Idoport Pty Limited 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 Ors. [49]

[2001] NSWSC 1070

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. [49] [2001] NSWSC 1070
FILE NUMBER(S):	SC 50113/98; 50026/99; 3991/00
HEARING DATE(S):	24/10/2001
JUDGMENT DATE:	16 November 2001
PARTIES :	Idoport Pty Limited (Plaintiff) National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :	Mr R Titterton (Plaintiff) Mr J Halley (Defendants)
SOLICITORS:	Withnell Hetherington (Plaintiff) Freehills (Defendant)
CATCHWORDS:	Evidence Act - Ruling on admissibility
DECISION:	Rulings on objections identified in schedules marked for identification D228 (1), D229 (1), D230 (1), D231 (1) and D249.

50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS

50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS

Judgment on defendants "Expert" Form Objections-Statements of Mr Maconochie

1 The defendants have mounted a number of objections to sections of Mr Maconochie's statements based upon the submission that these sections constitute bare assertions/lack of reasoning process.

2 The objections are identified in the schedules marked for identification D 228 (1), 229 (1), 230 (1), 231(1).

3 The requirements for admissibility under section 79 were summarised in the judgment on the expertise of Mr Maconochie where the principles were set out. The principles have been further clarified in the recent judgment of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001] NSWCA 305 (delivered on 4 September 2001) where Heydon JA refers to a number of the relevant authorities and summarises the essential propositions.

4 In the present proceedings there is often a narrow line between on the one hand, a ruling which would reject a section of a paragraph on the bases summarised in the judgment of Heydon JA , and on the other hand permitting the exercise to become an unacceptable vehicle for permitting the defendants by a backdoor route, to effectively cross-examine the witness.

5 I have endeavoured to keep a close eye upon this important distinction in the following rulings in a difficult area. The rulings are set out in the schedules to this judgment.

6 MFI D225(1) is a schedule prepared by the defendants summarising certain objections described as "Expert" Form Objections to the fifth statement of Mr Maconochie. A copy of MFI D 225(1) is annexed to this judgment.

7 In my view none of the objections are of substance. Subject to the following matter, each paragraph is allowed. I note however that so much of Page 2 of MFI D225(1) as relates an objection to paragraphs 10.1 - 10.5 has apparently earlier been dealt with on 22 October 2001.

8 MFI D225(2) is a further schedule prepared by the defendants summarising certain objections described as "Expert" Form Objections to the sixth statement of Mr Maconochie. A copy of MFI D225(2) is annexed to this judgment.

As to issue 6.1 – Paragraph 8.2(ix) the ruling is ‘Res/Leave’.
As to issue 6.2 – The ruling is Res/Leave for paragraph 8.3
As to issue 6.3 – The ruling is Res/Leave for paragraphs 8.2 (v), 8.5 – 8.7
As to issue 6.4 – Paragraph 9.2.3 (a)-(e) are not pressed to the extent that they deal with regulatory authorities in Canada and UK.


Paragraph 9.2.3 (a)-(c) – Res/Leave

Paragraph 9.2.3 (d)-(e) – Allow
Paragraph 9.2.3 (h) – Allow

As to issue 6.5 – Paragraph 9.2.4 is rejected
As to issue 6.6 – Paragraph 9.5 is allowed only on the basis that it is a convenient summary of the earlier evidence of Mr Maconochie
As to issue 6.7 – The plaintiff accepts a ruling that to the extent that this evidence related to the Asia Pacific region it should be rejected. That is the ruling. The plaintiff apparently presses the last paragraph and the exhibit so far as it relates to USA, Australia and New Zealand. Hence, to that extent is allowed.

Otherwise paragraph 9.6 is allowed and leave to supplement is granted.

Save as aforesaid – the whole of the sixth statement is allowed.

9 MFI D 231(1) identifies the objections to Mr Maconochie’s statement in reply to Mr Macpherson of 4 July 2001. Subject to a question which requires further attention, the rulings are as set out in the marked schedule appended. The question which I have in mind concerns whether the recent judgment disallowing Mr Maconochie’ opinions in relation to the similar or equivalent functionality issue may now mean that the defendants have an altogether different substantive objection to any parts of Mr Maconochie’s statement reply to Mr Macpherson of 4 July 2001 which if allowed might allow Mr Maconochie to give evidence on the area where his opinions have been disallowed. Hence these rulings may have to be the subject of further address and leave is reserved to the defendants to re-open the rulings on MFI 231(1) on this basis only.

10 MFI D249 identifies the objections to Mr Maconochie’s affidavit sworn 2 June 1999. The rulings are set out in the attached schedule.

I certify that paragraphs 1 - 10
are a true copy of the reasons
for judgment herein of the
Hon. Justice Einstein
given on 16 November 2001

_______________
Susan Piggott
Associate
16 November 2001

- 1 -

MFI D228(1)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie 2nd Statement dated 20th November 1998

Issue	“D” or “F” Category	Paragraph	Passage	Reason for Objection	Rulings
2.1 Market power of fund managers	D21 Australian mutual funds industry	5.3.5A, 5.3.21	5.3.5A first three lines of third bullet point and first sentence of following paragraph. 5.3.21 (last 4 sentences of first paragraph)	Bare assertion/lack of reasoning process Mr Maconochie does not provide analysis of the funds management industry enabling him to reach such conclusions, nor does he provide and sources for the figures quoted in these passages. In 5.3.21, Mr Maconochie does not set out the basis for his assertions that product suppliers control the cash flow, nor that AUSMAQ would enable customers to control the cash flow.	Allow Allow
2.2 Missing links in the Australian financial services market	D20 Australian financial services markets generally D4 Structure operation and size of worldwide financial markets	5.3.17, 5.3.22	5.3.17 (first paragraph) 5.3.22 (last 2 sentences)	Bare assertion/lack of reasoning process In 5.3.17, Mr Maconochie describes the current position of the Australian mutual funds industry and the re-engineering of the industry by AUSMAQ he saw as necessary. He does not indicate the basis for his beliefs that the financial services market place was becoming consumer driven, nor that a traditional market place of buyers and sellers would arise, nor that a market service mechanism was the missing link in the industry. In 5.3.22, Mr Maconochie does not explain his claims that an unstable, product-driven market place had developed and that this was susceptible to reconfiguration by AUSMAQ, nor that this situation would prevent most institutional investors from investing in AUSMAQ.	Allow Allow
2.3 Potential cost savings and productivity improvements for dealers/ intermediaries	D20 Australian financial services markets generally F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	5.3.27, 7.7	Entirety	Bare assertion/lack of reasoning process In 5.3.27, Mr Maconochie does not explain how an dealer would be paid 2.5 times as much if using AUSMAQ, nor how productivity would be improved by a factor of 4, nor how AUSMAQ would be able to take a fee from the customer while lowering the cost to them, nor how order flow would keep prices competitive and shift business to AUSMAQ and away from manual markets. In paragraph 7.7, Mr Maconochie does not explain how AUSMAQ offers any of the products listed, nor does he explain how AUSMAQ reduces costs, relieves capital or increases productivity and profitability.	Allow Allow first 3 sentences. Leave granted to suppleme-nt 4th sentence.
2.4 Benefit to AUSMAQ of incorporation of Shares	D17 Australian equities market	5.3.35	“Shares had the added advantage... Star Systems.”	Bare assertion/lack of reasoning process Mr Maconochie does not explain how Shares’ incorporation into AUSMAQ would cause AUSMAQ to attract order flow from brokers.	Allow
2.5 Similarity of Investment-link and BT All-In-One to AUSMAQ	D21 Australian mutual funds industry	5.3.36	“In general terms..over Investment-link’s short lifetime.” and last sentence.	Bare assertion/lack of reasoning process Mr Maconochie does not provide any reasoning in his analysis of the functionality of and commercial rationale for Investmentlink, nor does he explain how Investmentlink was “defeated” by AUSMAQ or why BT’s All-In-One is similar to AUSMAQ.	Allow entire paragraph save for the final sentence which is rejected.
2.6 Comparative costs of AUSMAQ and master trusts	D21 Australian mutual funds industry	5.3.47	“The straight through processing... master trusts when produced.”	Bare assertion/lack of reasoning process Mr Maconochie does not explain why master trusts had higher labour content and operating complexity than AUSMAQ and how this resulted in AUSMAQ being able to deliver master trust functionality at a lower cost.	Allow
2.7 ASC response to AUSMAQ Service	D20 Australian financial services markets generally	5.3.48	“agreed with my argument...the documenta-tion” and 2nd paragraph.	Bare assertion/lack of reasoning process In paragraph 5.3.48, Mr Maconochie does not explain when or in what form the ASC “agreed with his argument”, nor who gave such an agreement.	Note section not pressed by plaintiff otherwise: Res/Leave
2.8 AUSMAQ leverage over fund managers	D20 Australian financial services markets generally	5.3.50	“In contrast to EFMS... AUSMAQ market.”	Bare assertion/lack of reasoning process In paragraph 5.3.50, Mr Maconochie does not explain how AUSMAQ “compelled” product suppliers to comply with AUSMAQ’s terms and conditions in order to list their products.	Allow
2.9 Conceptual rationalisation of markets / e-commerce and the AUSMAQ service	D20 Australian financial services markets generally	5.4, 5.6 and 5.7	Entirety	Bare assertion/lack of reasoning process In paragraph 5.4, Mr Maconochie’s does not set out the basis of any of his perceptions about the financial markets, nor what were the “needs” created by rationalisation of these markets, nor what were the specific developments in e-commerce causing this rationalisation. In paragraph 5.6, Mr Maconochie does not explain how AUSMAQ acts as a “focal point” or “integrator” for the needs of market participants nor how it satisfies the needs of each participant immediately. In paragraph 5.7, Mr Maconochie does not explain how ATM networks or credit card networks could be part of the AUSMAQ offering.	Allow Allow Allow
2.10 Description of the AUSMAQ service	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	6.1 – 6.3	Entirety	Bare assertion/lack of reasoning process Mr Maconochie does not explain how which of the functions identified in these paragraphs are actual and which are potential, and for those which are potential he does not explain how or when they would have been implemented. Further the description of the AUSMAQ Service is expressed at such a high conceptual level that it is inherently prejudicial to the defendants, would be likely to mislead or confuse and result in undue waste of time.	Allow 6.1, 6.2 As to 6.3 Res/Leave
2.11 Products offered by product providers	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.2-7.3	Entirety	Bare assertion/lack of reasoning process In paragraph 7.2, Mr Maconochie does not state which of the products listed may be offered in actuality and which may potentially, nor how products that are merely potential offerings would be offered. In paragraph 7.3, Mr Maconochie does not say why the product provider would only need to offer the bare product and how this would enable them to reduce costs and release capital.	Allow Allow
2.12 Direct electronic access to AUSMAQ	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.11	Entirety	Bare assertion/lack of reasoning process In paragraph 7.11, Mr Maconochie does not explain how the offering of 3rd party functionality or internet, intranet or TV access to AUSMAQ would occur.	Allow
2.13 AUSMAQ operating as a payments system	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.12 – 7.15	Entirety	Bare assertion Mr Maconochie does not explain the nature of AUSMAQ’s “unique legal structure” nor how this enables AUSMAQ to take and hold deposits and securities under its own brand name. He does not explain how AUSMAQ embodies a value-for-value payment system, whether this functionality is actual or potential, nor how the AUSMAQ Messaging Interface allows connection to the traditional banking payments system.	Allow
2.14 Integration interfaces to 3rd party services	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.16 – 7.17	Entirety	Bare assertion Mr Maconochie fails to explain how AUSMAQ would interface with third party service vendors, whether this functionality is potential or actual, how this allows AUSMAQ to operate as a market hub and how this allows the customer to trade “each element in the chain (which is also not defined) at best of market prices.	Allow

