Paino v Paino

[2005] NSWSC 1313

CITATION:	Paino v Paino [2005] NSWSC 1313
HEARING DATE(S):	07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 07/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05
JUDGMENT DATE :	13 December 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Report rejected

CATCHWORDS:	EVIDENCE - opinion evidence - valuation of foreign land - valuation report by two persons - evidence given by only one person, being person accepted as having relevant qualifications and experience - no indication of which parts of joint report attributable to each person - opportunity given for witness to be examined as to parts of report for which he is solely responsible - no satisfactory identification of such parts - report rejected
LEGISLATION CITED:	Evidence Act 1995, s.79
CASES CITED:	Cooke v Commissioner of Taxation (2002) 51 ATR 223 Cooke v Commissioner of Taxation (2004) 55 ATR 183
PARTIES:	Angela Paino - Plaintiff Salvatore Paino - Defendant
FILE NUMBER(S):	SC 5612/01
COUNSEL:	Mr I.G. Harrison SC/Mrs M.T. Bridger - Plaintiff Mr P. Hallen SC/Mr J.J. Millar - Defendant
SOLICITORS:	Kells The Lawyers - Plaintiff Meyer Pigdon - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 13 DECEMBER 2005

5612/01 - ANGELA PAINO v SALVATORE PAINO

JUDGMENT - On application to reject joint report of Mr Natoli and Mr Fumia. See p927 of transcript

1 Cross-examination of Mr Natoli has begun. Its early stages have concentrated on matters concerning instructions he was given and methodology he applied in the preparation of the report on the value of land on the island of Filicudi which is, according to its terms, a joint report of Mr Natoli and Mr Fumia. Both have signed it. However, there is an affidavit of Mr Natoli only and, as I understand the position, the plaintiff has elected not to seek to press Mr Fumia’s qualifications to express expert opinions in the field of property valuation with which the report is concerned. It is not proposed to lead evidence of Mr Fumia.

2 After the cross-examination of Mr Natoli had reached a certain point, counsel for the defendant made an application that the whole of the report be rejected.

3 The problem, as the defendant sees it, is that the second author of the report, Mr Fumia, has not complied with schedule K as in force at the date of the report or with schedule 7 as it now is and has not been shown to have relevant qualifications or expertise. Furthermore, the collaboration between Mr Natoli and Mr Fuimia has been such that the integrity of the expert's opinion, being the opinion of Mr Natoli, is called into question, since one cannot say which parts of the report have come from him and which have come from the co-author. The defendant says that he is prejudiced by the inability to know which matters are the work product of which author.

4 The plaintiff says, in response, that the fact that this is a joint report means, quite simply, that it is a report wholly subscribed to by each author, with the result that it should be regarded as representing the opinions of Mr Natoli, even though there is another author as well.

5 It was submitted by Mr Hallen SC, on behalf of the defendant, that the early stages of cross-examination should be regarded as the equivalent of a voir dire and, in a practical sense, I accept that. The questioning has shown joint authorship and inability, at this point, to distinguish between the two authors so far as authorship and responsibility for content are concerned.

6 The circumstances are thus the same as those which confronted Stone J in Cooke v Commissioner of Taxation (2002) 51 ATR 223. Her Honour there had before her a report prepared by two persons, but only one of them gave evidence. That is the position here. There was an objection to the whole of the evidence of the one expert who testified on the basis that the report was not prepared solely by that person and, as her Honour found, it was not possible to tell from the report which parts of it, if any, were prepared solely by the person who gave evidence. The other joint author was not called and there was no plan to call him.

7 Stone J said:

“To be admissible, an expert opinion must be wholly or substantially based on the expert witness’s specialised knowledge; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 per Branson J at [12]. This requirement clearly cannot be met if it is partly based on the knowledge or opinion of someone else. I was not prepared, however, to exclude this report, comprising as it did, the whole of the respondent’s evidence without giving the respondent the opportunity to elicit (in non-leading questions) evidence from Mr Geurtsen as to the parts (if any) for which he had been solely responsible. This approach is consistent to the approach referred to with approval in Rhoden v Wingate [2002] NSWCA 165 per Heydon JA at [61] which was decided after the hearing of this case.”

8 This aspect of Stone J’s decision was not challenged in the subsequent appeal: Cooke v Commissioner of Taxation (2004) 55 ATR 183.

9 I propose to adopt the course taken by Stone J and to grant leave to the plaintiff to examine this witness, Mr Natoli, by means of non-leading questions so that he may inform the court of the parts of the joint report, if any, for which he has been solely responsible.

[Mr Natoli was further examined. Counsel addressed.]

10 Mr Natoli has given answers to the effect that he was solely responsible for the technical work of valuation which was based on data in the form of information about prices that had been assembled by Mr Fumia. The report, however, particularly at the bottom of page 53 and the top of page 54, describes the methodology both authors adopted:

“In conducting our valuation of the real estate properties we, the undersigned, adopted the empirical system, i.e., after completing the appropriate appraisals and assessments, we calculated an average of the unit prices applied in previous sales of real estate properties having the same intrinsic and extrinsic features, applying a valuation parameter expressed in square metres.”

11 On its face, the report states that Mr Fumia, a person not shown to have relevant qualifications and expertise, participated in those activities, along with Mr Natoli. The explanation Mr Natoli has given of the division of work is not one that enables me to draw any clear line of demarcation when it comes to knowing which parts of the report are the parts for which he is solely responsible. He has done no more than describe the activities performed by him and Mr Fumia in producing what is a collaborative joint report. He has spoken only of being solely responsible for certain functions, not for particular parts of the report.

12 I am left, I think, in a position where I must accept the report at face value and conclude that both authors together followed the course that is stated at the bottom of page 53 and the top of page 54.

13 That brings into stark relief the observations of Stone J, to which I have referred:

“To be admissible, an expert opinion must be wholly or substantially based on the expert witness's specialised knowledge … This requirement clearly cannot be met if it is partly based on the knowledge or opinion of someone else.”

14 This, of course, is a fundamental derived from s.79 of the Evidence Act 1995:

“ Exception: opinions based on specialised knowledge

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.” [emphasis added]

15 On the material before me, I cannot but conclude that this report is based upon the knowledge of Mr Fumia, in addition to being based on the knowledge of Mr Natoli. I cannot conclude that it is based “wholly” or even “substantially” on Mr Natoli’s knowledge.

16 On that basis, I have no alternative but to reject it.

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