Simonsen & Simonsen - [2009] FamCA 698

FAMILY COURT OF AUSTRALIA

SIMONSEN & SIMONSEN

[2009] FamCA 698

FAMILY LAW – PROPERTY – Value of property – Expert evidence

Family Law Act 1975 (Cth) s 79
Family Law Rules 2007, r 15.5.1, 15.49(2)

Bass & Bass (2008) FLC 93-366

APPLICANT:

Ms Simonsen

RESPONDENT:

Mr Simonsen

FILE NUMBER:

BRC

7059

2008

DATE DELIVERED:

20 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

20 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C J Forrest

SOLICITOR FOR THE APPLICANT:

Murdoch Lawyers

COUNSEL FOR THE RESPONDENT:

Mr M P Kent SC

SOLICITOR FOR THE RESPONDENT:

Dixie Ann Middleton & Associates

Orders

The application to adduce evidence and/or produce the report from Mr C is refused.

IT IS NOTED that publication of this judgment under the pseudonym Simonsen & Simonsen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7059 of 2008

MS SIMONSEN

Applicant Wife

And

MR SIMONSEN

Respondent Husband

EX TEMPORE

REASONS FOR JUDGMENT

At the outset of the hearing of this matter, which is listed for two days before me and involves a dispute pursuant to section 79 of the Family Law Act between the parties to this lengthy marriage, the wife seeks to adduce evidence from an expert witness engaged by her in respect of the valuation of what I will call the parties’ rural business.
That business has, among other things, been valued by a single expert witness, Mr B, nominated by the wife and appointed by agreement between the parties pursuant to an earlier order made by the court.
The wife makes application, she says, pursuant to rule 15.5.1 of the Family Law Rules 2004. In fact, the application by her needs to be made pursuant to rule 15.49 of the Rules.
That rule provides relevantly that:
If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
Subrule (2) of that rule provides relevantly that:
The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is established that:
(c)there is another special reason for adducing evidence from another expert witness.
Mr Forrest, who appears as counsel for the wife, concedes that the subparagraph just referred to is the only relevant subparagraph relevant to the current application.
The expert evidence rules are contained in Part 15.5 of the Rules and were introduced in what was a significant change to the previously existing position, when those rules were promulgated in 2004.
That Part of the rules has as its purpose, among other things, “to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness”. Another purpose is to “avoid unnecessary cost arising from the appointment of more than one expert witness”.
An additional purpose is 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”.
As Rule 15.49 makes clear, however, the circumstances in which an additional expert can give evidence or prepare a report, once a single expert has been appointed by the court, are somewhat truncated.
That is evident from the restricted nature of the two opening subparagraphs of rule 15.49(2), and the requirement for the reason by which a court should be satisfied that the other expert witness or evidence is necessary, being “special”.
The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word “special” as used in rule 15.49 has real meaning.
It is important to understand that Part 15.5 of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert.
Thus, expert evidence obtained by a party on their own account can be used, for example, to significantly inform the cross-examination of a single expert witness at a trial. The restriction inherent in the rules is a restriction related to the adducing of evidence from the expert or experts retained by a party.
Mr Kent SC, who appears on behalf of the husband, makes the point that, within the context of the Rules, the single expert witness assumes a different position to an expert witness who may have been retained by a party.
There are a number of aspects of the difference between the two, not the least of which is that the instructions to a single expert witness preparing a report for the court (as distinct from preparing a report for a party) must be jointly agreed between the parties or otherwise determined by the court. Similarly, the capacity of either party to question a single expert witness is curtailed in the sense that requirements are laid down in the rules for that process to occur.
I turn to the chronology in this case. Mr B, a single expert witness in this case, produced his first report in October 2008. It seems that the wife was unhappy about a specific aspect of that report; Mr B made it clear, for reasons stated in the report, that he considered that the business under valuation ought not have any goodwill attributed to its value.
In that respect Mr B distinguishes between what might be called, for convenience, “personal goodwill”, in this case inherent in the husband, and what, for convenience, might be called “commercial goodwill”, which is goodwill attaching to the business and which is transferrable with it. Mr B makes the point in his report that it is only goodwill of the latter type which should be included in the valuation, because it is only goodwill of the latter type which is transferable to a prospective purchaser.
