Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd
[2018] NSWSC 1373
•29 August 2018
Supreme Court
New South Wales
Medium Neutral Citation: Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors [2018] NSWSC 1373 Hearing dates: 27, 28, 29, August 2018 Date of orders: 29 August 2018 Decision date: 29 August 2018 Jurisdiction: Common Law Before: Campbell J Decision: Reject the first sentence and third sentence of paragraph 14 of Mr Benson's affidavit
Catchwords: EVIDENCE – admissibility of evidence – affidavit – expert evidence – opinion – exceptions – threshold not met Legislation Cited: Evidence Act 1995 (NSW), s 79 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21;
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305Texts Cited: Nil Category: Procedural and other rulings Parties: Reliance Medical Practice Pty Ltd trading as ATF Reliance Medical Practice Trust (First Cross-Claimant)
Rodney John Beckwith (Second Cross-Claimant)
Voice Print & Data Australia Pty Ltd (First Cross-Defendant)
Christian Altenburg (Second Cross-Defendant)
Grant Edwards (Third Cross-Defendant)
BHD Leasing Pty Ltd (Sixth Cross-Defendant)Representation: Counsel:
Solicitors:
G A Moore (Cross-Claimants)
A J H Morris QC with I Erskine (First and Third Cross-Defendants)
A F Fernon (Second Cross-Defendant)
L W Chan (Sixth Cross-Defendant)
Gorval Lynch (Cross-Claimants)
Anthony Delaney Lawyers (First and Third Cross-Defendants)
O’Neill McDonald Lawyers (Second Cross-Defendant)
Holman Webb (Sixth Cross-Defendant)
File Number(s): 2016/362193
EX TEMPORE Judgment - REVISED
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I am dealing with objections to the first affidavit of Mr Christopher Benson, affirmed on 19 October 2017. Mr Benson's evidence is put forward as expert evidence and contains the expression of many opinions which it is said fall within the exception to the opinion rule established by s 79 of the Evidence Act 1995 (NSW) (“Evidence Act”). His area of expertise seems to be, from reading his affidavit, in the area of information technology installation and design.
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The first objection is to para 14 of the affidavit, which is in the following terms:
"When CCTS (Mr Benson's company) first quoted for the IT system, CCTS prepared and installed the IT equipment with the understanding and capability to increase and scale the system to meet growing demands of Reliance. I understand that Reliance presently operates across four sites. All four locations are successfully managed by the equipment that was first installed by CCTS."
Mr Fernon of counsel has objected to the first and third sentences of para 14. Mr Fernon submits that they fall into the category of opinion identified by Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; generally approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. That is to say, that the matter objected to contains no more than a bare expression of opinion the basis for which is undisclosed in the evidence proposed to be given by the expert.
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I am of the view that this objection is well-founded. It does seem to me that the opinion is opaque in the sense that the factual basis for it is undisclosed. Moreover, nor does Mr Benson disclose the reasoning which he has employed in coming to those conclusions so that I may assess whether or not the opinions expressed are in fact wholly or substantially based upon his expertise for the purpose of s 79 of the Evidence Act.
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There was also objection taken in relation to the relevance of those opinions. It seems that potentially the matter could be relevant to the averments contained in sub-paragraphs (e), (f) and (h) of paras 18, 19 and 20 of the current iteration of the cross-claim. I am satisfied that these opinions are potentially relevant to that matter, however, the thresholds for admissibility has not been crossed and I will reject the first sentence and third sentence of paragraph 14 of Mr Benson's affidavit.
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Decision last updated: 06 September 2018
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