Idoport Pty Limited and Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited and...
Case
•
[2001] NSWSC 944
•25 October 2001
NEW SOUTH WALES SUPREME COURT
CITATION: Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors. [43] [2001] NSWSC 944
CURRENT JURISDICTION:
FILE NUMBER(S): 50113/98
50026/99
3991/00
HEARING DATE{S): 19/10/01
JUDGMENT DATE: 25/10/2001
PARTIES:
Idoport Pty Limited (Plaintiff)
National Australia Bank Limited (Defendant)
Donald Robert Argus (Defendant)
JUDGMENT OF: Einstein J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr R Titterton (Plaintiffs)
Mr J Sackar QC (Defendants)
SOLICITORS:
Withnell Hetherington (Plaintiffs)
Freehills (Defendants)
CATCHWORDS:
Directions as to admissibility of evidence.
ACTS CITED:
DECISION:
Rulings given in template form.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION – COMMERCIAL LIST
25 October 2001
Einstein J
50113/98IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS
50026/99IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS
3991/00IDOPORT PTY LIMITED (“JMG”) v NATIONAL AUSTRALIA BANK
Judgment
Objections were taken by the defendants to paragraphs in the statements of W Mackay, J C Gillick and S Mustonen.
The transcript of argument and written submissions from both parties makes plain that most of the issues were covered in the judgment [2001] NSWSC 529 given by the Court on 27 June 2001 relating to the evidence of Mr Ling.
I see no to revisit that judgment. The issue concerns the proper application of the principles set out in that judgment.
I publish the Court rulings in relation to each of the objections.
I certify that paragraphs 1 - 4
are a true copy of the reasons
for judgment herein of the
Hon. Justice Einstein
given on 25 October 2001___________________
Susan Piggott
Associate25 October 2001
NATIONAL AUSTRALIA BANK LIMITED & ORS
ats
IDOPORT PTY LIMITED & ORS
DEFENDANTS’ OBJECTIONS TO THE STATEMENT OF WILLIAM MACKAY
| PARAGRAPH | OBJECTION | DEFENDANTS’ SUGGESTED RULING | PLAINTIFFS’ SUGGESTED RULING | COURT’S RULING |
| 9 (sixth, seventh & part of eighth sentences – “I also recall Chris Campbell … enthusiastic about Ausmaq”) | Relevance/opinion – inadmissible under ss 55, 56 – second hand evidence of opinions of Messrs Campbell and Nash that require specialised knowledge and not shown to be based on such knowledge – reasoning process of Messrs Campbell and Nash not clear – inadmissible under Pt 3.3.* Likely to be misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. Hearsay | [O][R] Alternatively, [O] [A Conv] | Agree A Conv | Sentences Sentence 9 -Res/Leave |
| 9 (part of eighth sentence – “…and his enthusiasm was infectious”) | Relevance – state of mind of this witness or third persons not relevant – inadmissible under ss 55, 56. Probative value substantially outweighed by danger that the evidence might be misleading or confusing and/or cause or result in undue waste of time- should be excluded under s135 | [O][R] | A Subj Op. Alternatively, leave to supplement | See previous ruling |
| 11 (first, second, third & fourth sentences – “When the NAB took over … that it had done so.”) | Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. Opinion – not necessary to obtain an adequate account of the witness’ perception of the matter or event not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss78,79* Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – should be excluded under s135. | [O][R] | A Subj Op Alternatively, leave to supplement | A Subj Op |
| 11 (fifth sentence –“To my knowledge … similar project.”) | Relevant – inadmissible under ss55,56. Opinion – “similar project” – not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness’ perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* Probative value substantially outweighed by danger that the evidence might cause or result in undue waste or time – should be excluded under s 135. | [O] [R] | The first plaintiff no longer presses this sentence | Reject |
| 11(sixth sentence – “At the time that NAB …to the financial advisers.”) | Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. Opinion – not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness’ perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants, misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. | [O][R] | A Subj Op. Alternatively, leave to supplement | A Subj/Op |
| 12 (second sentence to end of para –“However, I realised ...”) | Relevance - state of mind of this witness not relevant – inadmissible under ss 55, 56. Opinion – not based on what the witness saw, heard or otherwise perceived bout a mater or event – not necessary to obtain an adequate account of the witness’ perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss78, 79. Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants, misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. | [O][R] | A Subj Op. Alternatively, leave to supplement | Res/Leave |
| 14 (last sentence – “I remember saying to someone …”) | Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. Opinion – second-hand evidence of witness’ opinion - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under s 79.* Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – should be excluded under s 135 | [O][R] | Press – perfectly admissible direct evidence | Allow as Conv |
