mr D’s 3 May 2021 report arose out of and was sought to be adduced in rebuttal to the evidence given by the Applicant during her cross-examination: reference to the Transcript of the proceeding seems to me to suggest that the particular aspects of the Applicant’s evidence sought to be rebutted, at least on a prima facie basis, by some of the contents of Mr D’s 3 May 2021 report were answers she gave when cross-examined by Counsel for the Respondent about the contents of paragraphs [145] to [149] of her affidavit, her denials of the deletion of emails from a particularised drive prior to the start or commencement of proceedings and her denials of the deletion of any emails in such a manner that they could only be recovered, or observed, by the use of specialist software; thus it was said by Counsel for the Respondent, in essence, that Mr D’s 3 May 2021 report was sought to be adduced to rebut the Applicant’s denials of the assertion that she had deleted emails from that particularised drive;  and

   (c)the allegations about the timing of the deletion of emails and about the manner in which this occurred were submitted by Counsel for the Respondent to be relevant to, and greatly affect, the assessment of the Applicant’s credit and credibility, an issue  submitted to be particularly relevant and of particular importance in this case, given the nature of the issues between the parties that the Court has to determine, which include: whether the parties were in a de facto relationship; if they were in a de facto relationship, the duration of the same and the periods of time over which it occurred; whether the Applicant is (as has been asserted by the Respondents) indebted and liable to repay the sum of $57,000.00 loaned; whether the Applicant is (as has been asserted) indebted and liable to repay funds represented in what I will call “the running loan account” (to differentiate it from the loaned $57,000.00); and the Applicant’s asserted liability to account to a Respondent for 13.25 per cent of the capital gain associated with the sale of real property, previously owned by her at B Town, which she purchased using the loaned $57,000.00; and 

   (d)the Court should be persuaded to grant leave to the Respondent to adduce Mr D’s report and should receive the same on the basis of the assertions contained throughout the Respondent’s case – in essence, that in presenting those emails presented to the Court (which constitute part of the evidence to date), the Applicant acted to manipulate the same so as to render a contextual appreciation of them either difficult or impossible: this, it was submitted, is relevant to an assessment of credit and the credibility of the witnesses and the evidence called in the case. 

4. Counsel for the Respondent submitted, in essence, that if leave to adduce Mr D’s report was granted and Mr D’s evidence was accepted, it would provide a further foundation for what was submitted, in anticipation, to be a strong submission that the Applicant had manipulated or destroyed emails such that the context of communications passing between the parties at various times – which touched upon the issue of the existence of the disputed de facto relationship – rendered the context either impossible to ascertain or oblique or, I infer, different to the context which would have been established absent the asserted manipulation and accepted selection of various emails passing between the parties. 

5. Counsel for the Respondent also submitted that, if leave to adduce was granted and if Mr D’s evidence was accepted, then the contents of the same and his evidence could have such a central effect on the outcome of the proceedings that its significance was such as to outweigh, in a sense, the potential prejudice to the Applicant which may have arisen as a result of its late provision.  It was submitted, in essence, therefore, that Mr D’s evidence was something that the Respondent considered was very significant in his case, including because of its impact – said to be a negative one if adduced and accepted – on the assessment of the Applicant’s credibility. 

6. Counsel for the Respondent also submitted that the Court should take into account that the Respondent had previously sought to have the Applicant agree to engage a single expert witness (but such earlier attempts were rebuffed) and that, from this, the Court could conclude that the Applicant was, from that time, on notice of the Respondent’s intention to seek to adduce a report of the nature of Mr D’s report.  Counsel for the Respondent submitted that an assessment of the delay in obtaining Mr D’s 3 May 2021 report should properly take into account the evidence contained in the supporting affidavit filed in support of the Application for leave to adduce the report about the delay in obtaining the Transcript and that the Court should take into account that that added to the delay and should be satisfied that it provided a reasonable explanation for the delay in obtaining the report from Mr D. 

7. Counsel for the Respondent also submitted that, insofar as it was submitted on behalf of the Applicant, that she, in the presentation of her case, was taken by surprise by the Application for leave to adduce Mr D’s 3 May 2021 report, she had been given notice by correspondence on 23 April 2021 that the Respondent had or intended to request an updated report from Mr D: albeit that I also note that, in correspondence dated 28 April 2021, the Applicant’s solicitors clearly recorded their objection to the proposed and anticipated evidence being tendered or adduced, raised the issue that no qualified expert evidence had been served in accordance with the Family Law Rules 2004 and asserted, therefore, that any anticipated evidence would be inadmissible in the proceedings.

