Chaina v Presbyterian Church (NSW) Property Trust (No. 17)
[2013] NSWSC 1580
•04 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 17) [2013] NSWSC 1580 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Common Law Before: Davies J Decision: Report of Ben Wheaton of January 2012 not rejected at this stage of the hearing
Catchwords: EVIDENCE - expert evidence - admissibility - whether assumptions made by expert established 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 to the report of Ben Wheaton of January 2012. There are a number of bases for this. The first is that the author of the report lacks the necessary expertise; secondly, that the report does not relate to the relevant time period, which is the launch in 1999; thirdly, that it contains assumptions that are not supported by the evidence; and, fourthly, that it deals with the domestic market.
It is accepted by the Plaintiffs that section 6.3 of the report should not now be admitted because it concerns the domestic market.
The author of the report is a chartered accountant by training and qualification. However, he provides his experience on page 3 of the report showing the particular sort of work that he has been involved in whilst a partner at PricewaterhouseCoopers for ten years and otherwise. That work involved issues of sustainability, risk and compliance. His work at Wheaton Beer, a sustainability consultancy, has involved service to retail clients in sustainable packaging.
I am satisfied that although page 3 is a somewhat thin CV, he demonstrates the expertise to be able to provide the opinions in the report.
As to the objection about the time period, he says on page 4 that he is considering the benefits of the Plaintiffs' products which he sets out there over the period 1999 to 2016. Although the report concentrates particularly on the recognition of the significance of environmentally friendly products and that that has particularly developed during the last decade, I consider that, because of the period of time that the author of the report is considering, the report is not inadmissible by reference to matters that have happened in 2007, 2010 and 2011 and so on. The report is not solely concerned with the launch of the products in 99 but is concerned in general terms with how the market would receive the products throughout the period considered in the report.
The report has other problems, particularly its reliance on a number of assumptions which, to the present time, the evidence in the case does not support. It is in a similar category to a number of other reports in that regard. I do not consider, however, that that makes it inadmissible at this stage.
It may well be that the failure of proof of the assumptions made will ultimately mean this report will carry very little weight. I do not think I can properly determine that until the conclusion of the case and until I have heard submissions on all aspects of it.
The report will not at this stage be rejected.
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Decision last updated: 06 November 2013
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