Woodcock & Woodcock (No 5)
[2023] FedCFamC1F 894
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woodcock & Woodcock (No 5) [2023] FedCFamC1F 894
File number MLC 13421 of 2020 Judgment of WILSON J Date of judgment 18 October 2023 Catchwords FAMILY LAW – PRACTICE & PROCEDURE – appointment of experts single or adversarial adversarial ordered Legislation Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rules 7.02, 7.04, 7.08, 7.09, 7.1
Cases cited Danell v Saller (2015) 54 Fam LR 416
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Honeysett v R (2014) 253 CLR 122
Keevers & Keevers [2021] FedCFamC1F 338
Kennon v Spry (2008) 238 CLR 366
Lang v R [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Toma & Doyle [2022] FedCFamC1F 215
Williams & Enmore (No 2) [2021] FamCA 340
Woodcock v Woodcock (No 2) (2022) 65 FamLR 333
Division Division 1 First Instance Number of paragraphs 25 Date of hearing 17 and 18 October 2023 Place Melbourne Counsel for the applicant Mr G. Dickson One of His Majesty’s Counsel Solicitors for the applicant Lander & Rogers Counsel for the first respondent Mr L. Glick One of His Majesty’s Counsel with Mr M. Wilson Solicitors for the first respondent Nedovic Lawyers Counsel for the second, third and fourth respondents Mr C. Shaw One of His Majesty’s Counsel with Ms R. Matson Solicitors for the second, third and fourth respondents McNab Lawyers ORDERS
MLC 13421 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR WOODCOCK
Applicant
AND MS WOODCOCK
First Respondent
B PTY LTD
Second Respondent
F PTY LTD
Third Respondent
E PTY LTD
Fourth Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
18 OCTOBER 2023
THE COURT ORDERS THAT –
1.The further hearing of this proceeding is adjourned to 10:00am on Friday 27 October 2023 for mention.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Woodcock & Woodcock has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
These reasons address the competing proposals advanced by the husband, on the one hand, for the appointment of the single expert to value the chose in action the subject of my decision in Woodcock v Woodcock (No 2),[1] as opposed to the wife’s application, on the other hand, for the appointment of an adversarial expert to the value the husband’s chose in action.
[1] (2022) 65 FamLR 333.
THE CONTENTIONS
On behalf of the husband, it was put that a single expert should be appointed in accordance with rule 7.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Conversely, in reliance upon rule 7.04(2)(e) of the rules, the wife argued that –
(a)the valuation of a chose in action that took the form of a beneficiary’s right to due consideration under a discretionary trust was novel;
(b)no authority throughout Australia exists on the valuation of a chose in action that takes the form of a beneficiary’s right to due consideration under a discretionary trust;
(c)the item being valued here is a long way from the valuation of real property in which comparable sales are readily examinable, nor is this case similar to valuing shares in which future maintainable earnings are relevant;
(d)instead, in this case, in reference to the very idiosyncratic discretionary trusts in issue, the husband’s rights as a beneficiary to due consideration are to be given a value;
(e)as French CJ held in Kennon v Spry,[2] valuation of such a right may not be beyond the actuarial arts;
(f)the beneficiary’s right to due consideration is a chose in action and therefore “property” for the purposes of the Family Law Act 1975;[3]
(g)no presumption exists that a single expert or an adversarial expert should be ordered to provide evidence of the value of the chose in action of the right of due consideration; and
(h)unlike with evidence adduced from a single expert, evidence adduced through one or more adversarial witnesses is likely to proffer “a range of opinion” mentioned in rule 7.04(2)(e) of the rules.
[2] (2008) 238 CLR 366.
[3] Woodcock v Woodcock (No 2) (2022) 65 FamLR 333.
On behalf of the husband, Mr Dickson KC contended that the starting point in expert evidence in family law litigation should be the single expert. Counsel for the husband argued that the parties had made commendable and significant progress in reaching the point in this hard‑fought litigation that a form of instruction to an expert (Mr Dickson KC submitted a letter to go to a single expert) as well a statement of agreed facts had been hammered out. Mr Dickson submitted that the identity of the proposed single expert had not yet been agreed.
