Chaina v Presbyterian Church (NSW) Property Trust (No. 8)

[2013] NSWSC 187

Supreme Court

New South Wales

Medium Neutral Citation:	Chaina v Presbyterian Church (NSW) Property Trust (No. 8) [2013] NSWSC 187
Hearing dates:	25 February 2013
Decision date:	18 March 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Evidentiary rulings as provided in the reasons for judgment.
Catchwords:	PROCEDURE - evidence - early rulings on the evidence pursuant to s 192A Evidence Act.
Legislation Cited:	Evidence Act 1995 Uniform Civil Procedure Rules
Cases Cited:	Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139
Category:	Interlocutory applications
Parties:	Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors
Representation:	Counsel: J Maconachie QC & J Sharpe (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: Berrigan Doube Lawyers (Plaintiffs) Curwoods Lawyers (Defendants)
File Number(s):	2002/69354

Judgment

1. This judgment deals with the supplementary statements of George Chaina of 13 July 2012 and with the statements of Rita Chaina. It should be read in connection with my earlier judgment dealing with objections to the evidence of George Chaina: Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139. Many of the objections taken to the statements of Rita Chaina are similar in substance to those taken to George Chaina's statements.

1. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 2 September 2005

Paragraph number	Category of Objection	Ruling
3, 5, 7, 9, 11(b), 13(b), 14(b) and (c), 17, 18, 20, 21(b), 23(b), 24(b), 25, 26, 27, 28(b), 31, 32 - last sentence	Form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct	Paragraphs 3, 5, 7 and 9 are rejected as expert evidence which do no comply with the Expert Witness Code of Conduct nor with the principles in Makita. Paragraph 27(b) is rejected for the same reason that the evidence in paragraph 27 of the Statement of 2 September 2005 was rejected - the evidence is not probative of any matter in issue. Paragraphs 13 and 14(b) and (c) are rejected - form. Paragraphs 17, 18, 20 and 21(b) are rejected as conclusions and expert evidence. Paragraphs 23(b) and 24(b) are rejected as conclusions. Paragraph 5 is rejected as expert evidence. Paragraphs 26 and 27 are rejected as hearsay and by reason of their form. Paragraph 28(b) is rejected - form. Paragraphs 31 and the last sentence of paragraph 32 are rejected - form.

2. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 25 September 2005

1. Objection is taken to paragraphs 5, 6 and 7 on the basis of form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

1. Paragraph 5 is rejected by reason of its form. It is a conclusion without any proper basis being demonstrated.

1. Paragraph 6 is rejected as hearsay.

1. Paragraph 7 is admitted.

3. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 8 February 2010

1. Objection is taken to paragraphs 3, 5, 7, 9, 11(a) and (b), 12, 13(b) and (c), 14(b) and (c), 15, 17, 18(a), b) and (c), 19, 20, 21(b), 23, 24(b) and (c), 28(b), 30(b)-(d), 31(b) and (c), 33(b)-(d), 34(b)-(e), 37, 38(b) and (c), 39, 40, 43-48, 50, 51, 53-55, 57-67, 69-78, 80, 84-94, 96(the conversation evidence), 97-101, 103, 104, 105(b). The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

1. This statement elaborates on matters contained in the statement of 8 February 2010. Generally speaking, the outcome of objections to this statement is determined by the outcome of the objections to the statement of 8 February 2010.

