Ibrahim v Pham

[2004] NSWSC 661

CITATION:

IBRAHIM & ORS v PHAM & ORS [2004] NSWSC 661

HEARING DATE(S):

12 July 2004 -

JUDGMENT DATE:

20 July 2004

JUDGMENT OF:

Levine J

DECISION:

Objection overruled. Evidence admitted.

CATCHWORDS:

Expert evidence - report - exposure of bases for opinion

LEGISLATION CITED:

Evidence Act 1995 ss79 & 80

CASES CITED:

Australian Securities Investments Commission v Vines [2003] NSWSC 1095
Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705
O'Brien v Gillespie (1996) 41 NSWLR 569
Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993)

PARTIES :

RIMA IBRAHIM
(First plaintiff)

SARGON NAJORIAN BADAL
(Second plaintiff)

BADAL INVESTMENTS PTY LTD
(Third plaintiff)

v

PHILIP PHAM
(First defendant)

PHAM ATIC PTY LTD
(Second defendant)

FRED DAVID
(Third defendant)

SUZIE DAVID
(Fourth defendant)

PAUL MANUELPILLA DOMINIC
(Sixth defendant)

LINDA JOAN GLORIA ROMANO
(Seventh defendant)

FILE NUMBER(S):

SC 20483 OF 2002

COUNSEL:

B H K Donovan QC / D Baran
(Plaintiffs)

D Pritchard
(First and second defendants)

R Darke SC / M Dicker
(Third to sixth defendants)

SOLICITORS:

Barclay Benson Lawyers
(Plaintiffs)

Ebsworth & Ebsworth
(First and second defendants)

Acuiti Legal
(Third to sixth defendants)

- 1 -

DLJ:2
Ex tempore: revised
[2004] NSWSC 661

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

TUESDAY 20 JULY 2004

20483 OF 2002

RIMA IBRAHIM
(First plaintiff)

SARGON NAJORIAN BADAL
(Second plaintiff)

BADAL INVESTMENTS PTY LTD
(Third plaintiff)

v

PHILIP PHAM
(First defendant)

PHAM ATIC PTY LTD
(Second defendant)

FRED DAVID
(Third defendant)

SUZIE DAVID
(Fourth defendant)

PAUL MANUELPILLA DOMINIC
(Sixth defendant)

LINDA JOAN GLORIA ROMANO
(Seventh defendant)
JUDGMENT (Expert evidence – report – exposure of bases for opinion)

1 Objection has been taken by the first and second defendants to paragraph 17 of the report being annexure A to the affidavit of the Peter William Cornelius sworn on 3 June this year. Mr Cornelius has been called as an expert on relevant areas of practice of solicitors.

2 Paragraph 17 of that report is in the following terms:

“17) It is my opinion on the assumptions I have been asked to make that a solicitor in common practice would have declined to act for the plaintiffs because:
a) the solicitor’s commercial relationship with Karl Suleman and entities associated with him were of such a character that it would not have been possible to deal with the client fairly, free of influence of any interest which might conflict with the client’s best interests;
b) the solicitor had knowledge of information relating to Karl Suleman and entities associated with him and by reason of his relationship with Karl Suleman which he chose not to pass on to the client but instead said to the client “I can assist you in obtaining finance, but I can’t act for you in terms of providing independent legal advice about your mortgage or your investment with Karl. I am acting for Karl. I strongly advise you to seek independent legal advice in relation to the mortgage and your investment before you enter into any agreements. If you agree that I can help you on that basis, we can proceed”.
c) the solicitor was by reason of an arrangement not disclosed to the client in writing entitled to receive a fee or other benefit from a third party; and
d) by reason of the solicitor’s relationship with a third party the solicitor was not able to give any disinterested advice”.

3 It is contended for the first and second defendants that not only are the statements made by Mr Cornelius in the various subparagraphs of paragraph 17 capable of being characterised as serious charges against the first and second defendant, but also they are statements made which fail to disclose the basis upon which they are made.

4 Objection has been taken to paragraphs 41-46 of the statement by the 3-6 defendants for cognate reasons.

5 Both in elaboration of the objections or the submissions in support of them and in elaboration of and in support of submissions in favour of the admissibility, I have been reminded of my decision in O'Brien v Gillespie (1996) 41 NSWLR 569. The evolution of the law in this area of ss79 and 80 of the Evidence Act 1995 since then, is not least as reflected in the analysis of customary clarity and utility by Austin J in Australian Securities Investments Commission v Vines [2003] NSWSC 1095, and of course the judgment of Hayden JA as he then was in Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705.

6 O'Brien's case, upon my being reminded of it, can be characterised as one of some unusual factual features that lead easily to its being distinguished. Those factual features related to the status and personal history of the person tendered in that litigation as an expert and the issues at 550G to which it was sought to tender his evidence. The review of the authorities by Austin J in Vines and his discussion of my decision in paragraph 24 and the following conclusions his Honour draws in relation to it particularly vis-à-vis the decision of Hodgson CJ in Eq in Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993), I gratefully adopt.

7 On reading Mr Cornelius' report, with respect to the submissions of the defendants, one can have no doubt, I would have thought, that conformably with the practice now demanded of experts, the witness has identified by reference to the material set out in paragraph 15 the matters that constituted the assumptions, or the information which he treated as being assumed facts, upon which he expressed the opinion set out relevantly in paragraph 17 and in paragraphs 41-46.

8 As has been conceded by Mr Donovan, and as I indeed remarked, a different formatting of the report might well have obviated the essence of the objection or, more clearly set out, as a matter of format, those things that constituted what is assumed for the purpose of the stated opinion. Any failings in that regard do not derogate from the structure of the report as I read it and as I have described it and certainly would not constitute a basis for excluding the objected to portions on the grounds advanced.

9 I would add further that a person in the position of this witness, there being so far as is known no challenge to his qualifications, relevantly, can express an opinion as to the circumstances in which a conflict of interest, for example, could exist and as to the mechanisms for professionally dealing with that conflict. I am not persuaded that a lack of typicality or recurrence of a set of circumstances, whether in a conveyancing context or otherwise, would prevent a witness giving opinions along the lines to which I have just referred, being of the view as I am, that the dealing with the conflict of interest can be described as a developed practice whether the circumstances giving rise to that conflict are frequent, unusual, uncommon or even unique.

10 In relation to that part of the affidavit and the report attached to it to which objection hitherto has been taken, I overrule the objection and will admit the evidence.

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Last Modified: 08/03/2004