Pan Pharmaceuticals Ltd (in liq) v Selim - [2008] FCA 416

FEDERAL COURT OF AUSTRALIA
Pan Pharmaceuticals Limited (In Liquidation) v Selim [2008] FCA 416
EVIDENCE – expert evidence – opinion rule – admissibility of experts’ reports under section 79 of the Evidence Act 1995 (Cth) – whether evidence is based on specialised knowledge based on training, study or experience – whether the facts and assumptions upon which the opinions are based are adequate – whether evidence is more than a bare ipse dixit
EVIDENCE – general discretion to exclude evidence – section 135 of the Evidence Act 1995 (Cth) – leave to file evidence out of time – whether probative value is substantially outweighed by prejudicial effect – whether admissible opinion evidence is of significant probative value if the facts and assumptions upon which the opinion are based are inadequately detailed in an expert’s report – effect of expert’s involvement in preparation of one party’s case including involvement in drafting of that party’s statement of claim – whether expert is sufficiently independent
Evidence Act 1995 (Cth) ss 79, 80, 135
Therapeutic Goods Act1989 (Cth)
Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313
HG v The Queen (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146
R v Tang (2006) 65 NSWLR 681
IN THE MATTER OF PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION) & ANOR v JAMES SELIM
NSD 489 OF 2004
EMMETT J
2 APRIL 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 489 OF 2004

IN THE MATTER OF PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION)

BETWEEN:

PAN PHARMACEUTICALS LIMITED
First Plaintiff

ANTHONY MCGRATH AND CHRISTOPHER HONEY AS LIQUIDATORS FOR PAN PHARMACEUTICALS LIMITED
Second Plaintiff

AND:

JAMES SELIM
Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

2 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 489 OF 2004

IN THE MATTER OF PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION)

BETWEEN:

PAN PHARMACEUTICALS LIMITED
First Plaintiff

ANTHONY MCGRATH AND CHRISTOPHER HONEY AS LIQUIDATORS FOR PAN PHARMACEUTICALS LIMITED
Second Plaintiff

AND:

JAMES SELIM
Defendant

JUDGE:

EMMETT J

DATE:

2 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BACKGROUND
THE LIQUIDATORS’ CASE AGAINST MR SELIM
THE DISPUTED REPORTS
RELEVANT PRINCIPLES AS TO ADMISSIBLITY
THE GMP REPORT
Mr Williams Training, Study and Experience
Section 2 of the GMP Report
Section 1 of the GMP Report
Sections 3 and 4 of the GMP report
Sections 5, 6 and 7 of the GMP Report
The Deficiencies of the GMP Report
THE REMEDIATION COSTS REPORT
THE CLARK REPORT
Dr Clark’s Lack of Objectivity
Dr Clark’s Lack of Specialised Knowledge
CONCLUSION
BACKGROUND

The second plaintiffs, Anthony McGrath and Christopher Honey (the Liquidators), are the liquidators of the first plaintiff, Pan Pharmaceuticals Limited (Pan). The Liquidators have brought this proceeding in…

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.

Keep reading for free

Create a free CaseChat account to read Pan Pharmaceuticals Ltd (in liq) v Selim and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FCA 416
Decision Date: 2 April 2008

CaseChat Overview and Summary

The case of Pan Pharmaceuticals Ltd (in liq) v Selim involves ongoing litigation that has been proceeding for several years, with a hearing scheduled to commence on 2 June 2008. The primary dispute revolves around the Liquidators' attempts to rely on expert evidence concerning alleged breaches of duty by Mr. Selim. This evidence includes opinion evidence under sections 79 and 80 of the Evidence Act 1995. The crux of the matter is the Liquidators' failure to adhere to the Court's specific directions regarding the timely filing of expert evidence, despite multiple opportunities to comply. The Liquidators had been ordered to serve all relevant expert affidavits by certain deadlines, which they failed to meet without providing a satisfactory explanation.

The legal issues before the court pertain to the admissibility of the late-filed expert evidence. Specifically, the court had to determine whether the expert reports prepared by Dr. Julian Maxwell Clark and Stephen John Williams should be admitted and, if so, how much weight should be accorded to them. The court considered whether the admission of these reports would result in unfair prejudice to Mr. Selim and whether it would be an inefficient use of judicial and court resources. Furthermore, the court had to assess the relevance and reliability of the expert evidence presented by the Liquidators, particularly given the lateness of their submission.