Paragraph number	Ruling
3, 5, 7 & 9	Rejected as expert evidence
11	Admitted
12	Admitted
13(b) and (c)	Admitted
14(b) and (c)	Admitted
15	Admitted
17	Admitted
18(a) and (c)	Admitted
19	Admitted
20	Sub-paragraph (a) is admitted, sub-paragraph (b) is rejected
21(b)	Rejected - form
23	Admitted
24(b) and (c)	Rejected - hearsay
28(b)	Rejected - form
30(b)-(d)	Sub-paragraph (d) is rejected - form. The remainder is admitted.
31(b) and (c)	Admitted
33(b)-(d)	Sub-paragraph (d) is rejected - form. The remainder is admitted.
34(b)-(e)	Sub-paragraph (c) and (d) are rejected as conclusion and expert evidence. The remainder is admitted.
37	Rejected. The whole of paragraph 96 to which this paragraph refers was rejected.
38(b) and (c)	Sub-paragraph (b) is rejected - form. The remainder is admitted
39	Rejected as expert evidence.
40	Rejected -- form.
43	Rejected - form
44	Admitted
45	Rejected - hearsay.
46	Sub-paragraphs (a), (b) and (d) are rejected - form. Sub-paragraph (c) is admitted.
47	Sub-paragraph (c) is admitted only as evidence of the witness's belief. The remainder of the paragraph is admitted.
48	Admitted
50	Admitted
51	Rejected - hearsay
53	Sub-paragraph (a) rejected - form. The remainder of the paragraph is admitted
54	This is expert evidence and is rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate.
55	Rejected - form.
57	Sub-paragraphs (b) and (c) rejected - hearsay. The remainder of the paragraph is admitted.
58	Sub-paragraph (b) rejected - hearsay. The remainder of the paragraph is admitted.
59	Rejected - form.
60	Rejected
61-63	Rejected - form
64	Sub-paragraph (a) rejected - form. The remainder of the paragraph is admitted.
65	Sub-paragraphs (a) and (b) are rejected - hearsay. The remainder of the paragraph is admitted.
66	Rejected - form and hearsay.
67	Sub-paragraph (b) is rejected - hearsay. The remainder of the paragraph is admitted.
69	The last sentence is expert evidence and is rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate. The remainder is admitted.
70	Rejected - hearsay.
71	Admitted
72	Rejected (the whole of paragraph 170 in the earlier statement was rejected.
73	Rejected - form.
74	Rejected as expert evidence as paragraph 173 was rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate.
77	Rejected (paragraph 181 in the earlier statement was rejected).
78	Rejected as expert evidence in the same way paragraph 183 in the earlier statement was rejected.
80	Rejected as expert evidence in the same way paragraph 192 in the earlier statement was rejected.
84-86	Rejected as expert evidence in the same way paragraphs 200, 202 and 205 in the earlier statement were rejected with leave to reinstate if appropriate.
87	Rejected - hearsay.
88	Rejected - form.
89	Rejected - paragraph 225 in the earlier statement was rejected.
90	Rejected - form
91	Rejected - hearsay
92	Rejected - hearsay
93	Rejected - hearsay
94	Rejected as paragraph 242(d) was rejected.
96 - from the words commencing "I refer to paragraph 265" to the end of the paragraph	Rejected - hearsay
97	Admitted
98	Rejected - form and hearsay.
99	Rejected - form
100	Rejected - form and hearsay.
101	Rejected - hearsay
103	Admitted only as a statement of the witness's belief
104	Rejected as paragraph 330 was rejected in the earlier statement.
105(b)	Rejected - hearsay.

4. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 26 August 2010

1. Objection is taken to the following paragraphs: 3, 5-67, 69-73, 75, 77-85, 91, 93, 94, 96, 99-102, 104, 105, 109-118, 120-122, 124-133, 138-140, 142-145, 147-165. The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

1. This statement will be dealt with in the same manner as the statement of 26 August 2010. It is expert evidence and is rejected until the witness's expertise is accepted and it is expressed in proper form.

5. Statement of Rita Chaina dated 16 August 2005

1. A general objection is taken to paragraphs 9 to 23 on the basis that they are irrelevant and of no probative value as the evidence does not concern products the subject of the proceedings. The Plaintiffs submit that the evidence is relevant as to the genesis and nature of the business and to Rita Chaina's involvement in the business.

1. In my opinion, the evidence is appropriate background evidence about the business and an explanation of Rita Chaina's involvement. It should not be rejected as irrelevant or having no probative value. It will be necessary to deal with specific objections to parts of these paragraphs.

Paragraph number	Category of Objection	Ruling
11	Form	Admitted
12	Form	Rejected
16 - first sentence	Form, non-discovery	No time is specified - rejected but with leave to adduce evidence in proper form.
19	Form	Rejected
21 - third sentence	Form	Rejected
22 - the words in the first sentence "which supplied" to the end of the sentence	Form	Admitted
24 - last sentence	Form, speculation	Rejected
27	Form	Rejected
28 - third sentence to the end of the paragraph	Form	From the words "and improved" in the third last sentence to the end of the paragraph - rejected. The remainder is admitted.
29 - third and fourth sentences up to the word "complete"	Form	The third sentence is rejected. The remainder is admitted.
30 - other than the first sentence	Form, expert evidence where Expert Witness Code is not adopted	The words in the second sentence "based on enzyme technology" and the last sentence rejected. The remainder is admitted.
33	Form, expert evidence where Expert Witness Code is not adopted	Rejected as a conclusion and expert evidence.
38	Form	Rejected
40 - the fourth and fifth sentences	Form & hearsay	The fourth sentence is rejected as a conclusion. The fifth sentence is admitted.
42	Form	Rejected
44 - first sentence	Form, speculation, conclusion, relevance	Rejected because of its form.
47 - the words in the first sentence commencing "which would be suitable" to the end of the sentence	Form	Rejected
47 - the words in the penultimate sentence commencing "which it was anticipated" to the end of the sentence	Form	Rejected
48	Form, expert evidence where Expert Witness Code not adopted	Rejected
50 - the words in the first sentence "to arrange" to the end of the sentence	Form	Rejected
51	Hearsay	Rejected
57 - second sentence to the end of the paragraph	Form, expert evidence where Expert Witness Code not adopted	Rejected
61 - last sentence	Relevance & form	Rejected
66 - last sentence	Form, speculation	Rejected.

