Commonwealth Bank v Iinvest (No 3)

[2017] NSWSC 433

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank v Iinvest (No 3) [2017] NSWSC 433
Hearing dates:	1 February 2017
Date of orders:	01 February 2017
Decision date:	01 February 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I decline the application to revisit the contents of paragraphs 64 to 67 of Mr Harker-Mortlock's affidavit of 18 June 2015
Catchwords:	EVIDENCE – opinions based on specialised knowledge – s 79 Evidence Act 1995 (NSW) – whether opinion wholly or substantially based on specialised knowledge – consideration of agronomics as a field of specialised knowledge – held that opinions expressed not based wholly or substantially on specialised knowledge
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	James Harker-Mortlock (Applicant) J H M Pty Ltd (Second Applicant)   Iinvest Pty Ltd (in liquidation) (First Respondent) Commonwealth Bank of Australia (Second Respondent)
Representation:	Counsel: P King (Applicant) Ms Cheeseman SC with J White (Respondent) Solicitors: Roderick Alexander Ian Storie (Applicant) Campbell Hudson (Respondent)
File Number(s):	2013/108514

1. Yesterday afternoon, I rejected substantial parts of paras 64 to 67 of Mr Harker‑Mortlock's affidavit sworn on 18 June 2015.  I did so because I found that they were matters of opinion dependent upon the possession of specialised knowledge and it had not been demonstrated to me that Mr Harker‑Mortlock was possessed of relevant specialised knowledge and that opinions relevant to the assessment of losses allegedly suffered were required to be wholly or substantially based upon a branch of specialised knowledge.

2. Mr King has sought leave to supplement the affidavit by a statement prepared by Mr Harker‑Mortlock this morning setting out his experience, as he puts it, in agriculture and agricultural economics.  Mr White of counsel, who appears as junior to Ms Cheeseman SC, has argued that the material in the statement which I admitted on the voir dire as exhibit VD1 does not demonstrate that the opinions propounded in the contentious paragraphs are wholly or substantially based upon Mr Harker‑Mortlock's specialised knowledge as disclosed.

3. He also submits, as I understand it, so far as the question of leave is concerned, that there is in any event other evidence not objected to by the plaintiff which establishes objectively the average price of sheep, ewes, lambs and rams over the relevant period.  I have studied exhibit VD1 carefully and I am satisfied that Mr Harker‑Mortlock is very experienced in agricultural matters and has acquired that experience since his youth.  I am also satisfied that during the time that he ran his pastoral enterprises on the various properties at Yass, he was engaged in them as commercial enterprises; that is to say he was not a mere hobbyist.  Moreover I am satisfied that like diligent men of business everywhere he undertook research and consulted reference works to advance his knowledge and to solve practical problems that arose in the course of his enterprise.  He also engaged engaged a farm manager and worked with the manager closely, acquiring additional knowledge and skills from that experience.  He is a man of business and has been involved successfully for very many years in other businesses.  He fully immersed himself in the local rural community rising to positions of responsibility with the support of his neighbours.

4. Like all good farmers, no doubt, he kept up‑to‑date with what was happening by reading respected journals and keeping tabs on the movement of prices in the industry.  There is no doubt that his experience qualifies him as a person who has specialised knowledge generally speaking, in agriculture.  However, I think the Court can also take judicial notice of the consideration that agronomics is an organised branch of knowledge concerned with the economics of land use and production. Persons involved in that course of study once qualified, become agricultural professionals in the field who have formal and well recognised qualifications in all aspects of agricultural production including movements in the price of stock.

5. I suppose one might say that a motor mechanic might, in some matters, be a more valuable expert than the mechanical engineer depending on the topic of discussion and there are no doubt many questions to which someone with Mr Harker‑Mortlock's experience and personal study could contribute more authoritatively than a professional agronomist.

6. Although the matter is not easy of resolution I am of the view that the practical knowledge picked up through heavy involvement in one's own pastoral enterprise and immersion in what's happening in the local pastoral community is not specialised knowledge which qualifies one to provide opinions about the value of stock.  To that extent the opinions sought to be expressed by him are, in my judgment, not capable of being wholly or substantially based on the particular general knowledge that farmers acquire as opposed to information available to professional agronomists.

7. I accept that the consideration that there is other evidence dealing with these matters does not of itself, rule out evidence from Mr Harker‑Mortlock.  One may contradict but not discredit one's own evidence.  On the other hand, that consideration is relevant to the question of whether leave should be granted and in my opinion I would not be inclined to grant leave at this stage given the availability of other cogent, credible evidence.

8. One of the opinions expressed by Mr Harker‑Mortlock which I rejected is that a sale, I will say under duress, of income-producing assets results in immediate capital loss.  To my mind such a matter really does depend upon the careful, professional analysis of a qualified agronomist rather than that of an even very experienced pastoralist although I add there is an area of operation for common sense in these matters and anyone with any experience of life would appreciate that sale under duress is likely to yield a lower price than one in favourable market conditions; moreover the divestment of income-producing assets is likely to diminish the capacity to produce income. Couched at that level of generality, I think this a matter about which one does not need opinion evidence.

9. I decline the application to revisit the contents of para 64 to 67 of Mr Harker‑Mortlock's affidavit of 18 June 2015. For clarity, this concludes the voir dire.

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Decision last updated: 19 April 2017