Morgan v Norton

[2018] NSWSC 434

Supreme Court

New South Wales

Medium Neutral Citation:	Morgan v Norton [2018] NSWSC 434
Hearing dates:	9 April 2018
Date of orders:	10 April 2018
Decision date:	10 April 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) The Defendant’s notice of motion is dismissed.  (2) The Defendant is to pay the Plaintiff’s costs of the notice of motion.
Catchwords:	EVIDENCE – expert evidence – expertise – whether author of report holds expertise – expert witness conclaves – whether author of report should participate in expert conclave
Legislation Cited:	Civil Liability Act 2001 (NSW) ss 5K, 5L, 5M Civil Procedure Act 2005 (NSW) ss 56, 59 Evidence Act 1995 (NSW) ss 76, 79, 192, 192A Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Category:	Procedural and other rulings
Parties:	Nina Morgan (Plaintiff/Respondent) Sharon Norton (Defendant/Applicant)
Representation:	Counsel: L King SC; R Regattieri (Plaintiff/Respondent) M McCulloch SC; S J Maybury (Defendant/Applicant)   Solicitors: Shanahan Tudhope Lawyers (Plaintiff/Respondent) William Roberts Lawyers (Defendant/Applicant)
File Number(s):	2015/81669

Judgment

1. The Defendant seeks a preliminary ruling pursuant to s 192A of the Evidence Act 1995 (NSW) that the report of an expert witness, Mrs Smyth, of 8 June 2016 is inadmissible in whole or in part, and in the alternative, an order that no conclave between liability witnesses is required.

2. The proceedings involve a transaction regarding a horse sold by the Defendant to the Plaintiff on or around 24 March 2012. The Plaintiff alleges that she was induced to buy the horse by various misrepresentations made by the Defendant regarding the horse’s background, training and qualities. Other grounds include breach of warranty and breach of contract. The Defendant denies, in effect, most if not all the representations that form the basis of the Plaintiff’s cause of action, asserts that the Plaintiff was given an opportunity to inspect the horse and was an experienced rider and pleads caveat emptor and various defences under the Civil Liability Act 2001 (NSW).

3. The Plaintiff’s case is that the day after purchase, whilst appropriately preparing the horse to be ridden, it bucked and ran, throwing her from the horse and causing her a very serious spinal injury.

4. The matter is listed for hearing for two weeks starting on 18 June 2018. The application came before me yesterday as duty judge and needs urgent consideration given the pressing hearing date, the nature of the orders sought and their potential effect on the current timetabling for expert witness conclave and the ongoing conduct and preparation of the proceedings.

The evidence relied upon for the notice of motion

5. The Defendant relies upon an affidavit of Bruce Cussen, solicitor, which annexed the report in issue of Mrs Debbie Smyth dated 8 June 2016 (the Plaintiff’s expert) as well as the two expert reports relied upon by the Defendant of Dr Andrew McLean, dated 23 March 2017, and Professor Paul McGreevy, dated 19 April 2017.

6. Lay evidentiary statements have been exchanged but such evidence and its full parameters has not been tendered on this application, although some of the expert reports appended some of these statements. Evaluation of that evidence, its admissibility and findings in relation to it are all matters for the trial judge.

7. There were supplementary affidavits by both sides’ solicitors referring to an exchange of correspondence between them dealing with identification of the basis of the objection being taken to Mrs Smyth’s report. I do not need to deal with this material other than to note that within a short timeframe of the request, the solicitor for the Defendant outlined that objections were being taken on the basis of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 and that Mrs Smyth’s expertise did not meet the requirements of expertise under s 79 of the Evidence Act.

8. Each of the three experts’ reports included within them either a separate curriculum vitae or a detailed statement of the qualifications and experience which permitted each of them to claim an expertise in respect of the matters in issue. I will return to these qualifications shortly.

Relevant legislation and legal principles

9. The Defendant’s application is made pursuant to s 192A of the Evidence Act. Section 192A provides as follows:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about:

(a)   the admissibility or use of evidence proposed to be adduced, or

(b)   the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

10. The Defendant’s primary position is that Mrs Smyth does not have the requisite specialised knowledge and second that her report does not deploy specialised knowledge when considered as a whole or in parts of the report.

11. Section 79 of the Evidence Act provides for the exception to the opinion rule where opinions are based on specialised knowledge:

79   Exception: opinions based on specialised knowledge

(1)   If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)   …

12. Any orders I make in the proceedings needs to be made with ss 56 and 59 of the Civil Procedure Act 2005 (NSW) borne in mind:

56   Overriding purpose

(1)   The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)   The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)   A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4)   Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a)   any solicitor or barrister representing the party in the proceedings,

(b)   any person with a relevant interest in the proceedings commenced by the party.

(5)   …

(6)   …

and

59   Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

Chronology of proceedings and case management orders

13. The statement of claim was filed on 18 March 2015, the initial defence on 27 July 2015, and an amended defence, which raised further defences pursuant to ss 5K, 5L and 5M of the Civil Liability Act (relating to obvious risk and dangerous recreational activity) as well as some further particulars of contributory negligence, was filed on 27 April 2017.

