Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661

Supreme Court New South Wales

Medium Neutral Citation: Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661 Hearing dates: 12 March 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: The reports of Aargus Pty Ltd are admitted. Catchwords: EVIDENCE – Opinion evidence – Exceptions – Expert opinion Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Category: Procedural rulings Parties: Antonio Di Liristi (Plaintiff) Matautia Developments Pty Ltd (First Defendant) Michael Bernard Fowler (Second Defendant) Brian Garnet Wheaton (Fourth Defendant) Representation: Counsel: A Avery-Williams (First and Fourth Defendants)

Solicitors: Plaintiff (Self Represented) Centurion Lawyers (First and Fourth Defendants) File Number(s): 2020/71955 Publication restriction: None

REVISED EX TEMPORE Judgment 1. The defendants seek to rely on two experts' reports of Aargus Pty Ltd, which are found in the Court Book, Exhibit A at pp 1046 and 1434. 2. The first report is dated 24 January 2020 and the second report is dated 2 March 2021. The plaintiff objects to the admission of either report on a number of grounds, particularly having regard to what he describes as the rules relating to expert evidence, seemingly identified to the plaintiff in an article written by Clayton Utz. He submits that the reports do not comply with these new rules. 3. The plaintiff made extensive submissions as to why the reports should not be admitted. Indeed, he covered most areas of law dealing with expert evidence, perhaps as set out in well known cases such as Makita (Australia) Pty Ltd v Sprowles. [1] 4. I will not restate all of the plaintiff's submissions, but the principal ones include: 1. there has been non-compliance with the Expert Witness Code of Conduct and, specifically, there is no reference to the Expert Witness Code of Conduct in the report of 24 January 2020; 2. the author of the report is not the person who carried out the investigations and the person who carried out the investigations is not identified in the report; 3. the assumptions on which the expert has relied are not set out; 4. the letter of instructions from the solicitors for the defendants is not attached to the report; 5. the report does not contain a brief summary of the conclusions and a brief explanation of the reasons for the conclusions; 6. the expert has missed a critical factor, being that asbestos from the house was left on the land. The plaintiff submits that either this was concealed from the expert by the defendants or in some way the expert has deliberately failed to include it; 7. the expert has failed to consider another crucial factor, being that he failed to refer to the airborne material, that is, dust from the asbestos after it was removed from the house; and 8. contrary to the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") there has been no conference of experts and no joint report. 1. These are the critical matters relied upon by the plaintiff. 2. He also identifies a number of other grounds from cases such as Makita and articles he has read. 3. I make the following observations in respect to the matters to which he has referred. 4. Firstly, the report of 24 January 2020 was not prepared for the purposes of these proceedings. It was prepared well before the commencement of the proceedings. An expert is not required to provide an expert certification that he has complied with the Expert Witness Code of Conduct when that report has not been prepared for the purposes of the proceedings. It was prepared for the purposes of assessing whether the soil contained contaminants and how that came about. 5. The second report does make reference to the Expert Witness Code of Conduct, that is, the report of 2 March 2021 contains the usual statement that the author of the report has read the Expert Witness Code of Conduct and agrees to be bound by it. 6. The UCPR requires that parties comply with the Court's orders in respect of expert evidence but the plaintiff misunderstands the effect of the UCPR. An expert report is not rendered inadmissible merely because the Court does not make any orders in respect of service of expert reports. In this matter, there were no specific orders made in respect of the service of experts' reports but both parties have served experts' reports and relied on experts' reports. 7. Further, an expert report is not rendered inadmissible because the experts did not confer and produce a joint report. In this matter, the Court made no order for a conclave. Neither party requested such an order. In the circumstances, the expert report is not inadmissible because there was no conclave. 8. Whatever Clayton Utz might have stated in correspondence or suggested in an article (apparently read by the plaintiff), generally speaking, the Court applies its own rules and relies on its own practices and procedures in determining admissibility of documents. 9. I respect, of course, that the plaintiff has developed his submissions having regard to some articles he has read but the alleged statement by Clayton Utz as to how the UCPR should be interpreted does not, of itself, compel the result. 10. There is no principle that renders an expert report inadmissible because the letter of instructions is not attached to the report. The Court may always admit the report. It has a general discretion to do so. If the plaintiff wanted access to the letter of instructions, he might have sought it. There is no evidence before me which suggests that the defendants have withheld the letter of instructions. 11. Next, I reject the submission that the assumptions on which the expert has relied are not set out in the report. In my view, the nature of the instructions and the scope of work to be undertaken by the expert are set out in the report. The assumptions on which the expert has proceeded are set out in the report. Further, the purpose of the first report was to undertake soil investigations. It is not necessary that every employee of Aargus who might have been on site assisting in the testing process offer his or her own comments in the report. 12. Mr Kelly is the author of the report. He is here to be cross‑examined. If the plaintiff wishes to cross‑examine him and suggest to him he does not have sufficient knowledge to offer the opinions in the report, he may do so. 13. The plaintiff has relied on an expert report. Mr Foggett has given evidence. Both parties have had a fair opportunity to adduce their expert evidence and both parties have, and will have, an opportunity to cross‑examine the other party's expert witness. 14. The plaintiff's point about the expert leaving out critical factors is a matter for cross‑examination. If the plaintiff wishes to put to the expert that he has in some way deliberately left out a critical factor and, if there is a proper foundation for the question, then it may be put to the expert. He can be cross‑examined as to why, on the plaintiff's case, he did not refer to these critical factors. The fact that the plaintiff says there is no reference to these critical factors in the expert report does not render it inadmissible. 15. Mr Kelly is here to be cross‑examined. I have read his reports. There is no suggestion that the reports have not been served in accordance with any orders of the Court. Indeed, the second report was served in response to the plaintiff's primary expert reports which were only served in February 2021. 16. In the circumstances, both reports are admitted.