Peri Australia Pty Limited v Celtic Form Pty Limited (No 2)

[2009] NSWDC 394

CITATION:	Peri Australia Pty Limited v Celtic Form Pty Limited (No 2) [2009] NSWDC 394
JUDGMENT DATE:	6 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence is allowed.
CATCHWORDS:	CIVIL LAW - evidence - admissibility of evidence on grounds of breach of opinion rule - building proprietor no formal qualifications but own experience - expert reports
PARTIES:	Peri Australia Pty Limited v Celtic Form Pty Limited
FILE NUMBER(S):	6111/08
COUNSEL:	Mr H Stitt (for the plaintiff) Mr B Hull (for the defendant)

JUDGMENT

1. Mr Stitt has objected to evidence being led from this witness, Frank McGuire. Frank McGuire is the second defendant in these proceedings. The objection focuses on evidence being given by Mr McGuire about problems which Mr McGuire asserts he and the first defendant, Celtic Form Pty Limited -of which he was the sole director - encountered on a building site on which they were undertaking work. It is their case that the problems they encountered were the result of breaches of a contract between the first defendant and the plaintiff.

2. Mr Stitt’s objection focuses on Mr McGuire’s evidence about the nature of the problems which he and his company encountered in doing the building work. Examples of the nature of the problems are contained in paras 32 and 33 of exhibit 1.

3. Mr Stitt argues that the evidence being given by Mr McGuire is opinion evidence and that Mr McGuire is not qualified to give that evidence. Mr Hull a short time ago led evidence from Mr McGuire to the effect that he has been working in the field which he and his company were working in in this case since 1991. Although he has no formal qualifications, he has worked continuously since 1991 all around the world.

4. I accept on the basis of that evidence that Mr McGuire is qualified to give any evidence which may require particular experience and which may involve opinions.

5. Mr Stitt however further argues that if this is opinion evidence then it follows that Mr McGuire’s statement, exhibit 1, is an expert’s report. He argues that it was not put forward as an expert’s report and he is not in a position to meet it. Mr McGuire’s statement is dated 18 August 2009 and was filed in the court on 20 August 2009. It was served on the plaintiff’s solicitors on the day that it was filed and reached them no later than 24 August 2009.

6. One can readily understand, in my opinion, why the statement may not have been put forward as an expert’s report. It is a statement by a man who was the sole proprietor of his own building company, to use a general term, about problems which he had in doing certain work. In a sense no expertise is required to describe events that happen in the process of undertaking building work. To the extent that Mr McGuire attributes any problems to particular sources or says that they were encountered for particular reasons that may involve some expertise. However I do not regard the second defendant as having breached any rule about the service of expert reports and if they have, then I would grant leave to lead the evidence.

7. A reading of Mr McGuire’s statement which has been with the defendant’s solicitors since 24 August 2009 clearly, in my opinion, raises the issues which are now raised by Mr Stitt. Whether or not he needs to call expert evidence is a matter which he has raised before and, in turn, may depend upon a ruling on a legal issue which has arisen between the parties. The nature of that evidence however relates to a pleading referring to a cross-claim which is slightly different to this point. The evidence being given by Mr McGuire on this point specifically relates to what he claims were problems associated with a breach of the contract by the plaintiff. My understanding of Mr Stitt’s previous objections to the matter proceeding without expert evidence related to expert evidence concerning any rectification work which the second defendant claims had to be done as a result of the plaintiff’s breach of contract.

8. The matter was said to be ready for hearing subject to that matter concerning the rectification about which I have made a ruling. It is a matter in my opinion for counsel and those instructing counsel to determine whether a statement raises issues which render the statement an expert report or not. This is a matter which they had to determine when they saw the statement on 24 August 2009. On this specific point of the problems encountered, it was a matter which ought to have been raised at that time or before the matter was said to be ready to proceed.

9. If Mr McGuire’s statement is regarded as an expert report, then I propose to allow it to be led, partly because there was no point taken until today about this specific objection. However I have reservations about whether the evidence presently the subject of objection is opinion evidence or not.

10. For those reasons I propose to allow the evidence.

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