St Claire & St Claire (No 3)

[2012] FamCA 592

FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE (NO. 3) [2012] FamCA 592

FAMILY LAW – EVIDENCE - Single expert witness

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms St Claire

FIRST RESPONDENT: Mr St Claire

SECOND RESPONDENT: E Pty Ltd

THIRD RESPONDENT: Mr G

FILE NUMBER: MLC 9777 of 2010

DATE DELIVERED: 3 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3, 4, 5, 6, 9, 10, 11 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE FIRST 

RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE FIRST

RESPONDENT:

FC Law

COUNSEL FOR THE THIRD

RESPONDENT:

Mr Crennan

SOLICITOR FOR THE THIRD

RESPONDENT:

Trumble Szanto Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT

CHILREN’S LAWYER:

Cathleen M Corridon

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9777 of 2010

Ms St Claire

Applicant

And

Mr St Claire

First Respondent

E Pty Ltd

Second Respondent

Mr G

Third Respondent

INDEPENDENT CHILDREN’S LAWYER

RULING

1. An application for permission to use an expert witness is made by application in a case, supported by an affidavit.  Because of delays, I am prepared to accept the oral application, and the evidence in support of it.  

2. Permission to use an adversarial witness is governed by rule 52.52.  It requires the applicant to set out, in an affidavit form, the various steps that have been taken to attempt to use what is the preferred model under the rules, which is a single expert witness.

3. The evidence, in this case, is primarily that set out in the affidavit of Ms Barbayannis.  There has been considerable argument about whether or not the husband and the second respondent have effectively acted in some way to refuse to assist in the outcome of obtaining a single expert witness.  I am not entirely convinced that that is the case, having regard to the fact that the chain of correspondence seems to put, rather bluntly, that a single expert witness should have been used and at least one of the practitioners for one of those parties responded asking why.  There does not seem to have been a significant chain of events after that which would have probably ended in lawyers using some common sense and saying, “Well, we have got an issue here that needs to be determined according to the rules by a single expert witness”.

4. Be that as it may, all that correspondence was in February 2012 or thereabouts and the matter was certainly before me subsequent to that time, where it was clear, on the way which the wife was conducting her case, that she was proceeding to run with what was then described as a shadow expert.  I ruled, at that time, that there were issues that I would revisit about the admissibility of that affidavit material, predominantly because of the relevance issue.  It was clearly asserted, at the time, by the husband that the evidence ought not to be admitted on the basis that it was a narrative and therefore, I was in the position of determining the matter and that it was not the function of the expert.

5. Time has moved on and it seems that further attempts, predominantly working from an affidavit provided by the second respondent, has meant that the adversarial witness has gone back in and done some further examination which, I think, has been aptly described by counsel for the applicant as a taking of accounts.  Taking of accounts is an exercise to determine in a partnership;  that is, what each of the partners is entitled to, drawn from the books of accounts.  That is something that only an accountant or someone with expertise or training in that particular area could undertake;  it is not a matter that would normally be undertaken by a judge in determining the particular issue.

6. It seems to me, therefore, that there is sufficient basis for me to say that this is an area that would normally require an expert’s evidence. 

7. As to how that evidence is relevant, I would turn to ss 55 and 56 of the Evidence Act 1995 (Cth).  It is conceivable that, in the running of this case, the Court may be assisted by knowing what each of the husband and the second respondent understood, from their books of accounts, just what each was entitled to in their respective business venture.  On that basis, it seems to me that the evidence may have some probative value.

8. I think, as counsel for the second respondent pointed out, it may very well become a matter of weight.  With that submission I agree.  Rule 15.52 subrule (3) says that in considering whether to permit a party to tender a report or adduce evidence from an expert witness, the Court can take into account a number of matters.

   One of those is the very purpose of the particular part in which the rule sits and particularly, rule 15.42.  One of the issues that is always troubling in defining, in a financial matter, what evidence parties can call by using the single expert witness rules, is 15.42 subrule (e) which reads that:

   The purpose of the part is to enable the 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.

9. It is extremely vague terminology but I think, as counsel for the applicant pointed out, this is a property case where the provisions of s 79 of the Act apply. The Court is required, by s 79(2), only to make an order if it is satisfied that it just and equitable to do so. How one determines that where a party is precluded from calling evidence which may have some probative value and I, again, point to the fact that ss 55 and 56 of the Evidence Act require only that that possibility be shown, then it seems to me that even rule 15.42, in its generality, requires the Court to allow a witness to be called who says that this evidence is of some probative value.

10. On that basis, it seems there is no other possibility, other than to allow the wife to rely on an adversarial witness, bearing in mind that, up until recently, it has been the position, as I understand it, that both the husband and the second respondent to decline to pursue that course. 

11. That then gives rise to the question of what Mr Sweeney and Mr Crennan have both foreshadowed, which is an application for an adjournment which is strongly opposed by the applicant.  There can be no doubt that, as at latest, the recent ruling in which I gave some doubts about the evidence being admitted but which I would revisit, was clear which course of action the wife was taking.

12. It is clear, also, that the adversarial witness’ expert evidence relates to material provided by the second respondent.  It clearly also relates to evidence of the involvement of the husband in the business because it is a taking of accounts.  It seems to me that both the husband and the second respondent are not prejudiced for two reasons:

    (1)first, it is their own documents and they ought to be able to have a look at what the expert witness says and can cross-examine on it but;

    (2)secondly, in the event that they need some time to call some evidence, there will be some days before we really get to this issue if I start the parenting matter now.

13. On that basis, I am prepared to give the second respondent and to that extent, the husband, some time to gather whatever evidence they want to present, bearing in mind I have no idea what it is and I can revisit the situation later in the week.  So at this stage, the application to simply adjourn the property proceedings is refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 July 2012.

Associate: 

Date:  26 July 2012