Neales & Neales (2022) FedCFamC1A 41
The appeal decision in Neales & Neales  FedCFamC1A 41 provides guidance and assistance in the ongoing discussion as to the use of adversarial experts.
The husband’s appeal was successful and the husband was granted leave to adduce and rely upon an adversarial expert.
The asset pool included the husband’s one-third shareholding in three entities that held commercial properties which were subject to established leases with options to renew.
The parties had jointly appointed a single expert to value the properties on the following basis:
“Market Value (As Is) presuming a sale of the 100% Crown Leasehold interest/s subject to the existing lease agreements, or with vacant possession, as applicable.”
After the valuations were received, the husband submitted questions pursuant to the Family Law Rules.
The husband subsequently instructed a different valuer to comment on the joint valuers’ opinions and to provide his opinion as to the value of the properties. The husband’s second valuer valued the properties at $22.465 million whereas the joint valuer nine months before had valued them at $33.835 to $34.190 million.
The husband subsequently filed an Application in a Case. He sought to rely upon his valuer as another expert and to discharge the single expert. He also sought a conference of the experts. The Judge dismissed his Application.
The court said:
“We are satisfied that the husband would suffer a substantial injustice if leave to appeal were not granted because there are different methodologies that have resulted in a substantial difference in value, which has the potential to more adversely impact the husband than the wife.”
The husband attacked the single expert’s process of reasoning and contended that he “failed to explain the calculation of the Net Present Value of Rental Reversion”.
The husband contended the expert had demonstrated a closed mind and the court did not agree, saying, “such a closed mind is not apparent”.
“In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance, undermining the original purpose of appointing a single expert; that is, to avoid a “battle of the experts.”
The Trial Judge considered that merely a contrary opinion was insufficient to meet the requirements of Rule 15.49(2)(a).
At paragraph 40 of the Judgment, the court said:
“Ground 2.2 contended error by the primary judge in applying r 15.49(2)(c) of the old Rules in not considering in aggregate, each of the husband’s contentions, but rather adopting a “tick-and-flick” approach. In form, the ground, being as gracious as we can, should have been drafted with more care. It was both inappropriate and incorrect to describe the primary judge’s approach as a “tick-and-flick”. There is, however, force to the argument that in considering “another special reason”, the primary judge did not consider overall the thrust of the husband’s case for the appointment of another expert.”
The husband’s summary of argument made it clear:
“24. As set out in the case outline document it was the cumulative aspect of the complaints together with the differences between the two valuers that was sought to underpin the argument that there was a special reason for being able to rely on the reports of [the adversarial expert].”
The court agreed with the husband’s submission in relation to Ground 2.2 of his appeal. “We are satisfied that the primary judge did not consider these matters in aggregate in addressing r 15.49(2)(c) of the old Rules, but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.”
The court considered Kent J in Salmon and Ors & Salmon  FamCAFC 134 (“Salmon”) at :
“35. … the words “substantial body of opinion” in r 15.49(2) are to be given real meaning, as was the approach taken by the primary judge. The approach that the words have meaning of substance has been adopted, correctly in my view, in other decisions at first instance in this Court. The mere expression of an opinion as to value by another expert, no matter how substantially contrary it is to that of the single expert, does not in and of itself constitute “a substantial body of opinion” within the meaning of the rule. If such a contrary opinion is founded upon identified and accepted methodology recognised within the field, or some identified and recognised field of expertise different to that founding the single expert opinion, then the requirement of “a substantial body of opinion” will be fulfilled…”
These observations were adopted.
This is a useful case and assists further in the challenge practitioners face when seeking to appoint an adversarial expert.