6. Statement of Rita Chaina dated 29 January 2010

1. A similar objection is taken to paragraphs 9 - 27, 34, 44 and 47 as was taken to paragraphs 9 - 23 of the statement of 16 August 2005. In my opinion the evidence is relevant as background evidence demonstrating how the business first came about and what was done to develop it and build it up. It is necessary, however, to consider specific objections to the evidence.

Paragraph number	Category of Objection	Ruling
9 - last sentence	Non-discovery of records	Admitted
13 - last sentence	Form	Rejected
14 - from the second sentence to the end of the paragraph	Form, speculation, expert evidence where Expert Witness Code not adopted	The last sentence is rejected. The remainder is admitted.
16	Relevance, form, hearsay	Admitted
17	Form	Rejected
18	Form, speculation	Rejected
19 - the second sentence to the second last sentence (this is assumed to be in paragraph 19(a))	Form	Rejected
19(b)	Form	The second sentence commencing "a large part of his time" is rejected. The second last sub-paragraph commencing "Many of the products" is rejected as expert evidence. The remainder is admitted.
19(c)	Relevance, hearsay	The words in the third sentence commencing "Where George outlined" to the end of the sentence are rejected. The words in the penultimate sentence "Where the electronic engineer" to the end of that sentence and the final sentence are rejected. The remainder is admitted.
20	Relevance	Rejected
24	Form, hearsay	The second sentence and the words in the third sentence "or members of the family" are rejected. The remainder is admitted.
27	Form	Rejected
29 - second last and last sentences together with Tabs 2 and 3 to RC3	Relevance, form	Rejected on the grounds of relevance.
34	Form, relevance	Rejected
47 - the sentence commencing "I said to George" to the end of that sentence	Form, hearsay, expert evidence	Rejected
52	Form, speculation, non-discovery of documents	Rejected
55	Hearsay, relevance	Rejected
56	Hearsay, relevance	Rejected
58	Form, hearsay	Rejected
60	Form, hearsay	Rejected
62	Form, hearsay	Rejected
68	Form, hearsay, relevance	Rejected
75(b)	Form	Rejected
76	Form	Rejected
86 - from the third sentence to the end of the paragraph	Hearsay	Rejected
89 & 90	Hearsay	Rejected
91 - the words in the last sentence "Price Waterhouse Coopers had identified some potential investors"	Form, hearsay	Rejected
95 & 97	Hearsay	Rejected
102	Hearsay	Rejected
105	Hearsay	Rejected
106	Hearsay	Rejected
108	Hearsay	The first two sentences are admitted. The remainder is rejected.
109	Hearsay	The first sentence is admitted. The second sentence to the words "remember as John" is admitted. The remainder is rejected.
112 - the third sentence to the end of the paragraph	Hearsay	Rejected
114	Hearsay	Rejected
118 - last sentence	Form	Rejected
119	Form	Rejected
122 - from the fourth sentence to the end of the paragraph	Form	Rejected

7. Statement of Rita Chaina dated 26 August 2010

1. The purpose of this affidavit is set out in the first few paragraphs where Mrs Chaina says that her husband gave evidence in his statement of 2 September 2005 of research, formulation and testing over a four year period between 1995 and 1999 for certain products developed by Proton. Mrs Chaina then says that she undertook some of the testing in respect of those products and she goes on to say at paragraph 4:

In this statement, I give evidence about the testing which I conducted or was otherwise involved in, in the period predominantly 1995-1999 in relation to Proton's domestic product range.