| 16 | Hearsay Probative value substantially outweighed by danger that the evidence might be misleading or confusing and/or cause or result in undue waste of time – no identification of “people from Ausmaq” - other more detailed evidence regarding planning for superannuation & equities on Ausmaq available – should be excluded under s 135. | [O][R] | Leave granted to supplement | Res/Leave |
| 17 (first sentence) | Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. Opinion - not necessary to obtain an adequate account of the witness’ perception of the matter or event – inadmissible under s 78. | [O][R] | A Subj Op. Alternatively, leave to supplement | Res/Leave Before arguably ruling A Subj/Op |
| 17 (last sentence) | Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56 Opinion not contemporaneous – not necessary to obtain an adequate account of the witness’ perception of the matter or event inadmissible under s 78. Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – other more detailed evidence regarding superannuation and Ausmaq available – should be excluded under s 135. | [O][R] | A Subj Op. Alternatively, leave to supplement | Reject |
| 18 | Relevance – not admissible under ss 55, 56. | [O][R] | Press | Reject |
| 19 (second sentence to end of para), 20, 21, 22, 23 | Relevant – state of mind of this witness not relevant – inadmissible under ss55, 56. Opinion – not contemporaneous - not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness’ perception of the matter or event - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* | [O][R] | A Subj Op Alternatively, leave to supplement | Sentence 1- Sentence 2- |
| 24 (last sentence) | Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. Opinion - not contemporaneous - not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness’ perception of the matter or event - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79* | [O][R] | A Subj Op Alternatively, leave to supplement | A Subj/Op |
| 25, 26, 27 | Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. Opinion - not contemporaneous – not based on what the witness saw, heard or otherwise perceived about a matter or event – not necessary to obtain an adequate account of the witness’ perception of the matter or event – not based on any disclosed specialised knowledge reasoning process not disclosed – inadmissible under ss 78, 79.* | [O][R] | A Subj Op Alternatively, leave to supplement | Para 25 Paras 26 & 27 |
| 28 – 32 and “WM7” | Relevance – inadmissible under ss 55, 56. | [O][R] | Press | Para 28 Sentence 1 - Res/Leave to add date then allow Sentences 2 to 4 – Allow Sentence 5- Res/Leave Para 29 Allow first sentence, reject balance |
| 33 (second sentence) | Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. Opinion – not contemporaneous – not based on what the witness saw, heard or otherwise perceived about a matter or event – not necessary to obtain an adequate account of the witness’ perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* | [O][R] | A Subj Op Alternatively, leave to supplement | Res/Leave |
* To the extent that any part of Mr Mackay’s statement might otherwise be admitted as expert opinion evidence under s 79 contrary to the defendants’ objection, it is submitted that such evidence should be rejected pursuant to Part 36 Rule 13C of the Supreme Court Rules.
NATIONAL AUSTRALIA BANK LIMITED & Ors
ats
IDOPORT PTY LIMITED & Ors
DEFENDANTS’ OBJECTIONS TO THE STATEMENT OF MR JOHN CHARLES GILLICK DATED 27 JUNE 2000
| PARAGRAPH | OBJECTION | DEFENDANTS’ SUGGESTED RULING | PLAINTIFFS’ REPLY | COURT’S RULING |
| 4 (first sentence) | Conclusion | [O][R/leave] | Press. | R/Leave |
| 4 (second and third sentences) | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | [A Op] [A Subj] Contemporaneous opinion of financial planners and relevant to likely success of AUSMAQ. | R/Leave |
| 5 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. Alternatively, leave. | Allow as Contemp Opinion |
| 6 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press “AUSMAQ also benefited clients by reducing transaction costs” only as [A Op] and [A Subj]. Press balance of first sentence generally. Press second sentence generally. Press third sentence generally except for the word “substantially” which is pressed only on the basis of [A Op] and [A Subj]. Press fourth sentence generally except for the word “substantially” which is pressed only on the basis of [A Op] and [A Subj] Press fifth sentence generally except for the word “substantial” which is pressed only on the basis of [A Op] [A Subj]. Press last sentence. | Allow as per plaintiffs’ reply |
| 7 (second and last two sentences) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press. Alternatively, press only on the basis of [A Op] [A Subj]. | Allow |
| 8 (first and second sentences, and third sentence - “planners such as”) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. Mr Gillick is able to speak on behalf of Cameron Walshe planners in respect of the period and the issues discussed. Alternatively, [A Subj/Op]. | Allow |
| 8 (third sentence – “are perceived by Cameron Walshe”) | Hearsay. | [O][A Subj/Op] | Press. See response to preceding objection. | Res/Leave |