MFI D229(1)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie 3rd Statement dated 30 April 1999

Issue	“D” or “F” Category	Para-graph	Passage	Reason for Objection	Rulings
3.1 Conceptual rationalisation of markets / e-commerce and the AUSMAQ service	D20 Australian financial services markets generally	5.4, 5.6 and 5.7	Entirety	Bare assertion/lack of reasoning process Same objection as Issue 2.7 (Maconochie 2), with the exception of the last sentence of 5.4, which did not appear in the earlier statement. The defendants object to this sentence because Mr Maconochie does not define closed user groups or communities of interests.	Allow
3.2 Range of products or securities potentially available on the AUSMAQ Service	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	5.9-5.10	5.9: “On the AUSMAQ Service...of a very wide nature”. 5.10: Entirety	Bare assertion/lack of reasoning process Mr Maconochie does not explain how much of the e-commerce functionality set out in these paragraphs is actual and how much is potential, nor how any potential functionality would have been implemented or how AUSMAQ could have facilitated and enabled e-commerce transactions of a very wide nature.	Allow
3.3 Description of the AUSMAQ sSrvice?	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	6.1 – 6.3	Entirety	Bare assertion/lack of reasoning process Same objection as Issue 2.10 (Maconochie 2).	Same ruling as given re Maconochie 2, Issue 2.10
3.4 Products offered by product providers	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.2 – 7.3	Entirety	Bare assertion/lack of reasoning process Same objection as Issue 2.11 (Maconochie 2).	Same ruling as given re Maconochie 2, Issue 2.11
3.5 Direct electronic access to AUSMAQ	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.5 – 7.11	7.7, 7.11	Bare assertion/lack of reasoning process Same objection as Issue 2.12 (Maconochie 2).	Same ruling as given re Maconochie 2, Issue 2.12 ie Allow
3.6 AUSMAQ operating as a payments system	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.12 – 7.15	Entirety	Bare assertion Same objection as Issue 2.13 (Maconochie 2).	Same ruling as given re Maconochie 2, Issue 2.13
3.8 Integration interfaces to 3rd party services	F1 The identification of the functionality of computerised (or partially computerised) programs in the financial services industry	7.16 – 7.17	Entirety	Bare assertion Same objection as Issue 2.14 (Maconochie 2).	Same ruling as given re Maconochie 2, Issue 2.14

MFI D230(1)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie 4th Statement dated 24 May 1999

