Suttram Pty Limited v Michelin Australia Pty Limited

[2009] NSWDC 440

CITATION:	Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 440
JUDGMENT DATE:	25 February 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I reject the tender.
CATCHWORDS:	CIVIL LAW - Correspondence relating to retaining of expert witness - relevance of correspondence - whether correspondence can be tendered solely for Jones v Dunkel inference - whether Jones v Dunkel inference can be drawn by the plaintiff electing not to call the expert witness
LEGISLATION CITED:	Evidence Act 1995 s 55(2)(c)
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298
PARTIES:	Suttram Pty Limited Michelin Australia Pty Limited
FILE NUMBER(S):	4530/06
COUNSEL:	Mr JL Sharpe for the plaintiff Mr ARR Vincent for the 2nd Defendant

JUDGMENT

1. Mr Vincent appears for the second defendant, Michelin Australia Pty Ltd. He has tendered two documents. The tender has been objected to. The issue raised is a question of law and evidence commonly known as the Jones v Dunkel inference.

2. The two documents tendered I marked for identification 17. MFI 17(1) is a bundle of correspondence between the plaintiff's solicitors and UniSearch Ltd. UniSearch Ltd is an organisation associated with the University of New South Wales which provides a service of giving advice concerning the availability of expert witnesses in various fields.

3. The second document, which I marked MFI 17(2), is an affidavit of Mr Tony James Bates sworn 29 October 2008. Mr Bates is a solicitor employed by the solicitor for the plaintiff in these proceedings. The affidavit, which Mr Bates swore, was read in proceedings before me where the plaintiff resisted the production of documents sought under various subpoenas and notices to produce. The plaintiff resisted the production of the documents on the grounds of legal professional privilege. I have ruled on a previous occasion on that claim. The relevance of tendering that document was that it exposed correspondence between the plaintiff's solicitors and UniSearch Ltd. More particularly, it exposed correspondence between the plaintiff's solicitors and a person named as Colin Wingrove. It also exposed consultations, or at least one consultation, between Mr Wingrove and the plaintiff's solicitor and a fee note apparently sent by Mr Wingrove to the plaintiff's solicitor.

4. The correspondence in MFI 17(1) throws some more light on the identity of Mr Colin Wingrove. UniSearch Ltd recommended Mr Wingrove in response to the plaintiff's solicitor's request "whether you have any experts on truck tyres", specifically with reference to alleged tyre defects. UniSearch Ltd recommended Mr Wingrove, describing him as a transport engineer and tyre expert and as "one of our foremost experts in the field and has prepared many expert reports relating to tyre failure."

5. It is apparent from the correspondence between the plaintiff's solicitors and UniSearch Ltd that discussions regarding whether or not he would be engaged proceeded over some months from 1 April 2003. When UniSearch Ltd sent to the plaintiff's solicitors a standard form document requiring them to specify whether they wanted to authorise the retention of Mr Wingrove, the plaintiff's solicitors ticked the box marked "Awaiting further information from another party involved in this matter." That was on 18 November 2003.

6. On 13 February 2004 there is a file note authored by a solicitor named Phil Clarke employed by the plaintiff's solicitors saying, amongst other things, that he had spoken by the telephone to UniSearch Ltd and told them "that we were still considering whether to instruct Colin Wingrove. I said we hoped to know shortly." In a file note a few days later, on 9 March 2004, Mr Clarke recorded another telephone conversation where he advised somebody at UniSearch "that we are still in the investigation stage and that hopefully we would be able to settle this without the need for another expert."

7. At some stage before then information had been supplied to the plaintiff's solicitors regarding the fees which would be charged by Mr Wingrove as well as a copy of his curriculum vitae.

8. Mr Vincent does not argue that the documents contained in MFI 17(1) take the matter any further than I have recorded. He does, however, highlight some documents referred to in MFI 17(2), including the note of a meeting with Colin Wingrove at Fraser Clancy Lawyers on 8 December 2006 and a telephone conversation with him on 8 February 2007.

9. There is also referred to further correspondence from UniSearch to the plaintiff's solicitors regarding Mr Wingrove and an item which is referred to as a letter from Mr Wingrove to "Expert Opinion Services" with attached invoice; that is dated 25 June 2007. The items of correspondence referred to in MFI 17(2) we know no more about than those descriptions because they were not the subject of any order to disclose or produce the documents for inspection.

10. Mr Sharpe, who appears for the plaintiff, objects to the tender of MFI 17(1) and 17(2). Mr Vincent argues that the tender is relevant because it exposes contact between the plaintiff's solicitors and a person who is an expert in assessing whether or not tyres are defective. That is an important issue in this case. If the documents are admitted into evidence, Mr Vincent will argue that they will form the basis for a submission on his part. The submission would be that the plaintiff's solicitors elected not to call Mr Colin Wingrove as a witness because he would not be able to assist them in their case. To paraphrase a passage or rather to adopt and adapt a passage in Mr Justice Windeyer's judgment in Jones v Dunkel (1959) 101 CLR 298 at 322, Mr Vincent argued that the true inference, in the circumstances, would be that Mr Sharpe, on his instructions, thought that the plaintiff was more likely to succeed if he kept Mr Wingrove out of the witness box.

11. I had two difficulties with the tender of MFI 17(1) and (2) for that purpose. The first difficulty was whether the documents could be put into evidence for that purpose only. In other words, I had reservations about the relevance of the documents, otherwise than to give rise to a Jones v Dunkel submission. Mr Vincent has argued, correctly I think, that that concern is covered by s 55(2)(c) of the Evidence Act 1995, which provides that evidence is not to be taken to be irrelevant only because it relates only to a failure to adduce evidence.

12. The second concern that I had was whether or not I could draw the inference which he invited. As I said to Mr Vincent in argument, there were competing inferences available. One might be that the proposed fees quoted by Mr Wingrove were not acceptable to the plaintiff. Another might be that any proposed terms of the engagement of Mr Wingrove were not acceptable to the plaintiff. Yet another might be that the plaintiff took the view that it did not need to call Mr Wingrove, for this reason. The plaintiff has called two experts in its case. One, Mr Carl Veen was qualified and retained by the plaintiff, and called as a witness. Another expert was originally qualified and retained by another defendant who is no longer in the proceedings. The plaintiff decided to call that particular expert as well. It could well be that the plaintiff decided, as a matter of economy, that it had a sufficient number of experts supporting its proposition which it sought to advance through the experts.

13. Bearing that in mind, I regard the inference as not really being one that was available at all. In my opinion, there is not a sufficient factual basis for me to draw the inference which Mr Vincent invites me to draw.

14. Mr Vincent argues that it is not for me, at this stage, to resolve whether there is only one inference or more than one inference. That it is something which can be resolved after hearing final submissions. But he also fairly draws my attention to s 135 of the Evidence Act. Any probative value of this evidence because of the competing inferences is very slight, almost negligible. On the other hand, it could become I think, confusing to suggest that there may be one particular reason for not calling this witness, when clearly other reasons might have been available. For that reason, I regard the probative value of the documents as substantially outweighed by the danger that it might be misleading or confusing or, at least, confusing alone.

15. For that reason, I reject the tender.

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