Sum and Chia and Ors

[2013] FamCA 396

FAMILY COURT OF AUSTRALIA

SUM & CHIA AND ORS [2013] FamCA 396

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling – Wife given leave to adduce evidence from an expert

Family Law Act 1975 (Cth)

APPLICANT: Ms Sum

RESPONDENT: Mr Chia

2^ND RESPONDENT: Mr Cui

3^RD RESPONDENT: C AA Pty Ltd as trustee for the C Unit Trust

4^TH RESPONDENT: D Pty Ltd as trustee for the E Trust

5^TH RESPONDENT: Ms Ceoi as trustee for the Cui Family Trust

6^TH RESPONDENT: Mr Sum

7^TH, 8^TH, AND 9^TH RESPONDENTS: C BB Pty Ltd & F Pty Ltd as trustee for the G Trust & C Pty Ltd as trustee for the C Trust

FILE NUMBER: MLC 896 of 2010

DATE DELIVERED: 12 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Caroline Counsel Family Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Hutchins

SOLICITOR FOR THE 2^ND RESPONDENT: Lander & Rogers

COUNSEL FOR THE 3^RD RESPONDENT: Ms Dorian

SOLICITOR FOR THE 3^RD RESPONDENT: Schetzer Constantinou Lawyers

COUNSEL FOR THE 4^TH RESPONDENT: Mr Hutchins

SOLICITOR FOR THE 4^TH RESPONDENT: Caroline Counsel Family Lawyers

COUNSEL FOR THE 5^TH RESPONDENT: Mr Hutchins

SOLICITOR FOR THE 5^TH RESPONDENT: Caroline Counsel Family Lawyers

COUNSEL FOR THE 6^TH RESPONDENT: Mr Mellis

SOLICITOR FOR THE 6^TH RESPONDENT: Arthur Phillips Lawyers

COUNSEL FOR THE 7^TH, 8^TH AND 9^TH RESPONDENTS: No Appearance

SOLICITOR FOR THE 7^TH, 8^TH AND 9^TH RESPONDENTS: Caroline Counsel Family Lawyers

Orders

1. That the wife have leave to adduce evidence from an expert in relation to the documents giving rise to the transactions relevant to the application for orders under s 106B of the Family Law Act 1975 (Cth).

2. That the application in a case filed 19 February 2013 is otherwise dismissed.

3. That the review application filed by the husband is otherwise dismissed.

4. That all parties’ costs of this day are reserved to the trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sum & Chia and Ors 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 896 of 2010

Ms Sum

Applicant

And

Mr Chia

Respondent

And

Mr Cui

2^nd Respondent

And

C AA Pty Ltd as trustee for the C Unit Trust

3^rd Respondent

And

D Pty Ltd as trustee for the E Trust

4^th Respondent

And

Ms Ceoi as trustee for the Cui Family Trust

5^th Respondent

And

Mr Sum

6^th Respondent

And

C BB Pty Ltd & F Pty Ltd as trustee for the G Trust & C Pty Ltd as trustee for the C Trust

7^th, 8^th, and 9^th Respondents

REASONS FOR JUDGMENT

1. The substantive property trial of this matter is listed in less than 3 weeks time. The issue before me arose from a decision of a registrar on 1 March 2013 to permit the applicant wife to adduce evidence from an expert witness who was named in the order as Mr H. From that decision, the husband sought a review.

2. The right to a review lies in rule 18.08 and the Court must hear the matter as an original hearing (rule 18.10).

3. The Wife’s substantive application seeks a property division and that certain transactions involving the husband be set aside under s 106B of the Family Law Act1975. The latter brought in another respondent who joined with the husband in opposing the order made by the registrar.

4. The wife sought an order by filing an application in a case on 19 February 2013. She sought the order mentioned above.

5. In the supporting affidavit filed on behalf of the wife by her solicitor, David Hanlon, it was said that “expert evidence” was necessary because the analysis of the relevant transactions could not be explained by the wife as a lay witness. The transactions were described as complex and she would be treated unfairly if subjected to cross-examination about them. That was on the basis that although she is a healthcare professional, she did not understand the documents involved. It is to these concepts that I shall return below.