14. On 13 October 2017, Registrar Bradford set the matter down for hearing in June 2018 and on 3 November 2017, he made a number of orders regarding the time by which certain steps facilitating joint expert conclave should be taken. The first was that by 15 December 2017, the parties were to agree about which experts would participate in the conclave. It appears, unfortunately, that this requirement was not addressed. The issue about Mrs Smyth’s expertise seems to have first been raised only in early March 2018, leading to the filing of the Defendant’s notice of motion on 20 March 2018.

15. The Registrar’s timetable required an agreement on the questions to be put to the conclave by 6 March 2018 and that the experts should conclave by 10 April 2018 with a view to a report being produced by 11 May 2018, and a joint memorandum of issues being provided for the Court’s assistance by 25 May 2018.

16. Given the listing of the matter for hearing on 18 June 2018, this was clearly a sensible timetable. It is most unfortunate that the issues regarding Mrs Smyth’s asserted absence of expertise and problems with her report were not raised in correspondence significantly earlier than March 2018. This is particularly so given that it seems common ground that her report has been in the possession of the Defendant’s solicitor for some 20 months.

Expert’s respective qualifications

1. Mrs Smyth

17. Mrs Smyth described her qualifications as:

1. 20 years’ experience as a competent horsewoman and past winner of many champion lady rider awards at both State and National level;

2. Horse management experience and skills gained from a very early age growing up on a horse breeding stud property on which the family business of horsebreaking, training, racehorse training, showing and riding skills were carried out;

followed by a number of awards and achievements which included:

“•Trained and ridden horses from first handling to schoolmaster level, my riding experience includes stock work through to national competition, racehorse training and educating, training and showing English and Western style, side saddle, dressage, sporting events, trick riding and trail riding; …

• Trained numerous metropolitan, provincial and country race winners”

2. Dr McLean

18. Andrew Neil McLean, one of the experts for the Defendant, describes himself as “working in the field of horse behaviour, ethology, and cognition”, and “practically, in the fields of horse training and riding tuition”. He describes his university qualifications, BSc, DipEd, and that he has completed a PhD thesis titled “The mental processes of the horse and their consequences for training”. He outlines, under the heading “Introduction” that he has:

“Represented Australia in horse trials and have been on the World Championship shortlist. I have held an owners/trainers racing licence for 12 years and have ridden in bareback races in Australia and New Zealand. I grew up in a family dedicated to horses. Both my parents held owner/trainers racing licences and my mother was a well-known show competitor in Melbourne in the 1950s while both my father and my grandfather were show jumping competitors. For 30 years I have owned and managed equestrian centres and in the last 18 years, I developed and directed the Australian Equine Behaviour Centre, recognised as a world leading institution for equine behaviour modification and equestrian education. I am now director of Equitation Science International (ESI), a nationally recognised institution teaching a science based approach to horse training. I am therefore experienced with horse behaviour and psychology.”

19. Dr McLean attached a detailed curriculum vitae which included his academic background, awards and positions, and equestrian sporting achievements. This is followed by a list of academic journal and book publications and conference and congress presentations.

3. Prof McGreevy

20. Professor Paul McGreevy describes himself as a “veterinary ethologist”. He has a Bachelor of Veterinary Science and Doctor of Philosophy. Under the heading “Qualifications and experience”, in addition to those qualifications, Prof McGreevy refers to a number of other courses and certificates he has obtained since 1984 as well as citing five years’ experience in general veterinary practice, a PhD in horse behaviour from the University of Bristol in 1995, the authoring of more than 200 peer-reviewed articles on animal behaviour and welfare (the extent to which these relate only to horses is not specified) and that he is an Honorary Fellow of the International Society for Equitation Science and a Professor of Animal Behaviour and Welfare at the Sydney School of Veterinary Science, University of Sydney.

21. Professor McGreevy’s report is accompanied by a series of reference papers used in his report. Seven out of the eleven references cited he co-authored with the Defendant’s other expert, Dr McLean.

Resolution of issues regarding Mrs Smyth’s expertise

22. Section 79(1) of the Evidence Act does not require an expert to hold a university degree, nor to be able to profess particular structured training or study. Section 79(1) is expressed in alternatives, that is, “specialised knowledge based on the person’s training, study or experience” (emphasis added).

23. I am of the opinion that Mrs Smyth possesses relevant specialised knowledge based on her extensive experience as a horsewoman and trainer. I am satisfied that her report includes opinions wholly or substantially based on that knowledge.

24. Senior counsel for the Defendant submitted that Mrs Smyth’s report strays into areas that cannot be said to be wholly or substantially based on expert knowledge because she offers a view on factual matters which are for the court to determine, such as the likelihood of the horse having been ridden by an 8-year-old without problem over the preceding 6 months.

25. Senior counsel for the Plaintiff argued that those parts of the report are not inadmissible and are expressions of her expert view in respect of that horse’s apparent previous training and behaviour. I accept that submission.

