Chaina v Presbyterian Church (NSW) Property Trust (No. 12)
[2013] NSWSC 966
•18 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 12) [2013] NSWSC 966 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Common Law Before: Davies J Decision: Evidentiary rulings as provided in the reasons for judgment
Catchwords: EVIDENCE - expert evidence - witness offering expert opinion - no adoption of Expert Witness Code - evidence not complying with r 31.27 UCPR - statement rejected Legislation Cited: Evidence Act 1995 Cases Cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors
Presbyterian Church (NSW) Property Trust (First Defendant) and orsRepresentation: Counsel:
In person (Plaintiffs)
R Stitt QC, G L Turner & H Stitt (Defendants)
Solicitors:
In person (Plaintiffs)
Curwoods Lawyers (Defendants)
File Number(s): 2002/69354
Judgment
Objection is taken by the Defendant to the Statement of John Michael Davis dated 1 February 2010.
Mr Davis worked at Colgate Palmolive during the years that Mr Chaina also worked at that company. Mr Davis says that he studied applied science, majoring in chemistry, at the New South Wales Institute of Technology, as it then was, and graduated with a degree in 1981.
The Statement sets out in summary form what that part of the Colgate Palmolive plant at Villawood did - that part where Mr Davis and Mr Chaina worked on a daily basis.
The Statement also sets out what Mr Chaina (then known as "Pierre Ayoub" according to Mr Davis) did in the way of training people in Mr David's position. For example, Mr Davis says that he recalls "Pierre" (as he calls him) trained new laboratory staff, including himself, in the following areas:
(a) Chemical analysis;
(b) Instrumentation in the lab, including specialist training in the operation of the auto-analyser, infrared spectrophotometer, Karl Fischer apparatus, distillation apparatus, viscometer and pH meters;
(c) Destructive analysis; and,
(d) Full competitor analysis.
Paragraphs 27 and 28 of the Statement set out what was said to be Mr Chaina's role and involvement in certain works of analysis of products at the plant.
The terminology used by Mr Davis is undoubtedly expert terminology and assumes expert knowledge of a number of the matters that he describes.
The Statement, and in particular paragraphs 27 and 28, express undoubted expert opinion about matters where the facts are either assumed or are summarised in very brief form.
Mr Davis is not put forward as an expert witness; the Statement has not been prepared in accordance with the Expert Witness Code; and Mr Davis has not purported to adopt that Code in the preparation of this Statement.
The matter is not able to be resolved by Mr Davis merely now adopting the Expert Witness Code, even if he is able to say that he prepared this Statement bearing in mind the Code's principles. This is principally because the matters in paragraphs 27 and 28 simply do not comply with the requirements of r 31.27UCPR, nor with the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
The only purpose of this Statement appears, by the inclusion of that material, to show that Mr Chaina developed, through experience and work, an expertise in the areas described. If those paragraphs are removed the Statement is probative of nothing.
In my opinion, the result is that, because paragraphs 27 and 28 are inadmissible as expert evidence which has not been prepared in accordance with the Expert Witness Code, the whole of the Statement is inadmissible.
**********
Decision last updated: 24 July 2013
0