Wakefield and Wakefield
[2015] FamCA 851
•30 September 2015
FAMILY COURT OF AUSTRALIA
| WAKEFIELD & WAKEFIELD | [2015] FamCA 851 |
| FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Proceedings – Where the wife sought to adduce adversarial expert evidence – Where the wife raised questions with the court appointed Single Expert and continued to be concerned by points of difference – Where those matters are the disparity in valuation in the context of the size of the asset pool and reasons for the disparity and genuine differences within the expertise of the experts – Wife granted permission to rely on the adversarial report – Where the two experts are to participate in a conclave |
| Evidence Act 1995 (Cth), ss 56 Family Law Act 1975 (Cth), ss 123 Family Law Rules 2004 (Cth), rr 15.42, 15.49, 15.52 |
| Darrow & Darrow [2015] FamCA 597 Lister & Lister (2015) 52 Fam LR 174 Moss & Moss [2012] FamCA 538 |
| APPLICANT: | Ms Wakefield |
| RESPONDENT: | Mr Wakefield |
| FILE NUMBER: | NCC | 2589 | of | 2014 |
| DATE DELIVERED: | 30 September 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 29 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney (SC) |
| SOLICITOR FOR THE APPLICANT: | Fox Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Rugendyke |
| SOLICITOR FOR THE RESPONDENT: | Penny Waters Armstrong Legal |
Orders
Leave is granted to the wife to adduce evidence in the proceedings concerning the value of the rural property “B” via C Town in the State of New South Wales being the report of 27 July 2015 prepared by Mr D, Certified Practising Valuer.
That within 28 days of the date of these orders or such other date as may be agreed between the parties in writing, the experts, Mr E of F Pty Ltd and Mr D of D Valuations:
(a) Confer in relation to their opinions as to:
(i)The value of B on a per hectare basis; and
(ii)To the Dry Sheep Equivalent applicable to B for the purpose of the valuation exercise; and
(b)Within 28 days after the experts’ conclave pursuant to (a) above, prepare a joint report identifying the areas of agreement and disagreement addressing such matter as include:
(i)The basis on which the land at B is classed;
(ii)The value to be ascribed to each class of land;
(iii)The DSE applicable to B for the purpose of assessing the value of the land;
(iv)The relevant sales evidence to be considered when assessing the value of B; and
(v)Such other matters as the valuers or either of them considers relevant in assisting the court to determine the value of B.
The cost of Mr E attending at the experts’ conclave and undertaking the work required by these directions be borne equally by the parties.
The cost of Mr D attending at the experts’ conclave and undertaking the work required by these directions be borne by the wife.
That the costs of the wife be considered with the costs of the cause.
That the proceedings be listed for directions (and consideration of allocation of dates for final hearing) on Wednesday 4 November 2015 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Wakefield & Wakefield is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2589 of 2014
| Ms Wakefield |
Applicant
And
| Mr Wakefield |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application by the wife to adduce expert evidence in the form of an adversarial report prepared by Mr D, a valuer. The report relates to the valuation of a rural property, B, in North-Western New South Wales.
The application is opposed by the husband. On his behalf it is submitted that there is no basis within the Family Law Rules 2004 (Cth) (“the Rules”) for the admission of the report.
The matter proceeded by way of submissions on 29 September 2015.
The Evidence
The documents relied upon by the parties are as follows:
Wife
a)Application in a Case filed 21/08/2015;
b)Affidavit of Anthony Fox, the solicitor representing the wife, filed 21/08/2015;
c)Affidavit of Mr D, annexing the subject report, filed 21/08/2015;
d)Balance Sheet dated 05/06/2015;
e)Outline of Case Document;
Husband
f)Response to an Application in a Case filed 04/09/2015; and
g)Affidavit of the husband filed 04/09/2015.
The Law
The decision in this matter is governed by Part 15.5 of the Rules – Expert Evidence. The purpose of the Part is set out in the five subsections of
Rule 15.42. Those matters will be considered as the first element of the matters raised for judicial consideration by Rule 15.52(3) (appointing another expert witness).
Rule 15.49 provides that the court has discretion to permit a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that one of three conditions apply:
a)That there is a substantial body of opinion contrary to the opinion given by the single expert witness;
b)That another expert witness knows of matters not known to the single expert witness; or
c)There is another special reason for adducing evidence from another expert witness.
The first submission by the wife was a formal contention that permission of a court is not required on the basis that Rule 15.49(1) is invalid being ultra vires the rule making power provided for by s 123 of the Family Law Act 1975 (Cth). Reference was made to decisions in the cases of Darrow & Darrow [2015] FamCA 597, a decision of Austin J, and Lister & Lister (2015) 52 Fam LR 174, a decision of Watts J. This contention was made by way of preservation of the position in respect of further challenge to the Rule; the position based on the admissibility of relevant evidence pursuant to s 56 of the Evidence Act 1995 (Cth). The submission was not actively pursued in this matter.
The second and primary submission was framed as the wife’s application to rely on the report ought to be granted in the interest of justice.
