Salmon & Salmon & Ors: Challenging The Evidence of a Single Expert

In the 2020 Family Court decision of Salmon & Salmon & Ors (No.2) FamCA 910, Justice Carew reviewed the circumstances in which a party could adduce expert evidence and rely upon the expert report of a second expert in circumstances where a single expert had been appointed to determine an issue.

The matter concerned a property settlement between a husband and wife. During the proceedings, the wife had passed away and her parents had continued the litigation in her place. Three reports had been prepared by a single expert witness in relation to the value of the parties’ entities and the wife’s superannuation interests.

The husband brought an application seeking permission for him and the second and third applicants to tender and adduce evidence from a further expert on the basis that it substantially differed from the opinion provided by the single expert.

Adducing further evidence when single expert appointed

Please note that at the time that Salmon & Salmon was decided, the Family Law Rules 2004 were in force. These have now been replaced by the Federal Circuit and Family Court (Family Law) Rules 2021, which are discussed below. The decision of Salmon & Salmon made reference to the equivalent provisions in the Family Law Rules 2004.

Rule 7.08 of the Federal Circuit and Family Court (Family Law) Rules 2021 states that:

1. If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
2. The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
   1. there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
   2. another expert witness knows of matters not known to the single expert witness, that may be necessary for determining the issue; or
   3. there is another special reason for adducing evidence from another expert witness.

The grounds relied upon by the husband in Salmon and Salmon were:

• there was a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue; and
• that there was another special reason for adducing evidence from another expert witness.

The court also pointed to the purpose of the expert rules as set out in the Rules as being:

1. to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
2. to restrict expert evidence to that which is necessary to resolve or determine a case;
3. to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
4. to avoid unnecessary costs arising from the appointment of more than one expert witness; and
5. to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

The Rules further provided for methods to question or clarify the report prepared by a single expert, including convening a joint conference with the single expert and providing a list of questions to the single expert. Neither of these avenues were pursued by the husband.

The court referred to the principles set out in Simonsen & Simonsen [2009] FamCA 698 where it was observed that the Rules do not prevent a party from obtaining their own expert evidence, to be used for example, to assist with their cross-examination of a single expert witness.

The court commented on the restrictions placed on the communications with a single expert, and the potential imbalance if one party is permitted to appoint what is essentially an adversarial expert, and the other party is relying on a single expert who has acted within the constraints provided by the Rules. The court observed that this imbalance may lead the other party to also appoint their own expert to address this perceived imbalance.

The decision in Salmon & Salmon & Ors

In the matter of Salmon & Salmon & Ors, the court determined that although the husband’s expert disagreed with the single expert on a number of issues, that was insufficient to support the appointment of another expert.

The husband’s expert raised several issues with the single expert’s approach and had identified possible errors in the single expert report. However, the court found that those questions could be put to the single expert pursuant to Rule 15.65 of the Rules [33]. The court also noted that the husband had failed to pursue the options already available to him to pose questions to the single expert and convene a conference.

The court ultimately found that “nothing raised by the husband or other parties have persuaded me that there is a special reason for the appointment of another expert witness, and I propose to dismiss the application” [35].

The court, however, ordered that the time limits in rule 15.65 of the Rules be extended to enable the parties to convene a conference with the single expert for the purpose of the husband posing a list of questions to the single expert.

Conclusion

Only in limited circumstances will the court permit a party to adduce evidence from additional experts when a single expert has been appointed. However, additional experts can be utilised to assist parties in posing questions to the expert.

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