Assaf v Skalkos [1999] NSWSC 1334

New South Wales Supreme Court CITATION : Assaf v Skalkos [1999] NSWSC 1334 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 18374/99 HEARING DATE(S) : 01/11/99-17/12/99 JUDGMENT DATE : 1 December 1999

PARTIES : Joseph Assaf & Anor v Theodore Skalkos & Anor JUDGMENT OF : Carruthers AJ at 1

COUNSEL : T E F Hughes QC/K Rees (Plaintiffs) S M Littlemore QC/J R McKenzie (Defendants) SOLICITORS : Mallesons Stephen Jaques (Plaintiffs) T Lazaropoulos (Defendants) CATCHWORDS : Defamation - evidence - cross-examination upon expert's report - whether other party entitled to tender the report - whether that right is only available whilst the author of the report is still in the witness box. CASES CITED : Hatziparadissis v GFC (Manufacturing) Pty Limited (1978) VR 181; R v Foggo ex parte Attorney-General [1989] 2 QdR 49; R v McGregor [1984] 1 QdR 256; Meredith v Innes (1930) 31 SR 104. DECISION : See para 17

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CARRUTHERS AJ

Wednesday, 1 December 1999

CLD18374/93 JOSEPH ASSAF & ANOR v THEODORE SKALKOS & ANOR EX TEMPORE JUDGMENT - On admissibility of evidence; see p 1352 of transcript.

1 HIS HONOUR: It is necessary for me to rule upon the tender by the defendants of a report prepared in February 1999 by Dr Margaret Craig-Lees of the School of Marketing at the University of New South Wales who, for present purposes, could conveniently be described as an expert in marketing. She was retained, I imagine, some time in 1998 to prepare a report which went to the question of justification. To that end she was provided with certain materials by the solicitors for the defendants and she made investigations of her own. 2 Despite the lengthy interlocutory proceedings in this matter, it was not until about 17 or 18 November, which was well into this trial, that those representing the plaintiffs became aware of the existence of this report. This might be thought to be unfortunate, although I make no criticism of anyone in that regard because no application was ever made for an order that experts' reports be exchanged. In any event, Dr Craig-Lees was called by the defendants on 18 November this year to give evidence. Shortly after she embarked upon her evidence objection was taken to certain aspects of the evidence. 3 There was some debate in the absence of the jury on 18 November and then much more detailed debate in the absence of the jury on the morning of 19 November. At that stage Mr Littlemore QC for the defendants stated that he had not presently formed an intention to tender Dr Craig-Lees' report (T911). One of the areas of discussion was the fact that the report was based upon material which had not found its way into evidence. Mr Littlemore proposed that when the Court resumed in the presence of the jury, he would put certain specific assumptions to Dr Craig-Lees, consistent with the evidence, and adduce her opinions based upon that evidence with particular reference to a number of the particular jobs which were executed by the plaintiff company. 4 The evidence accordingly continued before the jury on 22 November. There were further objections taken and certain evidence was taken on the voir dire. In any event, Dr Craig-Lees' evidence was taken to the conclusion of her examination-in-chief and she was then cross-examined at some length, but I would not have thought undue length by Mr Hughes QC on behalf of the plaintiffs. 5 One of the matters that he put to Dr Craig-Lees was the submission that the assumptions upon which she relied, in one very significant aspect, did not include certain material which was to be found in her report. In other words, in expressing certain views, she was not taking into account basically the assumptions, but certain material which was not specifically in evidence but which she had taken into account in her report. To the extent that it is necessary for me to express an opinion on that, I would have thought that that was a permissible course of cross-examination, without it being said that counsel for the plaintiffs had embarked upon a cross-examination of the witness in relation to her report to the extent necessary to attract a conclusion that there had been cross-examination on the report, in the sense which is generally relied upon to attract either the tender by the other party of a report, or the other party requiring the cross-examining party to put a report in evidence. 6 However, the cross-examination constituted, as one would anticipate, a somewhat determined attack upon Dr Craig-Lees' credibility and her expertise and the validity of a number of her significant conclusions. The attack, if I may use that expression without sounding offensive, was directed in many instances to specific extracts from the report. In some instances extracts were read to the witness from the report. She was cross-examined about material in certain respects upon which she relied in expressing her opinions in the report. Apart from numerous direct references to her report, there were a number of questions which implicitly referred to the content of the report, together with information which the witness did or did not have prior to compiling the report. 7 I think it may fairly be said, in summary, that the cross-examination ranged widely over the report. I have concluded that, in the generally understood way in which this phrase is understood, the witness was cross-examined on her report. I cannot respectfully agree that the cross-examination could fairly be described as restricted to a relatively small number of discrete areas so far as the report was concerned. 8 In re-examination by Mr Littlemore there was a brief reference to the report. No application was made by counsel for the defendants, prior to the witness being excused, for the report to be admitted into evidence. However, it should be noted that during one of the numerous debates arising out of objections to certain parts of the cross-examination, Mr Littlemore said (at transcript 1000 on 23 November):