Trajkovski v Commonwealth Insurance Limited [2020] NSWDC 693

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." 1. 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. 2. In support of its application, the defendant relied upon another affidavit from Mr Ziade, sworn on 4 November 2020. In it, Mr Ziade deposed to his significant familiarity with the Code prior to preparing his November 2013 report; as well as his experience as an expert witness prior to that time. He also deposed to having in mind, whenever he is preparing a report for the Court, the requirements of the Code. In particular, he asserted that he is always conscious when expressing opinions not to do so as an advocate for a party or the entity retaining him, and he also indicated his practice that if ever a matter arose in which he felt that he was not qualified to opine, of if there was an insufficiency in material, he would point that out, by necessary qualification to the opinions, in his report. 3. The defendant relies upon this evidence to found the submission that even though he did not expressly refer to the Code in the November 2013 report, Mr Ziade nevertheless had its contents in his mind. Further, as he had also indicated in his affidavit of 4 December 2019, he has gone back to his November 2013 report, expressly adverted to the Code and Mr Ziade has affirmed that with the benefit of that consideration, in no way does he wish to alter what he said in his November 2013 report. 4. Mr Ziade was cross-examined on the voir dire about his affidavit dated 4 November 2020. The effect of this was partly to suggest that he may have overstated the position in his affidavit when he gave evidence at one point in his November 2013 report referring to 'bodily distortion' when, in his subsequent report, he had disclaimed expertise in the subject of bodily movement. It was implied that there was some inconsistency in this statement of position. Mr Ziade did not accept that there was any inconsistency. On that particular matter, if there was any inconsistency, of which I am very doubtful, it was only very slight. He was also cross-examined to the effect that his report fell short in specifying some of the matters that the Code suggests should be spelt out in a report, including, not least the acknowledgement of adherence to the Code, but also a declaration of the inquiries the expert made in providing the opinion. 5. What was apparent, and not seriously disputed by Mr Ziade, was that the defendant's solicitors specifically asked him on 3 June 2019, nearly 6 years after the first report, and after the proceeding had commenced, for him to report again to the firm. The gist of the instructions was for him to give an opinion covering the same subject matter of his opinion he expressed in his November 2013 report. For that purpose, he was supplied his November 2013 report. This letter of instruction was supplemented by a further letter dated 23 October 2019, which referenced the firm's letter of 3 June 2019, and asked Mr Ziade to address the evidence of others, including but not limited to the building consultant expert engaged by the plaintiff, Mr Bournelis. When both of those letters of instruction are considered together, in my view, it was obvious to Mr Ziade that he was being asked to undertake two related or integrated tasks: (a) to revisit the subject matter of his opinions from his November 2013 report, but (b) to also do so in the light of the evidence which the defendant's solicitor had been served during the proceeding. Mr Ziade accepted that he did not engage with that task. He accepted that he declined to accept that instruction. He essentially confined himself to responding to Mr Bournelis' evidence. This, I would interpose, was in contrast with the position of Mr Targett, the engineering expert called by the defendant, who also prepared a report at a time proximate to when the incident occurred, in November 2013, but who, in response to a similar instruction from the defendant's solicitor during the course of this proceeding, prepared a report in this proceeding which manifested a careful reconsideration of his earlier opinion in the light of additional evidence obtained during this proceeding. 6. At any rate, it was put to Mr Ziade that in the circumstances that I have referred to, by his affidavit sworn in December 2019 he was doing no more than 'rubber stamping' the views he formed in his November 2013 report. Mr Ziade baulked at the somewhat pejorative characterisation, but accepted that although he had reviewed his November 2013 report or the opinions within it, he had done nothing to tangibly indicate that this was so, such as making any alterations. 7. The question is whether the Court should 'otherwise order' for the purposes of r 31.23(3).