Mulkearns v Chandos Developments Pty Ltd

[2003] NSWSC 1084

CITATION:	Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084
HEARING DATE(S):	18/11/03
JUDGMENT DATE:	18 November 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	The evidence is inadmissible because it is not shown that the plaintiff had the specialised knowledge necessary to give opinion evidence as an expert under s 79 of the Evidence Act 1995.
CATCHWORDS:	EVIDENCE [56]- Expert evidence- Valuation- Minimum expertise required- Keeping database of local sale prices insufficient.
LEGISLATION CITED:	Evidence Act 1995, ss 11, 79
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
PARTIES :	Anthony Michael Mulkearns and High Forest Estate Pty Ltd (P) Chandos Developments Pty Limited (D)
FILE NUMBER(S):	SC 4016/03
COUNSEL:	V R W Gray (P) C A Sweeney QC and W Hodgekiss (D)
SOLICITORS:	James H Field (P) Stephen Noss & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 18 November 2003

4016/03 - MULKEARNS v CHANDOS DEVELOPMENTS PTY LTD

JUDGMENT (Re admissibility of evidence: see p 13 of transcript)

1 HIS HONOUR: In affidavit PA04 the first plaintiff said:

“I am a licensed real estate agent. As at the date of this affidavit I believe that the market value of the property the subject of the contract is approximately $4 million ... “

That was objected to and I rejected it.

2 When the witness was introduced, principally for the purpose of cross-examination on his four affidavits filed in these proceedings, Mr Ventry Gray of counsel for the plaintiff sought to supplement the evidence. Mr Sweeney QC for the defendant objected, but I allowed the questions to continue for a while.

3 However, it now would appear to me that I should have had the witness sworn on the voir dire because the real problem is whether he has sufficient expertise to be of assistance.

4 Mr Gray points to the fact that s 79 of the Evidence Act 1995 says that:

“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.”

5 He submitted that so long as a person gets to the stage of knowing more than the average lay member of the public that the person fits within s 79.

6 However, as Professor Zukerman points out in his book on Civil Procedure (Lexis Nexis, London, 2003) p 619 [20.11] Court Power:

“The court's power concerning expert evidence is exercised with a view to ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issue and that it is obtained and presented in the most effective and economical way consistent with the overriding objective.”

7 Of course, the learned Professor is writing in relation to the reforms in England, but the same flavour permeates through our Evidence Act, in that the basal concept is that it is only if the evidence is relevant that it should be admitted, and relevance has a lot to do with how the court can be assisted on the issues that are before it.

8 The court has control over the evidence before it, as is clear from s 11 of the Evidence Act. When one is considering the admissibility of expert evidence under s 79, one must direct one's mind as to whether the material is likely to assist the court. It may be in some cases that a person can give a view based on the fact that that person has very limited knowledge, but more knowledge than the average member of the community, and that evidence will be admitted but given very little weight. There will also be cases on the other side of the line.

9 However, courts must be very careful to ensure that expert evidence is professionally handled. This is made clear by the judgment of Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729-730, where his Honour said that it is not enough merely to have an expert voice an opinion, but the court is bound to look at the reasons for that opinion and to assess the expert opinion together with everything else.

10 Seminars on expert evidence have shown that too lax an application of s 79 leads to some litigants discarding the opinions of leading experts and proffering to the Court the views of a person who whilst technically an expert holds other than mainstream views.

11 Again courts may be diverted from their search for the truth by the views of "borderline experts".

12 The Makita case reinforces the view that trial judges should be careful only to pay regard to the evidence of sound experts who can state the reasons that support their views.

13 The Supreme Court Rules make it clear that for expert evidence to be admissible there should be a statement by the witness under schedule K to the rules showing that the witness understands the duty to the court, and shows that he or she is there to assist the court arrive at the truth.

14 In England the position has been taken that where a person is a party, or a close friend of a party, the evidence should not be received. That has not been the position in Australia and expert evidence is admissible, under proper conditions, from a party, or a close associate of a party, who shows the appropriate expertise.

15 However, when one gets the situation where a party, without even paying lip service to schedule K, gets into the box and tries to give expert evidence, when there is no reason why the availability of first class expert evidence has not been presented, then that party starts behind scratch.

16 In the instant case, a question in the case, although only a peripheral one, is whether the relevant property appreciated in value between the date of contract and the present day.

17 On that the plaintiff could have called expert evidence from a valuer or very experienced real estate agent. He is currently a real estate agent, though his full licence has lapsed and only recently been renewed. He shows that he was a property developer in the surrounding area, but not necessarily in Dural (the suburb with which we were concerned) itself for a number of years and he has been involved in many land transactions. He has what he calls a database, but that is not necessarily anything more than a person keeping a record of sale prices for their own use. The data included may contain material which would not be considered by a professionally trained valuer to be any reliable guide to current value of the land in question. Possessing a database does not necessarily convert the person possessing it into one who is more able to give a soundly based opinion on reasons as to the value of real property than any other member of community.

18 Mr Gray has valiantly tried for about 20 minutes, perhaps more, to get this man qualified to give evidence. I respect his attempts. It seems to me, however, that he will not get over the barrier and in controlling this trial I must now rule that the evidence is inadmissible.

Last Modified: 11/25/2003