Mr Shaw KC submitted that a single expert was the preferable approach over the adversarial expert although the trustees represented by Mr Shaw had not identified the specific person to perform the actual valuation.
On behalf of the wife, Mr Glick KC submitted that actuarial evidence previously adduced by Mr T would be updated and that very little time would be lost in undertaking that task. Mr Glick further submitted that the letter of instruction and agreed facts would be submitted to Mr T.
On those contentions of the parties –
(a)single expert evidence was preferred by the husband and the trustees, the identity of whom had not been settled; and
(b)adversarial evidence was preferred by the wife, to be given by Mr T, whose evidence was to be modestly updated.
That meant that, on the urgings of the husband and trustees, one witness only may be involved and, on the urgings of the wife, two experts would be involved. According to Mr Glick KC, if adversarial evidence were permitted, those two experts would –
(a)confer in a conclave of experts prior to entering the witness box; and
(b)give evidence in a hot tub,[4] in which the trial judge will be at liberty to ask each expert, with less formality than would be applicable if a single expert gave evidence and was cross-examined seriatim by each counsel.
[4] The Honourable Justice Stephen Rares of the Federal Court of Australia wrote about concurrent evidence in the hot tub and I adopted those observations in Williams & Enmore (No 2) [2021] FamCA 340.
At a practical level, no real disruption to the trial would be occasioned by the introduction of adversarial evidence if that were permitted.
THE OPERATION OF THE RULES
The rules make provision for evidence to be adduced from persons properly described as “experts”.[5] As recently as 11 October 2023, the High Court of Australia made observations about the proper role of experts in Lang v The Queen.[6]
[5] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, Honeysett v R (2014) 253 CLR 122 and Lang v R [2023] HCA 29.
[6] Ibid.
In the specific context of expert evidence in family law litigation, McClelland DCJ,[7] traced the evolution of the single expert rule under the Family Law Rules 2004 to its genesis in the United Kingdom with a view to avoiding the proliferation of expert evidence, the volume of which on the same or similar issues was likely to be oppressive to the trial judge.
[7] Danell v Saller (2015) 54 Fam LR 416 cited by me in Keevers & Keevers [2021] FedCFamC1F 338.
In Toma & Doyle,[8] I held as follows –
The provisions of the Family Law Rules 2004 and their most recent iteration following the enactment of the Rules[9] about single experts have their genesis in the far-reaching report of Lord Woolf into the British justice system. McClelland J (as the Deputy Chief Justice then was) examined the history of Lord Woolf’s recommendations in Danell v Saller where his Honour recited a central theme of those recommendations, recorded in the New South Wales Law Reform Commission paper on expert witnesses,[10] being proportionality between the importance and complexity of a dispute, the procedural means employed, and the costs incurred in its resolution.[11]
[8] [2022] FedCFamC1F 215 at [16].
[9] Part 7.1 of the Rules.
[10] NSW Law Reform Commission, Expert witnesses, Report No 109 (2005) 4. That theme was also mentioned in the Explanatory Statement to Statutory Rules 2003 No 375, later becoming the Family Law Rules 2004.
[11] [2015] FamCA 859 (at [24]).
Rule 7.02 of the 2021 rules sets out the purpose of Part 7.1 of the rules.
Some important matters arise from rule 7.02. They include –
(a)Part 7.1 ensures that parties obtain, (I infer, adduce) expert evidence only in relation to a significant issue in dispute;[12]
(b)if practicable and without comprising the interests of justice, expert evidence is given on an issue by a single expert witness;
(c)unnecessary costs are avoided from the appointment of more than one expert witness; and
(d)if it is necessary in the interest of justice, a party may apply for permission to adduce evidence from an expert witness appointed by that party.
