Aitkenhead v Kaufline (No 2) - [2014] ACTSC 82

AITKENHEAD v KAUFLINE (NO 2)
[2014] ACTSC 82 (15 April 2014)

EVIDENCE – expert evidence – where solicitor failed to provide a copy of the expert witness code of conduct – where expert witnesses indicated compliance with NSW expert witness code of conduct in body of report – obligations in NSW and ACT expert witness code of conduct substantially equivalent – requirements of r 1203 dispensed with.

Court Procedures Rules2006 (ACT) r 1203, schedule 1
Uniform Civil Procedure Rules 2005 (NSW) r 31.23, schedule 7

Welker v Rinehart (No 6) [2012] NSWSC 160
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279

EX TEMPORE

No. SC 275 of 2012

Judge: Master Mossop
Supreme Court of the ACT

Date: 15 April 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 275 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:JONATHON AITKENHEAD
Plaintiff

AND:EVAN KAUFLINE and INSURANCE AUSTRALIAN LTD trading as NRMA INSURANCE
Defendants

ORDER

Judge:  Master Mossop
Date:  15 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

Under rule 6 of the Court Procedure Rules 2006, the requirements of rule 1203(1) and (2) are dispensed with in relation to the reports of:

(a) Dr Searle dated 13 March 2010, 27 January 2011, 8 November 2011 and 8 October 2013; and
(b) two reports of Dr Conrad dated 22 February 2010 and two reports dated 2 October 2013.

The plaintiff has applied orally for an order under rule 6 of the Court Procedures Rules that in relation to certain reports of Dr Searle, an orthopaedic surgeon, and Dr Conrad, a surgeon, the requirements of rule 1203(1) and (2) be dispensed with. The circumstances in relation to which that application is made are as follows. Collectively, eight reports of Doctors Searle and Conrad have been served by the plaintiff and are sought to be relied upon. The hearing of these proceedings commenced in November 2013 and were adjourned part heard until yesterday. Today is day three of the hearing and the plaintiff has now concluded his evidence. Yesterday counsel for the defendant gave notice to counsel for the plaintiff that the reports of Doctors Searle and Conrad would be objected to on the basis that those doctors had not acknowledged in writing that they had read the code of conduct identified in schedule 1 of the Court Procedures Rules and agreed to be bound by it. As a consequence, rule 1203(2) prevented the witness from giving oral evidence, and rule 1203(3) provided that service of the expert report was invalid service.

The defects in the process by which the doctors were engaged and reported are twofold. First, contrary to the obligation in rule 1203(1), the plaintiff’s solicitors did not give Dr Searle or Dr Conrad a copy of the expert witness code of conduct as soon as practicable after the doctor was engaged. Second, in relation to each of the reports, while the doctor has indicated in the body of report compliance…

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] ACTSC 82
Decision Date: 15 April 2014

CaseChat Overview and Summary

Aitkenhead v Kaufline (No 2) involved a dispute between the parties, focusing on the admissibility of expert evidence provided by the respondents. The case was heard in the Supreme Court of the Australian Capital Territory, with Justice Ainley presiding over the proceedings. The main issue at hand was whether the failure of the solicitor to provide a copy of the expert witness code of conduct complied with the rules governing the provision of expert evidence. The court was required to determine whether the obligations under the New South Wales expert witness code of conduct and the Australian Capital Territory expert witness code of conduct were substantially equivalent, and if the requirements of rule 1203 could be dispensed with.

The court examined the obligations of experts under the respective codes of conduct and found that they were substantially equivalent. It was noted that the experts had indicated their compliance with the New South Wales expert witness code of conduct in the body of their reports. Given the similarity between the codes, the court concluded that the requirements of rule 1203 could be dispensed with. The court's reasoning was based on the fact that the obligations were substantially equivalent, and the failure to provide a copy of the code did not significantly affect the admissibility of the evidence.

In light of the above findings, the court dispensed with the requirements of rule 1203(1) and (2) in relation to the reports of the experts. The final orders made under rule 6 of the Court Procedure Rules 2006 allowed the expert evidence to be admitted despite the solicitor's failure to provide a copy of the expert witness code of conduct. This decision underscores the importance of understanding the obligations of experts under the relevant codes of conduct and highlights the court's willingness to consider the substantial equivalence of obligations when making decisions on the admissibility of expert evidence.

Orders

Orders of the court

1. Under rule 6 of the Court Procedure Rules 2006, the requirements of rule 1203(1) and (2) are dispensed with in relation to the reports of:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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