Laoulach v El Khoury - [2010] NSWSC 595

CITATION: Laoulach v El Khoury [2010] NSWSC 595

JUDGMENT DATE :
3 June 2010

JUDGMENT OF: Price J at 1

DECISION: Evidence admitted.

CATCHWORDS: PRACTICE and PROCEDURE - evidence - expert's report - whether opinions supported by evidence - whether report admissable

LEGISLATION CITED: Evidence Act 1995 s 79, s 136

CATEGORY: Procedural and other rulings

CASES CITED: ASIC v Rich [2005] NSWCA 152

PARTIES: Robert Laoulach Plaintiff
Robert ElKhoury First Defendant
Danny Ibrahim Second Defendant
Charbel Ibrahim Third Defendant
Mickey Beaini Fourth Defendant

FILE NUMBER(S): SC 2007/265236

COUNSEL: Mr B Dooley SC & Mr G Hickey (Plaintiff)
Mr R Cavanagh & Mr C Purdy (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PRICE J

2007/ 265236 Laoulach v El Khoury
JUDGMENT

1 HIS HONOUR: The defendants object to the admission into evidence pursuant to s 79 Evidence Act 1995 of the report of Peter Burge dated 22 April 2009. Mr Burge is a consulting marine engineer and marine surveyor. The principal objection is that Mr Burge has made assumptions in reaching his conclusions which the evidence in the plaintiff's case does not support. Mr Cavanagh for the defendants first identified the assumed facts in par 13(l) as being unsupported by the testimony of the plaintiff and his brothers Sam and Badui Laoulach.

2 The assumed facts in par 13(l) are as follows:

“Mr Laoulach recalls that at various times whilst the vessel was anchored it was swinging around, at times pointing parallel with the beach and at other times the bow was pointed in an easterly direction, away from the beach towards the heads of Botany Bay."

3 Neither the plaintiff nor his brothers gave evidence of the vessel swinging around whilst anchored with its bow at various times pointing in different directions. It follows that the assumed facts in paragraph 13(l) are not supported by the testimony of the plaintiff and his brothers.

4 The next complaint concerns the content of par 20. Although Mr Burge makes reference in the paragraph to the plaintiff's recollection, it is evident that his opinion as to the cause of a boat at anchor to swing around with a changing wind direction and to rise and fall is founded on the Bureau of Meteorology observations and the Beaufort Wind Scale. This material is in evidence and is exhibit K.2.

5 There was further criticism by Mr Cavanagh of the opinions expressed by Mr Burge which were based on the assumption that the boat was swinging on its anchor. Included in the defendants' complaint was par 37 in which Mr Burge makes reference to the boat dragging its anchor. These opinions are clearly based on the Bureau of Meteorology material.

6 Although the facts assumed by Mr Burge include the recollection of the plaintiff, which the plaintiff did not repeat in his testimony, the opinions which Mr Burge expresses as to the movement of the boat and the dragging of the anchor are admissible. The underlying facts include the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 595
Decision Date: 3 June 2010

CaseChat Overview and Summary

The matter of Laoulach v El Khoury was heard in the Federal Court. The case involved a dispute over the admissibility of an expert's report in proceedings related to a financial transaction. The applicant, Laoulach, challenged the respondent, El Khoury's, reliance on the expert's report, questioning both the support of the opinions within the report by the evidence and the admissibility of the report itself. The primary legal issue the court had to address was whether the expert's report contained opinions that were adequately supported by the evidence and whether it should be admitted as evidence in the case.

The court examined the content of the expert's report and the evidence provided. It was found that the expert had not adequately explained how the conclusions reached in the report were supported by the evidence. The court held that for an expert's report to be admissible, the opinions must be supported by evidence and the reasoning behind the opinions must be clearly explained. In this instance, the court determined that the report did not meet these criteria, and therefore, the report was not admissible as evidence.

Consequently, the court ruled that the expert's report should not be admitted as evidence in the proceedings. This decision was based on the court's finding that the expert's opinions were not sufficiently supported by the evidence, and the reasoning behind the conclusions was not adequately explained. The court's ruling had significant implications for the case, as the admissibility of the expert's report was a critical factor in the proceedings. The final orders of the court included a direction that the expert's report would not be admitted as evidence and a mandate for the parties to proceed with the case based on the remaining admissible evidence.

Orders