Rod Investments (Vic) Pty Ltd v Abeyratne & Ors

[2009] VSC 40

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2011 of 2005

ROD INVESTMENTS (VIC) PTY LTD	Plaintiff
v
WILLIAM ABEYRATNE (AS TRUSTEE IN BANKRUPTCY OF ADAM CLARK) & ORS	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2009
DATE OF RULING:	13 February 2009
CASE MAY BE CITED AS:	Rod Investments (Vic) Pty Ltd v Abeyratne & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 40

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PRACTICE AND PROCEDURE – Group proceeding – Expert report – Objection to admissibility – Appropriate to determine admissibility before trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K P Hanscombe SC with Mr  L W L Armstrong	Maurice Blackburn Pty Limited
No appearance by or on behalf of the First, Fifth, Sixth and Ninth Defendants
For the Second Defendant	Mr P Hunt, Solicitor	Hunts’ Lawyers
For the Third and Seventh Defendants	Mr B F Quinn	Minter Ellison
The Fourth Defendant, Roger Velik, appeared in person	Velik Solicitors
For the Eighth and Tenth Defendants	Mr N P De Young	Lander & Rogers
For the Third Party	Mr S Harris, Solicitor	Harris Legal

HIS HONOUR:

1. Counsel for the plaintiff has sought a hearing before trial for the purpose of determining on the admissibility of an expert’s report filed by the second and tenth defendants.  In my view, once a party raises an objection to admissibility it is important that it be dealt with on its merits, particularly that is so if the contention is raised ahead of trial and the objection can conveniently be dealt with.  In this case, which is a group proceeding, the expert report in question deals with complex, technical matters. 

1. If the objection is not dealt with before the trial, with the consequence that the expert's report stands until then, then the trial commences without determination of the question of admissibility.  If at the trial the admissibility objection is upheld then what is to happen?  Is the trial to be adjourned while another report is obtained with consequent delay and further costs?  If it is not, then the parties and the judge have to struggle through with something that is not really admissible, but one does the best one can with partly admissible, partly inadmissible material.  It is not a satisfactory situation, and the problem can be aggravated if the case goes on appeal and the question is asked, “Well, what was the admissible material?”.

1. The problem is aggravated if in response to a report, which is said to be inadmissible, and which in whole or in part may truly be so, the opposite party files an answering expert report and then the problem is aggravated even more if the author of the original report containing some inadmissible material files another report the foundation of which is the first report. 

1. One only has to think about it for a moment to realise the difficulties which the course that Mr Hunt proposed, supported by Mr De Young, can have for the proper conduct of an orderly trial dealing only with issues based on admissible material.  The risks are of compounding complexity of a trial by the presence of inadmissible material.  The course that is proposed by the plaintiff is to deal with the question now ahead of the trial so as to avoid complications of the type I have mentioned.

1. It is not an answer to say that at the end of a process of reports the experts can have a joint conference.  The purpose of such a conference is to discuss differences, compromise upon those that are felt to be the subject of compromise appropriately and to otherwise state the reasons for differences, but the whole process has gone off the rails and complexity is added if one or other of the founding expert's reports in relation to which the conference is held contain material that is inadmissible or otherwise improper in some way.  The experts are directing themselves to material that just should not be there.

1. The more that one considers it the more it becomes overwhelmingly apparent that when a question is raised, as it now has been by the plaintiff, as to admissibility of a report of substance, and that is important here, we have a report that is complex and substantial, then the sooner the point is dealt with on the merits the better.  If the plaintiff's point has no substance, whether in whole or in part, then the clarification provided by a judicial determination on the issue must benefit the parties and the trial judge and the experts.  If, however, the plaintiff’s point has substance the early determination of that will aid the economic and expeditious conduct of the case. 

1. So, for those reasons, I propose to make orders providing for a hearing at which I will rule on admissibility.  I have heard submissions from Mr De Young which sought to persuade me that Mr Koltai does possess appropriate qualifications and that otherwise the report is in a form that ought to be allowed to stand, but I am not in a position to rule on that today.  I have not heard submissions developed by the plaintiff and I take the view that it is inappropriate to do so now.