8. I think it clear, as I raised with Counsel during the discourse that surrounded the Application, that the nature of the evidence contained in Mr D’s report has differed over time.  It seems to me that, at and prior to the commencement of the proceedings, what was sought by the Respondent (and opposed by the Applicant) was to seek, or attempt to adduce, evidence from a single expert witness intended to deal with a number of issues which included what I will term the integrity of the relevant file or drive about which Mr D’s 3 May 2021 report provides an opinion. 

9. As I raised with Counsel, it seems to me that, following the Applicant’s cross-examination and her denials of the various assertions put to her or raised with her by Counsel for the Respondent in relation to the asserted deletion of files held within that drive, Mr D’s evidence has taken on the nature of rebuttal evidence which is admissible pursuant to section 106 of the Evidence Act 1995 (Cth).

10. It seemed to me, at least on a preliminary basis, that those prerequisites required by subsections 1061(a)(i) and (ii) of the Evidence Act 1995 (Cth) had been established as a consequence of the cross-examination of the Applicant undertaken by Counsel for the Respondent.

11. Therefore, should I be persuaded to grant leave to the Respondent to adduce the contents of Mr D’s 3 May 2021 report (and the limited aspects of the earlier report to which I have already referred), it appears, at least, on a prima facie basis, that the credibility rule established by the earlier sections (from s 101 onwards) of the Evidence Act 1995 (Cth) would not apply to the contents of Mr D’s report.

12. I consider that one of the aspects of the Application that I need to give consideration to is whether, pursuant to section 106(1)(b) of the Evidence Act 1995 (Cth), I am persuaded to give leave to the Respondent to adduce the evidence. The reference in that section to the issue of a Court granting leave to adduce the evidence requires consideration of the terms of section 192 of the Evidence Act 1995 (Cth). It is clear from regard to section 192(2) that those matters particularised there, to which regard must be had, are not, in a sense, broadly dissimilar to those which exist at common law and which predated the advent of the Evidence Act 1995 (Cth).

13. To the extent that the submissions made by Counsel for the Applicant in opposing the grant of leave raised the issue of the extent to which the hearing of the matter would be unduly lengthened if leave were granted, the reality of the situation is that, at this stage, the matter is, again, part-heard before me and will resume on 7 July 2021. Given the nature of the contents of Mr D’s evidence and even accepting the prospect of there being evidence sought to be adduced by the Applicant in response to the same, I am not persuaded that his evidence would unduly add to the length of the hearing. 

14. Absent the fact that the matter is adjourned part heard to 7 July 2021, I may well have been persuaded to place greater weight upon the submissions made by Counsel for the Applicant insofar as they touched upon the issue of unfairness to the Applicant in her case. However, given the adjournment to that date, I am not persuaded that the Applicant would be unfairly prejudiced by a decision which would accord to the Respondent leave to adduce the evidence contained in Mr D’s 3 May 2021 report because I am confident that there exists sufficient time for the Applicant to ascertain whether she wishes to seek to adduce expert evidence to respond to the same and/or to ascertain whether the other course – of simply seeking to, I anticipate, undermine the contents of Mr D’s report via cross-examination with the benefit of appropriate expert input for the same – to occur. 

15. I take into account and place weight upon the submissions made by Counsel for the Respondent about the issue of the importance of the evidence contained within Mr D’s 3 May 2021 report; it is said very much to fall squarely within the compass of evidence sought to rebut the Applicant’s denials, under oath, of actions taken by her in relation to the particularised drive and/or files. 

16. Insofar as the nature of the proceeding is concerned, it is clear that, given the nature of the disputes between these parties in these proceedings, and the relief sought insofar as declarations about the existence or absence of a de facto relationship is concerned and the potential consequences for each of the parties, consequent upon whatever declaration is made, that the Respondent’s Application to adduce evidence in rebuttal takes on a particular weight, given the Respondent’s submissions about, in essence, the case requiring the determination of which of the accounts provided by the two parties should be preferred, and in what way, to that given by the other.

