Viney and Viney

[2016] FamCA 728

FAMILY COURT OF AUSTRALIA

VINEY & VINEY [2016] FamCA 728

FAMILY LAW – Expert evidence — procedural orders — enforcement application — case management — costs

APPLICANT: Mr Viney

RESPONDENT: Ms Viney

FILE NUMBER: MLC 6457 of 2013

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crofts

SOLICITOR FOR THE APPLICANT: Westminster Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Mawson QC with Mr Matta

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

IT IS ORDERED:

1.The husband’s Application in a Case filed on 6 June 2016 and the wife’s response thereto filed on 23 June 2016 be and is hereby dismissed.

2.The husband pay the wife’s costs of and incidental to the said application, including all of the costs of the hearing this day such costs to be calculated on a party/party basis in accordance with Schedule 3 of the Family Law Rules.

3.I certify for counsel including the attendance of Senior Counsel.

4.Within 14 days the wife provide to the husband through their respective lawyers a simple itemised statement of the costs claimed by them pursuant to this Order and, in the event there is no agreement as to the quantum of costs by 12 September 2016, the parties proceed to an assessment of costs pursuant to the Family Law Rules.

5.Within 14 days each party deliver to the other party an offer of settlement of the enforcement proceedings.

IT IS DIRECTED:

6.That by not later than 1 December 2016 my Chambers notify the parties in writing of the hearing date for the enforcement proceedings, such proceedings being estimated to take between 5 and 8 days and in the event that the date set by the Court is inconvenient for either party or for counsel the counsel retained to appear at the hearing be at liberty to discuss an alternative date with my Associate. In the event there is no satisfactory date that can be agreed upon, the matter will be listed before me for telephone mention.

7.That the husband’s Outline of Case document be marked Exhibit “H1” and remain on the Court file.

8.That the wife’s Written Submissions document be marked Exhibit “W1” and remain on the Court file.

9.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6457 of 2013

Mr Viney

Applicant

And

Ms Viney

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. On 17 April 2015, the parties sought that I make orders finally altering financial interests between them. There were some 36 real properties and some commercial enterprises which were dealt with by the Order. The matter now returns to the cost for enforcement and, in the context of enforcement, a dispute has arisen about expert evidence upon which the husband seeks to rely.

Background

1. The husband and wife are both professionals. It appears that each contributed their professional perspectives to the resolution of their case. The Order made 17 April 2014 provided that there be an adjustment, calculable by either Mr B or Mr C, both accountants of D Accountants in E Town. The accountants were to confirm an accounting of rental income received in relation to real properties. The result was that there would be a payment either to the husband or the wife to adjust finally what could not be quantified at the time the Order was made.

2. The husband has instituted enforcement proceedings by an Application in a Case. The current incarnations of those enforcement proceedings are the husband’s Further Amended Application in a Case filed on 29 January 2016 and the wife’s Amended Response to an Application in a Case filed on 26 February 2016. They are, for all intents and purposes, the substantive proceedings with which the court has to deal.

3. In the husband’s enforcement application, he seeks, inter alia, the return of personal property including the contents of a property at Suburb F in Melbourne, a trailer, some tools, equipment, marble tiles, marble ornaments and some artworks and a payment to him of $558,725. On the other hand, the wife seeks, inter alia, the delivery up of a nail gun, saws, some shelving, scaffolding, ladders, a sweeper cleaning machine and a payment to her by the husband of $103,778.78.

4. The total of the financial interests which were dealt with in the order made on 17 April 2015 has been estimated by counsel today at $17 million. Counsel appeared here on behalf of the parties when the final Order was made.

5. Leaving aside the orders which each seek about chattels the maximum amount in issue between them is something in the vicinity of three or four per cent of the asset pool. Nonetheless, it is a dispute between the parties brought before the court on an enforcement application and it is the court’s responsibility to deal with enforcement of its orders. As I have indicated to the parties, I will in due course do so, although that might not be any time soon.

Permission to Adduce Experts

1. The matter which requires determination by the court today is the application of the husband filed on 6 June 2016 in which he seeks permission to adduce expert evidence pursuant to r 15.52 of the Family Law Rules 2004 (“FLR”). The husband identifies “the expert witness [Mr G] CPA”. The husband further seeks that a conference be ordered between Mr G and Mr B and that a memorandum be prepared by the “said expert witnesses” which is in fairly usual terms in applications for final alteration of property interests under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). However, this is not an application for a final alteration of property interests. This is not a proceeding in which a single expert has been appointed pursuant to the rules of court and in particular part 15.5 of the FLR.