| 9 (first sentence “planners such as”) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. See first plaintiff’s response to para 8 (1st and 2nd sentences) objection. Further, in relation to para 9 the objected to sentence expressly identifies the planners as ones who are “such as Cameron Walshe’s planners”. | Allow |
| 10 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. Not an opinion. In relation to the first sentence Mr Gillick can record from personal knowledge how planners were remunerated. Press second sentence on the basis of s.78. Alternatively, press second sentence as [A Op] and [A Subj]. Press third sentence. | Allow |
| 11 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press [A Op] and [A Subj]. The views of persons in the financial services industry with the experience/ seniority of Mr Gillick are relevant to the Court’s assessment of the likely success of the AUSMAQ Service. | R/Leave |
| 12 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. Not an opinion in so far as it records an observable fact, namely, that in a specified period (1995-1997) no other system had the “ability to execute orders for managed funds electronically”. Alternatively, [A Op] and [A Subj]. | R/Leave |
| 13 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | [A Op] [A Subj]. See first plaintiff’s response to para 11 objection. | R/Leave |
| 14 (second to fourth sentences) | Opinion. | [O] [A Subj/Op] | Agree as to second sentence. Press third sentence: Mr Gillick can state that Investment Link did not have a particular feature (ie. “did not facilitate transactions in managed funds”) and that because of that matter, amongst others, Cameron Walshe did not use it. Agree re: fourth sentence. | Allow second sentence as A Subj/Op Allow balance |
| 15 (first sentence – “the”) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press. | Allow |
| 15 (second to fifth sentences) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press as s.78 opinion re second and third sentences which flows from fourth and fifth sentences. Fourth sentence is not an opinion and is pressed generally. Fifth sentence is an inevitable consequence of the matters recorded in the fourth sentence. | Allow |
| 17 (first sentence) | Opinion. | [O] [A Subj/Op] | Press. Mr Gillick can state as a fact whether for Cameron Walshe and its clients the necessary information was provided in an appropriate format. | Allow |
| 17 (third to fifth sentences) | Opinion. | [O] [A Subj/Op] | Agree | A Subj/Op |
| 17 (last sentence) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press. | Res/Leave |
| 18 (second sentence to end) | Opinion. | [O] [A Subj/Op] and s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise, [O][R] | Press | Allow |
| 19 | Opinion. | [O] [A Subj/Op and s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise, [O][R] | Press | Allow |
| 20 | Opinion. | [O] [A Subj/Op] and | Press | Allow |
| 21 (second sentence – “and in the financial planning industry generally,…” and last sentence) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | [A Op] [A Subj] | Reject |
| 22 | Relevance. | [O] [R] | Relevant to the importance of client ownership issues to financial planners. | Allow |
| 23 | Relevance. | [O] [R] | As per para 22. | Allow |
| 24 | Opinion. | [O] [A Subj/Op] and s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise [O][R] | Agree | A Subj/Op s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise [O][R] |
| 25 (second sentence – “and the planners…the case today.” and third sentence) | Opinion. | [O] [A Subj/Op] and s 136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise [O][R] | Agree | A Subj/Op |
| 26 (first sentence and second sentences) | Opinion. | [O][A Subj/Op] | Agree. | [A Subj/Op] |
| 26 (third sentence) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press. Mr Gillick is recording that he had no knowledge that any other system had such a capability. That is not an opinion. Alternatively, [Op] [Subj]. | [Op][Subj] |
| 26 (last sentence) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press. Mr Gillick is in a position to record the likely attitude of Cameron Walshe and what it would or would not have done assuming a particular state of affairs. Such evidence is materially relevant to the loss of opportunity issues in the proceedings. | Reject S135 Probative value of evidence substantially outweighed by danger that evidence might be unfairly prejudicial to defendants. |
| 27 (third sentence – “which at that time had no similar competitor”) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press words “which at that time had no similar competitor”. s.78 opinion. | Allow Op/Subj |
| 28 (second sentence) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O] [R] | Press generally except for the word “substantially” which is only pressed as [Op] [Subj]. | Reject |
| 29 (first sentence - “attractiveness”) | Opinion. | [O] [A Subj/Op] | Agree re: the word “attractiveness” but press balance of sentence generally. | A Subj/Op] |
| 29 (quotes) | Hearsay. | [O] [A Conv] | Press generally against fourth defendant. Agree [O] [A Conv] re: balance of defendants. | [O] [A Conv] |
| 30 (first sentence) | Form. | [O] [R/leave] | Press. Mr Gillick can record: (a) that conversations occurred; (b) that the substance of those conversations in respect of a particular matter (namely fees) is contained in specific documents. Alternatively, leave. | R/leave |
