Idoport Pty Limited & Anor v National Australia Bank Limited & 8 ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors. [49] [2001] NSWSC 1070

New South Wales Supreme Court

CITATION : Idoport Pty Limited & Anor v National Australia Bank Limited & 8 ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors. [49] [2001] NSWSC 1070 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 24/10/2001 JUDGMENT DATE : 16 November 2001

Idoport Pty Limited (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr R Titterton (Plaintiff) Mr J Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiff) Freehills (Defendant) CATCHWORDS : Evidence Act - Ruling on admissibility DECISION : Rulings on objections identified in schedules marked for identification D228 (1), D229 (1), D230 (1), D231 (1) and D249.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION – Commercial List Einstein J 16 November 2001 50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS

50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS

3991/00 IDOPORT PTY LIMITED ("JMG") v NATIONAL AUSTRALIA BANK

Judgment on defendants "Expert" Form Objections-Statements of Mr Maconochie 1 The defendants have mounted a number of objections to sections of Mr Maconochie's statements based upon the submission that these sections constitute bare assertions/lack of reasoning process. 2 The objections are identified in the schedules marked for identification D 228 (1), 229 (1), 230 (1), 231(1). 3 The requirements for admissibility under section 79 were summarised in the judgment on the expertise of Mr Maconochie where the principles were set out. The principles have been further clarified in the recent judgment of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001] NSWCA 305 (delivered on 4 September 2001) where Heydon JA refers to a number of the relevant authorities and summarises the essential propositions. 4 In the present proceedings there is often a narrow line between on the one hand, a ruling which would reject a section of a paragraph on the bases summarised in the judgment of Heydon JA , and on the other hand permitting the exercise to become an unacceptable vehicle for permitting the defendants by a backdoor route, to effectively cross-examine the witness. 5 I have endeavoured to keep a close eye upon this important distinction in the following rulings in a difficult area. The rulings are set out in the schedules to this judgment. 6 MFI D225(1) is a schedule prepared by the defendants summarising certain objections described as "Expert" Form Objections to the fifth statement of Mr Maconochie. A copy of MFI D 225(1) is annexed to this judgment. 7 In my view none of the objections are of substance. Subject to the following matter, each paragraph is allowed. I note however that so much of Page 2 of MFI D225(1) as relates an objection to paragraphs 10.1 - 10.5 has apparently earlier been dealt with on 22 October 2001. 8 MFI D225(2) is a further schedule prepared by the defendants summarising certain objections described as "Expert" Form Objections to the sixth statement of Mr Maconochie. A copy of MFI D225(2) is annexed to this judgment. As to issue 6.1 – Paragraph 8.2(ix) the ruling is 'Res/Leave'. As to issue 6.2 – The ruling is Res/Leave for paragraph 8.3 As to issue 6.3 – The ruling is Res/Leave for paragraphs 8.2 (v), 8.5 – 8.7 As to issue 6.4 – Paragraph 9.2.3 (a)-(e) are not pressed to the extent that they deal with regulatory authorities in Canada and UK.