In rendering its decision, the court emphasised the importance of compliance with court-imposed deadlines and the procedural rules governing the presentation of evidence. The court noted that the Liquidators had failed to provide a satisfactory explanation for their non-compliance and had not sought an extension of time in a timely manner. The court found that the expert evidence in question lacked significant evidentiary weight due to the broad generalisations made by Dr. Clark and the late submission of the reports. Moreover, the court concluded that admitting the reports at that stage would unfairly prejudice Mr. Selim and would result in a substantial waste of judicial and court resources. Consequently, the court decided not to admit the reports, though it left open the possibility of limited admission at an appropriate time.

The court's orders reflect its decision to exclude the Disputed Reports from being admitted as evidence at this stage. The court's ruling ensures that the proceedings remain fair and efficient, while also highlighting the importance of adhering to court-imposed deadlines. The Liquidators were denied the opportunity to rely on the late-filed expert evidence in their case against Mr. Selim, thereby maintaining the integrity and efficiency of the judicial process.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The proceeding has been on foot for some years and it is presently fixed for hearing commencing on 2 June 2008. Questions have arisen concerning the extent to which the Court should permit the Liquidators to rely upon expert evidence concerning aspects of the operations of Pan that are alleged to have resulted in breach of duties by Mr Selim, including opinion evidence under ss 79 and 80 of the Evidence Act 1995 (the Evidence Act). The questions arise in a context where the Liquidators have failed to comply with the Court’s directions in relation to the filing of such evidence. On 9 June 2006, the Court ordered that, by 1 December 2006, the Liquidators serve, inter alia, all affidavits, both lay and expert, on which they wish to rely. On 16 November 2006, because the Liquidators were unable to comply with that order, the Court ordered that that order be vacated and that, by 31 May 2007, the Liquidators serve all lay affidavits on which they intend to rely and all expert affidavits on which they intend to rely. However, on 12 March 2007, those orders were also vacated and the Court ordered that the Liquidators serve all lay affidavits on which they intend to rely and all expert affidavits on which they intend to rely by 31 May 2007. The Liquidators failed to comply with the directions of 12 March 2007 so far as they concern expert opinion evidence. No satisfactory explanation has been provided for the failure, other than that the task was more complex and the identification of appropriate experts was more difficult than had been anticipated. It is somewhat surprising that no attempt was made by the Liquidators and their advisers, until well after 31 May 2008, to have the matter relisted for the purpose of proffering some explanation and seeking an extension of time for compliance with the directions. Notwithstanding that they failed to comply with the directions, the Liquidators indicated at a directions hearing on 25 September 2007 that they wished to rely on three reports (the Disputed Reports), relating to expert evidence, as follows:·reports of Stephen John Williams dated 3 September 2007 (the GMP Report) and 10 October 2007 (the Remediation Costs Report); and·a report of Dr Julian Maxwell Clark dated 6 September 2007 (the Clark Report).The Court ordered the Liquidators to file and serve a motion in relation to variation of the then current orders for filing the Liquidators’ evidence, together with any supporting affidavits on which they wish to rely. The motion and affidavits were to be filed by 3 October 2007 and the motion was initially listed for hearing on 12 October 2007. In addition, each party was directed to serve on all other parties an outline of the opinion or expert evidence on which that party proposed to rely as follows:·The Liquidators: by 19 October 2007;·Mr Selim: by 5 November 2007; and·All other parties (cross-respondents): by 22 November 2007. The Liquidators filed an outline pursuant to that direction, explaining the reliance that they wished to place on the Disputed Reports.

Decision

Reasons for decision

EMMETT J

I do not regard Dr Clark’s report or his affidavit of 6 December 2007 as having any significant evidentiary weight on the limited basis upon which the Liquidators seek to have the material admitted. In order to test the assertions made by Dr Clark, it would be necessary for Mr Selim’s counsel to spend an inordinate time in cross-examining Dr Clark as to the specific matters about which he makes broad generalisations. That is both unfair for Mr Selim and a substantial waste of time and costs, particularly in circumstances where the Clark Report was produced some four months and the affidavit some six months after the time fixed by the Court for the filing of expert evidence. CONCLUSION To the extent that the Disputed Reports contain admissible evidence, they should be accorded very little, if any, weight. On the other hand, the admission of the Disputed Reports at this stage would be unfairly prejudicial to Mr Selim. In addition, substantial judicial and court time, involving substantial cost, would be occupied by the examination of the content of the Disputed Reports. Accordingly, in circumstances where the Liquidators failed to comply with the Court’s explicit directions, I do not propose to admit the Disputed Reports, although I may, at an appropriate time, to a limited extent, admit them as submissions.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 489 OF 2004

JUDGE:	EMMETT J
DATE OF ORDER:	2 APRIL 2008
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 489 OF 2004

JUDGE:	EMMETT J
DATE:	2 APRIL 2008
PLACE:	SYDNEY