On 9 February 2008 an application was filed by the wife seeking to adduce evidence from her own expert, Mr C. That application was opposed. Shortly thereafter, on the return date of that application, consent was arrived at between the parties and orders, by consent, were made by me providing for the mechanics for sale of that business.
It is common ground between the parties that the business did not sell, and evidence in respect of that failure to sell is contained in the affidavit material in the trial before me. It is at the commencement of the first day of the hearing of this matter that the wife pursues her application to have Mr C give evidence.
Mr Kent SC makes two points in respect of the period between the application being filed on 9 February 2008 and today.
First, he says that merely because the mechanics for sale were put in place by consent orders in mid-March does not create a suspension of things otherwise necessary to occur if the trial between these parties is to proceed. He argues there was no reason why, and no reason is given why, the wife did not seek to pursue her application prior to the commencement of the trial in the sense of relisting that application for determination by me or another judge of this court.
Secondly, and, with respect, I think more importantly, Mr Kent argues that the wife has not sought to address questions to the single expert witness emanating from those matters of opinion expressed by Mr C in his report prior to the application being pursued on the first morning of trial.
That seems to me to be an important consideration because the Rules provide, (albeit it in a manner that has been criticised by some commentators), for a specific methodology by which alternative opinions, assertions, factual scenarios and the like can be put to a single expert witness.
That is an important part of the single expert witness providing an opinion ultimately for the court in a way that is consistent with the interests of justice.
Mr Forrest argues that the special reason in this case is that the goodwill component is asserted by Mr C to be in the region of $1 million. That is obviously a substantial sum, in any event, and Mr Forrest seeks to emphasise that that is a particularly substantial sum in the context of the overall “pool” of property for determination in this case.
That is a significant matter, and I need to balance carefully, that particular consideration against the matters earlier referred to, together with an additional matter raised by Mr Kent. That mater goes to the nature of an “adversarial” expert witness as distinct from a single expert witness appointed by the court preparing a report for the court.
It is not suggested by Mr Kent, (nor is it suggested in these reasons) that Mr C, nor any other is, by reason of that fact alone, necessarily “biased” towards the party retaining him, the mother. Nevertheless, specific considerations, some of which were addressed by Mr Kent in argument, apply to the retention of that expert by a particular party.
It is exactly for those reasons that Part 15.5 of the Rules was introduced in the first place one of the subparagraphs of the Purposes to those rules outlined in rule 15.42 makes clear.
Mr Kent raises a number of issues directly relevant to his client’s case if Mr C’s evidence is to be permitted and/or his report relied upon in the manner outlined.
First, he says that, if permitting that evidence and/or report was to result in an adjournment, and even if costs were to be paid by the wife consequent upon that adjournment, the injustice to his client is not cured. He argues that it is not cured by reason of the fact that Mr C is, in fact, the wife’s expert witness. He has been retained by the wife. She has, through her solicitors, provided instructions to Mr C, and Mr C has seen, and had the opportunity to consider, all of the matters outlined by Mr B consequent upon joint instructions having been provided to Mr B.
So, Mr Kent argues that it is not the case that the wife’s expert would be met with the husband’s expert. Rather, the husband is at a disadvantage because allowing Mr C’s evidence would be to allow the wife to have her own expert evidence in circumstances where the husband does not. The wife’s expert would be “adversarial” in the sense earlier described. And, the husband may well want the opportunity, for example, to have his own “adversarial expert” by reason of the different considerations which might apply in the retention of that expert and the preparation of a report by that expert earlier referred to.
It seems to me, in balancing the particular considerations that I need to take into account in deciding whether to permit the evidence of Mr C, that the matters just referred to are important. Secondly, it is important that the wife has not availed herself of the opportunity to ask questions of Mr B in the manner outlined by the Rules. Thirdly, there is nothing to prevent the matters raised by Mr C in his report, (which I emphasise I haven’t seen), being raised in cross-examination of Mr B by Mr Forrest.
On balance it seems to me, for the reasons just given, that I should refuse the application to adduce evidence and/or produce the report from Mr C.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 3 August 2009