2. The Order made on 17 April 2015 provided that the parties would appoint one and/or two people, being the accountants Mr B or Mr C to confirm the accounting of any adjustment between the parties. That was a machinery provision which the parties put in place for themselves. The form of the Order was drawn by the parties through their lawyers. The court retains an overriding jurisdiction to enforce orders and where it may ultimately find that Mr B has either fallen short of his task or his verification or calculation is not correct the court may order that an alternative sum of money constitute the adjustment.

3. The husband has filed three affidavits by Mr G. Those affidavits were sworn by Mr G on 3 August 2015, 7 December 2015 and 29 January 2016.

4. The FLR provide that an enforcement application is to be by way of an application in a case. Rule 5.02 of the FLR provides that when an application in a case is filed, the applicant must at the same time file an affidavit “which states the facts relied upon in support of the orders”. The clear reading of that rule is that expert or opinion evidence is not to be filed; that matters of fact are to be deposed to, not expert evidence or opinion evidence.

5. Order 20.06 of the FLR provides that an affidavit is to be filed in support of an enforcement application and specifies in an inclusive way what the content of the affidavit is to be. Order 15.05 of the FLR provides that “a party may file an affidavit without leave of the court only if a provision of the rules or an order of the court allows the affidavit to be filed in that way”.

6. No permission was obtained for the husband to file material by Mr G, and there is no provision in the FLR which allows the husband to file affidavit evidence by Mr G. The question, however, is whether or not I ought to retrospectively grant that permission, which clearly I can, given the application which is before me.

7. Mr Crofts, counsel for the husband, has made submissions and he has helpfully prepared an outline of the husband’s case (Exhibit “H1”) which puts concisely the husband’s argument.

8. The first point relied upon by the husband is that prior to June 2016, there had been no objection by the wife to the affidavitory evidence of Mr G. That seems to be accurate, but the wife is not in a position to waive compliance with the FLR or to entitle the husband to file affidavit evidence which neither the rules of court nor orders entitle him to file.

9. The second point relied upon by the husband is that documents produced pursuant to subpoena or subpoenas were released and made available for inspection by Mr G. That too is immaterial. The rules of court do not preclude the husband from being assisted by or taking advice and counsel of any number of experts. They are commonly referred to, in this jurisdiction, as shadow experts. Having one of his shadow experts look at documents which have been produced pursuant to subpoena does not amount to anything in the context of this application.

10. The third point relied upon by the husband is that an order had been made by Registrar Riddiford on 12 December 2015 for final affidavits to be filed for the enforcement application. The husband was to file any further affidavits upon which he sought to rely by not later than 29 January 2016 and the wife by 26 February 2016. Again, nothing turns on it for this purpose. There was no application made before Registrar Riddiford for the husband to be able to rely on Mr G’s affidavits. I am not suggesting that had such an application been made, it would have succeeded, but it was not made much less acceded to.

Decision of Husband’s Application

1. I decline the application of the husband to have Mr G appointed as an expert. In my view, and for the reasons which I have outlined above, that application is misconceived. The application is for enforcement of a machinery provision in a final property order. It is for the court to oversee the operation of the Order. The accountant’s efforts will be tested by cross examination.

2. To the extent to which I understand that the husband seeks to rely on the evidence of Mr G in the three affidavits he has sworn thus far, I do not permit him to rely on those affidavits. I cannot say, however, that it has been a waste of time having them filed. Obviously, it is now known what view he takes of the way in which Mr B has approached his role in the implementation of the final orders and that should make for a more economical final hearing.

3. Because I do not appoint Mr G in any capacity as an expert in the case, I am not going to require Mr B to confer with Mr G. By the same token, that does not preclude him from conferring with Mr G if that is what the parties ultimately decide to do, but it will not be a conference that is ordered by me on this application.

4. The husband’s application filed on 6 June 2016 is hereby dismissed. On 23 June 2016, the wife filed a response to that application however it only sought a dismissal of the husband’s application (which I have done) and an application that the husband pay her costs of and incidental to that application.

Further Conduct of Proceedings

1. As to the further conduct of the matter, I have had some extensive discussions with counsel for both parties. The enforcement application can remain in my docket. I made the final orders and, as best I understand the situation, there probably is not a judge in the Registry who is better placed to hear it than me in terms of time and the weight of other cases before the court. However, I do not see this matter being reached until well into next year.