6. Counsel for the husband, supported by counsel for the 2^nd and 5^th respondents maintained that the production of this evidence could be done in ways other than by that proposed by the wife. For example, a “court book” of documents could be produced or the documents could be put to the husband in cross-examination for an explanation.

7. There is a single expert witness in this case who has not delivered a report. One of the submissions of the respondents was that this application was premature because these very issues may be raised by that witness. I am not convinced that the wife should have to wait and find out. To do so may prejudice the trial.

8. The wife alleged that the husband was “playing games”. I am not in any position at this stage to determine any issues of fact. This interlocutory application is about permitting a litigant to seek to file evidence in the form of an affidavit that may be necessary to achieve justice. Regardless of the various rules, that must remain the over-arching principle.

9. Rule 15.51 provides that if a party wishes to adduce expert evidence other than through a single expert, permission is required. The focus of the husband, in part, was on the expertise of the proposed witness but also whether the proposed evidence was admissible. It was submitted that the curriculum vitae of the witness said very little to justify a claim that he was a forensic accountant. The witness produced a number of pages setting out his background and suggested that courts had accepted his expertise over a number of years. Those statements do little to establish expertise for the particular purpose for which the evidence was to be called and many were self-serving. Often, witnesses who regularly appear in court do not have their expertise challenged but that is not a reason to become complacent.

10. The first issue however was whether the wife needed the permission referred to in rule 15.51. The evidence of the wife’s solicitor was that she did not understand the documents that she would be relying upon and that therefore she needed an expert. Indeed, she may need an expert to tell her what they all meant but that does not necessarily mean that evidence is needed of that same quality. If what was being proposed was that someone would explain what had happened, those documents could be led in evidence without permission because the documents would speak for themselves. Although not entirely clear as to why she was taking the path she was, the suggested evidence attached to the affidavit of the wife’s solicitor might give some insight. I do not intend to spend any time referring to that affidavit because although it has now been filed as a result of the registrar’s order, it may be that it is not ultimately the evidence relied upon by the wife. As I pointed out in discussion, what the application was really about was a party seeking permission to adduce evidence. The filing of an affidavit does not adduce the evidence.

11. At this stage of the interlocutory process, I should rely upon the affidavit of the party to say why the permission is sought. That affidavit suggests that the evidence is about what the documents were.

12. The wife through her solicitor said that the evidence she wanted to lead was to be of an expert nature. That could only arise if the documents were to be commented upon in some way in circumstances where an expert opinion was necessary. It is not clear to me at this stage just what that expert evidence will be but it is important to be liberal with the approach to the rules to ensure that justice is ultimately done. If the proposed expert is found not to be an expert or the evidence is inadmissible, a trial judge will exclude it. The question at this stage is whether the rules are sufficiently satisfied to allow the wife the opportunity to file the affidavit.

13. The wife relied on rules 15.52, 15.42 and 1.04. Each of those rules needs some contemplation.

14. Rule 15.52 permits a party to seek “permission to tender a report or adduce evidence from an expert witness”. The party must file an affidavit in which the following matters must be set out:

    (a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;

    (b)the name of the expert witness;

    (c)the issue about which the expert witness’s evidence is to be given;

    (d)the reason the expert evidence is necessary in relation  to that issue;

    (e)the field in which the expert witness is expert;

    (f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and

    (g)whether there is any previous connection between the expert witness and the party.

15. Counsel for the wife pointed to the fact that allegations were made against the husband so it was unlikely that a single expert witness would be agreed upon in respect of what the wife wanted to do. Indeed, the husband and two respondents opposed the wife endeavouring to present the evidence in the format that she had proposed. Thus, I could conclude that an attempt had been made to agree and no such agreement had been achieved.

16. The rules require the applicant to show the name and field of expertise of the proposed expert, the issue about which the evidence was to be given and the reason it was necessary. Each of those matters was covered by the simple paragraphs of the solicitor’s affidavit.

17. The proposed witness set out his experience and qualifications. The wife is now on notice that his expertise as a forensic accountant, if that is what is being asserted, is to be challenged. However, the provision of a curriculum vitae at this interlocutory stage is not a matter that justifies me rejecting the witness as an expert. That is a matter for trial at which point further evidence could be called. Again, I observe the need for careful consideration by lawyers.

