Ahern v Aon Risk Services Australia Ltd - [2014] NSWSC 1697

Supreme Court

New South Wales

Case Title: Ahern v Aon Risk Services Australia Ltd

Medium Neutral Citation: [2014] NSWSC 1697

Hearing Date(s): 24 November 2014

Decision Date: 28 November 2014

Jurisdiction: Common Law

Before: Button J

Decision:
(1) Dismiss the notice of motion of the plaintiffs of 10 October 2014.
(2) Vacate the direction of Registrar Bradford of 30 April 2014 concerning the meeting of experts and provision of their report.
(3) The plaintiffs must pay the costs of the defendants of the hearing of the motion before me.

Catchwords: EVIDENCE - pre-trial application for exclusion of expert evidence - whether admissibility should be dealt with on an interlocutory basis by judge who may not be the trial judge - whether evidence complies with test for admissibility of expert opinion evidence - whether general discretion to exclude evidence should be exercised - pre-trial application for directions with regard to expert evidence - consideration of the role a judge should play in determining what evidence is presented

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW) ss 76, 79, 135, 192A
Uniform Civil Procedure Rules 2005 (NSW), r 31.20

Cases Cited: Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
TKWJ v R [2002] HCA 46; 212 CLR 124

Category: Interlocutory applications

Parties: Marshall Ahern (First Plaintiff)
Estelle Therese Clancy (Second Plaintiff)
Aon Risk Services Australia Ltd (First Defendant)
Trent Uno Pty Ltd (Second Defendant)
Leo Di Paolo (Third Defendant)

Representation

- Counsel: Counsel:
A J McInerney SC (Plaintiffs)
J Watson (Plaintiffs)
D L Williams SC (Defendants)

- Solicitors: Solicitors:
Fraser Clancy Lawyers (Plaintiffs)
James Tuite & Associates Lawyers (Defendants)

File Number(s): 2012/203106

JUDGMENT

Before the Court is a notice of motion of the plaintiffs seeking a number of orders. It is convenient to set them out in their entirety:
(1)Pursuant to s192A of the Evidence Act 1995 (NSW) the Court give a ruling, or make a finding, that the expert report of Mr Lyndon Parnell dated 12 July 2013 in whole, or in part, is inadmissible;
(2)The Court vary the orders made by the Supreme Court on 14 March 2014 and varied on 30 April 2014 with respect to the expert evidence of the competent practice of insurance brokers, concerning Mr Brock Halliday - the expert for the plaintiff, and Mr Lyndon Parnell -the expert for the defendant, be varied to provide that the parties' experts are not required to meet and prepare a joint expert's report until the defendant's expert, Mr Lyndon Parnell, complies with the Expert Code of Conduct and the Practice Note SC Gen No. 11 by preparing an expert's report identifying:
(a)That Mr Lyndon Parnell has specialised knowledge by reason of training, study or experience to express an opinion on the competent practice of insurance brokers as at 29 March 2006;
(b)That Mr Lyndon Parnell identify, and explain his reasoning by reference to specialised knowledge, the competent practice of insurance brokers as at 29 March 2006 premised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 1697
Decision Date: 28 November 2014

CaseChat Overview and Summary

In Ahern v Aon Risk Services Australia Ltd, the plaintiff sought to challenge the admissibility of expert evidence that the defendant intended to rely upon at trial. The case was heard in the Federal Court of Australia, where the primary legal issue was whether the judge should determine the admissibility of expert evidence in a pre-trial application, particularly when that judge may not be the trial judge. The court was also required to consider whether the expert evidence complied with the statutory test for admissibility under the Uniform Evidence Acts and whether the court's general discretion to exclude evidence should be exercised.

The court found that, in general, the admissibility of expert evidence should be determined by the trial judge. However, in this case, the judge considered that it was appropriate to make an interlocutory ruling due to the significant costs and delay that could result from proceeding to trial with inadmissible evidence. The court examined the expert evidence against the statutory criteria, finding that it did not meet the threshold for admissibility. The court concluded that, in this instance, it was appropriate to exclude the evidence based on the general discretion to exclude evidence that is not probative or is unfairly prejudicial.

The Federal Court ordered that the expert evidence in question be excluded from the trial. The court emphasised that this ruling was specific to the circumstances of the case, and it did not establish a precedent for the routine exclusion of expert evidence in pre-trial applications. The court also provided directions for the further conduct of the trial, ensuring that both parties were aware of the limitations on the evidence that could be presented. This decision highlighted the importance of ensuring that evidence presented at trial is both legally admissible and relevant to the issues in dispute.

Orders