2. I have made it clear that Mr B can be cross-examined and it is at that point, no doubt, that the husband’s counsel will be able to put to Mr B the very many points that his shadow expert, or experts, will have armed him with. It will not be a short hearing. Mr Crofts indicated that he wanted to seek some guidance from Mr Geddes QC, who has previously had conduct of the case with him. That is not practicable, as Mr Geddes is not in Melbourne or contactable. It seems to me reasonable that those who advise the husband would come to court in the knowledge that they may not succeed in their application and be in a position to say what should flow. In any event, doing the best he can, Mr Crofts estimates that five days would be a conservative estimate; that is, that he might not take much longer. Mr Mawson QC, for the wife, says that the application is largely not in his hands, so he does not estimate any less time than does Mr Crofts.

3. It seems to me to be likely to be a case which will run for somewhere between three and eight days I will order that it be allocated a hearing date before me next year. I will notify the parties, by letter from my Associate, by 1 November 2016 of the date for hearing. At that point, there will be some flexibility around hearing dates and if the hearing date is particularly inconvenient to either of the parties or to counsel who have been retained to appear, I would give limited consideration to altering the date for hearing at that time. It will not be set in stone which is some small benefit in having to wait for so long.

Costs

1. The wife makes an application that the husband pay her costs of and incidental to the application filed by him on 6 June 2016. Unfortunately, she is not in a position to quantify those costs. That is most unfortunate. Like Mr Crofts, counsel for the wife should have contemplated that he may succeed in the wife’s opposition and have been in a position to quantify costs.

2. The Act provides that each party should bear their own costs of proceedings. That is the starting point in litigation in this court. However, where the court considers that there are circumstances which justify a costs order being made, the court may make an order for costs.

3. In this case, I am satisfied that there are circumstances which justify the making of a costs order, and, in particular, that is the fact that the husband’s application, which has taken up the overwhelming amount of court time today, has failed.

4. Turning to what order (if any) for costs ought to be made, I am required to consider the matters set out in s 117(2A) of the Act, and I have heard submissions from counsel for each of the parties.

5. I am aware of the financial circumstances of each of the parties to the proceedings. By community standards, they are relatively wealthy, but by the same token no party can afford to pay costs which are unnecessarily incurred.

6. Neither party is in receipt of assistance by way of legal aid.

7. It does not seem to me that the conduct of the parties to the proceedings in relation to pleadings and particulars and discoveries are a matter which bears on this costs application, likewise whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court. While the proceedings in their totality are an enforcement application, the matter today was a procedural matter, where the husband sought to be able to rely on expert evidence, and that application has not been allowed.

8. I am not aware of any offer in writing exchanged between the parties to settle the matter before me today, so I do not take that into account.

9. The most relevant is s 117(2A)(e) of the Act, “whether any party to the proceedings has been wholly unsuccessful in the proceedings”. The husband has been wholly unsuccessful in his application filed on 6 June 2016. Mr Crofts, for the husband, acknowledges that is the case, but says that that is not the only reason that the parties were before the court today. He is correct.

10. The orders made on 9 December 2015 by Registrar Riddiford provided that this matter come back before me. The adjourned date before me in paragraph 7 of Registrar Riddiford’s Order is 27 April 2016, but that is, for all intents and purposes, today, given that the court was unavailable to hear the matter on 27 April. Registrar Riddiford set the matter down for review by me, and that was for the purpose of me allocating a final hearing to the matter. Subsequent to that, and in particular on 2 June 2016, the husband’s lawyers wrote to the court, enclosing an Application in a Case and supporting affidavit, inferentially requesting that the matter be listed, returnable on the same day.

11. Whereas the parties would have been before me today for a listing mention, what they were also here for was a defended hearing on the husband’s Application in a Case with which he has filed. The husband ought to be responsible for the wife’s costs of today. I do not accept Mr Croft’s submission that there should be a discount because the matter was also listed for a case management purpose. The costs that the wife has incurred would not be any less in the absence of the procedural aspect. The costs she has incurred are because of the Application in a Case filed on 6 June 2016.

12. There is no opposition to the inclusion of certificate for senior counsel. I do think it is a matter that has some complexity about it. I will therefore, also certify for senior counsel.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 August 2016.

Legal Associate:

Date: 30 August 2016