18. I was informed that the proposed expert had no connection with the wife.

19. The checklist of things to be provided is not particularly helpful nor can it be an exhaustive list.

20. The court in considering whether to grant the permission sought may take into account:

    (a)the purpose of the Part;

    (b)the impact of the appointment of an expert witness on the costs of the case;

    (c)the likelihood of the appointment expediting or delaying the case;

    (d)the complexity of the issues in the case;

    (e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and

    (f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:

    (i)relevant to the issue on which evidence is to be given; and

    (ii)appropriate to the value, complexity and importance of the case.

21. The purpose of the Part is set out in rule 15.42. It provides that expert evidence should only be called where it is necessary to determine a matter in issue between the parties. The emphasis is on the court and the parties using a single expert but that (as the rule says) must always be so without compromising the interests of justice. The underlying focus is on an expeditious disposal of cases where there is a careful eye on not wasting costs. Whilst it was submitted here that this would lead to extra costs, it may be the opposite occurs when all parties examine what is being presented to the Court.

22. In relation to the question of this course delaying matters, it was submitted by counsel for the wife that this was being done to avoid the trial being delayed. Nothing I heard would suggest that was not right.

23. As for the complexities of the issue, it was submitted that even on the husband’s case, it was asserted that there were errors in documents and dates and the accountant had not been on affidavit to explain anything. Indeed, the accountant has already given evidence in which he maintained he had no documents. The complexity of the issue must remain a matter for trial and if a party asserts in an interlocutory application that it is complex, then subject to it being clear that it is not, the Court should be cautious in refusing the party an opportunity to adduce evidence.

24. I have considered that it may be more sensible to allow the single expert witness to deal with the issues raised by the wife but there is limited time and no suggestion at this stage that the single expert will cover those matters. I do not see the single expert witness concept being of assistance in getting this trial ready for hearing.

25. As for whether the proposed witness has the expertise, in my view, that is a matter for trial. Whether that witness can give evidence that satisfies the relevance test is also a matter for trial. On what I was asked to read and upon which submissions were based, I would consider there were serious problems but that is not the end of the issue.

26. It must not be forgotten that one purpose of the rule is to allow a person to adduce their own evidence from an expert if that is necessary in the interests of justice. A relevant consideration is whether a party would consider they have been denied justice where there is evidence that they consider might affect the outcome they pursue. Again, it is important to focus on the word “adduce”. All parties understand that it is one thing to adduce evidence and another entirely to have it admitted as evidence because of the provisions of ss 55 and 56 of the Evidence Act 1995.

27. It is also to be noticed that the matters in rule 15.52 are matters to be taken into account. Ultimately, the determination is a discretionary one where the focus is on justice.

28. Counsel for both the husband and two other respondents focused very carefully on the admissibility of the proposed evidence. As I pointed out in discussion, the document provided looked very much like a report from a person who not only set out what he saw but also what his conclusions were. Without all of the appropriate considerations of admissibility being contemplated, I could find no more than that the wife wants to pursue the path she is apparently being advised by her accounting adviser but it then becomes a matter for the lawyers to put it into appropriate form and not just cut and paste the report. That latter path could probably be followed if Part 15.4 of the rules was being followed and here it was not.

29. In my view, the test for whether permission should be granted or refused must be one based on a low threshold. The check and balance is always whether the evidence can ultimately be admitted and if it cannot, any inconvenience caused can be ameliorated by an order for costs. Although the focus of the rule would seem to be on requiring the wife to nominate the specific evidence to be called, the rules must not preclude a variation of the pathway being taken. It is to the content of the evidence and the issue that it addresses that the court should direct its attention. In this case, I would not limit the wife to the specific witness named in her application.

30. I propose therefore to allow the application of the wife and dismiss the application for the review of the registrar’s decision.

I certify that the preceding Thirty (30) paragraphs are a true copy of the ruling of the Honourable Justice Cronin delivered on 12 April 2013.

Associate: 

Date:  12 April 2013