1. In paragraph 7 Mrs Chaina says that when she conducted testing or assisted Mr Chaina with the testing she generally used the products being tested herself and involved members of her family and friends in the testing process. She said this involved either providing the product being tested to members of family and friends who reported their subjective opinions or she had the people over to her house so that she could record the results herself. She also provided them with competitors' products to obtain their opinion as to which product they preferred.

1. The remainder of the affidavit deals with this testing process in relation to various different categories of product.

1. In her first statement of 16 August 2005 Mrs Chaina discloses that she has a Bachelor of Pharmacy from the University of Sydney and that she completed a two year course in microbiology. Thereafter she worked as a pharmacist until she commenced to work for Deluxe. She said that during the seven year period she ran a pharmacy at Condell Park she gained experience in the overall running of a small business such as account management, budgeting, marketing and financing.

1. There is no evidence at all suggesting that Mrs Chaina has any expertise in product testing or statistics. The evidence given in the present statement is expert evidence. Mrs Chaina has not adopted the Expert Witness Code of Conduct.

1. Because her expertise is not demonstrated and because, in any event, the Expert Witness Code of Conduct has not been adopted the whole of the material in the affidavit is rejected.

1. Further, the affidavit contains large amounts of hearsay, and the affidavit is expressed in general and conclusionary terms so that even if Mrs Chaina was allowed to put it forward as an expert it would not satisfy the requirements of either the Expert Witness Code of Conduct or the principles in Makita.

8. Supplementary statement of Rita Chaina dated 13 July 2012 re Statement of 16 August 2005

Paragraph number	Category of Objection	Ruling
3, 4, 5, 6, 7, 9 (the last two sentences), 10, 11 (the last sentence), 13, 14, 15, 17 (from the words "I formed the view" to the end of the paragraph), 18, 19, 20 & 21	Form, hearsay, speculation, no primary facts, expert evidence where witness has not adopted the Expert Witness Code	Paragraph 3 is admitted. Paragraph 4 is rejected. Paragraph 6 is rejected. Paragraph 7 is admitted. The last two sentences of paragraph 9 are rejected as expert evidence. Paragraph 10 is rejected. The last sentence of paragraph 11 is rejected as expert evidence. Paragraph 13 is rejected. Paragraph 14 is rejected. Paragraph 15 is rejected. In paragraph 17 the words "I formed the view" to the end of the paragraph are rejected. Paragraph 18 is rejected. Paragraph 19 is rejected. Paragraph 20 is rejected. Paragraph 21 is rejected.

9. Supplementary statement of Rita Chaina dated 13 July 2012 re Statement of 29 January 2010

Paragraph number	Category of Objection	Ruling
3, 5, 6, 7, 8, 10, 11, 14, 15, 16 & 17	Form, hearsay, speculation, no primary facts, expert evidence where witness has not adopted the Expert Witness Code	Paragraph 3 is rejected. Paragraph 5 is admitted. Paragraph 6 is rejected. Paragraph 7 is rejected both because of its form and because it contains expert evidence. In paragraph 8 the fourth, fifth and sixth sentences are rejected. The last sub-paragraph commencing "In my role at Deluxe" is rejected as expert evidence. Paragraph 10 is rejected. Paragraph 11 - the last two sentences are rejected. Paragraph 14 is rejected. In paragraph 15 the second sentence is rejected. Paragraph 16 is rejected. In paragraph 17 the words "I am not the same person as I was prior to the tragedy" are rejected. The remainder is admitted.

10. Supplementary statement of Rita Chaina dated 13 July 2012 re statement of 26 August 2010

1. The whole of this statement is rejected on the same bases as the statement of 26 August 2010 was rejected.

Statement of George Chaina dated 25 September 2006

1. I dealt with the objections to this statement in my earlier judgment (Chaina (No. 7)). For the sake of consistency I need to modify certain rulings I gave in relation to the objections to paragraphs 122 to 142. I said in respect of those paragraphs (inter alia):

Some of the evidence is expert evidence and is admitted subject to it being established that the witness has expertise and subject to issues associated with the adoption of the Expert Witness Code of Conduct.

1. Elsewhere when dealing with objections based on the evidence being expert evidence I have rejected the evidence but given leave to the Plaintiff to apply for its reinstatement if and when Mr Chaina is shown to be an expert. For consistency that is the ruling I now intend to apply to those parts of the following paragraphs which have not already been rejected for other reasons:

Paragraphs 133, 139, 140, 141 and 142.

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Decision last updated: 18 March 2013