| 33 (second sentence to end) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [A Op] [A Subj]. Matter relevant to attractiveness of AIDC account. Reasoning sufficiently disclosed. Mr Gillick sufficiently experienced in financial services industry as to provide material evidence to the Court. | A Op |
| 34 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | As per para 33. | A Op |
| 35 | Opinion. | [O][A Subj/Op] | Agree. | [A Subj/Op] |
| 37 (first sentence – “and other financial planners”, and second to fourth sentences) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Press. [A Op] [A Subj] | Reject “and other planners”. Sentences 2-4 Res/Leave |
| 38 (quote) | Hearsay. | [O][A/Conv] | Press generally as disclosing the views of a financial planning groups’ executive management [A Conv] [A Subj] [A Op]. | A Conv |
| 47 | Form. | [O][R/leave] | Press. | Allow |
| 50 | Form. | [O][R/leave] | Press. | Allow |
| 51 | Opinion. | [O][A Subj/Op] | Press. | Allow as “Subj/Op” |
| 52 | Opinion not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [A Op] [A Subj]. Relevant to expectations of planners at the time and their interest in AUSMAQ | Allow as “Subj/Op” |
| 57 | Opinion. | [O][A Subj/Op] | Press first sentence. Agree re: second sentence. | First sentence – allow Second sentence – A.Subj.Op |
| 58 | Opinion. | [O][A Subj/Op] | Press. | Allow |
| 59 (last sentence) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 60 (second, third and fifth sentences) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 61 (first sentence) | Opinion. | [O][A Subj/Op] | Press. Mr Gillick can state from personal knowledge that it was easier to use AUSMAQ subsequent to initial registration of a client. The word “far” is pressed only on the basis of [A Op] [A Subj]. | Word “far” allowed as “A.Op”. Balance allowed. |
| 62 (second to last sentences) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [A Subj/Op] | R/Leave – Allow if shown to be contemp statement of opinion. |
| 63 | Opinion. | [O] [A Subj/Op] and s136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise, [O][R] | Agree | A Subj/Op |
| 64 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [A Op] [A Subj] These opinions are material to the Court’s assessment of the significance of the criticisms raised by the defendants. | A Op |
| 65 (third sentence - “by financial planners and,”). | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | Agree only in relation to the words “by financial planners and”. | Reject “financial planners’. Allow balance. |
| 66 (third and fourth sentences) | Opinion. | [O][A Subj/Op] | Agree. | A.Subj/Op |
| 67 (second sentence) | Opinion. | [O][A Subj/Op] | Agree. | A.Subj.Op |
| 68 (third sentence) | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [Op] [Subj] Relevant to financial planners’ perceptions and the reasons why they were or were not interested in AUSMAQ after NAB acquisition. | Op Subj |
| 69 | Opinion not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | See response to preceding objection. | Op Subj |
| 70 (third to last sentences) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [Op] [Subj] | Op Subj |
| 71 | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [Op] [Subj] Relevant to Share Entitlement Trust. See T.2901, lines 15-37 and MFI P87, Vol. 1, tab 5, p6. | Op Subj |
NATIONAL AUSTRALIA BANK LIMITED & Ors
ats
IDOPORT PTY LIMITED & Ors
DEFENDANTS’ OBJECTIONS TO THE STATEMENT OF SARI MUSTONEN
| PARAGRAPH | OBJECTION | DEFENDANTS’ SUGGESTED RULING | PLAINTIFFS’ SUGGESTED RULING | COURT’S RULING |
| 8 | Opinion. | [O][ A Subj/Op] | Agree | A Subj/Op |
| 11 (third, fourth and fifth sentences) | Opinion. | [O][A Subj/Op] | Agree | A Subj/Op |
| 16 (first two sentences) | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [O] [A Subj/Op], alternatively [R/leave]. | Res/Leave |
| 17 | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [O] [A Subj/Op], alternatively [R/leave]. | Res/Leave |
| 18 (fourth sentence) | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [O] [A Subj/Op], alternatively [R/leave]. | A Subj/Op |
| 21 (second sentence – “and that seemed to be understood… that I spoke to”) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 21 (second last sentence) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 22 (first sentence – “and that was…reports concerning other transactions”) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 23 (first sentence – “but in my experience…brokers will accept orders”) | Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [O] [A Subj/Op], alternatively [R/leave]. | Res/Leave |
| 24 (last two sentences) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 28(iii) (last sentence) | Opinion. | [O][A Subj/Op] | Agree. | A Subj/Op |
| 28(v) (last sentence) | Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness’ factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. | [O][R] | [O] [A Subj/Op], alternatively, [O] [R/leave]. | Res/Leave |
| 28(vi) (last three sentences) | Speculation – no evidentiary foundation whatsoever. | [O][R] | The plaintiffs do not press these sentences | Reject |
LAST UPDATED: 11/06/2002
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