CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD [No 2] [2007] WASC 244

Link to Appeal :

[2007] WASCA 286

Reported Decision:	(2007) 35 WAR 394
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 244
Published:	23/10/2007
Case No:	CIV:1707/2003	Heard:	25 SEPTEMBER 2007
Coram:	EM HEENAN J	Delivered:	25/09/07
No of pages:	25	Judgment Part:	1 of 1
Result:	Directions that certain expert evidence may be admitted based on information and belief verified by expert's affidavit
Category:	A
PDF Version

Parties:	CLAMBAKE PTY LTD (ACN 009 242 371) TIPPERARY PROJECTS PTY LTD (ACN 054 744 713) WARREN PERRY ANDERSON OWSTON NOMINEES NO 2 PTY LTD (ACN 001 769 099) LAND CAPITAL PTY LTD (ACN 058 548 806) IVOR FREDERICK COHEN
Catchwords:	Practice and procedure Case management Expert evidence Confining issues Directions that certain evidence may be admitted on a prima facie basis upon affidavit from expert based on information and belief with sources identified Variation of time limits for complying with directions Liberty to apply
Legislation:	Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA)
Case References:	Ashmore v Corporation of Lloyd's [1992] 2 All ER 486 Bristile Holdings Ltd v Giacci Brothers Pty Ltd [2000] WASCA 48 Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd [2001] WASC 191; (2001) 24 WAR 284 Eagles v Orth [1976] Qd R 313 English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 Labocus Precious Metals Pty Ltd v Thomas (No 3) [2007] FCA 1346 Murine Eye Remedy Co v Eldred [1926] VLR 425 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Ramsay v Watson (1961) 108 CLR 642 Steffen v Ruban (1966) 2 NSWR 622 Tobin v Dodd [2004] WASCA 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD [No 2] [2007] WASC 244 CORAM : EM HEENAN J HEARD : 25 SEPTEMBER 2007 DELIVERED : 25 SEPTEMBER 2007 PUBLISHED : 23 OCTOBER 2007 FILE NO/S : CIV 1707 of 2003

Consolidated with CIV 2093 of 2003 by order dated 24 June 2004

BETWEEN : CLAMBAKE PTY LTD (ACN 009 242 371)

Plaintiff

AND

TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)

First Defendant

WARREN PERRY ANDERSON

Second Defendant

FILE NO/S : CIV 2093 of 2003 BETWEEN : OWSTON NOMINEES NO 2 PTY LTD (ACN 001 769 099)

First Plaintiff

TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)

Second Plaintiff

AND

(Page 2)

CLAMBAKE PTY LTD (ACN 009 242 371)

First Defendant

LAND CAPITAL PTY LTD (ACN 058 548 806)

Second Defendant

IVOR FREDERICK COHEN

Third Defendant

Catchwords:

Practice and procedure - Case management - Expert evidence - Confining issues - Directions that certain evidence may be admitted on a prima facie basis upon affidavit from expert based on information and belief with sources identified -…

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: [2007] WASC 244
Decision Date: 25 SEPTEMBER 2007

CaseChat Overview and Summary

The case Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 2] involved a dispute between Clambake, the plaintiff, and Tipperary, the defendant, concerning issues arising from a construction project. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the admissibility of expert evidence and the management of case proceedings to ensure the efficient resolution of the issues.

The court was tasked with deciding whether expert evidence could be admitted based on information and belief, verified by an expert's affidavit, particularly when the sources of information were identified. Additionally, the court had to consider whether the time limits for complying with directions could be varied to allow for the admission of such evidence. The court was required to balance the need for efficient case management with the importance of ensuring that all evidence presented is reliable and substantiated.

The court determined that the admission of expert evidence based on information and belief could be permissible if certain conditions were met. The expert must provide an affidavit verifying the information, and the sources of the information must be identified. The court found that these conditions could facilitate the efficient resolution of the case while maintaining the integrity of the evidence. Furthermore, the court concluded that varying the time limits for complying with directions could be appropriate in this context, allowing for flexibility in managing the case while ensuring all parties had a fair opportunity to present their case.

The court granted directions that certain expert evidence may be admitted on a prima facie basis, verified by an expert's affidavit and supported by identified sources. It also allowed for the variation of time limits for complying with these directions, subject to the right to apply for further directions if necessary. This decision provides a framework for handling similar cases in the future, balancing the need for efficient case management with the principles of fairness and reliability in evidence presentation.

Orders

Orders of the court

Directions that certain expert evidence may be admitted based on information and belief verified by expert's affidavit

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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