[12] Attributing a value to the chose in action represented by the husband’s right as a beneficiary under one or more discretionary trusts to due consideration is in my view “a significant issue in dispute” and so properly founds the giving of expert evidence.
Pausing there, rule 7.02 records the purpose of Part 7.1. It is not in and of itself prescriptive of any particular set of circumstances, but rather sets out in largely aspirational form the objects to be achieved by application of the minutiae of Part 7.1. It is important to recognise that the phrase “interests of justice” is used twice in rule 7.02, once in rule 7.02(c) and once in rule 7.02(e), to my mind, underscoring that no hard and fast immutable requirement exists for expert evidence to be adduced exclusively by a single expert. Were it otherwise, no useful purpose would be served –
(a)by rule 7.02(e) conferring power on a party to adduce evidence from a witness appointed by that party;
(b)by rule 7.10 conferring power on a party to adduce expert evidence from a witness other than a single expert witness;
(c)by rule 7.08 conferring power on a party to adduce evidence from an expert other than a single expert, on the same issue, so long as one or more of the requirements of 7.08(2) are satisfied; and
(d)by division 7.1.7 in relation to evidence being adduced by two or more witnesses on the same or a similar question.
Further, even if the parties do not themselves apply for the appointment of a single expert, the court, of its own motion, can appoint a single expert (rule 7.04(1)) at the parties’ expense (rule 7.06(1)).
Accordingly, on this application, if I favoured the notion of the appointment of a single expert, it would be competent for me to make an order for the appointment of a single expert on my own motion, so long as I first took into account the stipulations of rule 7.04(2). Consent of the person to be the single expert is first required, however (rule 7.04(3)). In this case, the wife does not consent to the appointment of a single expert. That is not the same as saying that the proposed single expert has or has not consented to his or her appointment as the single expert.
In opposing the notion that the relevant valuation evidence of the chose in action in this case should be adduced by a single expert, Mr Glick KC who appeared with Mr Mark Wilson of counsel, relied on rule 7.04(2)(e), contending that when considering whether to order the appointment of a single expert, I can take it into account “whether it is necessary for the court to have a range of opinion”.
The operation of rule 7.09 is a consequence of the appointment of a single expert although no debate was directed to the issue. That rule empowers the court to limit cross-examination of single experts. It also requires a party to give at least 14 days notice to attend for cross‑examination and to pay the single expert’s reasonable fees and expenses of requiring his or her attendance.
Mr Dickson KC contended that unless and until the details of the single expert evidence were known, it is premature for the wife to assert that evidence from an expert other than a single expert "is necessary in the interests of justice" (rule 7.02(e)). He made a similar submission in relation to the practicability of adducing evidence by a single expert witness "without compromising the interests of justice".
Mr Glick has foreshadowed that the wife wants to rely on the evidence of Mr T, who will, at least in part, give actuarial evidence mainly about anticipated distributions premised on the husband's life expectancy.
CONSIDERATION
The task of the expert in this case is to provide admissible evidence, consonant with Makita, Dasreef, Honeysett and Lang. The question for the expert is the attribution of a value to the chose in action in this case. That chose in action is "property". Its value requires ascertainment. The parties are unable to agree that a single expert is to be the sole expert witness in this case on that point. No authority of a superior court of record of the Commonwealth of Australia provides guidance on the valuation of the chose in action in this case. To that end, the issue which the expert will be addressing is in fact and in law quite novel.
I take the view that it is antithetical to the interests of justice for the parties to be bound by the opinion of one person (on the wife's urging, a person forced upon her over her protests) on a point as pivotal as is the one under consideration now. I take the view that it would orchestrate a serious injustice to inflict upon a relevant party a single expert who may very well proffer an opinion wholly discordant with the overall primary contentions of that party in this litigation.
In my view, this litigation is not one amenable to a single expert. Despite the desirability of such an approach when valuing say, a home, shares, or a company, this case is novel. It is not amenable to a standard single expert.
I will hear the parties on the form of the order for the appointment of each party's adversarial expert.
I will also hear the parties on costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 18 October 2023
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