WIFE BRINGS HER OWN EXPERT TO COURT TO DETERMINE THE REAL VALUE OF PROPERTY
Anand & Bansal & Ors [2020] FCCA 2174 (12 August 2020)
This case involves a dispute of valuation reports made by a single expert (appointed by the court) and an expert not appointed by the court
Facts:
- Court made an order for an expert’s report in respect of valuing a number of real estate holdings in Country B. The valuer was appointed “as the single expert witness for the purposes of the valuations” made pursuant to Rule 15.09 Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
- 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 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.
Issue:
Without further inquiry to the report made by the expert witness appointed by the court, can the report made by the expert brought by the wife be accepted as evidence by the court?
Law:
- If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court. (FCC 15.12)
Analysis:
It is clear that there is no property in a witness.This means, among 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.
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 inquire about the single expert’s opinions.
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.
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.
Conclusion:
The Court is not satisfied that leave should be granted to the wife to adduce evidence of another expert pursuant to Rule 15.12.