Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 160

New South Wales District Court

CITATION: Suttram Pty Limited v Michelin Australia Pty Limited [2009] NSWDC 160

JUDGMENT DATE: 24 February 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Application under s 136 of Evidence Act 1995 refused.

CATCHWORDS: CIVIL LAW - application to strike out opinion evidence of an expert witness - application to limit use of evidence under s 136 Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995 s 136

PARTIES: Suttram Pty Limited Michelin Australia Pty Limited

FILE NUMBER(S): 4530/06

COUNSEL: Mr Sharpe (plaintiff) Mr Vincent (2nd defendant)

JUDGMENT

1 Mr Sharpe, counsel for the plaintiff, makes two applications. One of them is to strike out a substantial part of the evidence of a witness. The other, as an alternative, is to limit the use made of that evidence under s 136 of the Evidence Act 1995. The application to strike out the evidence relates to the evidence of a Mr Herzog, an expert called by the defendant. There was a voir dire over the question of whether Mr Herzog was qualified to offer opinions on various matters in this case. I ruled that he was qualified to offer opinions. Mr Sharpe argues that now that Mr Herzog is giving evidence in the proceedings as an expert, his qualifications to offer opinions have effectively fallen away under cross-examination.

2 Mr Sharpe referred to various questions in cross-examination asked by him of Mr Herzog about various publications. Mr Sharpe's purpose in asking the questions was to seek information about the reasoning process behind Mr Herzog's opinions. At several stages, Mr Sharpe asked in cross-examination about articles or books that the expert referred to. It must be said that the answers offered by Mr Herzog were somewhat inadequate. He was able to offer what he recollected to be the name of a book named Materials Engineering. He could only remember the first name of the author. He also thought that one of his undergraduate lecturers wrote a book as well, named Plasticity of Polymers. I should add that Mr Herzog is a qualified engineer, having done his undergraduate degree at Monash University and a Masters in engineering at the University of New South Wales.