Tomko v Tomko

[2007] NSWSC 1486

CITATION:	Tomko v Tomko [2007] NSWSC 1486
HEARING DATE(S):	5 December 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	5 December 2007
DECISION:	Questions disallowed. Leave to adduce evidence from another expert granted.
CATCHWORDS:	EVIDENCE – Expert evidence – parties’ single expert – questions to clarify report – leave to adduce evidence from another expert
LEGISLATION CITED:	(NSW) Uniform Civil Procedure Rules 2005, rr 31.37, 31.41, 41.44
CASES CITED:	Cosgrove v Pattison [2001] CP Rep 68 Daniels v Walker [2000] 1 WLR 1382
PARTIES:	John Graham Tomko (plaintiff/cross-defendant) Robert Garry Tomko (first defendant/cross-claimant) Lisa Tomko (second defendant)
FILE NUMBER(S):	SC 106310/07; 106311/07
COUNSEL:	B Hocking (sol) (plaintiff/cross-defendant) Mr G W McGrath (defendants/cross-claimant)
SOLICITORS:	Martin Place Lawyers (plaintiff/cross-defendant) Ren Zhou Lawyers (defendants/cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRERETON J

Wednesday 5 December 2007

106310/07 John Graham Tomko v Robert Garry Tomko & Ors
106311/07

JUDGMENT (ex tempore)

1 HIS HONOUR: On 18 September 2007, I made an order pursuant to using (NSW) Uniform Civil Procedure Rules 2005, r 31.37 that an expert be engaged jointly by the plaintiffs and defendants in respect of the capacity of each of the deceased in each matter as at the date of the 2004 wills, and I reserved liberty for the parties to apply by arrangement with my associate in the event of any difficulty arising in the selection of the expert or preparation of the expert's report. On 10 October 2007, Hamilton J ordered that the expert engaged under r 31.37 be Dr Corinne Roberts, a neuropsychologist, and that she report by noon on 16 October 2007. Dr Roberts delivered a report dated 16 October 2007, the proceedings being listed for hearing before me on 18 October 2007. The defendants, for whom Mr McGrath appears, applied for an adjournment upon the grounds that they required further time to consider the report of Dr Roberts, and the formulation of questions to her as provided for by r 31.41; also, to have the opportunity of consulting with their own shadow expert, Professor Reid, in relation to the formulation of those questions, in relation to potential cross-examination of Dr Roberts, and, potentially, to determine whether to seek leave to adduce expert evidence from Professor Reid.

2 On 18 October, I read the affidavit evidence, ruled on objections and thereafter acceded to the application for an adjournment, adjourning the proceedings part heard before me to 21 December 2007 when it is anticipated that the hearing will be concluded. In respect of certain of the affidavit evidence where I granted leave to supplement, I directed that any supplementary affidavit be served by 30 November 2007.

3 On 16 November 2007, the defendant’s solicitors sent to Dr Roberts a letter containing twenty questions said to be by way of clarification of her report; a copy was sent to the plaintiff’s solicitors. On 19 November, the plaintiff’s solicitors wrote to the defendant’s solicitors, objecting that their unilateral approach to Dr Roberts for clarification was improper, and to Dr Roberts, requesting that she not act on the defendant’s solicitors' request. As the parties were unable to resolve the impasse, the defendants have had the matter relisted before me for directions.

4 The objection that it was improper for the defendant’s solicitors to seek clarification of Dr Roberts' report was misconceived and uncalled for; UCPR, r 31.41, authorises a party by notice in writing, sent to a parties’ single expert, to seek clarification of any aspect of the report:

31.41 Parties may seek clarification of report

(1) Within 14 days after the parties’ single expert’s report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report.
(2) Unless the court orders otherwise, a party affected may send no more than one such notice.
(3) Unless the court orders otherwise, the notice must be in the form of questions, no more than 10 in number.
(4) The party sending the notice must, on the same day as it is sent to the parties’ single expert, send a copy of it to each of the other parties affected.
(5) Each notice sent under this rule must be endorsed with the date on which it is sent.
(6) Within 28 days after the notice is sent, the parties’ single expert must send a signed copy of his or her response to the notice to each of the parties affected.

5 However, r 31.41 does not authorise questions about or on the report generally, but only questions by way of clarification of the report. According to the Macquarie Dictionary, "to clarify" is "to make clear, pure, or intelligible". The concept is closely analogous to that of "reasonably necessary to enable a proper understanding of the communication or document" in the Evidence Act, s 126. It implies the question. what is there in the report that requires clarification. A question will be one by way of clarification, in my opinion, if it seeks to elicit better understanding of what is the expert's opinion, or how that opinion has been reached. A question in the nature of cross-examination, which seeks to challenge the expert's opinion or undermine it, is not by way of clarification.

6 In my view, the twenty questions for the most part involved no application of neuropsychological expertise. They seek the opinion of Dr Roberts upon certain assumptions standing alone, rather than in the context of the whole of the situation. For the most part, they involve the analysis or consideration of facts which can be undertaken by a judge unaided by expert opinion.

7 Moreover, they are essentially by way of cross-examination, seeking to undermine Dr Roberts' opinion. None seeks to better understand her opinion nor how she has reached that opinion. None seeks to clarify any aspect of the report and none is by way of clarification. In my view the proposed questions are not permissible under r 31.41, and Dr Roberts will not be required to answer them.

8 However, the defendants also seek leave, pursuant to r 31.44, to adduce expert evidence from Professor Reid on the issues which have been addressed by Dr Roberts. It has been said that proper exercise of the discretion to grant leave only requires satisfaction that there is an appropriate basis to permit a party to adduce additional evidence and that relevant considerations include the nature and complexity of the issues, the existence of an objective basis to question the conclusion arrived at by the joint expert, the existence of significant competing expert opinion, and the actual or apprehended bias of the joint expert. [Daniels v Walker [2000] 1 WLR 1382; Cosgrove v Pattison [2001] CP Rep 68; Ritchie’s Uniform Civil Proceedure (NSW), [31.44.5]].

9 In my view, the court should be relatively ready to grant leave to adduce evidence from a separate expert, lest trial by single expert otherwise become substituted for trial by judge. Where some arguable basis is shown for challenging the report of a single expert, the court should be disposed to grant such leave.

10 The questions which the defendants have put forward as those which they wished to ask Dr Roberts demonstrate a basis for challenging her evidence. In those circumstances, I am satisfied that it is appropriate to grant leave to the defendants to adduce expert evidence from Professor Reid on the issues which were addressed by Dr Roberts.

11 My orders are:

1. Direct that the parties' single expert Dr Roberts is not required to answer the questions contained in the letter dated 16 November 2007 to her from Ren Zhou, solicitors.

2. Grant leave to the defendants to adduce expert evidence from Professor Reid in respect of the capacity of each of the deceased in each matter as at the date of the 2004 wills.

3. Direct that any report of Professor Reid be served by 14 December 2007.

4. Order that costs of the application be costs in the proceedings.

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