James Mark Waugh v TAFE NSW Western Institute (No 4)
[2013] NSWSC 1663
•04 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 4) [2013] NSWSC 1663 Hearing dates: 4/11/13 Decision date: 04 November 2013 Jurisdiction: Common Law Before: Campbell J Decision: I reject the tender
Catchwords: EVIDENCE - admissibility - whether evidence admissible under s79 Evidence Act 1995 (NSW) - whether evidence complies with Uniform Civil Procedure Rules 2005 (NSW) r 31.23, r31.24, r31.27. Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116
South Western Sydney Area Health Service v Ritchie, unreported NSWCA, 13 November 1998Category: Procedural and other rulings Parties: James Mark Waugh (plaintiff)
Juliana Waugh (plaintiff)
Jonathan Waugh (plaintiff)
TAFE NSW Western Institute (first defendant)
Glenn Alexander Manton (second defendant)Representation: Counsel:
J Morris with R Bianchi (plaintiff)
M Fordham SC (first defendant)
M McCulloch SC with T Berberian (second defendant)
Solicitors:
Burke Elphick Mead (plaintiffs)
Bartier Perry Pty Ltd (first defendant)
HWL Ebsworth (second defendant)
File Number(s): 2012/83757; 2012/83775; 2012/91788
EX TEMPORE Judgment
RE admissibility of evidence; see transcript p 541
Mr Morris of counsel has tendered two of a number of letters from Mr Craig Toyne, who is Mr Mark Waugh's business consultant. I infer from the material I have seen in the course of the argument today and from the evidence I have heard that Mr Toyne is a qualified accountant. The first letter, which I initially admitted as exhibit EE1, is a letter of 2 July 2012, and the second letter, which is at the point of tender but not yet admitted, is dated 26 February 2013. I have marked those letters MFI 12 and 13 respectively.
The point of contention between the parties is that the defendants object to the admission of those letters on the basis that opinions within s 79 of the Evidence Act 1995 (NSW) have been proffered in the letters and that, notwithstanding their prior service, the letters do not comply with the rules as to the admission of experts' evidence. In particular, there is no compliance with r 31.23 Uniform Civil Procedure Rules 2005 (NSW) concerning the adoption of the Code of Conduct. There has been no participation by Mr Toyne in the conference between experts under r 31.24, which qualified forensic accountants, for what it is worth, have engaged in. I think implicitly the letters themselves, if they are reports, do not comply with the requirements of r 31.27 concerning the substantial requirements of the contents of an expert's report. I suppose it might be said that underpinning that last ground of objection is the idea that Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 has not been complied with.
Mr Morris, on the other hand, argues that the case is covered by the decision of the Court of Appeal in South Western Sydney Area Health Service v Ritchie, unreported NSWCA, 13 November 1998, per Priestley, Meagher and Stein JJA. Mr Morris submits that what he is seeking to introduce by the means of the tender of these letters is essentially factual evidence relating to advice given by Mr Toyne to Mr Waugh about the viability of his business and the reasons why Mr Toyne tendered that advice.
I should say that, in context, I have already allowed evidence from Mr Waugh as to advice Mr Toyne gave him on the basis that his evidence about that was original evidence of the content of the advice and not evidence about the truth or accuracy of the advice in an objective sense. I admitted that evidence having regard to the principles of law as to causation of loss in this area discussed by the High Court of Australia in Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1.
I do note in passing that Mr Fordham SC, appearing for the first defendant but who cross-examined Mr Waugh in effect on behalf of both defendants, did not ask any questions in cross-examination that challenged Mr Waugh's evidence about the advice he had received. Although it is fair to say that he cross-examined Mr Waugh by reference to a bundle of documents - which so far has been no more than marked MFI 11 - which if accepted, might raise questions about whether there has been any change in the financial position of the business from the date of Sarah Waugh's tragic accident.
If I have not said so already, I record that these letters from Mr Toyne were served in good time, that no objection was signalled by the defendants to their tender and that the second defendant's solicitors required Mr Toyne to attend for cross-examination on the contents of them.
So for those reasons, it must be said that the general tenor of Mr Toyne's evidence was obvious to everybody. It was also obvious to everybody that - and I use this expression neutrally - the reliability of it was in contest given the defendant indicated that he proposed to cross-examine him.
The difficulty I have, however, with the tender of the documents so far is that when one looks at the content of the letters of 2 July 2012 and 26 February 2013, it does not really set out in terms what Mr Toyne said to Mr Waugh by way of advice. Rather, the first letter confirms that Mr Toyne had met with Mr Waugh in "the past few weeks in respect of the financial position of his business". It sets out Mr Toyne's views, I think tolerably clearly, about - I will put it neutrally - how the business was going, and although some reasons are expressed for Mr Toyne's pessimistic view, they are expressed in terms which make it difficult perhaps for the defendants to cross-examine Mr Toyne in relation to the contents of the letter.
The letter of 26 February 2013 really does not say anything about facts at all that I apprehend Mr Toyne is able to give. It speaks of having reviewed the financial records of the business and expresses a view that the figures show a five per cent reduction in gross fees over the financial year, and expresses an opinion about why that might be so, which relates to Mr Waugh's inability to operate in his pre-injury role within the business.
Those matters to seem to me to be matters which, if they are admissible at all, are admissible in terms of s79. And that being so, the requirements of the rules ought to be complied with, in the interests of fairness, and I accept the argument of the defendants that they are not.
I must say, having regard to the judgment of Heydon JA (as his Honour then was) in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, if there was to be this type of objection to the admission of these letters from Mr Toyne, then that matter really ought to have been clearly telegraphed to the plaintiffs' lawyers soon after the offending material was served.
I reject the tender of the letters of 2 July 2012 and 26 February 2013. In doing so, however, I make it clear that I will entertain an application from Mr Morris as to whether he wishes to call Mr Toyne to give oral evidence about admissible matters, given that all parties are on notice as to what the content of that evidence is likely to be, and given that the first and second defendants have had access to the financial records relating to the business and to the Waugh's. Learned senior counsel appearing for the defendants ought to be in a position to cross-examine Mr Toyne about those matters.
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Decision last updated: 13 November 2013
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