Hoffmann v Challis - [2016] NSWSC 268

Supreme Court

New South Wales

Medium Neutral Citation: Hoffmann v Challis [2016] NSWSC 268
Hearing dates: 26 February 2016
Date of orders: 26 February 2016
Decision date: 26 February 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) I admit the affidavit of Mr John W Rotunno sworn on 24 February 2016.

Catchwords: PRODEDURE – admissibility of evidence of expert – where no mention of awareness of code of conduct– where expert is experienced foreign lawyer giving evidence about law in that jurisdiction
PRODEDURE – admissibility of evidence of expert – whether wholly or substantially based on expert’s specialised knowledge
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Dasreef v Hawchar [2011] HCA 21; 243 CLR 588
Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160
Category: Procedural and other rulings
Parties: Darren George Challis (Applicant)
David Hoffman (Respondent)
Representation: Counsel: D Sibtain and P Horobin (Applicant)
R Gration (Respondent)
Solicitors: Atanaskovic & Hartnell Lawyers (Applicant)
K & L Gates (Respondent)

File Number(s): 2015/349993

EX TEMPORE JUDGMENT - REVISED

Mr Sibtain has objected to the affidavit of Mr Rotunno, Attorney at Law, which deals with the law of enforcing foreign judgments applicable in the State of Illinois, United States of America. Mr Sibtain submits that it does not comply with r 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) which requires an acknowledgement of compliance with the expert code of conduct. Mr Rotunno is a partner in the practice in Illinois of the plaintiff’s law firm. Mr Sibtain also argues that Mr Rotunno’s affidavit does not comply with the requirements for the admissibility of expert evidence as expounded in Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]. Mr Gration joins issue on each of those points, whilst acknowledging that there is no acknowledgement by the expert of compliance with the code of conduct as required by the Rules.
The potential relevance of Mr Rotunno’s evidence is that this is an application for security for costs in a defamation action brought by a foreign resident plaintiff. The motion was filed on 10 December 2015. The affidavit in support was not sworn and filed until 24 February 2016. The affidavit of Mr Rotunno was prepared in compliance with a direction given by the registrar only this week for the filing evidence in reply.
I accept Mr Sibtain’s argument that the relevant principles about implied compliance with r 31.23 are set out in the judgment of Ball J in Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [35]. There his Honour pointed out that in deciding whether to “order otherwise” as permitted by r 31.23 the court is required to consider all the circumstances of the case. His Honour went on:

“Those circumstances include the nature of the instructions that were actually given to the expert, the expert’s prior familiarity with the code, the extent to which…

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: [2016] NSWSC 268
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the case of Hoffmann v Challis, the matter was heard in the Supreme Court of South Australia, where the dispute centred around the admissibility of expert evidence presented by the defendant, Challis, regarding the law of a foreign jurisdiction. Hoffmann, the plaintiff, contested the admissibility of the evidence, arguing that the expert was not aware of the relevant code of conduct. The central legal issue before the court was whether the evidence of the expert witness, a foreign lawyer with substantial experience, should be deemed admissible, particularly given his lack of knowledge of the code of conduct. The court also had to determine whether the evidence was wholly or substantially based on the expert's specialised knowledge.

The court considered the principles of admissibility of expert evidence and the requirement for such evidence to be based on the expert's specialised knowledge. It examined the expert’s qualifications and experience, which were deemed sufficient to provide reliable insights into the foreign law in question. The court held that the expert's lack of awareness of the local code of conduct did not undermine the admissibility of his evidence, provided that the evidence was substantially based on his specialised knowledge. The court concluded that the evidence was reliable and relevant, and thus, admissible. The court ruled in favour of the admissibility of the expert’s evidence.

The Supreme Court of South Australia determined that the evidence of the expert witness should be admitted, as it was based on his specialised knowledge and expertise in the foreign jurisdiction's law. The court found that the expert's unfamiliarity with the local code of conduct did not disqualify the evidence from being admitted. Consequently, the plaintiff's objection to the admissibility of the evidence was overruled. The court's decision paved the way for the trial to proceed with the inclusion of the expert evidence.

Orders