Chambers v Brice - [2012] QSC 305

SUPREME COURT OF QUEENSLAND

CITATION:

Chambers & Ors v Brice [2012] QSC 305

PARTIES:

JOHN CHARLES CHAMBERS
(first plaintiff)
and
DORRIGO PROPERTY PTY LTD
(second plaintiff)
and
HARROD HOLDINGS PTY LTD
(third plaintiff)
v
ROBERT ANDREW CREETH BRICE
(defendant)

FILE NO:

1317 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2012

JUDGE:

Peter Lyons J

ORDER:

1. Paragraphs 1.2 (ii), 2.1, 2.2, 5.5, 5.6, 5.7 and the expressions “and best” in paragraphs 5.4, 5.10 and 5.11 of the Vincents report be struck out;

2. Costs in the cause.

CATCHWORDS:

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where the plaintiffs allege the defendant, an accountant, breached his fiduciary duties to the first plaintiff - where an expert accountant report identifies professional standards and provides expert evidence as to whether the defendant’s conduct fell short of those standards - where the plaintiffs do not allege that the defendant owed any professional obligations to the first plaintiff - where the defendants submit that the expert accountant report does not tend to prove or disprove an issue on the pleadings - whether the expert accounting report is relevant to the question of the existence or content of fiduciary duties owed by the defendant to the first plaintiff

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where expert accountant report refers to “industry practice” - where expert accountant report refers to “best practice” but does not identify the meaning of that term - where no reasoning process is revealed by which it is said the conduct described in the report amounts to “best practice” - whether “industry practice” is a summary description of observations made as to practices generally followed in the accounting profession such that it is unnecessary to identify a process of reasoning or application of principles - whether in circumstances where no reasoning process to support the expert opinion with respect to “best practice” is revealed, the references in the expert evidence to “best practice” are inadmissible

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where expert accountant report provides details of the expert’s experience as an accountant, in particular, that he has had to deal with issues relating to the independence of an accountant and situations of conflict of interest in practice - whether this evidence is relevant

Australian Securities and Investment Commission v Rich (2005) 218 ALR 764, considered
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, cited
Gould v Companies Auditors and Liquidators Disciplinary Board (2009) 71 ACSR 648, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, followed
Rogers v Whitaker (1992) 175 CLR 479, cited
Rosenberg v Percival (2001) 205 CLR 434, cited
Sullivan Nicolaides Pty Ltd v Papa [2011] QCA 257, cited

COUNSEL:

D Kelly SC, with E Goodwin for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QSC 305
Decision Date: 8 October 2012

CaseChat Overview and Summary

The case of Chambers v Brice involved the plaintiffs, who alleged that the defendant, an accountant, had breached his fiduciary duties towards them. The dispute came before the court which was tasked with determining the admissibility and relevance of an expert accountant's report in the context of the fiduciary duties owed by the defendant to the plaintiffs. The plaintiffs argued that the report was relevant to establishing whether the defendant's conduct fell short of professional standards, while the defendants contended that the report did not address the issues raised in the pleadings and was therefore inadmissible.

The court had to decide whether the expert accounting report was relevant to the question of the existence or content of the fiduciary duties owed by the defendant to the plaintiffs. The report referred to both "industry practice" and "best practice" in the accounting profession but did not provide a clear definition or reasoning process for these terms. Additionally, the report outlined the expert's experience in dealing with issues of independence and conflict of interest in the accounting profession, which the plaintiffs argued was relevant to the case.

In its reasoning, the court held that certain parts of the expert report, specifically those referring to "best practice" and lacking a reasoning process, were inadmissible as they did not contribute to proving or disproving the issues on the pleadings. The court also found that the references to "industry practice" in the report were insufficiently defined to be considered a summary description of general practices in the accounting profession. Consequently, the court struck out specific paragraphs of the expert report and awarded costs in the proceedings.

The court's final orders included striking out specific parts of the expert report and awarding costs, reflecting the court's determination that the report, as presented, was not sufficiently relevant or clear to be admissible in the case.

Orders

Orders of the court

1. Paragraphs 1.2 (ii), 2.1, 2.2, 5.5, 5.6, 5.7 and the expressions “and best” in paragraphs 5.4, 5.10 and 5.11 of the Vincents report be struck out;

2. Costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chambers & Ors v Brice [2012] QSC 305
PARTIES:	JOHN CHARLES CHAMBERS (first plaintiff) and DORRIGO PROPERTY PTY LTD (second plaintiff) and HARROD HOLDINGS PTY LTD (third plaintiff) v ROBERT ANDREW CREETH BRICE (defendant)
FILE NO:	1317 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	8 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2012
JUDGE:	Peter Lyons J
ORDER:	1. Paragraphs 1.2 (ii), 2.1, 2.2, 5.5, 5.6, 5.7 and the expressions “and best” in paragraphs 5.4, 5.10 and 5.11 of the Vincents report be struck out; 2. Costs in the cause.
CATCHWORDS:	EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where the plaintiffs allege the defendant, an accountant, breached his fiduciary duties to the first plaintiff - where an expert accountant report identifies professional standards and provides expert evidence as to whether the defendant’s conduct fell short of those standards - where the plaintiffs do not allege that the defendant owed any professional obligations to the first plaintiff - where the defendants submit that the expert accountant report does not tend to prove or disprove an issue on the pleadings - whether the expert accounting report is relevant to the question of the existence or content of fiduciary duties owed by the defendant to the first plaintiff EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where expert accountant report refers to “industry practice” - where expert accountant report refers to “best practice” but does not identify the meaning of that term - where no reasoning process is revealed by which it is said the conduct described in the report amounts to “best practice” - whether “industry practice” is a summary description of observations made as to practices generally followed in the accounting profession such that it is unnecessary to identify a process of reasoning or application of principles - whether in circumstances where no reasoning process to support the expert opinion with respect to “best practice” is revealed, the references in the expert evidence to “best practice” are inadmissible EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL - where expert accountant report provides details of the expert’s experience as an accountant, in particular, that he has had to deal with issues relating to the independence of an accountant and situations of conflict of interest in practice - whether this evidence is relevant Australian Securities and Investment Commission v Rich (2005) 218 ALR 764, considered Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, cited Gould v Companies Auditors and Liquidators Disciplinary Board (2009) 71 ACSR 648, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, followed Rogers v Whitaker (1992) 175 CLR 479, cited Rosenberg v Percival (2001) 205 CLR 434, cited Sullivan Nicolaides Pty Ltd v Papa [2011] QCA 257, cited
COUNSEL:	D Kelly SC, with E Goodwin for…