Issue	“D” Category	Para- graph	Passage	Reason for Objection	Rulings
4.1 AUSMAQ’s ability to address various segments of the superannuation market.	D16 Australian super-annuation market	9.10.1	Entirety	B Bare assertion/lack of reasoning process Mr Maconochie provides statistics relating to the size of the Australian superannuation market and of the various sectors of that market. He states that AUSMAQ can address three of these sectors and, based on the size of these sectors, AUSMAQ could reach 60% of the Australian superannuation market. (i) how AUSMAQ could address any sectors of the superannuation market. (ii) how the segments identified account for 60% of the Australian superannuation market.	(Res/Leave (to address ((i) and (ii))
4.2 Potential market share of AUSMAQ in Australian equities and bonds markets.	D14 Australian bonds market And D17 Australian equities market	9.10.2	5th and 6th paragraphs	Bare assertion/lack of reasoning process Mr Maconochie does not explain how it would be reasonable to assume some proportion of the bonds and shares markets will be channelled through AUSMAQ, nor how AUSMAQ could attract high profile broker-dealers such as E*Trade. Mr Maconochie does not explain what the term “disproportionately high share” of the market in shares and bonds means, nor how AUSMAQ would capture such a share.	Allow
4.3 Growth rate of superannuatio-n, mutual funds and individual securities markets.	D20 Australian financial services markets generally	9.10.2, 9.11-9.14	6th and 7th paragraphs of 9.10.2, other paragraphs in their entirety	Bare assertion/lack of reasoning process Mr Maconochie states that AUSMAQ should be able to convert a “disproportionately high share of the market in individual securities” onto AUSMAQ’s books and that this should produce a rate of growth for AUSMAQ in these markets at least as great as the rate of growth he predicts for AUSMAQ in the superannuation market. Mr Maconochie does not explain why this growth in the equities and bonds markets should equate to the predicted growth of AUSMAQ in the superannuation market.	Allow
4.4 Ability of AUSMAQ to contest the retail and wholesale markets for mutual funds, shares and bonds	D20 Australian financial services markets generally	9.10.2	9th paragraph	Bare assertion/lack of reasoning process Mr Maconochie does not explain how AUSMAQ would be capable of contesting the retail and wholesale sectors of the mutual funds, shares and bonds markets.	Res/Leave
4.5 AUSMAQ 2003 market share.	D20 Australian financial services markets generally	9.15, 9.24-9.27	Entirety	Bare assertion/lack of reasoning process In paragraph 9.15 Mr Maconochie states a niche market outcome equates to a market share of about 5%, while a mass market outcome equates to a share of up to 50%. He does not state why either market position should equate to such a percentage share, other than to say that 50% would be the highest sustainable level without opening a business up to a monopoly action. In paragraph 9.24 he states that ASGARD has a market share of about 16% and that this is the outcome AUSMAQ would be facing in 2003 had it not achieved mass market dominance. He provides no basis for this claim. In paragraphs 9.25-9.27 he states that if AUSMAQ continues its current performance against its competitors it could become a niche leader by 2003 and achieve a market share of 15%. He states that the delay in commercialising the service has allowed competitors to enter the market and therefore market share would be restricted to this amount. He concludes that a mass market position would amount to a 50% share of the Australian superannuation and individual asset markets. Mr Maconochie makes clear only the upper limits of AUSMAQ’s alleged potential and does not explain how AUSMAQ could reach a market share of either 15% or 50%.	Res/Leave
4.6 Attraction of AUSMAQ to master funds in Australia	D21 Australian mutual funds industry	9.32	First sentence and eighth sentence: “They became customers...guidance roles as IFAs.”	Bare assertion/lack of reasoning process Mr Maconochie does not explain how AUSMAQ has successfully penetrated the master fund market, which master funds became AUSMAQ’s customers and which elements of the marketplace appreciated AUSMAQ’s role as a settlement agent and in what way. Mr Maconochie does not explain what services AUSMAQ could offer smaller master trusts so that they may “exit the difficult functional activities easily performed by the AUSMAQ Service” nor how or why they would evolve into non-financial intermediaries or continue on as IFAs.	Res/Leave as to sections objected to
4.7 Additional channels for AUSMAQ	D20 Australian financial services markets generally	9.33-9.37	9.33, 9.35, last 2 sentences of the first paragraph of 9.36 to the end of 9.37.	Bare assertion/lack of reasoning process In paragraph 9.33, Mr Maconochie does not explain how AUSMAQ could be distributed through non-IFA groups and internet portals. In paragraph 9.35, Mr Maconochie does not explain how his discussions with Star Systems or E*Trade or his “general observations of the public awareness of on-line services” make is reasonable to believe AUSMAQ could have been developed so as to offer distribution via cable and the internet. In paragraph 1 of 9.36, Mr Maconochie does not state why he considers NMG’s strategy to be risky, nor how AUSMAQ could have achieved the suggested market shares if his approach was preferred. In the remainder of 9.36, Mr Maconochie does not state why the above factors would lead to AUSMAQ being supplanted by IFA groups and emulators of AUSMAQ, nor why this situation would lead to low market share. In paragraph 9.37, Mr Maconochie does not state why the alleged failure to develop the AUSMAQ IP would make it difficult to keep pace with market needs and demands.	Allow Res/Leave Res/Leave Res/Leave Res/Leave
4.8 Revenue potential of AUSMAQ	D20 Australian financial services markets generally	10.2-10.3	Entirety	Bare assertion/lack of reasoning process Mr Maconochie does not explain why AUSMAQ could have generated revenues specified in the 1997 Business Plan or why the developments specified in that plan were needed for it to be capable of generating the revenues shown in unspecified projections including the ELECTRA investment proposal.	Allow 10.2 Res/Leave as to 10.3
4.9 Ability of AUSMAQ to be used as a settlement agent.	D13 Australian payments market	11.8, 11.10, 11.5, 14.3.3-14.3.6, 14.3.9.	11.8: Entirety 11.10: Last sentence 11.15: Entirety 14.3.3-14.3.6 and 14.3.9: Entirety	Bare assertion/lack of reasoning process In paragraph 11.8, Mr Maconochie does not explain why AUSMAQ is an ideally suitable vehicle and has the capacity to address all the payments markets listed in his statement. No analysis is provided nor reasons given in support of this claim. In paragraph 11.10, Mr Maconochie does not explain why “it would have been a straightforward matter to meet the RBA’s needs with AUSMAQ as it then existed.” In paragraph 11.15, Mr Maconochie does not explain why AUSMAQ has applicability to value for value payments markets. This is not supported by reasoned analysis. In paragraphs 14.3.3-14.3.6 and 14.3.9, Mr Maconochie dies ot explain why the AUSMAQ service stood at the forefront of e-commerce, why it stood at the forefront of e-commerce technology, why it was the first robust application of e-commerce in the world or why it was positioned to achieve pre-eminence as a market system service.	Allow Reject Res/Leave Allow
4.10 Replace-ment of depositee and AUSMAQ’s prospects as a settlement agent.	D13 Australian payments market	11.14, 11.16	Entirety	Bare assertion/lack of reasoning process Mr Maconochie does not explain why the replacement of AIDC as depositee precluded AUSMAQ from acting as a settlement agent.	Allow
4.11 AUSMAQ as a settlement agent - other addressable markets.	D13-D15 and D17-D18 Australian payments, cash management, foreign exchange, land titles, electricity, debt securities, insurance and equtities markets	11.19-11.51	Entirety	Bare assertion/lack of reasoning process Mr Maconochie asserts throughout these paragraphs that AUSMAQ could have acted as a settlement agent in the Australian and New Zealand markets for payments, cash management, debt securities, foreign exchange, insurance and shares and in the Australian market only for land titles and electricity. He claims that AUSMAQ would have earned substantial revenue from each of these markets. In none of these cases does he address the issue of how AUSMAQ would have done this or why it would have been needed or why it would have succeeded.	Res/Leave
4.12 Value of NZ settlement markets, 50% error margin	D13 Australian payments market	11.49	Entirety	Bare assertion/lack of reasoning process Mr Maconochie states that a reasonable approach to sizing the revenue potential of NZ settlement markets is to estimate a gross revenue of 15% of similar Australian markets. He provides no analysis in support of this statement and applies the method in a blanket fashion across all product markets without discussion of its relevance to each. Mr Maconochie does not explain why it is reasonable to allow a range 50% either side of his estimate of settlement revenues. Further, he does not explain why, when incorporating these figures into later damages calculations he includes only the upper estimate, including the 50% increase.	Res/Leave
4.13 Valuation of performance bonus for NAB Services	D6 Analysis of cash flows and cost projections for the purposes of predicting future income	12.1-12.14	Entirety	Bare assertion/lack of reasoning process Mr Maconochie presents a series of revenue and cost projections for the NAB Services and calculates a performance bonus allegedly payable by taking a 13.5% share of these revenues. He makes no attempt to analyse the figures in any way that would be required for a bona fide calculation of the performance bonus. His calculations amount to assertions of the value of these bonuses without transparent reasoning.	See Judgment on “performance bonus”
4.14 AUSMAQ’s ability to disintermediate financial services intermediaries in a wide variety of markets.	D20 Australian financial services markets generally	14.3.1-14.3.2, 14.3.7-14.3.8	Entirety	Bare assertion/lack of reasoning process In paragraphs 14.3.1, Mr Maconochie does not explain what the strategy of AUSMAQ in mid-1996 was nor why it had been successful. In paragraph 14.3.2, Mr Maconochie does not explain how AUSMAQ was able to be developed to exploit a wide range of products and markets. In paragraph 14.3.7, Mr Maconochie does not support his claim that financial and asset markets were dominated by banks and financial institutions. In paragraph 14.3.8, Mr Maconochie does not explain how AUSMAQ would disintermediate financial intermediaries by allowing customers direct access to markets.	Res/Leave

MFI D231(1)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie Statement in Reply to Statement of Andrew MacPherson, dated 4 July 2000

