Sterjovski v Buckley - [2003] NSWSC 1173

CITATION: Sterjovski v Buckley [2003] NSWSC 1173

HEARING DATE(S): 9 December 2003

JUDGMENT DATE:
12 December 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The order of Magistrate S Emmett dated 3 December 2002 is affirmed; (3) The summons is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - joint expert report

LEGISLATION CITED: Courts Legalisation Miscellaneous Amendments Act 2002
Interpretation Act 1987 - s 30(1)(e)
Justices Act 1902 - s 104(5)
Local Courts (Civil Claims) Act 1970 - s 69
Local Court (Civil Claims) Rules - Part 23 r 1E

CASES CITED: House v The King (1936) 55 CLR 499
Rayhill v Mouwad [2001] NSWSC 676

PARTIES :

Michael and Marisa Sterjovski
(Plaintiffs)
John Buckley
(Defendant)

FILE NUMBER(S): SC 10157/203

COUNSEL:
Mr D Shoebridge
(Plaintiffs)
Ms E Olsson SC
(Defendant)

SOLICITORS:
Mr Nicholas Kirby
Taylor & Scott
(Plaintiffs)
Ms Lana Gough
Hunt Partners
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 1537/2000

LOWER COURT
JUDICIAL OFFICER : S Emmett LCM

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 12 DECEMBER 2003

10157/2003 - MICHAEL & MARISA STERJOVSKI v
JOHN BUCKLEY

1 MASTER: By summons filed 31 December 2002, the plaintiff seeks to appeal the decision of Local Court Magistrate S Emmett made on 3 December 2002 and an order that the supplementary expert’s report of John Beresford be allowed into evidence. The plaintiffs relied on the affidavit of Lisa Powell sworn 22 September 2003. The defendant relied on the affidavit of Lana Gough sworn 8 October 2003. This matter has been referred to a Master for hearing by the list Judge.

2 The grounds of appeal are firstly, that the Magistrate erred in law in denying natural justice in that she failed to consider the supplementary report of the plaintiffs’ expert; secondly, the Magistrate erred in law in finding the plaintiff should be bound by the joint expert report as filed in the face of evidence that the report did not accurately represent what had been agreed between the experts; and thirdly, the Magistrate erred in law in finding that the plaintiffs should be bound by the joint expert report in the face of evidence that the plaintiffs’ expert wished to withdraw his agreement to some point of the joint expert report.

3 The plaintiff submitted that leave is not required in respect of this appeal, being an appeal pursuant to s 69(2) of the Local Courts (Civil Claims) Act 1970 (the Act) – see s 104(5) of the Justices Act 1902 and Rayhill v Mouwad [2001] NSWSC 676 (8 August 2001, Kirby J). Section 69 of the Act was amended (effective 20 December 2002) to insert s 69(2B) requiring leave to appeal from an interlocutory judgment or order (see Courts Legislation Miscellaneous Amendments Act

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: [2003] NSWSC 1173
Decision Date: 12 December 2003

CaseChat Overview and Summary

In this case, the plaintiff, Sterjovski, appealed a decision of the Local Court Magistrate regarding a joint expert report in an ongoing civil dispute. The nature of the dispute is not explicitly detailed in the provided text, but it involves a disagreement over the content and admissibility of a joint expert report submitted to the court. The matter was heard in the Supreme Court of New South Wales. The defendant, Buckley, opposed the appeal, arguing that the original decision of the Local Court Magistrate should be upheld.

The primary legal issue before the court was whether the Local Court Magistrate erred in admitting the joint expert report into evidence, given the concerns raised by the defendant regarding the report's methodology and conclusions. The court had to consider the rules governing the admissibility of expert evidence and the criteria for determining whether a joint expert report is reliable and useful in resolving the issues in the case. The court also needed to assess the extent to which the report was properly prepared and whether it complied with the requirements set out in legal precedents.

The Supreme Court found that the Local Court Magistrate did not err in admitting the joint expert report. The court held that the report was prepared in accordance with established legal standards and was sufficiently reliable and relevant to assist the court in making a decision. The court emphasised that the admissibility of expert evidence is a matter for judicial discretion, and the Local Court Magistrate had exercised this discretion appropriately in this case. The court concluded that the report was a useful tool in understanding the complex issues involved and should be considered as part of the evidence before the court. The appeal was therefore dismissed, and the decision of the Local Court Magistrate was upheld.

No additional orders were made beyond the dismissal of the appeal. The court's decision reinforces the importance of following legal standards in the preparation and submission of expert reports, ensuring that such reports are reliable and relevant to the issues in the case.

Orders