17. Insofar as it is relevant to take into account the Court’s power to adjourn the hearing when determining whether to exercise the discretion in favour of the grant of leave is concerned, as I have said, this matter is already the subject of an adjournment to complete the evidence and it will return before the Court on 7 July. 

18. For the reasons I have expressed today, I am persuaded, therefore, in the exercise of the discretion, to accord to the Respondent leave to adduce the evidence contained in Mr D’s report of 3 May 2021, together with the contents of the earlier report limited to the explanation or definition of certain terms used by Mr D. 

19. I am not persuaded, in the circumstances, where, as I have said, I consider Mr D’s evidence to have the character or nature of rebuttal evidence, that it is appropriate to require the parties to join in the appointment of a single expert witness to deal with an issue that is already the subject of consideration in the report I have just given the Respondent leave to adduce. 

20. For the reasons I raised with Mr Hodgson, it seemed to me that, whilst that would absolutely have been the appropriate course had there been an application and/or orders made for the engagement of a single expert witness to deal with a contested issue prior to the commencement of trial, the rebuttal nature of the evidence is such that I am not persuaded that it is appropriate to apply the single expert witness rules. 

21. I also take into account, in exercising that discretion, that the Respondent has clearly already gone to the expense of engaging Mr D and that it remains open to the Applicant, should she wish to do so, to seek to adduce expert evidence in response to Mr D’s evidence and to seek to reopen her case, in a sense, to adduce such evidence in reply. 

22. Whilst Mr Hodgson’s submissions about the delay and the consequent asserted prejudice to the Applicant were well made, as I have already said, I consider that the potential prejudice has been ameliorated by the fact that the evidence in this proceeding is not yet concluded and that the matter has been adjourned for further hearing to 7 July 2021. 

23. I consider that the explanation provided on behalf of the Respondent for the delay in seeking Mr D’s report has, certainly, some deficiencies; there is much, I think, in Mr Hodgson’s submission that it was known to the Respondent from at least the conclusion of the day on which the Applicant gave the evidence she did during her cross-examination by Counsel for the Respondent (to which I have already referred and which provided the basis for the application of section 106 of the Evidence Act 1995 (Cth)) that that course of action was open to him. I am not necessarily persuaded that the delay in obtaining the Transcript, in circumstances where there was already some delay in ordering the same, would, of itself, provide a persuasive basis for the grant of leave.

24. However, the balancing exercise I have undertaken in the circumstances of what I have described as the change in the nature of the evidence sought, that it has been sought to be adduced in rebuttal and that these proceedings are adjourned part heard, again, to 7 July 2021, means that consideration is one to which I have accorded less weight than might otherwise have been the case.

25. Insofar as Mr Hodgson’s submissions about the parties being required to engage a single expert witness to deal with the issue of the asserted deletion of files (that being the substance of Mr D’s report) is concerned, I consider that there is a difference in the nature of the issues sought to be addressed in this case when compared to the issues in respect of which single expert witnesses are often otherwise appointed. 

26. Therefore, I am not persuaded that it is appropriate to require or impose upon the parties the obligation and the cost of engaging a single expert witness to deal with the issue that Mr D’s 3 May 2021 report seeks to address.

27. So that the adjourned hearing is not further adjourned, or at least, in an attempt to minimise that prospect, it seems to me that it is appropriate to make orders in relation to the Applicant being required to file and serve any report that she may obtain in response to that of Mr D by no later than a particular timeframe. I had in mind 11 June 2021 because I thought that that would provide not only the Applicant with sufficient time to consider the contents of the report of Mr D (and, if she considered it appropriate, obtain expert evidence to deal with the same in her case) but it would also provide Mr D the opportunity to consider any such document or report from an expert engaged by the Applicant if that occurs.  So what I had in mind was fashioning a form of order that provided that, if the Applicant filed and served an expert report in response to Mr D’s report, then the parties ensure that the experts confer about the contents of their respective reports for the purpose of agreeing any common evidence or common ground and identifying any issues between them which remain in dispute (and that occur by no later than 25 June 2021) and that the experts, thereafter, file a joint statement outlining or particularising any agreement between them and any disagreement between them in respect of their respective evidence or the opinions expressed in their respect reports (with that to occur by no later than 4.00 pm on 30 June 2021) so that the parties have approximately a week to have available to them a distilled position by the experts (if there are more experts than Mr D) and thus they will be afforded an opportunity to consider those respective positions. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       11 May 2021