Issue	“F” Category	Para- graph	Passage	Reason for Objection	Rulings
RM.1 Description of the AUSMAQ Service	F1 The identification of the functionality of computerised (or partially computerised) services or programmes in the financial services industry	22, 23, 26.3, 26.4, 73.1, Appendix C	22 (first and last pars), 23 (last sentence), 26.3 (entirety), 26.4 (last par), 73.1 (last par), Appendix C (as marked up in MFI document)	Bare assertion, lack of reasoning process. Inter alia: In pars 22-23, Mr Maconochie does not explain how Mr MacPherson has failed to consider the AUSMAQ Service as defined in JM2 and JM3, commenting on two aspects only (products and customer-centricity). Mr Maconochie does not explain why the AUSMAQ Service was not limited to the tradeables described by Mr MacPherson in his assumptions (see his par 1.2(c)), simply repeating part of his Second Statement (without identifying where it is from in that statement) and referring generally to the Consulting Agreement and AUSMAQ Client Service Agreement. In par 23, Mr Maconochie does not explain how it follows that Mr MacPherson has ignored the customer-centric nature of the AUSMAQ Service, from the simple fact that in a part of Mr MacPherson’s assumptions about the AUSMAQ Service (his pars 1.2(d)-(e)) he does not “define Customers (or Clients) as the principals”. In any event, Mr MacPherson does note the facility for some products to be accessed directly by the investor; In par 26.3, Mr Maconochie does not explain why the assumptions made by Mr MacPherson in par 1.2 are incomplete in comparison to AUSMAQ’s functionality as set out in his Second and Third Statements. Nor does he explain what functionality he says AUSMAQ would have had at 15 January 2000; In pars 26.3 and 73.1, Mr Maconochie does not explain how and why AUSMAQ’s functionality was not limited to that described in his Second and Third statements; In par 26.4, Mr Maconochie does not explain why Mr MacPherson’s report has to be based on a description of AUSMAQ that could be independently verified by a due diligence examination in January 2000, if it is to have validity. Equally, Mr Maconochie’s report would lack validity on this criterion.	Allow Allow Res/Leave Allow
RM.2 Capacity for enhancement of the AUSMAQ Service to meet the functionality of the Bank Services	F1 The identification of the functionality of computerised (or partially computerised) services or programmes in the financial services industry	20, 26.2, 73.1, Appendix C	20, 26.2 (entirety), 73.1 (second par), C3.9.11 (last sentence)	Bare assertion, lack of reasoning process. Mr Maconochie does not explain how, if AUSMAQ lacked a functionality that the Bank Services possessed at the time of his Second and Third Statements, it could have been modified and enhanced so as to be similar or equivalent by 15 January 2000 (or to meet target markets generally – see par 26.2).	Res/Leave
RM.3 Analysis of the superannuation market	F1 The identification of the functionality of computerised (or partially computerised) services or programmes in the financial services industry	24, Appendix C	24 (subpars (1), (2) & (3), Appendix C (as marked up in MFI document)	Bare assertion, lack of reasoning process. Inter alia: Mr Maconochie does not explain why he makes a distinction, in relation to target markets and superannuation, between a self-managed superannuation target market and a general superannuation market; Mr Maconochie does not explain why different facilities are needed to address these markets, or what these facilities are. He does not explain how the facilities enable target customer segments to participate in the target markets, and what these are. Similarly, in relation to products, Mr Maconochie does not specify what these are for each of the markets, and how they “are the subject of the [distinct] target markets”; In relation to distribution media for the Service, Mr Maconochie does not explain how and why they would have included “dealers across a spectrum of financial planning intermediaries who offer comprehensive planning and investment advice to individuals and groups of individuals …, stockbrokers, discount brokers and execution-only managed funds intermediaries and service resellers”.	Allow
RM.4 Relationship between Bank Services	F1 The identification of the functionality of computerised (or partially computerised) services or programmes in the financial services industry	21	Second par	Bare assertion, lack of reasoning process. Mr Maconochie does not explain how the Remote Wealth Creation Service and the Independence One Service were subsumed into other Bank Services (Operation First Choice, Margin Lending and Gateway), or why the need to separately identify them disappeared. Nor does he explain how they overlapped with Gateway and Operation First Choice. Mr Maconochie also does not explain why the target market and target customer segment identified the Independence One Service more than the functionality of the Service and which market and customers could be addressed by the various services embodied in Operation First Choice.	Res/Leave
RM.5 Application and validity of FEM	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	13.4, 69.2, 69.3, 69.4, 70, 71, Appendix C	13.4 (entirety), 69.2 (last sentence), 69.3-69.4 (entirety), 70-71 (entirety), Appendix C (as marked up in MFI document)	Conclusion, bare assertion, lack of reasoning process. Inter alia: In pars 13.4, 70-71 and C1.7, Mr Maconochie does not explain why FEM is not relevant as a methodology to determine whether two services are similar but is applicable to determine whether a description of a service is internally consistent, relevant and complete; In pars 69.2 and C1.4, Mr Maconochie concludes that Mr MacPherson is using FEM for the first time, simply from the fact that Mr MacPherson allegedly gives no evidence that this is the commonly used name in the industry for this method; In pars 69.3 and C1.5, Mr Maconochie does not explain the basis of his view that FEM is not commonly used in industry (if at all) to compare two services and that Mr MacPherson’s report is the first such use; In pars 69.4 and C1.6, Mr Maconochie does not explain why Mr MacPherson’s use of FEM “to evaluate the functionality of a computerised service …”, applies to a manual-type service that has been computerised. Nor does he explain why AUSMAQ is not such a service.	Allow
RM.6 Application and validity of FCM	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	73, 73.1, 73.3, 73.4, 73.5, 73.7	73-73.1 (first pars), 73.3 (entirety); 73.4 (all but the second last par); 73.5 (second par) and 73.7 (second par)	Bare assertion, lack of reasoning process. Inter alia: In pars 73 and 73.3, Mr Maconochie does not explain why FCM is not a valid methodology. Although he refers to ‘reasons’ given in pars 53-72, these do not relate to FCM – in any event, they are subject to the same objections as apply to his comments on FEM (set out above); In par 73.3, Mr Maconochie does not explain how application of FCM to Mr MacPherson’s examples can yield inconsistent and unreliable results; In pars 73 and 73.3, Mr Maconochie also does not explain why, if FCM is not a valid methodology, this necessarily renders Mr MacPherson’s criticisms of Mr Maconochie’s own methodology invalid (eg, the criticisms referred to in pars 73.1, 73.4); In par 73.4, Mr Maconochie does not explain why re-ordering and re-grouping the functional items in the comparison tables in his Second and Third Statements would make no difference to the results; In par 73.1, Mr Maconochie does not explain why Mr MacPherson is incorrect in his criticism that Mr Maconochie merely sought to show how each Bank Service emulated the AUSMAQ Service rather than undertaking a comprehensive qualitative comparison.	Allow
RM.7 Validity and application of Description of the Service, comprising six categories	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	28, 29, 31, 32, 33, 34, 35.2, 42.1, 43.1, 43.2, 45.2, 50, 51, 57, 59.1-59.3, 60, 61, 62.1 65, Appendix A, Appendix C	28 (entirety), 29 (sub-par (2)), 31-32 (entirety), 33 (last two sentences), 34 (third par), 35.2 (all except the first par and first sentence of the second par), 35.3 (all except the last par), 36.2 (last par), 36.3-36.4 (entirety), 37-38 (entirety), 42.1 (entirety), 43.1-43.2 (entirety), 45.2 (last par), 48 (as marked up in MFI document), 50 (first line of second par and second and third sentences of third par), 51 (entirety), 57 (last sentence), 59.1 (first two lines of third par), 59.2-59.3 (entirety), 60 (entirety), 61 (last six lines of second par), 62.1 (entirety), 65 (entirety), Appendix A (see markedup MFI document), Appendix C (see marked up MFI document)	Bare assertion, lack of reasoning process. Inter alia: In par 61, Mr Maconochie does not explain why he says the common practice of describing services using six categories, does not extend to making correlations between services; In pars 32 and 61, Mr Maconochie does not explain why Mr MacPherson’s Description of the Service, divided into six categories, is not the only one that could be used; In pars 28 and 31, Mr Maconochie does not explain why to say that “functionality of a service” refers to “description of the service” is a circular description; In pars 32 and A3.11, Mr Maconochie does not explain how Mr MacPherson has not correctly employed his Description of the Service; In par 42.1, Mr Maconochie does not explain why the need for the six categories to be considered individually and in aggregate differs from Mr MacPherson’s analysis. Nor does he explain why it follows from Mr MacPherson’s par 4.1.10 that he has used his six category description for the first time in his report; In pars 29(2), 31, 43.1, 43.2, 45.2, 50, 51, 59.2, 57, 59.3, 60, 62.1, C1.2, C3.4 and C3.6-3.7, Mr Maconochie does not explain why business functions and system processes are not relevant to description of the service. In par 43.1, he refers to “reasons” in pars 27-29. Pars 27-28 do not relate to this subject matter and par 29 contains assertions rather than reasoning (ie, because system processes support the functionality of a service); In par 48, Mr Maconochie distinguishes between functions and processes (a process appears to be the method by which a function is achieved and is irrelevant to the description of the function), but fails to explain how this affects Mr MacPherson’s six categories of description or renders unreliable the results of his comparisons. Nor does Mr Maconochie explain why he believes that in the Consulting Agreement, two services may be similar or equivalent irrespective of the processes used to achieve the functionality; In par 50, Mr Maconochie does not explain why he says that not all the results of the iterative process (of identifying the description of the service, the business functions and systems processes) are relevant in identifying functionality; In par 43.2, Mr Maconochie does not demonstrate where there is confusion in Mr MacPherson’s description of the service between what functionality is to be delivered, why, and how. Nor does he explain how this is a flaw and why it follows that any resulting comparison is unreliable; In par 33, Mr Maconochie does not explain why certain examples of business objectives of a strategic nature are “more of a tactical nature and related to the achievement of a strategic objective”, or the distinction he is making between use of the words ‘strategic’ and ‘tactical’; In pars 34, 35.2-35.3, 36.2-36.4, 37-38 and Appendix A (eg, A5.1), Mr Maconochie disagrees with Mr MacPherson’s definitions of the categories of description (such as purpose of a service, key features, products, target market and distribution channels), but does not explain how the distinctions he (Mr Maconochie) makes impinge on the result of Mr MacPherson’s comparisons so as to make them unreliable; In par 35.2, Mr Maconochie does not explain why Mr MacPherson’s description of “Key features” “betrays … a confusion of loyalties and focus between the objectives of the supplier of a service and the supplier’s products and the objectives and needs of the customers of the service.” Nor does he explain (in 35.3(4)) how Mr MacPherson’s definition of key features leads to an unreliable result in any comparison; In par 65 and Appendix A, Mr Maconochie does not explain why his modifications of Mr MacPherson’s six categories of description make them complete and unambiguous.	Allow
