Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd

[2011] NSWSC 395

Supreme Court

New South Wales

Medium Neutral Citation:	Tyneside Property Management Pty Ltd & ors v Hammersmith Management Pty Ltd & ors [2011] NSWSC 395
Hearing dates:	Thursday 17 February 2011
Decision date:	17 February 2011
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Pre-litigation expert opinion admitted.
Catchwords:	EVIDENCE - hearsay - whether report by consultant engineer falls within business records exception - where document part of records of one of the defendant companies and copy kept by consultant - held: admissible under business records exception. EVIDENCE - opinion - documents admissible under business records exception to hearsay rule contain opinions - admissibility of opinions dependent also on satisfying an exception to the opinion rule - non-compliance with expert witness code does not impact on admissibility as expert opinion - held: admissible under specialised knowledge exception.
Legislation Cited:	(NSW) Evidence Act 1995, s 69, s 78, s 79
Cases Cited:	Australian Securities and Investments Commission v Rich [2005] NSWSC 417 Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 Crown v Whyte [2006] NSW CCA 75 In the matter of Enviro Energy Australia Pty Ltd (in liquidation) [2010] NSW SC 1217 Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933
Category:	Procedural and other rulings
Parties:	Tyneside Property Management Pty Limited (First Plaintiff) Namlot Nominees Pty Limited (Second Plaintiff) Roy Frederick Haggis (Third Plaintiff) Hammersmith Management Pty Limited (First Defendant) Roche Group Pty Limited (Second Defendant) John Oliver (Third Defendant) Tasmanian Prosperity Investment Pty Limited (Fourth Defendant) Bluegrass Nominees Pty Limited (Fifth Defendant) Nathan Oliver (Sixth Defendant) Frederick James Boswell (Seventh Defendant)
Representation:	Counsel Plaintiffs: Mr D.A. Smallbone Mr D.P. O'Connor Defendants: Mr David L. Williams SC Mr Scott Goodman Solicitors: Plaintiffs: Moray Agnew Defendants: Clayton Utz
File Number(s):	2003/ 83732

Judgment ( ex tempore )

1. HIS HONOUR: The defendants tender a report of Gary Truswell & Associates Pty Ltd, Consulting Engineers, dated 26 September 2002, in which the authors appraise the performance of the main consultants then engaged on the Pambulong Forest project, respond to a letter from Tyneside's planning consultant Mr Winterbottom discussing the then direction of management, and provide an overview of the then extant contractual arrangements. The plaintiffs object on the grounds that it is hearsay and opinion evidence.

1. So far as the hearsay objection is concerned, the document in question forms part of the records of, at least, Roche Group Pty Ltd, and no doubt a copy of it also forms part of the records of Gary Truswell & Associates Pty Ltd. The original and copy documents respectively are or were kept by each of these organisations for the purposes of their businesses. The document in question contains previous representations, made or recorded in it for the purposes of each of those businesses. The previous representations include opinion, which are apparently the personal opinions of the author. It was held by Hely J, in Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 at [19], that the "personal knowledge of the asserted fact" requirement was satisfied in respect of opinions proffered by experts out of court "because the asserted fact consists of opinions which they themselves had formed and expressed." It is not suggested that the document was prepared or obtained for the purpose of conducting or in contemplation of an Australian or overseas proceeding.

1. In those circumstances, the hearsay objection, of itself, fails, because the document is a business record admissible under the (NSW) Evidence Act , section 69.

1. However, that leaves the opinion objection. The better view is that where a document, admissible in exception to the hearsay rule as a business record under section 69, contains opinion, the previous representation must also satisfy the requirements of either section 78 or section 79 if it is to be admitted. As to the requirement that both the business record exception and the opinion exception be satisfied, see, in particular R v Whyte [2006] NSWCCA 75; and In the matter of Enviro Energy Australia Pty Ltd (in liquidation) [2010] NSW SC 1217, [7]; contra Australian Securities and Investments Commission v Rich [2005] NSWSC 417; and Australian Securities and Investments Commission v Rich (2005) 216 ALR 320, [212-216].

1. It is not suggested that section 78 is relevant in this case, relating as it does to lay opinions. Accordingly, the question is whether s 79 is satisfied.

1. Mr Truswell has sworn an affidavit, which the defendants propose to read in the proceedings. He deposes to considerable experience as a civil and structural engineer, including on various property developments by the Roche Group, who are amongst the defendants in this case. Civil and structural engineers, but in particular civil engineers, are typically engaged in the conduct and management of projects. Prima facie, Mr Truswell is qualified to express opinions as to the performance and qualifications of a project manager and, in particular, as to what are industry practices and standards in the field of project management. In those circumstances, it seems to me that Mr Truswell has the requisite specialised knowledge referred to in section 79 of the Evidence Act to express the opinions contained in the subject report.

1. It is true that Mr Truswell has not, and could not, comply with the expert witness code of conduct - being associated as he is with the defendants - but that does not impact on the admissibility of an out-of-court opinion expressed by the witness before litigation was contemplated. The expert witness code of conduct could never be complied with by an expert in that situation. I do not consider that the provisions relating to the code of conduct were ever intended to prevent opinion evidence, otherwise admissible in exception to the hearsay rule, being admitted because of non-compliance with the code of conduct.

1. I will therefore admit the report.

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Decision last updated: 10 May 2011