MB v Protective Commissioner [2000] NSWSC 718

New South Wales Supreme Court

CITATION : MB v Protective Commissioner [2000] NSWSC 718 CURRENT JURISDICTION: Equity Division - Protective List FILE NUMBER(S) : SC 59/87; 72/94 HEARING DATE(S) : 04/07/00 JUDGMENT DATE : 4 July 2000

PARTIES : MB - Applicant Protective Commissioner - Respondent JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. A. Martin SC for applicant Mr. D. Officer QC with Mr. J. Sexton SC for respondent SOLICITORS : Mooney & Kennedy, Sydney for applicant Connery & Partners for respondent CATCHWORDS : EVIDENCE - Opinion evidence - Experts - Whether a professional can give an opinion as to what a careful and competent professional would do in specified circumstances. Rabelais v. Cameron NSWSC Hodgson J 8/2/93 CASES CITED : Permanent Trustee Aust. Ltd. v Bolton (1994) 33 NSWLR 735 O'Brien v. Gillespie (1996) 41 NSWLR 549 DECISION : See judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

CORAM: HODGSON, CJ in Eq.

Tuesday 4th July 2000

NO. 59 OF 1986 NO. 72 OF 1994 MB V. PROTECTIVE COMMISSIONER

JUDGMENT(re admissibility of evidence of Mr Shaw, tendered in evidence.)

CLOSED COURT

1 HIS HONOUR: Evidence has been tendered from a Mr Shaw, who is an investment consultant and trustee advisor. In general terms, the evidence takes the form of opinions as to what a prudent and competent trustee would do in certain circumstances. 2 In the case of Rabelais Pty Limited v Cameron (8 February 1993), I held that evidence could be admitted of opinions as to what a reasonably careful and competent solicitor would or should do in specified circumstances; and there is no reason why the position should be any different in relation to any other professional. However, the later cases of Permanent Trustee Australia Limited v Bolton (1994) 33 NSWLR 735 and O'Brien v Gillespie (1996) 41 NSWLR 549, while not expressly disagreeing with my decision in Rabelais, may be seen as suggesting a different approach. 3 I do, however, remain of the view that evidence of the general nature I have identified may be admissible, although there may of course be reasons why evidence of that type should not be admitted. 4 In my opinion, it is clear that a qualified person can give evidence of general practices of professionals, that is, evidence of what professionals generally do in specified circumstances. It is less clear that a qualified person can give evidence of the general practice of competent and careful professionals in specified circumstances; but my opinion is that evidence of that nature can be given. Plainly, the evidence must not be evidence of a legal standard, and on that matter I agree with the decision in O'Brien; but if evidence of that general type is taken simply as an opinion as to what in fact a competent and careful professional could be expected to do, this leaves it open to the court, firstly, to decide whether or not to accept that evidence and, secondly, to decide what legal standard should be applied. 5 Both those cases that I have referred to are cases of evidence of what is in fact done as matters of practice. Those cases must deal with regularly occurring circumstances, so that there can be a general practice as to what professionals actually do in those circumstances. However, the position is less clear again when the evidence tendered concerns not regularly occurring circumstances as to which there is a general practice, but rather, specific hypothetical circumstances in relation to which an opinion is expressed as to what a careful and competent professional would do. 6 In relation to that kind of evidence, there are a number of problems that could arise. 7 Firstly, as before, there is the problem of separating out the legal standard, which is a matter for the court, from the question which might be regarded as one of fact, namely what a competent and careful professional could be expected to do. However, in my opinion, that problem is not insuperable or fatal to the admissibility of the evidence. 8 Secondly, there may be a problem of lack of clarity as to the circumstances being addressed. If hypothetical circumstances are fully stated by the professional in the opinion, then it will be reasonably clear to what circumstances the opinion applies. However, if the witness merely says that, in the circumstances faced by the person whose conduct is in issue, a careful and competent professional would act in a certain way, there is the problem that those circumstances may be determined by the court differently from the circumstances which the witness had in mind. For that reason at least, I think evidence in that form should normally be rejected. Even if it were technically admissible it would, in my opinion, be unfair to give the other party the task of teasing out all the circumstances that the witness had in mind, so that rejection under section 135 of the Evidence Act would be justified. 9 The third problem with this sort of evidence is that there can be a real question as to the qualification of the witness. In many cases, just the ordinary training and experience of a professional in the field would not be sufficient to justify admission of that person's opinion as to what a competent and careful professional would do in hypothetical circumstances. For that kind of opinion, I think one needs some additional and special qualification. In that respect also, I agree with what was said in O'Brien. 10 In those views that I have expressed, there may be some residual disagreement with what was said in O'Brien. Certainly I would not exclude the evidence on the ground that it is part of the ultimate issue to be decided by the court; and I do remain of the view that, so long as the evidence is not directed at the legal standard to be applied, so long as it is based on fully stated hypothetical facts, and so long as the witness is properly qualified, then an opinion can be given as to what a competent and careful professional would do in those stated hypothetical circumstances. 11 Just running through the affidavit on the basis of those principles, my present view is that I would admit 14-18 as simply giving the witness's understanding of standards to be applied, not as any evidence of the truth of that but as some basis of the witness's understanding on which to evaluate other parts of his evidence. I would admit paragraph 19. I reject paragraphs 20 and 21. I admit paragraph 22 as evidence of the witness's understanding. I admit paragraphs 23 to 27. I reject paragraphs 28 to 36. I admit 37 and the first sentence of 38; I reject the rest of 38. I admit paragraph 39. I reject paragraphs 40 and 41. I admit paragraph 42. I reject paragraph 43 and 44. I admit paragraph 45. I reject paragraphs 46 and 47. **********