RM.8 Validity of process decomposition analysis of business functions and systems processes	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	47	47 (first two sentences)	Bare assertion, lack of reasoning process. Mr Maconochie does not explain why this methodology is not applicable to describe the functionality of a service.	Allow
RM.9 Appropriate level of correlation in comparison analysis of functionality between two services	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	43.2, 50, 57, 59.2-59.3, 60, 62.1, 62.3, Appendix C	43.2 (entirety), 50 (first line of second par and second and third sentences of third par), 57 (last sentence), 59.2-59.3 (entirety), 60, 62.1 (entirety), 62.3 (first two sentences), Appendix C (as marked up in MFI document)	Bare assertion, lack of reasoning process. Inter alia: In pars 59.2, 59.3, 62.1, 62.3 and C1.2, Mr Maconochie does not explain why, if a service is shown to have a similar or equivalent correlation to another service at the level of first order description (here, the level of description of the service), then that is the proper conclusion and there is no need to resort to lower order analysis (here, the level of business functions and system processes); In par 59.3, Mr Maconochie does not explain why, to the extent that certain functions, functional categories and groups that are relevant, mutually exclusive and collectively exhaustive do not fit in the Description of the Service, it is deficient and other categories must be added; In par 59.3, Mr Maconochie does not explain why all information available at the second level should be able to be categorised at the first level.	Allow
RM.10 Significance of distinction between fixed-point-of-reference similarity and reciprocal similarity	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	53.1, 53.2, 53.3, 54, 55, 56, 77, Appendix A, Appendix C	Entirety of all pars, Appendix A (as marked up in MFI document), Appendix C (as marked up in MFI document)	Bare assertion, lack of reasoning process. Inter alia: In pars 53.1-53.3 and C1.1, Mr Maconochie does not explain what effect a failure to distinguish between fixed-point-of-reference similarity and reciprocal similarity has on the results of Mr MacPherson’s comparisons between services; In par 54, Mr Maconochie does not explain why, if it cannot be determined that service B is similar to service A at the Description of Service level, that can only be because there is a deficiency in the Description of the Service for one or both of the services; In pars 55 and 56, Mr Maconochie does not explain why, if the Description of the Service is complete, by definition it must be possible to determine whether service B is similar to service A and so consideration of business functions and system processes is irrelevant. Nor does he explain why, if consideration of business functions overturns a determination at the Description of Service level, the particular functional item in the group of business functions should have been included at the higher Description of Service level.	Allow
RM.11 Relationship between yes/no comparisons and relative weightings	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	13.3 , Appendix A, Appendix C	13.3 (last two sentences), Appendix A (as marked up in MFI document), Appendix C (as marked up in MFI document)	Conclusion, bare assertion, lack of reasoning process. Inter alia: Mr Maconochie does not explain why a positive or negative comparison result based on yes/no comparisons at the functional item and category levels, each with a weighting of one unit, would be unlikely to be overturned by even extreme subjective weightings. Nor does he explain why if this occurred, some doubt must exist as to the weighting methodology. He is simply repeating material from par 65.4.	Allow
RM.12 Comparisons between Bank Services and AUSMAQ	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	76.1, 76.2-76.3, 76.5, 78.2, 78.4, 78.5	76.1 (last two sentences), 76.2-76.3 (entirety), 76.5 (entirety), 78.2 (last two sentences), 78.4-78.5 (entirety)	Bare assertion, lack of reasoning process. Inter alia: In par 76.1, Mr Maconochie does not explain why All in One is not a product that could be listed on AUSMAQ like a master fund but is a service distinct from the products it sought to list and offer customers. Nor does Mr Maconochie explain how this is consistent with his claim that no master fund has been able to be listed on AUSMAQ, including All in One; In par 76.2, Mr Maconochie does not explain how Mr MacPherson has used semantics to try and show that the Bank Services are not similar and equivalent to AUSMAQ or how, if Mr MacPherson followed Mr Maconochie’s methodology, he would have come to the same conclusion that Mr Maconochie reached in his Second and Third Statements; In par 76.3, Mr Maconochie does not explain why it is fact that the Automated Margin Lending Service could be supported by the AUSMAQ Service under a similar if not identical service facility within the AUSMAQ Service. Nor does he explain why just because Mr MacPherson comes to an opposing view, Mr MacPherson’s analysis is unreliable; In par 76.5, Mr Maconochie does not explain why Mr MacPherson’s conclusions as to the Bank Services are extreme, unreliable and cannot be reasonably justified by his methodology; In par 78.2, Mr Maconochie does not explain why Operation First Choice is not a strategy; In pars 78.4-78.5, Mr Maconochie does not explain how Operation First Choice could have been implemented through the AUSMAQ Service, or why it is similar and equivalent to the AUSMAQ Service.	Allow
RM.13 MacPherson’s examples of correlation between services (his internet services examples)	F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	39.1-39.2, 41.3, 44, Appendices A, B, C	39.1 (all except first sentence), 39.2 (last sentence), 41.3 (entirety), 44 (second, third and fifth pars), Appendix A (as marked up in MFI document), Appendix B (as marked up in MFI document), Appendix C (as marked up in MFI document)	Bare assertion, lack of reasoning process. Inter alia: In pars 39.1 and 41.3, Mr Maconochie does not explain how the example demonstrates blurring or ambiguity due to incorrect usage of terms such as target market. Nor does he explain how Mr MacPherson has not correctly applied the six categories of description to the example. (In paragraph 41.3, Mr Maconochie largely repeats paragraph 39.1.); In par 39.2, Mr Maconochie does not explain why it matters that Mr MacPherson may have introduced “a synonym for business objectives”, or why it means that Mr MacPherson has not followed his own categorisation of description of a service; In par 44, Mr Maconochie does not explain why he concludes that: (1) Mr MacPherson has attempted a comparison of business functions and system processes; and (2) it is not relevant to a comparison of the four Bank Services with the AUSMAQ Service; In Appendix A, Mr Maconochie does not include the text of his footnotes; In par A2.4, Mr Maconochie does not explain why the inclusion in the name of the service of words which describe the access channel (“internet”, “website”) and purpose (“shopping”) provides a bias which may inherently tend to either prejudge the outcome of the analysis or otherwise make it inherently unreliable; In par A2.12, Mr Maconochie does not explain why failure to distinguish between a service name identifier and a representational pointer name leads Mr MacPherson to define functional categories that are not relevant, mutually exclusive and collectively exhaustive.	Allow
RM.14 General criticisms of Mr MacPherson’s report	F1 The identification of the functionality of computerised (or partially computerised) services or programmes in the financial services industry F2 Comparisons of the functionality of computerised (or partially computerised) services and/or programmes	26.2, 8, 31, 47, 51, 65, 65.1-65.4, 75, 76.1, Appendix A	26.2 (last sentence), 28, 31, 47 (first two and last sentences), 48 (last sentence on p39), 51 (entirety), 65, 65.1-65.4 (entirety), 75 (entirety), 76.1 (first par), Appendix A (as marked up in MFI document and see references in pars 65, 65.1-65.4)	Bare assertion, lack of reasoning process. Inter alia: In pars 26.2, 47-48 and 51, Mr Maconochie’s evidence as to what Mr MacPherson was (and was not) asked to do, is neither relevant nor admissible; In pars 65, 76.1 and Appendix A, Mr Maconochie does not explain why “four significant errors” which he claims Mr MacPherson makes, are fatal to the overall validity of Mr MacPherson’s methodology and report. The alleged errors are: (i) lack of a distinction between business objectives, business purposes, business systems and processes and lack of a distinction between a “service name identifier” and a “representational pointer name” (par 65.1, A2.2-A2.13, A3.3-A3.5); (ii) lack of a distinction between functional items and functional categories (par 65.2); (iii) lack of a distinction between fixed-point-of-reference similarity and reciprocal similarity (par 65.3, A4.1-A4.5); and (iv) the relationship between yes/no comparisons and relative weightings (par 6.4, A5.1-A5.11); In par 75, Mr Maconochie does not identify and explain where in sections 6-19 of Mr MacPherson’s report, Mr MacPherson makes the alleged errors of definition, terminology and methodology; In par 75, Mr Maconochie does not demonstrate any basis for his claim that Mr MacPherson does not present any detailed analysis.	Res/Leave

