Portal Software v Bodsworth

[2005] NSWSC 1228

CITATION:	Portal Software v Bodsworth [2005] NSWSC 1228
HEARING DATE(S):	17 October 2005
JUDGMENT DATE :	17 October 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	EVIDENCE – Expert evidence – expert witness code of conduct – where late affidavit complies with expert witness code but earlier does not – affidavit evidence – whether expert’s affidavit is “report” or “oral evidence” – held, it is “oral evidence” – dispensing with strict requirements of code.
LEGISLATION CITED:	Uniform Civil Procedure Rules Pt 31 r 23 Evidence Act s 135
CASES CITED:	Barack v WTH Pty Limited [2002] NSWSC 649 Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 Jermen v Shell Co of Australia Ltd [2003] NSWSC 1106 Langbourne v State Rail Authority [2003] NSWSC 537 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870
PARTIES:	Portal Software International Pty Ltd (plaintiff) Jason Bodsworth (defendant)
FILE NUMBER(S):	SC 3250/05
COUNSEL:	R Alkadamani (plaintiff/respondent) M White (defendant/applicant)
SOLICITORS:	Haywards Solicitors (plaintiff/respondent) Watkins Tapsell (defendant/applicant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

MONDAY 17 OCTOBER 2005

3250/05 PORTAL SORTWARE INTERNATIONAL PTY LTD v JASON BODSWORTH (No. 2)

JUDGMENT - (On admissibility of affidavits of Mitchell Bezzina; see p 46 of the transcript.)

1 HIS HONOUR: Mr Alkadamani, for the plaintiff, seeks to read two affidavits of Mitchell Bezzina sworn 17 October 2005. Mr Bezzina previously swore an affidavit on 23 August 2005 and a supplementary affidavit on 4 August 2005. The affidavits of 17 October 2005 are in substitution for and in substantially identical terms to those earlier affidavits, save that they include the following:

I have read the Expert Witness Code of Conduct Schedule 7 to the Uniform Civil Procedure Rules. I agree to be bound by the Schedule 7. Further, I specifically confirm that in swearing this affidavit, and to swearing my affidavit of 23 August 2005, I have done so in accordance with the obligations set out in, inter alia, clause 2 and clause 4 (of the Expert Witness Code of Conduct).

2 No similar reference to the Expert Witness Code appeared in the earlier affidavits.

3 Uniform Civil Procedure Rules, Pt 31 r 23 provides relevantly as follows:

(2) Oral evidence may not be received from an expert witness unless:
(a) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the Code of Conduct and agrees to be bound by it, and
(b) a copy of the acknowledgment has been served on all parties affected by the evidence.

(3) If an expert’s report does not contain an acknowledgment by the expert witness who prepared it that he or she has read the code of conduct and agrees to be bound by it:
(a) service of the report by the party who engaged the witness is not valid service, and
(b) the report is not admissible in evidence.

(4) This rule applies unless the Court orders otherwise.

4 The importance of compliance with the requirements of this rule was emphasised in a proceeding in the Commercial List by Einstein J in Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980. In that case, however, the witness was unaware of the code at the time when the report was prepared, and his Honour was not prepared to allow the deficiency to be rectified by supplementary report or oral evidence at the hearing, with the consequence that the expert evidence was excluded.

5 Other cases, however, have indicated that non-compliance may be excused where the Court is satisfied that the report was in fact prepared in compliance with the Code [Barack v WTH Pty Limited [2002] NSWSC 649 (a case in which the witness was aware of the code when the report was prepared); Langbourne v State Rail Authority [2003] NSWSC 537 (where the witness sufficiently confirmed that the report was prepared in accordance with the obligations imposed by the code, after later being appraised of its content); see also Jermen v Shell Co of Australia Ltd [2003] NSWSC 1106]. The Court may dispense with the Rules where it is otherwise satisfied of the likely impartiality of the opinions specified in the report [United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870]. It has not infrequently been accepted that the decision of Einstein J can be distinguished inter alia on the basis that it was a commercial cause in which a higher degree of alertness to strict compliance with procedural requirements may be insisted upon than might be the case, for example, in some of the personal injury cases heard in the Common Law Division.

6 Were it necessary to do so, I would otherwise order for the purposes of r 31.23(3), on the basis that whether or not the witness was aware of the Expert Witness Code of Conduct when he swore his original affidavit on 23 August 2005, he has after being made aware of the code of conduct confirmed that he prepared the earlier affidavit in accordance with the obligations which the code contains.

7 However, I do not think it is necessary to do so. The rule distinguishes between oral evidence being received from an expert, and the tender of an expert's report. The rule does not deal explicitly with evidence by affidavit. Generally speaking, an affidavit is regarded as a substitute for oral evidence, rather than as a report. What is sought in this case is to read an affidavit. I would regard this as the adducing of oral evidence within r 31.23(2), rather than the tendering of a report under subrule (3). That being so, the affidavits which are read (being those of 17 October) do include a statement by which the witness acknowledges in writing that he has read the code of conduct and agrees to be bound by it, and a copy of that has been served, albeit only today, as I understand it, on the defendant. Accordingly, I do not think there has been a failure to comply with r 31.23(2).

8 Next, objection is taken to Mr Bezzina’s affidavit on the ground of relevance. It is inappropriate that I say too much on this issue at the moment, but it seems to me that potentially the matters covered in Mr Bezzina's affidavits might be relevant to the presence of confidential information on the hard disk drive of Mr Bodsworth’s personal computer, to explaining why evidence might be unavailable for the plaintiff to prove misuse of such information, and to the risk of non-compliance by the defendant with obligations as to confidence binding on him, if it is established that there are such obligations.

9 Finally, objection is taken on the basis of the Evidence Act s 135, it being said that the material’s prejudicial effect outweighs its probative value. If the contents of Mr Bezzina’s affidavits ultimately has influence on my decision in these proceedings, it will be because of their impact on issues in the case, and not because it excites feelings or tendencies irrelevant to those issues. If, ultimately, the evidence of Mr Bezzina proves to be influential, it will be because it bears in some way on a relevant fact in issue in this case, and not otherwise.

10 Mr White, for Mr Bodsworth, submits that the prejudice is exacerbated by the pending proceedings against him for contempt, to which Mr Bezzina’s evidence is plainly highly relevant. However, I do not regard it as at all relevant that there are contempt proceedings presently pending. Those proceedings will be heard some time in the future, after the substantive case has been determined. That is the usual, though not invariable, procedure, and no one has submitted that there should be any departure from that course, let alone that these proceedings should be adjourned until after the contempt proceedings are determined. I will, therefore, determine this case on the appropriate standard of proof for these civil proceedings, having regard to the evidence that is tendered in these proceedings. I do not regard it as relevant prejudice that the defendant might choose to exercise his right of silence in respect of allegations which though relevant to the contempt proceedings, are also relevant to the allegations in the present substantive proceedings. Whether he does so is a matter for him and I bear in mind the provisions of the Evidence Act which permit a certificate to be granted in respect of evidence which might be the subject of a claim for privilege against self-incrimination.

11 Subject to objection to specific parts of them, I will admit the affidavits of Mr Bezzina.

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