Xin & Qinlang (No 5)
[2023] FedCFamC1F 1067
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xin & Qinlang (No 5) [2023] FedCFamC1F 1067
File number(s): CAC 1782 of 2018 Judgment of: GILL J Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application for the single expert to receive more material and provide a further report – Where the expert conceded some limitations in the reports provided during cross-examination – Parties had control over the material provided to the expert – Where the application arises after all evidence has been given at final hearing –The circumstances do not justify an adjournment – Application refused Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 11 December 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person Counsel for the First Respondent: Dr Smith Solicitor for the First Respondent: Dobinson Davey Clifford Simpson Counsel for the Second and Third Respondents: Mr Mellas Solicitor for the Second and Third Respondents: Lander & Rogers Solicitor for the Fourth Respondent: Litigant in Person (did not participate) ORDERS
CAC 1782 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR XIN
Applicant
AND: MS QINLANG
First Respondent
MS WANG
Second Respondent
MR B XIN (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for adjournment is refused.
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 a pseudonym Xin & Qinlang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
At the close of the evidence, following evidence given by the single expert, an application has been made by the second and third respondents, supported by the husband, resisted by the wife, to adjourn the proceedings in order to obtain a further report from the single expert and the single expert to be provided with significant further material from the wife. That application arises from concessions by the single expert at the end of his oral evidence as to limitations and severe shortcomings in his report.
The scope of that report, which was set by orders made by this court on 30 November 2022, included firstly, the valuation of various corporate entities, secondly, ascertaining dissipation and wastage from 30 June 2016 onwards and thirdly, the quantum of loans and investments regarding those corporate entities. It was the second and third aspects of the scope of the report that was subject to the concession made by the single expert as to limitation.
It is important to set the report into its litigation context. Firstly, as indicated above orders were made on 30 November 2022 setting the scope of the report. On 20 April 2023 a joint letter of instruction was sent to the single expert appointing him. On 6 June 2023 an agreed list of documents in an e-brief containing, amongst other matters, extracts from 63 bank accounts constituting thousands of pages of documents, were provided to the single expert by agreement between the parties. From 10 August 2023 the single expert was given access to further documents as requested from the wife’s accountants. The valuation aspect of the report was provided to the parties on 8 November 2023. The aspect of the report dealing with loans, investments, dissipation and wastage was provided on 24 November 2023. Further questions were administered to the expert on 27 November 2023. The trial commenced on 4 December 2023.
In considering this application it should be noted that adjournment was twice sought by the husband immediately prior to the commencement of the trial regarding perceived limitations in the expert's report, or reliant in part on perceived limitations in the single expert's report revealed by the supplementary questions. Neither of those applications was supported by the second and third respondents who now make application at the end of day six, now supported by the husband. Those applications were refused.
An important aspect of the context of this application is the nature of the questions that were posed to the single expert, being the supplementary questions that were posed in the week or so prior to the trial. In general terms, those were directed to the genuineness of transactions that received their summary in the company accounts. That was a focus that was not apparent in the casting of the questions to be answered in the original court orders and which was only raised in the most limited respect in the instructing questions from the joint letter of instruction. It is in the context of those questions and their focus on verification that the single expert accepted the limitations to his report.
It was common that the single expert was not asked, or if not common it did not appear to be controversial, that the single expert was not asked to conduct an audit of the accounts of the various corporate entities in the provision of his answers, nor to verify through the acquisition of source documents. Those were questions raised in the questions asked in the days before the trial was due to commence. If, as originally struck, verification of those accounts or an audit was to be the nature of the report prepared by the single expert, then the concessions made at the end of his evidence on trial were well made.
In considering the application it is important to note that the parties exercised control over the scope of the material that was going to the single expert. They took over six months to identify and compile the documents that were to be considered by the single expert. They made arrangement for further documents as requested by the single expert. Ultimately the focus on genuineness arose days before the trial. The inadequacy of the report to answer the question that is now raised about verification in respect of loans, investments, dissipation and wastage would sound large if that what was pursued in a timely fashion by the parties and, if the parties had provided material to enable that to be undertaken by the expert. That was not what occurred.
To accede to the application now necessitates adjournment, considerable expense, and the potential shuffling of other cases before the court at the beginning of next year. It is also a matter that would occur in circumstances where the parties did not directly pursue the issues now identified as not addressed by the single expert.
Importantly, foundational to the challenge to the genuineness of the company accounts was the necessity to challenge the wife in her evidence as to the genuineness of what was produced. That was not the subject of significant forensic challenge and the challenge to the wife’s production of material to the expert (noting the expert did not request the additional material now identified as necessary for verification) was abandoned.
Under these combined circumstances, while the single expert’s report may be inadequate to verify the genuineness, such does not justify the adjournment, expense and displacement of other cases. The conduct of the parties and the manner of their dispute of the issues in the case, including its lengthy preparation and including the last six days of trial does not justify such a course.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 December 2023
SCHEDULE OF PARTIES
CAC 1782 of 2018 Respondents
Fourth Respondent:
P COMPANY, P GROUP PTY LTD & P HOLDINGS PTY LTD
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