MFI D225 (1)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie 5th Statement dated 9 June 1999

Issue	“D” Category	Paragraph	Passage	Reason for Objection
5.1 Definition, description and comparison of “infomediary” and “market system service” concepts.	D3 United States Financial Services	9.5-9.10	Entirety	Bare assertion/lack of reasoning process/lack of transparency in use of secondary materials Mr Maconochie states that “infomediaries” (from the Hagel and Singer book Net Worth) and “market system services” (a term he has coined for systems such as AUSMAQ) are the same concept, and seeks to draw conclusions as to AUSMAQ’s attractiveness to its target markets. Mr Maconochie fails to define the terms “infomediary” and “market system service”, then concludes that market system services and infomediaries are the same concept without providing any explanation. It is therefore impossible to test his overall conclusions that predicted success for infomediaries equates to likely success for AUSMAQ and that AUSMAQ will earn the type of revenues that infomediaries are allegedly capable of earning.
5.2 Adoption of material from The Cerulli Reports.	D3 United States Financial Services	9.14, 9.15, 9.18-9.20	Entirety	Bare assertion/lack of reasoning process/lack of transparency in use of secondary materials Mr Maconochie quotes at length from The Cerulli Reports and concludes each of these paragraphs with a conclusion about AUSMAQ’s prospects in the US markets drawn from the quoted passages. In each case, the conclusion does not flow from the quoted material.
5.3 Comparison of AUSMAQ with “service agents”.	D3 United States Financial Services	9.33, 9.44, 9.54-9.71	Entirety	Bare assertion/lack of reasoning process In paragraphs 9.33 and 9.44 Mr Maconochie describes the characteristics and charging process of US “service agents”. He states that AUSMAQ offered a similar service to these organisations but that it was their charging structure that represented a weakness in the service agent model capable of being exploited by AUSMAQ. These opinions underpin the development of the remainder of Mr Maconochie’s arguments in relation to AUSMAQ’s chances of success in the US market, set out in paragraphs 9.54-9.71. The essence of this argument is that service agents currently account for a large share of the US mutual fund market but AUSMAQ is capable of offering a similar service but with a more attractive pricing structure and AUSMAQ will therefore become the dominant player when more “developed” services replace service agents in the future, thus entitling AUSMAQ to a market share and consequent revenues on par with the largest service agent in the US market at present. Mr Maconochie does not explain in what sense the services offered by AUSMAQ and service agents are the same, nor why AUSMAQ’s charging process is a source or advantage over service agents. Accordingly, his entire US analysis rests on a logical foundation which cannot be tested.
5.4 Global commercialisation of AUSMAQ.	D4 Structure, operation and size of worldwide financial markets	10.1-10.5	Entirety	Bare assertion/lack of reasoning process Mr Maconochie sets out global financial revenues by segment, including segments such as insurance, foreign exchange, mortgages, loans etc. He claims that these markets could have been addressed by AUSMAQ and that this may lead to an underestimation of AUSMAQ’s revenue potential of 25%. Mr Maconochie does not set out any reasoning process as to how AUSMAQ could have been commercialised so as to address these markets.
5.5 Analogy between AUSMAQ and a game of sport.	D20 Financial services markets generally	11.1-11.1.5	Entirety	Irrelevant/undue waste of time Mr Maconochie sets out a lengthy analogy between AUSMAQ and a game of sport played in a stadium. It is not relevant to any issue in dispute between the parties, nor to the balance of the evidence presented in the statement and is also an undue waste of time.
5.6 Identification of AUSMAQ’s market share in Australia and the US.	D7 Valuation of financial services businesses	11.1.6-11.1.12	Entirety	Bare assertion/lack of reasoning process Mr Maconochie sets out a list of companies from around the world that he believes are capable of operating as a mass market leader in “market system services” such as AUSMAQ, and an assessment of how many niche players may emerge in the same market. On the basis of this he calculates the chance of NMG/AUSMAQ being either a mass market leader, niche leader or niche “also ran” in this market and in turn calculates the market share he believes NMG/AUSMAQ would most likely achieve on the basis of these calculations. He then compares this to market shares held by other organisations and with the forecast market shares for “infomediaries” (see 9.5-9.10 above). Mr Maconochie does not explain why the companies selected (apart from NAB) have business which are “close cousins” to market system services. He does not explain why these and no other companies would be able to compete in this market. He does not explain why he believes a fourth contender will emerge, nor who that contender is. He does not explain why only five companies would aspire for a niche leadership role not who those companies might be nor why they would not be the same companies as aspired to the mass market leadership role. He does not explain why the mass market leader would have a 50% market share, why the niche leader would have a 15% market share, nor why a “niche contender” would be entitled to a 5% market share. Mr Maconochie does not explain why the companies he has selected as comparators for his end result are valid points of comparison, nor why it is appropriate to compare his results to the predicted market shares of infomediaries.

MFI D225(2)

