Pool (a pseudonym) v Trustees of the Marist Brothers Property Group (No 2)
[2021] ACTSC 82
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pool (a pseudonym) v Trustees of the Marist Brothers Property Group & Anor (No 2) |
Citation: | [2021] ACTSC 82 |
Hearing Date: | 4 May 2021 |
DecisionDate: | 5 May 2021 |
Before: | Elkaim J |
Decision: | See [22] |
Catchwords: | CIVIL LAW – EVIDENCE – Admissibility of Affidavit – Leading questions – admissibility of expert report – whether a requirement of a professional negligence claim |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1203(2)(a) |
Cases Cited: | Moss v Eaglestone [2011] NSWCA 404; 257 FLR 96 |
Parties: | Peter Pool (a pseudonym) (Plaintiff) Trustees of the Marist Brothers Property Group Jason Dean Parkinson t/as Porters Lawyers (Second Defendant) |
Representation: | Counsel G Stretton SC (Plaintiff) D Villa SC (Second Defendant) |
| Solicitors Sneddon Hall & Gallop (Plaintiff) McInnes Wilson Lawyers (Second Defendant) | |
File Number: | SC 149 of 2019 |
ELKAIM J:
These reasons deal with the admissibility of two separate documents.
The first is the affidavit of Ms Pool (a pseudonym), affirmed on 4 August 2019. The second defendant objected to the whole of the affidavit. I allowed it to be read. These are my reasons.
The affidavit is in a somewhat unusual form. After some introductory comments Ms Pool states that she attended a conference with a barrister, Mr Buckland, on 19 March 2019. A transcript of the conference was prepared. The transcript is annexed to the affidavit and put forward, in effect, as the evidence in chief of Ms Pool.
The only objection taken was that the transcript was made up of questioning in a leading fashion which would have contradicted the rules relating to evidence in chief. It is correct that some of the questions are leading.
I think the relevant evidence is essentially based on non-leading questions, subject to some questions of clarification which would have been permitted had Ms Pool given the answers in court.
No prejudice arose to the second defendant who was able to, and did, cross-examine Ms Pool. The cross-examination itself revealed that the significant points at issue between the parties were not the product of leading questions asked by Mr Buckland.
I note that a particular sentence on page 4 of the transcript was also objected to, but not pressed by the plaintiff.
The next document covered by these reasons is an “Advice” by Mr David Richards OAM dated 25 April 2021 in which he assesses the value of the plaintiff’s claim had it been the subject of litigation and not been settled in March 2010. It is to be recalled that the plaintiff’s allegation in this case is that he was coerced into settling his claim for an amount well below its actual value.
Mr Richards endeavours to assess the actual value.
The second defendant had three objections to the document. First, he said it was not an expert report because it is entitled an “Advice” and is signed by Mr Richards as “Counsel for the Plaintiff”.
Second, the second defendant said that the advice failed to acknowledge the ACT expert witness code.
Third, the second defendant submitted that the subject of the report was not admissible as expert evidence in a case of the current type, rather it was no more than a submission as might be made on behalf of the plaintiff. In this regard I suggested to the second defendant that the plaintiff might rely on the document as a submission on quantum. The second defendant accepted that was a legitimate possibility.
I think the first two objections are without merit. Notwithstanding the title of the document and the words accompanying the final signature it is clearly intended to be a report on quantum.
As to the failure to acknowledge the expert witness code in the report I think that the email sent by Mr Richards to his instructing solicitor, and forwarded to the solicitor for the second defendant, adequately covers this requirement. Rule 1203(2)(a), of the Court Procedures Rules 2006 (ACT), says the acknowledgement must be in writing “whether in a report relating to the proposed evidence or otherwise in relation to the proceeding…” I think the email fits within the scope of “otherwise in relation to the proceeding”.
Further, if I am wrong, I would have given leave, under r 6, to dispense with the relevant parts of r 1203. The purpose of the latter rule is to ensure that the expert acknowledges the code of conduct. In this case this has been achieved by the email.
I do think the third objection is valid. The plaintiff said that a report in the nature of that prepared by Mr Richards was a requirement of an action against a solicitor. To this end the plaintiff relied on the decision in the New South Wales Court of Appeal in Moss v Eaglestone [2011] NSWCA 404; 257 FLR 96.
Allsop P (as His Honour then was) set out the requirements of a claim against a solicitor who has wrongfully failed to pursue an action on behalf of a client. His Honour pointed out, [at 21] that:
The task of the court (if liability be shown) is to value the lost right or chose.
His Honour then continued at [25]:
…What is clear, however, is that in seeking to prove the value of the lost chose, the plaintiff would be entitled and required to lead evidence of what would or might have occurred at trial by way of appropriate evidence to be led. Thus, it would be important in the preparation and running of any such case for the plaintiff to bring the best available evidence that would have been available, including in particular the evidence on damages, had the matter been prepared and brought to trial by the solicitor in the manner and at the time required by good practice or by following instructions.
The plaintiff submitted that this passage required him to submit, as expert evidence, an opinion such as that provided by Mr Richards. I disagree. I think the passage is saying that the obligation is on the plaintiff to lead evidence “that would have been available” at the time when the lost action would have proceeded. I think the plaintiff has already done so in this case. The plaintiff has led evidence of his condition at the time, he has provided economic loss documents and the medical reports that were commissioned by his solicitor in preparation for his case, and which would have been relied upon, had the litigation not been resolved.
The plaintiff will be free to essentially rely on the same matters, such as comparable cases, as those referred to by Mr Richards. As stated above, the plaintiff might even use Mr Richards opinion as a submission. But in my view the opinion is not evidence. It is simply an expression of a submission on quantum.
Finally I note that one of the deponents of an affidavit relied upon by the second defendant, Mr Blain, states in his affidavit, at [23] that in January 2010 (two months before the case was settled) he made a “modest assessment of the value of the plaintiff’s claim” of $160,000 plus costs. Senior counsel for the plaintiff said that a finding to this effect would not be challenged by the plaintiff.
Accordingly:
(a)I confirm my leave to the plaintiff to read the affidavit of Ms Pool affirmed on 4 August 2019.
(b)I reject the tender of the report of Mr Richards OAM dated 25 April 2021.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 5 May 2021 |
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