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:

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: [2005] NSWSC 1228
Decision Date: 17 October 2005

CaseChat Overview and Summary

Portal Software contested against Bodsworth in the Federal Court of Australia, delving into the intricacies of expert evidence, particularly the adherence to the expert witness code of conduct. The core of the dispute hinged on whether an expert’s affidavit, which was initially non-compliant with the code but later amended, could still be considered as admissible evidence. The case was pivotal in determining the nature of such expert affidavits—whether they were categorised as a "report" or as "oral evidence"—and the extent to which the strict requirements of the expert witness code could be waived.

The central legal issue revolved around the interpretation and application of the expert witness code of conduct, particularly focusing on the timing of compliance with the code. The court was tasked with determining whether an expert’s affidavit, which initially failed to comply with the code, could be considered valid upon subsequent amendment. Another critical issue was the classification of expert affidavits and whether they should be treated as a formal "report" or as "oral evidence". This distinction was crucial in deciding whether the strict adherence to the code was mandatory or could be relaxed.

In addressing these issues, the court held that the expert’s affidavit should be regarded as "oral evidence" rather than a formal "report". This classification allowed the court to exercise discretion in considering the affidavit, even if it did not initially comply with the expert witness code. The court found that the late compliance with the code was sufficient to validate the affidavit, thereby dispensing with the strict requirements of the code. This decision underscored the flexibility inherent in the legal framework governing expert evidence, ensuring that the ultimate goal of justice could be served even when procedural norms were not strictly adhered to.

The court’s ruling affirmed that the expert’s affidavit was admissible as evidence, despite the initial non-compliance with the expert witness code. This decision provided clarity on the classification of expert affidavits and the court’s discretion in such matters. The court’s approach was pragmatic, ensuring that justice was not impeded by procedural shortcomings, provided that the expert’s evidence was ultimately reliable and valid.

Orders