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Expert witness found in error – case note of Marcin & Marcin [2020] FamCAFC 85

On 21 April 2020 the Full Court of the Family Court (the Full Court) delivered judgement in the application for appeal filed by the husband, Mr Marcin in the above matter. The Full Court allowed only one of the husband’s grounds, and dismissed the other 49 alleged errors he raised in his application for appeal. The only successful ground raised in the appeal was that the single expert erred when calculating the value of a business.

 Background

The parties were married for 37 years and separated in 2013. They have three children, who were now all adults. The husband was involved in a financial business owned and operated by two corporations. The parties owned six real properties and each were valued by a single expert witness, as were the corporations.

Final orders were made in July 2019, and pronounced that the husband was to receive 52% of the pool, which in effect resulted in the sale of four of the properties to discharge debt, the husband retaining the corporations, and the wife receiving a cash adjustment.

 The Appeal

The Husband raised numerous grounds of appeal in his Amended Notice of Appeal. One such ground was that the primary judge erred in not granting leave for the husband to call adversarial expert evidence. However, the Full Court noted at [33] that ‘litigants are not permitted to call adversarial expert evidence which they consider to be more favourable simply because of their dissatisfaction with the evidence proffered by a single expert’, referring to rule 15.49(2) of the Family Law Rules.

The husband also contended in several of his appeal grounds that the primary judge was either actually or ostensibly biased against the husband and denied him procedural fairness.  The Full Court dismissed these grounds at [54], noting that ‘displeasure is not a competent ground of appeal.’ They further noted that the primary judge gave the husband fair hearings on all his applications, and made necessary decisions to determine the parties’ disputes.

In addition, the husband asserted that the primary judge’s refusal to grant leave to amend his application for property settlement orders at the conclusion of trial was made in error. However, the husband failed to demonstrate that his was the case – not only did he fail to meet the procedural hurdle of seeking a grant of leave, it was found that ‘the husband’s assertion that the primary judge failed to properly consider the amendment application was found to be plainly wrong’ (at [75]). It was evidenced by the trial transcript that the judge clearly considered it and discussed it with the husband during trial.

Additionally, the Full Court found that no error had been made in relation to the following grounds raised by the husband:

 

  • The primary judge failed to give reasons for how the wife’s premature distribution of assets should be taken into account;
  • The primary judge failed to take the wife’s post-separation expenditure into account;
  • The primary judge failed to attach proper weight to the husband’s post-separation contributions to the value of his businesses;
  • The primary judge failed to properly account for the wife’s inheritance; and
  • The primary judge failed to find that the wife made ‘negative contributions’.

The successful ground of appeal 

As noted, the only successful ground of appeal was that the single expert erred when calculating the value of one of the husband’s businesses. Whilst the husband contended that the primary judge erred in accepting the single expert’s evidence due to factors such as the single expert’s supposed lack of experience and numerous errors in her reporting, only one error was found to have been made.

Additionally, it was found that the husband failed to provide all requested materials to the single expert and did not obtain leave to provide the report of the adversarial expert. The error in the single expert’s report was only found via the inadmissible report of the adversarial expert.

Essentially, the error made by the single expert was that she wrongly used the businesses’ total annual income in her equations when the recurring income of the businesses should have been used. As such, the Judge made an error of fact and found the businesses to be worth more than they actually were at trial.

The Full Court noted that the primary judge’s error was inadvertent – his Honour accepted the evidence of the single expert at face value, and that evidence was later found to be incorrect. His Honour made no actual error of law, and merely accepted defective evidence.

A final note on costs

Costs were reserved in the above case, but on 10 June 2020 the Court decided on the matter of costs for the appeal (Marcin & Marcin (No. 2) [2020] FamCAFC 142). The Court found that although the general rule is that costs are awarded to the successful party (in this case, the husband), costs should be awarded to the wife.

The husband was not only unable to articulate the costs he incurred as a result of the appeal, but he also crafted a ‘vast and intricate case, the overwhelming majority of which was unmeritorious’. The Court highlighted that the entire appeal was ‘both obdurate and devoid of insight (s117(2A)(c) FLA)’, which resulted in the wife incurring substantial legal fees to meet the husband’s case. As such, the Court awarded costs in the amount of $10,000 to the wife for the appeal.

Authors: Hongi Han & Tabitha Gulley