26. A further issue taken by the Defendant is that the report does not comply with the requirements of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 or Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 because it does not set out the criteria enabling evaluation of the validity of the expert’s conclusion and there is no identified field of recognised expertise within which her opinion is expressed.

27. I reject both those submissions. First, while not always elegantly expressed, there is sufficient criteria to allow evaluation of the views expressed by Mrs Smyth. Second, counsel for the Defendant identify in paragraph 23 of their written submissions that the relevant expertise required for this case is “in the characteristics of horses and steps which should be taken to assess temperament and suitability for riding under saddle”. It seems to me that the report of Mrs Smyth not only addresses both those critical matters, but she has identified specialised knowledge based on her experience to be able to provide an opinion on those matters.

28. Criticism is also made of the questions that Mrs Smyth was asked to address in her report as being irrelevant, not matters for expert evidence, and involving speculation or “attempting to determine a contested issue of fact”.

29. Senior Counsel for the Plaintiff argued that first, such issues are matters for consideration and determination by the trial judge in the context of the hearing and second, commenting on the factual issues from the standpoint of an experienced horsewoman, discussing the likelihood or otherwise of a horse behaving in a certain fashion, was entirely within her stated specialised knowledge and expertise.

30. I accept both submissions made by Senior Counsel for the Plaintiff and in particular that these are questions for the trial judge. There is no persuasive basis to make a preliminary ruling excluding Mrs Smyth, or her report from the case.

31. Whilst the questions posed to Mrs Smyth may be less elegant and precise than those posed to the Defendant’s experts, there is substantial common ground upon which the Court can be assisted by the experts’ jointly considered views. In particular, the preparations to ride the horse, and the meaning of the term “green broke” are covered in all the experts’ reports and have centrality to the liability issue.

32. In terms of the invitation to make preliminary rulings regarding the admissibility of certain parts of Mrs Smyth’s report, I decline to do so at this stage. Preliminary rulings of that nature have a real risk of creating an unfairness to the Plaintiff in circumstances where the full gamut of the lay evidence and issues are not before me. The trial judge will be in a position, having had the benefit of opening statements, statements of agreed and disputed issues, and all the lay evidence make properly informed determinations of those issues. Further, the trial judge can make determinations as to what, if any, of the evidence of Mrs Smyth or the other experts, for that matter, he or she accepts, and also to make evidentiary rulings regarding any of the contents of any of the reports and/or to limit the use to which the expert views can be put.

33. I accept that s 192A of the Evidence Act provides me with the discretion to make preliminary rulings such as the rulings sought by the Defendant, however for the reasons stated above, I decline to do so and accordingly I dismiss Order 1 in the notice of motion.

34. The second or alternative position proposed by the Defendant was that I should not order a conclave of the expert witnesses (or more correctly, I should vacate the orders already made by consent in November 2017). A further alternative position was offered in oral argument by Senior Counsel for the Defendant that I should order that the Defendant’s expert witnesses conclave together, excluding Mrs Smyth.

35. The latter proposal has nothing to recommend it. Quite apart from the fact that it is a different position to that contended for in the alternative order sought in the notice of motion, it would be a waste of time to have two experts who largely agree, conclave in the absence of the contradictory views contended for by the Plaintiff.

36. The machinery in place in this Court for the joint conferencing of expert witnesses, the production of a joint report, and the role of concurrent evidence is well-established. Its benefits are clear and there is no reason, having determined that Mrs Smyth has the requisite expertise and her report relevantly opines using that expertise, that Mrs Smyth should be excluded from the experts’ conclave. It seems to me that the objectives of just, quick and cost-effective disposal of the proceedings are well-served by that process being pursued as has already been provided for in the orders made by Registrar Bradford on 3 November 2017.

37. Whilst the Defendant making the application late in the proceedings a mere two months before the trial, in respect of a report it has held for twenty months is not a disqualifying factor on its own, I must take it into account in terms of the timing of the raising of the issue. It seems to me at this stage of the proceedings there must be a focus on clearly identifying and narrowing the issues for trial. The best way for that to be achieved is for the experts to attend a conclave and sort out what matters can be agreed upon and what are disputed, for the assistance of the trial judge.

38. To do so in no way hampers the trial judge’s discretion to deal with any and all of the expert evidence as he or she sees fit.

39. In the circumstances, I decline to make the alternative order sought in the notice of motion, and I decline to order a conclave limited to the two defendant’s experts as being of no utility.

Costs

Submissions

40. Senior Counsel for the Defendant submitted that the costs should be costs in the cause so that whoever is successful in the proceedings would have the benefit of the costs of this application.

41. Senior Counsel for the Plaintiff submitted that costs should abide the outcome of the notice of motion.

42. I am of the view that the notice of motion was both late and unsuccessful, and accordingly costs should follow the event. In accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), the Applicant/Defendant should pay the Plaintiff’s costs of the notice of motion.

Orders

43. Accordingly, I make orders as follows:

1. The Defendant’s notice of motion is dismissed.

2. The Defendant is to pay the Plaintiff’s costs of the notice of motion.

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Decision last updated: 11 May 2018