Trajkovski v Commonwealth Insurance Limited

District Court

New South Wales

Medium Neutral Citation:

Trajkovski v Commonwealth Insurance Limited [2020] NSWDC 693

Hearing dates:

2-5 November 2020

Date of orders:

05 November 2020

Decision date:

05 November 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 35

Catchwords:

PRACTICE & PROCEDURE – expert evidence – objection to expert report on basis of non-compliance with requirements of Expert Code of Conduct – whether order should be made to admit report despite not compliance – terms of such order

Legislation Cited:

Uniform Civil Procedures Rules 2005 (NSW), r 31.23

Cases Cited:

Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279

Portal Software v Bodsworth [2005] NSWSC 1228

Welker & Ors v Rinehart & Anor(No 6) [2012] NSWSC 160

Texts Cited:

NSW Civil Procedure Handbook, Lawbook Co 2020

Category:

Procedural and other rulings

Parties:

Mr D Trajkovski (Plaintiff)
Commonwealth Insurance Limited (Defendant)

Representation:

Counsel:
Mr M Klooster for the plaintiff
Mr R Perla for the defendant

Solicitors:
Unified Lawyers for the plaintiff
Turks Legal for the defendant

File Number(s):

2019/64733

Publication restriction:

Nil

Judgment

INTRODUCTION

1. The defendant reads the affidavit of Richard Ziade sworn 4 December 2019. Mr Ziade is a licensed builder and building consultant. Amongst other things, annexed to that affidavit is a letter of instructions given to him from a representative of the defendant dated 2 October 2013, and a report he prepared dated 3 November 2013.

2. The plaintiff objects to the admissibility of the affidavit insofar as it annexes Mr Ziade’s report dated 3 November 2013 (his ‘November 2013 report’). The ground of objection is that the November 2013 report was not prepared in accordance with the procedural requirements set by r 31.23(1) of the Uniform Civil Procedures Rules 2005 (NSW) (‘UCPR’). There is no dispute that this contention is correct, but it is also the case that in his affidavit, Mr Ziade deposed that he agreed to be bound by the Expert Code of Conduct (‘the Code’).

3. That being so, the defendant presses for the admissibility of the report under r 31.23(3) of the UCPR. That provision states:

“Unless the court otherwise orders, an expert report may not be admitted in evidence unless the report contains an acknowledgement by the expert witness by whom it was prepared that he or she has read the Code of Conduct and agrees to be bound by it.”

4. Mr Ziade prepared another report, dated 20 November 2019, whose content was primarily directed to responding to a report prepared by the plaintiff’s building expert, Mr Bournelis. Save for some cross-referencing to his earlier report, he did not seek to reproduce within that second report the content of his November 2013 report. No objection was taken by the plaintiff to this second report. Mr Ziade also was party to a joint report with Mr Bournelis (and Mr Targett) dated 30 October 2020, in which he adhered to his opinions from his November 2013 report.

5. In support of its application, the defendant…