Smith & Smith

[2007] FamCA 839

FAMILY COURT OF AUSTRALIA

SMITH & SMITH [2007] FamCA 839

FAMILY LAW - ORAL APPLICATION by unrepresented applicant to tender independent valuation report – dismissed

APPLICANT: Mr Smith

RESPONDENT: Ms Smith

FILE NUMBER: ADF 1006 of 2005

DATE DELIVERED: 14 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 14 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Berman

ORDER

1. That the oral application by Mr Smith to be able to tender the report of Mr A be dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Smith and Smith.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1006 of 2005

MR SMITH

Applicant

And

MS SMITH

Respondent

EX TEMPORE REASONS

1. In this matter of Smith, Mr Berman has raised what I will call preliminary issues, one of which is the position of the valuation of the property owned by the husband. 

2. An application was made by the wife, in May 2006, for the appointment of a single expert to value that property.  The application was for the appointment of Mr B or Mr P, or another valuer from the firm F.  The husband responded to that application by saying, in effect, he has no difficulty with any of those valuers being appointed, but he was not prepared to contribute to the costs of the application.  On that basis an order was duly made, that Mr B be appointed as a single expert.  Mr B has valued the property and has provided his report.

3. At the pre-trial conference on 18 August 2006 the issue of the valuation of the property was raised; I do not know by whom, but that does not matter precisely.  The Registrar, at that hearing, made a notation on the pre-trial conference sheet to the effect that Mr Smith considers that he will obtain a further valuation, and the registrar directed that any application for permission to lodge an adversarial report be lodged within 21 days, returnable to the list judge.

4. Mr Smith did not comply with that direction in its strict terms but what he did, and all he did, was file an affidavit on 22 September 2006, to which affidavit he annexed the report of a real estate valuer by the name of Mr A.  Looking at that report, it is nothing more and nothing less than a separate and discrete valuation of the relevant property.  I cannot see where it comments, for example, at all on the report of Mr B.  It does not take any issue with Mr B's methodology.  It is, to repeat, nothing more than a separate and discrete valuation, having no cross‑referencing or direct relevance to the report of Mr B in the sense of challenging Mr B's methodology.

5. Nothing more has happened about that.  Mr Berman's client has obviously proceeded on the basis that the single expert witness will be the witness relied upon.  Out of an abundance of caution, Mr Berman, has made arrangements for the single expert witness to be available for cross-examination if the husband requires it.

6. Mr Smith has put some things to me, from the bar table, which really boil down to him not accepting the report of Mr B and that he wants to rely on the report of Mr A.  Mr Smith says that Mr B did not look at the right comparable sales, although, of course, that is not what Mr A has said because Mr A - to repeat - has not challenged anything about Mr B's report.

7. The relevant rule which governs this matter is Rule 15.49, and particularly sub-rule (2) which says:

   “The court may allow a party to tender a report or adduce evidence from another expert witness, on the same issue, if it is satisfied that …”

   and then there are three requirements which I will not read out.

8. In my view, none of those requirements have been satisfied.  There is no challenge to methodology, there is no evidence before me of a substantial body of opinion contrary to any opinion given by the single expert witness and there is no evidence of another special reason for adducing evidence from another expert witness.  As Mr Berman has rightly said, it is nothing more than that Mr Smith was unhappy with the report of Mr B, although I note that he took no objection to Mr B being the single expert witness.  He has gone off and got a valuation of his own, which, to repeat, is independent and discrete.  It does not challenge the methodology or anything about Mr B's report; certainly it comes to a different figure, and it seems that he has used different comparable sales, but that is not the point of Rule 15.49(2).

9. I have been prepared, and am still prepared, and will obviously be prepared during the course of this hearing, to make allowances for Mr Smith appearing in person today and having to use an interpreter.  However, as Mr Berman rightly points out, I should not treat Mr Smith simply as a person who is unrepresented.  Mr Smith had the benefit of legal advice when he filed his response, as I have indicated in previous reasons I have delivered today.  Subsequent to that he has had the assistance and advice of one Mr P, who is a struck-off solicitor who has some notoriety in this court, who preys upon unsuspecting litigants in person and takes money from them in relation to matters in this court, offering the world and not delivering a jot, preparing documents for litigants in person.  Invariably they are extensive documents and there can be only one reason for that - to allow Mr P to charge these poor persons who find themselves in his clutches more money than otherwise.  For example, the Rule 15 affidavit in this case, of the husband, occupies one entire volume of the court file.

10. In any event, Mr Smith has chosen to utilise the services of Mr P and acted on, obviously, the advice he has provided and allowed him to run his case for him.  Thus I accept that submission by Mr Berman that Mr Smith cannot be treated as someone who has had no advice whatsoever and who comes to this court purely and simply as an unrepresented litigant; indeed the affidavit that was filed on 22 September was also prepared by Mr P for Mr Smith.

11. In any event, regardless of that, I can only go so far in making allowances for someone who is representing themselves and I cannot permit that to go as far as prejudicing the position of the other party who is properly and competently represented, and that is the position here now.  This trial cannot proceed by way of ambush, it cannot proceed without some formality and it cannot proceed without due process.  Making what allowances I can in that regard, I am prepared to make the allowance that Mr Smith is making an oral application to be able to tender the report of Mr A and rely on his report, which is annexed to the affidavit, but that is the end of it. 

12. As I have said, and I repeat, I do not consider that Rule 15.49(2) is satisfied in any way, shape or form and I dismiss the oral application by Mr Smith to be able to tender the report of Mr A.

I certify that the preceding
12 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 14^th day of May 2007.

……………………………………….
Associate