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Expert Reports

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT PARRAMATTA

 

PAC 1082 of 2019

 

MS ANAND

Applicant

 

And

 

MR BANSAL

First Respondent

 

And

 

MR CHAUDRY

Second Respondent

 

And

 

MS CHAUDRY

Third Respondent

 

REASONS FOR JUDGMENT

1. On 15 May 2019, the Court made an order for an expert’s report in respect of valuing a number of real estate holdings in Country B. That report was produced on 5 December 2019 (“Expert’s Report”). Pursuant to the May 2019 orders, the valuer was appointed “as the single expert witness for the purposes of the valuations”. Although not having the particular label it was an order made pursuant to Rule 15.09 Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
2. The wife disagrees with the opinions expressed in the Expert’s Report. She had, prior to the single expert being appointed, obtained her own valuation of the properties from a Mr C. The opinion as to the value of the properties is significantly different to the one expressed by the single expert. Mr C’s first report is dated 31 December 2018.
3. Subsequent to the Expert’s Report being released, the wife has obtained a further report from the same valuer. Mr C’s second report is dated 4 May 2020.
4. Notwithstanding some apparent changes to the zoning of the subject properties on an unknown date but suggested to be after Mr C’s first report, Mr C’s two opinions are that the properties were worth the same in May 2020 as they were in December 2018.
5. The wife now seeks orders for the single expert and Mr C to confer and produce a report pursuant to Rule 15.08 FCC Rules or in the alternative, that she is granted leave to adduce evidence of Mr C in respect of the valuations of the subject properties. The husband opposes the orders sought by the wife.
6. The Family Law Rules 2004 (Cth) (“FL Rules”) are much more detailed (and restrictive) than the FCC Rules in respect of expert evidence. Indeed there is no requirement in this Court that there be a single expert as there is pursuant to the FL Rules.  While there is provision in the FL Rules for questions to be put to the single expert witnesses, and tight frames for that to occur, there are no such rules in this Court. Part 15 of the FL Rules is not included in Schedule 3 of the FCC Rules and as such those rules have no application to proceedings before this Court. While this Court can have regard to FL Rules in circumstances where the FCC Rules are inadequate, the Court does not consider this to be so in these particular circumstances. Although the particular FL Rules have no express application to this Court, they may inform the Court in the exercise of its discretion pursuant to Rule 15.12.[1]
7. It is clear that there is no property in a witness. This means, amongst other things, that a party to litigation may still approach an expert witness, including an expert witness who has written a report for another party whether that report has been served or not.[2]
8. In practical terms, there is nothing preventing the wife’s solicitors from conferring or corresponding with the single expert and putting to him questions or propositions about zoning, the basis of his report, or indeed any matter relevant to the opinion expressed in the Expert’s Report, or providing him with Mr C’s report so as to enquire about the single expert’s opinions.
9. The single expert may, or may not, be aware of such matters, and if clarity is sought, parties are not obliged to wait for examination of the single expert in Court but can seek such clarity prior to any hearing.
10. The wife has to date not taken any steps to ask any questions of the single expert or put to him any particular propositions about zoning, or suggested erroneous assumptions made by the single expert as to zoning.  This is particularly so where she had in her possession Mr C’s first report prior to the single expert providing his report. According to the wife in submissions made by her Counsel, the zoning issue had been identified in that first report of Mr C. The Application in a Case was filed on 7 February 2020.
11. Even if the Court misunderstood those submissions, Mr C’s second report identified the zoning issues and there has been more than ample time to ask questions of the single expert about those matters in the interim period, rather than pressing for this interlocutory application to be heard. Had questions been asked and clarification sought of the single expert, then there might have been some further relevant evidence about the issue.
12. In circumstances where the wife might have been uncertain or confused about the interaction of the FCC Rules and the FL Rules, and in particular, the applicability or otherwise of the FL Rules in respect of specific questions to be put to a single expert, the wife could have brought (if no consent was obtained from the husband) an application to seek orders that she be permitted to put appropriate questions to the single expert, rather than the present application.
13. The Court is not satisfied that leave should be granted to the wife to adduce evidence of another expert pursuant to Rule 15.12. Furthermore, there is no scope for the orders sought by the wife pursuant to Rule 15.08 in circumstances where a single expert was appointed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

 

Associate: 

 

Date: 12 August 2020

 

[1] See for example similar approach taken in Forsburg & Stubbs  [2019] FCCA 1884

[2] See Freckelton & Selby, Expert Evidence: Law, Practice and Advocacy 4th edition, Lawbook Co at 238

Posted in: Derek Legal Blog at 16 September 20

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