Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 440

New South Wales District Court

CITATION: Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 440

JUDGMENT DATE: 25 February 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I reject the tender.

CATCHWORDS: CIVIL LAW - Correspondence relating to retaining of expert witness - relevance of correspondence - whether correspondence can be tendered solely for Jones v Dunkel inference - whether Jones v Dunkel inference can be drawn by the plaintiff electing not to call the expert witness

LEGISLATION CITED: Evidence Act 1995 s 55(2)(c)

CASES CITED: Jones v Dunkel (1959) 101 CLR 298

PARTIES: Suttram Pty Limited Michelin Australia Pty Limited

FILE NUMBER(S): 4530/06

COUNSEL: Mr JL Sharpe for the plaintiff Mr ARR Vincent for the 2nd Defendant

JUDGMENT

1. Mr Vincent appears for the second defendant, Michelin Australia Pty Ltd. He has tendered two documents. The tender has been objected to. The issue raised is a question of law and evidence commonly known as the Jones v Dunkel inference.

2. The two documents tendered I marked for identification 17. MFI 17(1) is a bundle of correspondence between the plaintiff's solicitors and UniSearch Ltd. UniSearch Ltd is an organisation associated with the University of New South Wales which provides a service of giving advice concerning the availability of expert witnesses in various fields.

3. The second document, which I marked MFI 17(2), is an affidavit of Mr Tony James Bates sworn 29 October 2008. Mr Bates is a solicitor employed by the solicitor for the plaintiff in these proceedings. The affidavit, which Mr Bates swore, was read in proceedings before me where the plaintiff resisted the production of documents sought under various subpoenas and notices to produce. The plaintiff resisted the production of the documents on the grounds of legal professional privilege. I have ruled on a previous occasion on that claim. The relevance of tendering that document was that it exposed correspondence between the plaintiff's solicitors and UniSearch Ltd. More particularly, it exposed correspondence between the plaintiff's solicitors and a person named as Colin Wingrove. It also exposed consultations, or at least one consultation, between Mr Wingrove and the plaintiff's solicitor and a fee note apparently sent by Mr Wingrove to the plaintiff's solicitor.