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Collins Thomson v Clayton

Collins Thomson v Clayton

Case [2002] NSWSC 366 9 April 2002

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CITATION: Collins Thomson v Clayton [2002] NSWSC 366

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1666/01

HEARING DATE(S): 9 April 2002

JUDGMENT DATE: 9 April 2002

PARTIES :

Collins Thomson Pty Ltd (in liq) (P)
Stephen James Clayton (D)

JUDGMENT OF: Austin J

COUNSEL : Mr P O'Loughlin (P)
Mr W Muddle (D)

SOLICITORS: Colin Biggers & Paisley (P)
Potts Latimer (D)

CATCHWORDS: EVIDENCE - 'without prejudice' privilege - whether solicitor's letter to other party's solicitor was in connection with an attempt to negotiate settlement, or merely a statement of position EXPERT OPINION EVIDENCE - whether plaintiff's liquidator can give such evidence - whether independence of expert is a pre-requisite to admissibility

LEGISLATION CITED: Evidence Act 1995 (NSW) ss 76, 79, 131

CASES CITED: Fagenblat v Feingold Partners Pty Limited [2001] VSC 454
GPI Leisure Corporation (in liq) v Yuill (1987) 42 NSWLR 225
Liverpool Roman Catholic Arch Diocesan Trustees Inc v Goldberg (No. 3) [2001] 1 WLR 2337
Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305
National Justice v Prudential Insurance (The "Ikarian Reefer") [1993] 2 Lloyd's Reports 68
Nodnara Pty Limited v Deputy Commissioner of Taxation (1997) 140 FLR 336.
Whitehouse v Jordan [1981] 1 WLR 246

DECISION: 'Without prejudice' letter held admissible; plaintiff liquidator's expert opinion evidence held admissible

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 9 APRIL 2002

1033/00 PROJECT CONSTRUCTION & DEVELOPMENT PTY LTD V GEOFFREY M ELLISON & ANOR

1666/01 COLLINS THOMSON PTY LTD (IN LIQ) V STEPHEN JAMES CLAYTON

JUDGMENT ON ADMISSIBILITY (EX TEMPORE; REVISED 18 APRIL 2002)

1 HIS HONOUR: These are two related proceedings which are being heard together on the basis that the evidence in each is evidence in the other. In proceedings no. 1033/00 the plaintiffs, Mr Clayton and his company, seek orders against Collins Thomson Pty Limited (in liquidation) and its liquidator, Mr Ellison, designed to cause their claims to be admitted as proofs of debt in the winding up of Collins Thomson. In proceedings 1666/01 Collins Thomson seeks relief against Mr Clayton on the basis of allegations of breach of fiduciary duties, and breach of provisions of the Corporations Law approximating to fiduciary duties, arising out of a deed dated 30 November 1994 in respect of which it is alleged that Mr Clayton gained improper advantage.

2 When counsel for Collins Thomson opened his case this morning, he sought to read a number of affidavits of the liquidator, Mr Ellison. At this stage I have not considered the affidavits in detail, but it is plain that at least substantial parts of those affidavits depend, for their admissibility into evidence, upon s 79 of the Evidence Act 1995 (NSW), on the basis that the evidence is expert opinion evidence.

3 Counsel for Mr Clayton contended that Mr Ellison’s affidavits are inadmissible wholly or in substantial part. To establish this contention, he adduced evidence in effect on a voir dire, and there was an objection by counsel for Collins Thomson to the tendering…

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.

Continue reading Collins Thomson v Clayton

Details

AGLC: Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366
Case: [2002] NSWSC 366
Decision Date: 9 April 2002

CaseChat Overview and Summary

In Collins Thomson v Clayton, the dispute revolved around the admissibility of certain evidence in a legal case. The plaintiff, Collins Thomson, sought to admit evidence from an expert witness, a liquidator, to testify regarding the financial status of the defendant, Clayton. The defendant objected to the admissibility of this evidence, arguing that the liquidator's independence was compromised due to his prior involvement in the case, thus affecting the reliability of his expert opinion.

The legal issues before the court included whether a solicitor's letter to the opposing party's solicitor, marked as "without prejudice," could be admitted as evidence in connection with an attempt to negotiate a settlement, or if it merely represented a statement of the solicitor's position. Additionally, the court needed to determine whether the liquidator's prior involvement in the case disqualified him from giving expert evidence, and if the independence of an expert is a necessary condition for the admissibility of their opinion.

The court held that the "without prejudice" letter could not be admitted as evidence of the settlement negotiations, as it was intended to be a confidential communication in the context of a genuine attempt to settle the dispute. Regarding the expert evidence, the court found that the liquidator's prior involvement did not necessarily disqualify him from giving evidence if he could demonstrate impartiality. The court emphasised that the key factor was the expert's ability to provide an objective and unbiased opinion, rather than their prior involvement in the case. Consequently, the liquidator's evidence was deemed admissible.

The court ordered that the "without prejudice" letter could not be used as evidence, while allowing the liquidator's expert opinion to proceed, subject to the conditions that the liquidator could maintain impartiality and provide an unbiased assessment of the financial situation.

Orders