Slymms and Wisteria and Ors

[2011] FamCA 267

FAMILY COURT OF AUSTRALIA

SLYMMS & WISTERIA AND ORS [2011] FamCA 267

FAMILY LAW - PRACTICE AND PROCEDURE – admissibility of expert’s supplementary report - directions

Family Law Rules 2004 - rr 1.04, 1.07(a), 1.07(c), 1.09(b), 1.10, 1.12, 15.5 and 15.52

APPLICANT: Ms Slymms

FIRST RESPONDENT: Mr Wisteria

SECOND RESPONDENT: Mr A

THIRD RESPONDENT: Ms A

FILE NUMBER: SYC 1767 of 2008

DATE DELIVERED: 8 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 8 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	G Gould
SOLICITOR FOR THE APPLICANT:	McDonell Milne Toltz
COUNSEL FOR THE FIRST RESPONDENT:	L Snelling
SOLICITOR FOR THE FIRST RESPONDENT:	Caroline Chung & Associates
COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:	P Batey
SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:	Margaret Tan & Associates

Orders

1. That the Affidavit of Mr S sworn 7 April 2011 is admitted into evidence.

2. That the parties may provide Mr S with such further relevant information, which they consider he needs to be appraised of, by close of business Tuesday, 12 April 2011.

3. That the solicitors for the applicant immediately inform Mr S by email of the directions made this day and that the addendum to the report annexed to his Affidavit sworn 7 April 2011 is required to be completed and distributed to the parties by close of business Thursday, 14 April 2011.

4. That the solicitors for the applicant furnish that addendum to the Associate to Rose J by email as soon as possible after it has been received with copies of that email copied forthwith to the solicitors for the other parties.

5. That Mr S be available for cross-examination on either 18 or 19 April 2011 upon being given reasonable notice so that his professional commitments may be suitably attended to and that such notice be provided to him in writing by close of business Tuesday, 12 April 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1767 of 2008

Ms Slymms

Applicant

And

Mr Wisteria

First Respondent

Mr A

Second Respondent

Ms A

Third Respondent

REASONS FOR JUDGMENT

1. I have considered the objections to the Affidavit of Mr S sworn 7 April 2011 in his capacity as the single joint expert.

2. I will admit the affidavit of Mr S.

3. In doing so, I express my reasons and approach as follows.

4. The Rules to which counsel for the second and third respondents referred, together with other Rules, provide a general discretion to admit material.  However, this is on the basis that provided it serves what is otherwise described as the “main purpose of rules” in Rule 1.04 and to ensure that cases in which matters arise for rulings are dealt with in a just and timely manner.

5. Consequently, for the purpose of making my ruling, I have relied on Rules 1.04, 1.07(a), 1.07(c), 1.09(b), 1.10 and 1.12.

6. In addition, whilst counsel for the second and third respondents is undoubtedly correct in his submission that in the event of a dispute and/or seeking to rely upon a further report, not necessarily by consent, an application with an affidavit in support is required.  In that regard, counsel helpfully referred me to Rule 15.52.

7. For that purpose, I also considered the object of the relevant rules to be given effect in the circumstances of this part-heard case where material was provided late, but nevertheless raises a substantial issue so far as valuation is concerned.

8. A balance has to be struck between ensuring that matters proceed in a timely way, with proper administration of justice, so that a person may not be aggrieved in that a relevant matter for consideration was locked out of evidence.

9. In these proceedings, the role of the Indonesian City 1 office, so far as student services were concerned, figures prominently in the evidence to date.  It is most relevant to the issue of the valuation of the business enterprise.

10. The change of approach by the husband’s brother-in-law was indicated by email in early February, in that it was stated that the services provided by the Indonesian City 1 office in relation to the student service and business activities in Australia would be now terminated.

11. That clearly was a relevant matter for consideration by the single expert.

12. A dispute arose between the parties regarding whether or not the husband was intending to consent, and if so, on what terms and conditions.

13. With the benefit of hindsight, those matters should have been attended to with far greater haste and urgency than appears to have been the case.

14. In the absence of agreement, application could have been made to me as the trial Judge or, in my absence, to another Judicial Officer for appropriate orders.  That did not occur in these proceedings.

15. Consequently, I have been left in the position where a relevant matter may not be the subject of expert evidence, unless I admit the material.

16. I propose to do so, so that I will have the benefit of expert evidence supplementing that which has already been provided by Mr S.

17. In my view, the court has a discretion to admit such material, notwithstanding the absence of an application and an affidavit in support.

18. The relevant Rules make that clear.

19. So far as I am concerned the Rules include those to which I have already referred as well as the relevant rules in Part 15.5 of the Family Law Rules.

20. In admitting the affidavit I will be providing an opportunity for information to be provided by the parties to Mr S within a short time-frame.

1. Consequently, it will be a matter for the parties to ensure that their legal representatives receive their instructions urgently and that the legal representatives act upon those instructions without delay.

2. Should either not occur, then subject to any further submissions being made, I will proceed with the matter on 18 and 19 April 2011 on such evidence such as may then exist.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 8 April 2011.

Associate: 

Date:  15 April 2011