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

“Expert” Form Objections – John Maconochie’s 6th Statement, dated 14 July 1999

Issue	“D” Category	Para- graph	Passage	Reason for Objection
6.1 Uniqueness of AUSMAQ’s competitive advantage	D20 & D5 Australian and NZ financial services generally	8.2(ix)	Entirety	Bare assertion, lack of reasoning process Mr Maconochie provides no reasoning in support of his assertion that NMG and the AUSMAQ Service had a unique competitive advantage in Australia and New Zealand due to the absence of any regulatory barriers and due to the possession of a unique exemption from the Australian Securities Commission. He does not explain how a unique competitive advantage arises from an ASC exemption – it does not necessarily follow. Mr Maconochie’s conclusion that it would have been reasonable and practicable to implement the 1997 Business Plan for Australia and NZ because of the matters set out in 8.2(i)-(ix), is thus based in part on bare assertion.
6.2 Prospects for AUSMAQ Service had the 1997 Business Plan been implemented	D20 & D5 Australian and NZ financial services generally	8.3	Entirety	Bare assertion, lack of reasoning process. Mr Maconochie does not explain how he concludes had the 1997 Business Plan been implemented diligently and efficiently, the AUSMAQ Service would have had particular service features and the chance to gain and occupy a substantial market position, largely unopposed, in addressable markets. He does not specify particular service features, nor explain how and why these would give AUSMAQ such a high chance. The portions of other statements and documents referred to in par 8.3 do not disclose anything like a reasoning process in support of this proposition.
6.3 Assessment of JMG’s Business Plans	D20 & D5 Australian and NZ financial services generally	8.2(v), 8.5-8.7	8.2(v) (entirety), 8.5-8.6 (last two pars of each), 8.7 (last par)	Bare assertion, lack of reasoning process. In 8.2(v), Mr Maconochie does not explain how JMG’s planned system developments could have been done with relative ease (“the degree of difficulty being much less and certainly no more than” that taken by JMG to establish the then existing system). Mr Maconochie’s conclusion that it would have been reasonable and practicable to implement the 1997 Business Plan for Australia and NZ because of the matters set out in 8.2(i)-(ix), is thus based in part on bare assertion. In 8.5-8.6, Mr Maconochie does not explain why it would have been reasonable and practicable to implement the 1998 and 1999 Business Plans for Australia and NZ due to the matters set out in 8.2(i)-(ix). See objection to 8.2(v), (ix) above. Mr Maconochie repeats the substance of 8.3. See objection to 8.3 above. Nor does he explain how, if the 1999 Business Plan been implemented diligently and efficiently, some of the “ground” lost through not implementing the 1997 and 1998 Business plans could have been gained and the loss of further ground prevented. Implicit in this is the further unsupported assertion that failing to implement the 1997 and 1998 Business Plans “lost ground”. What Mr Maconochie means by reference to ‘losing ground’ is also not explained. In par 8.7, Mr Maconochie does not explain why it was reasonable and practicable for JMG’s recommendations in its report of 15 February 1999 to be implemented simply because they restated elements of the 1997, 1998 and 1999 Business Plans, which in turn were reasonable for the reasons in 8.1.2, 8.5 and 8.6. None of these paragraphs provides a reasoning process of this kind. Paragraph 8.1.2 is directed at 1997 and contains no reasoning for why the 1997 Business Plan (or part of it) should have been implemented in 1999.
6.4 Prospects for market entry in mid-1998	D2 UK and European financial services D20 & D5 Australian and NZ financial services generally D1 and D3 Japanese/ Taiwanese/ Hong Kong financial services. United States financial services	9.2.1(c), 9.2.3(a)-(e), 9.2.3(g)-(h)	Entirety	Bare assertion, lack of reasoning process. In par 9.2.1(c), Mr Maconochie does not explain why the 1997 and 1998 Business Plans for Europe formulated by JMG were reasonable, without any further explanation. In pars 9.2.3(a)-(e), as the First Plaintiff agrees, many parts simply restate the evidence of Mr Joslin (eg, 9.2.3(a), 9.2.3(b) (first par)). This is repetitive and an undue waste of the Court’s time, particularly as evidence relating to dealings with UK regulatory authorities is no longer pressed. The First Plaintiff presses sections of pars 9.2.3(a)-(e) which deal with regulatory authorities in North America [sic – the USA], Australia and New Zealand, but no longer presses those which deal with regulatory authorities in Canada, the UK and elsewhere. Consequently, pars 9.2.3(a), (b), (c) and (e) should be rejected. Par 9.2.3(d), should be rejected to the extent of the reference to Canada and the UK, at the least. In par 9.2.3(b), Mr Maconochie does not explain how or why, independently of Mr Joslin’s evidence, the UK regulatory environment would be favourable to AUSMAQ/ EUROMAQ nor how and why approvals would have been obtained without substantial difficulty and with reasonable effort. The quoted material from Mr Joslin’s statement does not go so far as to support the broader conclusion of Mr Maconochie. In par 9.2.3(d), Mr Maconochie does not explain what dealings he has had with regulatory authorities in New Zealand, Australia and the United States (other than to point to the dates of the application for exemption from the ASC, and subsequent exemption), which support the conclusion that giving authorities as much lead time and information as possible allows an approval to be issued almost immediately an application is made. In par 9.2.3(e), Mr Maconochie does not explain how this approach was successfully used in New Zealand. The First Plaintiff presses par 9.2.3(g) to the extent that actual matters within Mr Maconochie’s knowledge are stated. However, Mr Maconochie does not explain what regulatory approvals were necessary in the UK, nor what indications were in favour of SIB processing EUROMAQ’s application and issuing these approvals so as to enable the start of EUROMAQ operations in June 1998. In par 9.2.3(h), Mr Maconochie does not explain why there would have been no difficulty in securing the services of a Depositee and Custodian on favourable terms for the EUROMAQ Service. The only foundation he gives for this conclusion regarding the Depositee, is a report of Mr Hume concerning one entity which was said to be “interested in Euromaq and investigating potential roles as Depositee, Custodian, Product provider and Distributor”. Mr Maconochie’s conclusion does not follow from this. Mr Maconochie does not explain why the entities he mentions would have been suitable candidates for these roles, or why they would be interested in the proposition.
6.5 Prospects for market entry in January 2001	D2 UK and European financial services	9.2.4	Entirety	Bare assertion, lack of reasoning process In par 9.2.4(a), Mr Maconochie does not explain why it follows that, if NAB and NMG had immediately implemented the JMG Report of 15 February 1999, it would have been possible for AUSMAQ to start operations in Europe within 2 years (ie, by about January 2001). In par 9.2.4(b), Mr Maconochie does not explain why it is not possible for EUROMAQ to be established and operate successfully (or nearly as successfully) as it would have done. In par 9.2.4(c), Mr Maconochie merely repeats material from par 2.5 of Mr Joslin’s statement. He then states that E*Trade would have been a competitor to AUSMAQ at 1 January 2001, without explaining why. In par 9.2.4(d), Mr Maconochie does not explain why, in the absence of immediate action, there are no prospects for EUROMAQ.
6.6 Mr Joslin’s assumptions	D2 UK and European financial services	9.5	Entirety	Conclusion, bare assertion, lack of transparent reasoning process Mr Maconochie concludes that had the JMG Business Plans been implemented, the facts and matters assumed by Mr Joslin would have materialised. By way of reasoning or support for this conclusion, he simply refers to pars 8.1.2, 8.5, 8.6, 8.7, 8.8, 8.9 and 8.10. These do not directly and clearly address the issue and lead to an undue waste of time as the reader attempts to ascertain what parts, if any, of 8.1.2, 8.5, 8.6, 8.7, 8.8 and 8.9 (and the further documents to which they in turn refer) are relevant.
6.7 Evaluation of general prospects in North America and Asia Pacific	D1 and D3 Japanese/ Taiwanese/ Hong Kong financial services United States financial services	9.6	Entirety	Bare assertion, lack of reasoning process The First Plaintiff now agrees that to the extent that this evidence relates to the Asia Pacific region, it should be rejected. The First Plaintiff presses the last paragraph and the Exhibit to which it refers, in so far as it relates to North America [sic – USA?], Australia and New Zealand. Mr Maconochie does not explain why the ability of NMG to exploit the AUSMAQ Service and the AUSMAQ IP to their full potential in North America and Asia Pacific was, and is, dependent on the implementation of the 1997, 1998 and 1999 Business Plans. He does not explain what such exploitation would involve, and why it is the sole route to success in those markets. His reference to North America (here, and as discussed below) cannot be admitted, given that this case concerns only the United States and he has no expertise in relation to Canada. Mr Maconochie does not explain how and why completion of the system development component of the Plan was a prerequisite to the implementation of the Business Plan for the AUSMAQ Service in Australia and NZ as well as for Europe and, probably North America and Asia Pacific. Mr Maconochie does not explain why it was reasonable to expect that Business Plans which had as their objective the development of the AUSMAQ Service to its full global potential would include plans for the Service in North America and Asia Pacific, as well as Europe, simply because of the size and applicability of the addressable markets in those regions. In this regard he refers to Exhibit 57 in his Fifth Statement, which should not be admitted based on His Honour’s earlier rulings. Apart from this, Mr Maconochie does not here identify markets, nor give his reasoning as to why those markets are applicable and addressable, nor give his reasoning as to their sizes.

MFI D249

National Australia Bank Limited & ors ats Idoport Pty Ltd & anor Supreme Court Proceedings No 50113 of 1998 and 50026 of 1999

PARAGRAPH	OBJECTION	DEFENDANTS’ SUGGESTED RULING	COURT’S RULING
4(a) and (b)	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76. 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]	Res/Leave to update to present circumstances
4(c)	Relevance – inadmissible under s 56.	[O][R]	Res/Leave to update to present circumstances
6.5 – “… and for meetings at which I was not present, I believe them to be a true and correct record”	Opinion – inadmissible under s 76.	[O][R]	Reject section objected to
8.1	Hearsay	[O][A Conv]	A Conv
8.1 – “and believe it to be true”	Opinion – inadmissible under s 76.	[O][R]	Reject
8.2 (first three sentences)	Opinion – inadmissible under s 76. 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 s 135.	[O][R]	Res/Leave
8.3	Hearsay	[O][A Conv]	A Conv
9	Hearsay	[O][A Conv] against all defendants other than the fourth defendant	[A Conv] against all defendants other than the fourth defendant
10	Hearsay	[O][A Conv] against all defendants except, to the extent remarks are attributed to Mr Meikle, against the fourth defendant	Ruling as defendants propose
12.1 (second sentence)	Speculation/opinion – inadmissible under s 76. Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants – should be excluded under s 135.	[O][R]	Res/Leave
13.1 – “has failed to resolve”	Opinion – inadmissible under s 76.	[O][R]	Res/Leave
13.1 (second sentence)	Relevance – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Res/Leave
13.4	Hearsay	[O][A Conv]	A Conv
13.4, 13.5 – “and believe it to be true”	Opinion – inadmissible under s 76.	[O][R]	Reject
13.6, 13.7	Hearsay	[O][A Conv] as against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Ruling as defendants propose
13.7 – “and believe it to be true”	Opinion – inadmissible under s 76.	[O][R]	Reject
13.8	Hearsay	[O][A Conv] as against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Ruling as defendants propose
13.9 – “but I do not accept … and consider it was a sham”	Opinion – inadmissible under s 76. 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]	Res/Leave
13.10	Opinion – to the extent that the quotation is relied on as evidence of the truth of the opinion expressed – inadmissible under s 76. Otherwise – hearsay. Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants – should be excluded under s 135.	Second sentence of quotation - [O][R] Balance of paragraph – [O][A Conv]	Allow
14.1 – “… what I considered to be the continued deliberate frustration …” to end of first sentence	Relevance – state of mind of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76. 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]	Reject
14.3	Relevance/opinion – to the extent that the quotation contains previous representations as to the opinions or state of mind of “our clients” – not relevant and therefore inadmissible under s 56 – alternatively, opinion evidence inadmissible under s 76. Hearsay – to the extent that the quotation contains express or implied previous representations about the conduct of the defendants or the conduct of “our clients” – inadmissible under s 59. Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants – should be excluded under s 135.	[O][R]	A. Doc
17 (second sentence)	Opinion – inadmissible under s 76.	[O][R]	Allow as subj/op
21	Hearsay	[O][A Conv] against all defendants other than the fourth defendant.	Rulings as defendants propose
23	Hearsay	[O][A Conv]	A Conv
24	Hearsay	[O][A Conv] against all defendants other than the fourth defendant.	Rulings as defendants propose
27	Hearsay	[O][A Conv] against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Rulings as defendants propose
27 – “and I believe it to be true”	Opinion – inadmissible under s 76.	[O][R]	Reject
28	Opinion – inadmissible under s 76.	[O][R]	Reject
30.1	Opinion – inadmissible under s 76.	[O][R]	Allow
30.5 (whole paragraph, except third and last sentences)	Opinion – inadmissible under s 76.	[O][R]	Allow
30.9	Opinion – inadmissible under s 76.	[O][R]	Allow
31 (last sentence)	Opinion – inadmissible under s 76.	[O][R]	Allow
32 (first sentence and last two sentences)	Opinion – inadmissible under s 76.	[O][R]	Allow
34 (fourth and fifth sentences)	Opinion – inadmissible under s 76.	[O][R]	Res/Leave
35 (statements listed with bullet points)	Opinion – secondary evidence of this witness’ opinions – inadmissible under s 76. Relevance – state of mind of this witness on these issues not relevant – inadmissible under s 56. 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]	Subj/Op
39	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]

