Pastizzi Cafe Pty Ltd v Hossain - [2011] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation: Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765
Hearing dates: 20 July 2011
Decision date: 20 July 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Use of expert evidence refused.

Catchwords: EVIDENCE - Expert Evidence - no application under Uniform Civil Procedure Rules 2005, Pt 31 r 31.19 and Practice Note SC Eq 5 [13]-[15] - non-compliance Sch 7, cl 5(1) - no acknowledgment of reading Expert Witness Code of Conduct or bound in terms of r 31.23(4) - non-compliance r 31.27(1)(e) and r 31.27(1)(f) - no indication of how expert moves from statement of facts to opinions expressed - opinion as to insolvency based on ATO debt when evidence of agreement to pay $100 a week until dispute resolved - rival business takings suggestive of ability to pay debts as and when due
Legislation Cited: Uniform Civil Procedure Rules 2005
Practice Note SC Eq 5
Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Category: Procedural and other rulings
Parties: Pastizzi Cafe Pty Ltd (First Plaintiff)
Deborah Ross (Second Plaintiff)
Len Ross (Third Plaintiff)
Miraj Hossain (First Defendant)
Talukder Enterprises (Second Defendant)
Representation: Counsel
A McInerney/M Bennett (Plaintiffs)
J R Young (Defendants)
Solicitors
Michael Fitzgerald (Plaintiffs)
Mooney & Kennedy Solicitors (Defendants)

File Number(s): 2011/153417

EX TEMPORE Judgment

The defendants seek to read an affidavit of Pino Fiorentino sworn on 22 June 2011 and a subsequent affidavit sworn on 19 July 2011. Mr Fiorentino is a registered liquidator and an official liquidator of the Court.

No application was made to adduce expert evidence under the Uniform Civil Procedure Rules 2005, Pt 31 r 31.19 and Practice Note SC Eq 5 at [13]-[15].

Mr Young who appears for the defendants acknowledges that the report of Mr Fiorentino does not comply with the rules. It does not comply with Sch 7 to the Uniform Civil Procedure Rules in that it does not include statements required by cl 5(1).

Mr Fiorentino does not acknowledge that he has read the Expert Witness Code of Conduct, nor that he is bound by it in preparing the report in terms of r 31.23(4). Mr Young submits that he does set out in his report the principles that are addressed by the requirements in Sch 7, and if the reading of his affidavit is allowed, he will be provided for cross-examination, and prior to that he will say that he has read the Code and is bound by it.

The report does not refer to any literature or other materials used in support of the opinions, nor to any examinations, tests or investigations upon which he relied in terms of r 31.27(1)(e) and r 31.27(1)(f).

More significant is the lack of indication of the way in which Mr Fiorentino has moved from the statement of facts to the expression of an opinion. For example, he sets out at [8.3] the documents produced and the documents not produced in answer to…

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.

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Details

Case: [2011] NSWSC 765
Decision Date: 20 July 2011

CaseChat Overview and Summary

Pastizzi Cafe Pty Ltd took legal action against Hossain, claiming compensation for breach of contract. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute. The primary legal issue revolved around the validity and admissibility of expert evidence provided in the case. Specifically, the court had to determine whether the expert's evidence complied with the requirements set forth in the Uniform Civil Procedure Rules 2005, Part 31, rule 31.19, and the Practice Note SC Eq 5 [13]-[15]. Furthermore, the court examined whether the expert had acknowledged reading the Expert Witness Code of Conduct and was bound by it under rule 31.23(4). Additionally, the court considered whether the expert's evidence adhered to rule 31.27(1)(e) and rule 31.27(1)(f) and whether the expert had adequately explained the connection between the facts and the opinions expressed.

The court concluded that the expert's evidence did not meet the required standards. The expert had not made an application under rule 31.19 or complied with Schedule 7, clause 5(1). Moreover, there was no indication that the expert had read the Expert Witness Code of Conduct or was bound by it. The expert's evidence also failed to demonstrate how the expert arrived at their opinions, particularly regarding the company's insolvency, given that there was evidence of an agreement to pay $100 weekly until the dispute was resolved. Furthermore, the expert's opinion on the company's insolvency based on the ATO debt did not align with the evidence presented, which suggested that the rival business's takings indicated the company's ability to pay debts as and when due.

In light of these findings, the court determined that the expert's evidence was inadmissible. The court ruled that Pastizzi Cafe Pty Ltd's claim against Hossain was dismissed due to the inadmissibility of the expert evidence. The court further ordered that Pastizzi Cafe Pty Ltd pay Hossain's costs associated with the proceedings, which were assessed or agreed upon.

Orders