Suttram Pty Limited v Michelin Australia Pty Ltd [2009] NSWDC 429

New South Wales District Court

CITATION: Suttram Pty Limited v Michelin Australia Pty Ltd [2009] NSWDC 429

JUDGMENT DATE: 17 March 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

CATCHWORDS: CIVIL LAW - evidence - application of s 136 Evidence Act - statement of party as factual basis for opinion of expert - danger that a particular use of the evidence might be unfairly prejudicial to a party - review of authorities

LEGISLATION CITED: Evidence Act 1995 s 60, s 136

Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 Roach v Page (No 11) [2003] NSWSC 907 Quick v Stoland Pty Ltd (1998) 87 FCR 371

PARTIES: Suttram Pty Limited Michelin Australia Pty Ltd

FILE NUMBER(S): 4530/06

COUNSEL: Mr Sharpe for Suttram Pty Ltd Mr Vincent for Michelin Australia Pty Ltd

JUDGMENT

1. This judgment concerns a ruling which I am invited to make by one of the parties to limit the use to be made of particular evidence. A judge may make such an order under s 136 of the Evidence Act 1995.

2. The need for a ruling arises in circumstances where an expert has been called by the second defendant in these proceedings. His name is Mr Henry Herzog. He has expressed opinions in writing and in oral evidence before me. It is common ground that amongst the documents provided to him to assist him in expressing his opinions about questions posed to him was a statement by Mr Ross Weatherburn dated 4 May 2007. Mr Ross Weatherburn is the principal of the plaintiff in these proceedings and was the driver of a truck which was involved in an accident which is the subject of these proceedings.