Particular reference was made to the significance of the disparity in the valuation - $750,000 - which, in approximate terms, is about eight per cent of the total asset pool. The property B itself is probably not less than half the value of the asset pool.
On behalf of the husband, it was submitted that the Single Expert and
Mr D adopted the same overall methodology but differed over the quality of certain parcels of land. Also, there were new comparable sales in the report proposed to be relied on but that cross-examination could deal with those matters and, indeed, all matters.
The husband also submitted that the parties themselves could meet with the expert pursuant to the Rules.
In my view, although these submissions were accurate and not the subject of challenge, the issue of the $750,000 disparity between the valuers and the reasons for that disparity justified careful consideration by the Court.
The three conditions in Rule 15.49 are prescriptive and arguably may be inconsistent with the wider purpose expressed in Rule 15.42(e), that is, to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party if necessary in the interest of justice.
However, I consider the matters raised on behalf of the wife fit within
Rule 15.49(2)(c); Another special reason. Those matters are the disparity in valuation in the context of the size of the asset pool and reasons for the disparity and genuine differences within the expertise of the experts on land use with respect to an identified particular area of land.
The disparity, as stated, is $750,000. It is not a trivial difference. If the report was not allowed and cross-examination in the final hearing created uncertainty about value, the dispute could not be so easily resolved by sale of this asset without injustice to one or both parties.
The husband wishes to retain the asset and the wife does not entirely oppose that course.
In relation to the sale of the property, if it were to be ordered by the Court, a sale could take a lengthy period of time; the experience of the Court being that rural properties require more time than residential properties to sell. The wife would be financially disadvantaged by waiting for a sale and ultimate adjustment. The husband would be deprived of his preferred position which is to maintain the farm.
There is at least some prospect, if this report is admitted into evidence, of a conference of experts taking place and either resolving the valuation dispute or narrowing the issues.
Rule 15.52(3)(a)
The Court may also take into account in considering an application for permission the six factors set out in Rule 15.52(3)(a):
The purpose of the Part [Rule 15.42] is:
a)To ensure that parties obtain expert evidence only in relation to a significant issue in dispute. This valuation is a significant issue in dispute. The property is the parties’ most significant asset;
b)To restrict expert evidence to that which is necessary to resolve or determine a case. The wife has narrowed the issues which are in dispute in the context of the valuation of the property;
c)To ensure that, if practicable, and without compromising the interest of justice, expert evidence is given on an issue by a single expert witness. There is such a report by a Single Expert witness appointed by the parties. That is the report of Mr E dated 20 March 2015;
d)To avoid unnecessary costs arising from the appointment of more than one expert witness. The wife raised questions with the Single Expert and continued to be concerned by points of difference. At her cost, the wife has commissioned the report sought to be relied on. If the report is not admitted, points of difference would inevitably be raised in cross-examination through the conduit of counsel no doubt with the valuer MrD as an advising expert for the litigation;
e)To enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party if necessary in the interest of justice. The application has been made for an adversarial report. The question is whether permission to adduce this evidence is necessary in the interest of justice.
On behalf of the husband, the decision of Austin J in the matter of
Moss & Moss[2012] FamCA 538 was raised. His Honour said this:
Admission of adversarial expert evidence in conflict with single expert evidence should be the exception rather than the rule.
To the extent that it was made, and I am not entirely sure that it was, I reject the submission that permission by the Court to adduce further expert evidence would only be granted in an exceptional case. One of the elements of the purpose of Part 15.5 is to enable a party to apply for permission, if necessary, in the interest of justice. The legislation clearly does not close out an applicant unless that applicant has an exceptional case that would have been expressly stated.
I accept the submission of Senior Counsel for the wife in that regard.
In any event, such an inference cannot, in my view, be drawn from the statement quoted from his Honour which appears to me to be no more than a reference to the legislative emphasis on use of single expert evidence unless the interest of justice compel a different course.
Rule 15.52(3)(b) – the impact on costs
The report being admitted will not generally increase costs. The wife proposes bearing a greater share of the conference of experts if the application is granted.
Rule 15.52(3)(c) – the likelihood of leave expediting or delaying the case
There has been no significant impact to date from this application. Other assets are presently being valued and matters attended to pursuant to procedural Orders made by consent on 12 August 2015. The report in question has been prepared and served. It is arguable that two experts in the hearing or one expert with cross-examination that there would be no particular reduction in time.
Rule 15.52(3)(d) – complexity of the issues
The issues relate to the particular knowledge of rural valuers, productive capacity and land use classification. For instance, there is a difference of opinion over the number of hectares less valuable for grazing. These are not matters of common knowledge.
Rule 15.52(3)(e) and (f)
Subparagraphs (e) and (f) of Rule 15.52(3) are not applicable.
There is no challenge to the specialised knowledge relevant to the issue of the expert witness proposed.
Conclusion
For the reasons stated, I grant permission to the wife to rely on the adversarial report. The proposal by her for a conference of experts and a production of a joint report is an efficient course and her acknowledgment of the bearing of relevant costs of that conference and report is an appropriate and sensible concession.
I make Orders accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 30 September 2015.
Associate:
Date: 12 October 2015
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