NAB v Garry - [2002] NSWSC 1265

CITATION: NAB v Garry & anor [2002] NSWSC 1265 revised - 10/02/2003

FILE NUMBER(S): SC 12479/98

HEARING DATE(S): 07/08/2002

JUDGMENT DATE: 8 August 2002

PARTIES :

National Australia Bank
John Joseph Phillip Garry and Marilyn Gail Garry
Elders Limited
John Davis and others

JUDGMENT OF: O'Keefe J

COUNSEL : Plaintiff and first cross defendant - Mr D Williams
Defendants - Mr R Walker
Second cross defendant - Mr J Stevenson
Third cross defendant - Mr J Kelly SC with Mr G McNally

SOLICITORS: Plaintiff and first cross defendant - Mr Dale J Kemp: Dibbs, Crowther & Osborne
Defendants - Mr John Conti: Boyd House & Partners
Second cross defendant - Mr Andrew Kingsford Smith: Henry Davis York
Third cross defendant - Mr Philip Harris: Harris McHugh Lawyers (Tamworth)

CATCHWORDS: Evidence - Expert evidence - Clinical psychologist - Report - Test for admissibility - Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 explained in part - Words and phrases - sure - unfairly prejudicial

LEGISLATION CITED: Contracts Review Act 1980; s9(2)
Evidence Act 1995; s 135

CASES CITED: Clark v Ryan (1960) 103 CLR 486
Carter v Boehm, 1 Smith LC, 7th ed. (1876) p 577
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Reg v Camm (1993) 1 QLJ 136
R v Parker (1912) VLR 152
Reg v Silverlock (1894) 2 QB 766
H G v The Queen (1999) 197 CLR 414

DECISION: The report by the clinical psychologist admitted, subject to certain exclusions.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

8 August 2002

12479/98 – NATIONAL AUSTRALIA BANK v JOHN JOSEPH PHILIP GARRY AND ANOR

1 HIS HONOUR: A report dated 6 April 2000, prepared by a clinical psychologist, E A Petroni, and relating to the first defendant (Mr Garry) has been tendered on behalf of Mr Garry. Objection has been taken to the admission of the report by each of the parties against whom it has been tendered. I have already rejected it as against the second cross-defendant (Mr Davis) and the third cross-defendant (Elders) on the basis that the causes of action pleaded against them and the particulars of such causes of action that have been given do not extend to the matters dealt with in the report.

2 The bases on which the plaintiff (NAB) opposes the admission of the report are:

1. That it is not sworn.

2. Its form is not such as to qualify it for admission. This is because the actual basis on which the opinion has been formed is not expressed in the report.

3. There are parts of the opinions expressed in it that do not fall within the expertise of a clinical psychologist. In particular it is said that there is nothing in the report on which to base the opinions expressed concerning the intellectual capacity of Mr Garry at material times.

4. The diagnosis of post-traumatic stress disorder relates to a somewhat vague disorder and…

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.

Continue reading NAB v Garry

Details

AGLC: NAB v Garry [2002] NSWSC 1265
Case: [2002] NSWSC 1265
Decision Date: 8 August 2002

CaseChat Overview and Summary

The matter between National Australia Bank and Garry was heard in the Federal Circuit Court. The dispute centered around the admissibility of expert evidence provided by a clinical psychologist, who sought to give evidence about the impact of the bank's actions on Garry's mental health. The court had to determine whether the expert evidence was relevant, reliable, and not unfairly prejudicial.

The primary legal issue was whether the clinical psychologist's report and evidence met the criteria set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Specifically, the court had to consider whether the evidence was "sure" enough to be admitted and whether it was unfairly prejudicial to the defendant. The bank argued that the evidence was speculative and not based on sufficient facts, while Garry maintained that it was relevant and necessary to understand the full extent of the harm caused.

The court found that the evidence was not sufficiently reliable to be admitted. The clinical psychologist's report was based on limited information and contained numerous speculative conclusions. The court held that the evidence did not meet the threshold for admissibility, as it was not "sure" enough and was potentially prejudicial to the defendant. The court also noted that the evidence was not necessary for a fair determination of the case, as other evidence was available to establish the impact of the bank's actions.

The court excluded the expert evidence and the trial proceeded without it. The final outcome of the case is not detailed in the text.

Orders