If para 39 is admitted notwithstanding the objection under s 135, the following further objections are taken:

39 – “and I believe it to be true”	Relevance – state of mind of this witness on these issues not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Reject
39 – section of the quotation – “NAB has instructed the legal firm … comply with that firm’s advice on the matter”	Relevance – inadmissible under s 56.	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – section of the quotation – “and this direction was uncritically accepted by the directors of NMG and AUSMAQ Systems”	Relevance/opinion – secondary evidence of Mr Meikle’s opinion – opinion of Mr Meikle not relevant – inadmissible under s 56 – opinion inadmissible under s 76.	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – section of quotation – “The terms of that agreement are not commercially beneficial … AUSMAQ Service will be compromised.”	Relevance/opinion – secondary evidence of Mr Meikle’s opinion – opinion of Mr Meikle not relevant – inadmissible under s 56 – opinion inadmissible under s 76	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – section of quotation – “shortcomings in the terms and conditions of the proposed agreement”	Relevance/opinion – secondary evidence of Mr Meikle’s opinion – opinion of Mr Meikle not relevant – inadmissible under s 56 – opinion inadmissible under s 76.	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – section of quotation – “The only positive thing … recommend the AUSMAQ Service to their clients.”	Relevance/opinion – secondary evidence of Mr Meikle’s opinion – opinion of Mr Meikle not relevant – inadmissible under s 56 – opinion inadmissible under s 76.	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – quotation of Mr Maconochie	Relevance/opinion – secondary evidence of this witness’s opinion – opinion not relevant – inadmissible under s 56 – opinion inadmissible under s 76.	[O][R]	Allow balance of 39 as A Conv as against all defendants except to the extent that remarks are attributed to Mr Meikle, the fourth defendant.
39 – remainder of paragraph	Hearsay	[O][A Conv] as against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant	See above
42	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Allow
43.2 (last sentence)	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Allow
44.1	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Res/Leave
44.2 (first two sentences)	Hearsay	[O][R] Alternatively [O][A Conv] / [O][A Doc]	A Conv A Doc
44.2 (third sentence to end of paragraph)	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Obj/Subj
44.3	Hearsay	[O][A Conv]	A Conv
44.4	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Allow
44.5	Relevance – opinion of this witness not relevant – inadmissible under s 56. Opinion – inadmissible under s 76.	[O][R]	Allow
44.6	Hearsay – to the extent that the quotation is relied on as evidence of the truth of the facts asserted – inadmissible hearsay.	[O][A Doc]	A Doc
47	Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]	Reject

If para 47 is admitted notwithstanding the objection under s 135, the following further objections are taken:

47	Relevance/opinion – to the extent that the quotation is relied on as evidence of Mr Martin’s opinions – opinion of Mr Martin not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]
47 – “…which caused me considerable concern …” and “…I believe what Mr Martin says in the e-mail is true”	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]
47 – remainder of paragraph	Hearsay	[O][A Doc]
48	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 Doc

If para 48 is admitted notwithstanding the objection under s 135, the following further objections are taken:

48	Relevance/opinion – to the extent the quotation is relied on as evidence of this witness’ opinions – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]
48 – remainder of paragraph	Hearsay	[O][A Doc]
49	Relevance/opinion – to the extent that the quotations are relied on as evidence of opinions of Mr Martin and/or Mr Maconochie - opinions not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]
49 – “I believe what Mr Martin said to me was and is true”	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Reject
49 – remainder of paragraph	Hearsay	[O][A Conv] against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Ruling as defendants propose
50	Hearsay	[O][A Conv] against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Ruling as defendants propose
51	Hearsay	[O][A Conv] against all defendants except, to the extent that remarks are attributed to Mr Meikle, the fourth defendant.	Ruling as defendants propose
51 – “I believe what Mr Meikle said to me was true”	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Reject
52	Relevance/opinion – to the extent that the quotations are relied on as evidence of this witness’ opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	See below
52 – remainder of paragraph	Hearsay	[O][A Conv] against all defendants except, to the extent that remarks are attributed to Ms Cox, the fourth defendant.	Allow all as defendants propose
53	Relevance/opinion – to the extent that the quotations are relied on as evidence of this witness’ opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Allow
53 – remainder of paragraph	Hearsay	[O][A Conv]
54 – “which caused me considerable concern” and “I believe what Mr Martin says in the e-mail is true”	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Subj/Op
54 – quotation	Opinion – to the extent relied on as evidence of Mr Martin’s opinion – inadmissible under s 76. Hearsay	[O][R] [O][A Doc]	Res/Leave
56	Relevance – inadmissible under s 56. Alternatively, hearsay.	[O][R] Alternatively, [O][A Doc]	A Doc
57, 58	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Allow Op/Subj
59, 60, 61	Relevance – inadmissible under s 56. Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]

If paras 59, 60 and 61 are admitted notwithstanding the objection above, the following objections are taken:

59, 60, 61 – “I believe what Mr Martin says in the e-mail is true”	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Reject
59, 60, 61 – quotations	Hearsay	[O][A Doc]	A Doc
62	Relevance – inadmissible under s 56. Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]

If para 62 is admitted notwithstanding the objection above, the following objections are taken:

62	Opinion – to the extent that the quotation is relied on as evidence of this witness’ opinions - inadmissible under s 76. Otherwise, hearsay.	Opinions – [O][R] Balance – [O][A Doc]	A Doc
64	Relevance – inadmissible under s 56. Alternatively, 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. Alternatively, hearsay.	[O][R] Alternatively, [O][A Doc]	A Doc
66	Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]

If paragraph 66 is admitted notwithstanding the objection above, the following objections are taken:

66 (first sentence)	Relevance/opinion – opinion of this witness not relevant – inadmissible under s 56 – opinion evidence inadmissible under s 76.	[O][R]	Subj/Op
66 – paragraphs of the letter quoted “The AUSMAQ Service, on my analysis … similar or equivalent functionality to the AUSMAQ Service” and “My analysis shows … provisions of the Consulting Agreement”	Opinion – to the extent that the quotation is relied on as evidence of this witness’ opinions - inadmissible under s 76.	[O][R]	Allow
66 – balance of quotation	Hearsay	[O][A Doc]	A Doc
67	Relevance – inadmissible under s 56. Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]	Allow
71, 72 (first sentence)	Relevance – inadmissible under s 56. Alternatively, opinion – inadmissible under s 76. Probative value substantially outweighed by danger that the evidence might cause or result in undue waste of time – should be excluded under s 135.	[O][R]	Obj/Subj

Last Modified: 06/13/2002