Kitchen v Quinlivan

In the case of Kitchen v Quinlivan, the plaintiffs, consisting of a doctor and his practice entity, filed a claim against the defendant, who is the director of the Professional Services Review agency (PSR agency), for misfeasance in public office. The defendant raised objections to the plaintiffs' evidence, while the plaintiffs objected to several witnesses' evidence, arguing that it was speculative or conclusionary and went towards establishing the witnesses' "usual practice". The plaintiffs also objected to evidence on the basis of issue estoppel or res judicata, and the defendant objected to an affidavit and an expert report provided by the plaintiffs.

The court had to decide on the admissibility of evidence, particularly on the objections raised by both parties. The court considered the objections raised by both parties to the evidence of the witnesses and the affidavits. The court also had to determine whether the defendant's declaration in prior Federal Court proceedings amounted to an issue estoppel or res judicata, and whether it prevented the defendant from giving evidence in respect of that declaration.

The court ruled that the objections raised by the plaintiffs were upheld, and the evidence of several witnesses was inadmissible. The court found that the evidence of usual practice was largely unobjectionable, but the witnesses went further to depose that whilst not having any recollection of having undertaken a specific step on a particular day they "would have" done that step having regard to that usual practice. The court held that evidence of usual practice is admissible, but the drawing of the inference is ultimately for the court. The court also found that the defendant's declaration in prior Federal Court proceedings did not amount to an issue estoppel or res judicata, and the defendant could give evidence in respect of that declaration.

The court ordered that certain paragraphs of affidavits and evidence were inadmissible, while others were admissible with leave to lead evidence substantially in accordance with the court's directions.