Barescape Pty Ltd atf the Vs Family Trust v Bacchus Holdings Pty Ltd atf the Bacchus Holdings Trust

[2011] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation:	Barescape Pty Ltd atf The Vs Family Trust & Ors v Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust & Anor [2011] NSWSC 1002
Hearing dates:	9 to 12 August and 15 to 18 August 2011
Decision date:	11 August 2011
Jurisdiction:	Equity Division
Before:	Black J
Decision:	Joint expert's report excluded under Evidence Act s 135
Catchwords:	EXPERTS' REPORTS - whether UCPR r 31.26 requires admission of joint experts report - failure of expert report to disclose reasoning process - Exclusion of joint report under Evidence Act s 135
Legislation Cited:	- Civil Procedure Act 2005 (NSW) - s 56 - Uniform Civil Procedure Rules r 31.26 - Evidence Act 1995 (NSW) - s 79, s 135
Cases Cited:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Category:	Interlocutory applications
Parties:	Barescape Pty Ltd atf The Vs Family Trust (First Plaintiff/First Cross Defendant) Anthony Ventura (Second Plaintiff/Second Cross Defendant) Midfielder Pty Ltd (Third Cross Defendant) Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust (First Defendant/Cross Claimant) Matthew Gordon Higgins (Second Defendant)
Representation:	Counsel: R.J. Burbidge QC, C.D. Wood (Plaintiffs/ Cross Defendants) J.C. Kelly SC, A.A. Henskens, N.E. Furlan (Defendants/Cross Claimant) Solicitors: Hicksons (Plaintiffs/ Cross Defendants) Bilbie Dan (Defendants/Cross Claimant)
File Number(s):	09/291437

Judgment

1. The Cross-Claimant seeks to tender two "joint reports" of experts. It characterises the first as consisting of a single page headed "Joint Report of Experts" dated 6 July 2011 but also including a document headed "Memorandum Prepared By Claude Jugmans 6 July 2011" and a second document headed "Memorandum Prepared By Trevor Vella 5 July 2011". It characterises the second as consisting of an eight page document headed "Second Joint Report of Experts" dated 15 August 2011 but also as including a memorandum prepared by Claude Jugmans dated 5 August 2011 and a memorandum prepared by Trevor Vella dated 15 August 2011.

1. The Plaintiffs/Cross-Defendants have articulated extensive objections to Mr Jugmans' memoranda dated 6 July and 5 August 2011 by reference, among other matters, to the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The Cross-Claimant has not responded to those objections at this point but instead relies on Uniform Civil Procedure Rules r 31.26 that relevantly provides that a joint report "may be tendered at the trial as evidence of any matters agreed". The reference to a joint report in that rule is to a report prepared under UCPR r 31.24(1)(c) as a joint report specifying the matters agreed and the matters not agreed between experts and the reasons for any disagreement. Mr Kelly, who appears for the Cross-Claimant, submits that once a joint report is admitted as evidence of the matters agreed there is then no room for cross-examination as to those matters and both parties are bound by the matters as agreed between the experts.

1. In my view, UCPR r 31.26 is permissive and not mandatory and does not require but merely permits the admission of a joint report. In particular, I do not consider that r 31.26 requires the admission of a joint report which does not comply, or where the reports of the separate experts which it incorporates do not comply with the requirements of s 79 of the Evidence Act 1995 (NSW), or where that report or reports is or are liable to exclusion under s 135 of the Evidence Act .

1. In my view, the position for which Mr Kelly contends would have remarkable and unfortunate consequences. The first is that if two experts mutually agree as to matters outside their area of expertise, the evidence of that agreement would be admissible and would, if Mr Kelly is correct, not be open to exclusion, challenge or cross-examination in the proceedings. If two experts committed a common error then the joint report which is the product of that error or which recorded that error would also be admissible as proof of their agreement and, if Mr Kelly is correct, that error could not be contested in cross-examination and the parties would be bound by it. I do not consider that is the intent of r 31.26 and do not consider that result would be consistent with the overriding objective articulated in s 56 of the Civil Procedure Act. That result may be simply avoided by reading the rule, as I do, as permissive and not mandatory.

1. I would myself have been inclined to the view that r 31.26 only applied to the joint product of the experts' consultation which is labelled as the experts' "joint report" as distinct from the separate reports of the experts which are referred to in the joint report. However, the Cross-Claimant contends that the "joint report" includes not only the document labelled as such but the separate reports of the experts referred to in the joint report. As I noted above, the Plaintiffs/Cross-Defendants have articulated extensive objections to the reports of Mr Jugmans, one of those experts, and the Cross-Claimant has not responded to those objections but instead relies on r 31.26 in the manner that I have noted above.

1. In these circumstances, the fairest course seems to me to be to indicate some preliminary views as to the admissibility of Mr Jugmans' expert reports, having regard to the Plaintiffs'/Cross-Defendants' objections and my own review of those reports, but leave it open to the Cross-Claimant to agitate these matters further if it later seeks to tender Mr Jugmans' experts' reports as separate reports. It seems to me that there is a real question whether Mr Jugmans' reports are wholly or substantially inadmissible in their present form and, unaided by any submissions from the Cross-Claimant as to that question, I would presently be inclined not to admit them. In particular, it seems to me that those reports do not sufficiently disclose the steps in Mr Jugmans' reasoning, between his assumptions (which are often unidentified) and the documents on which he relies (which are also often unidentified) and the conclusions which are drawn, to allow me to form a view that Mr Jugmans has in fact applied specialised knowledge based on his training, study or experience in reaching those conclusions.

1. I should add that I would also presently be inclined, subject to any submissions from the Cross-Claimant, to exclude both of Mr Jugmans' reports under s 135 of the Evidence Act . It seems to me that it would be unfairly prejudicial to the Plaintiffs/Cross-Defendants to require them to cross-examine Mr Jugmans in order to identify the basis of his opinions, including which documents he relies on and the reasons for those opinions, in a manner which would in effect turn a cross-examination into evidence in chief of those steps in Mr Jugmans' reasoning which are not disclosed in his reports.

1. At present, the Cross-Claimant seeks to tender the joint reports as comprising both the documents headed "joint report" and the reports of Mr Jugmans and Mr Vella, the expert retained by the Plaintiffs exercise my discretion under s 135 of the Evidence Act to exclude those reports on the basis that the admission of Mr Jugmans' reports in this manner, would be unfairly prejudicial to the Plaintiffs and would be misleading or confusing for the reasons noted above.

1. It remains open to the Cross-Claimant to reagitate any of those matters in respect of any application to admit the particular reports and I note that those observations are made in circumstances that the Cross-Claimant did not choose to make submissions in response to the Plaintiffs/Cross-Defendants' criticisms of Mr Jugmans' reports.

**********