New South Wales Supreme Court CITATION : Barak v WTH [2002] NSWSC 649 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5151/01; 4558/01 HEARING DATE(S) : 22/07/02 JUDGMENT DATE : 22 July 2002 PARTIES : Barak Pty Limited - Plaintiff WTH Pty Limited trading as Avis Australia - Defendant JUDGMENT OF : Barrett J COUNSEL : Mr L G Foster SC/Mr Mr R A Parsons - Plaintiff Mr J O Anderson/Mr S Hughes - Defendant SOLICITORS : Norbert Lipton & Co - Plaintiff Freehills - DefendantRefer CATCHWORDS : PROCEDURE - report of expert - statement of awareness of and agreement to be bound by experts' code of conduct not included - expert satisfactorily examined on those matters - order displacing para (b) of Pt 36 r 13C(2) DECISION : Refer paragraph 5 - 2 - IN THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION BARRETT J MONDAY 22 JULY 2002 5151/01 - BARAK PTY LIMITED v WTH PTY LIMITED TRADING AS AVIS AUSTRALIA 4558/01 - BARAK PTY LIMITED v WTH PTY LIMITED TRADING AS AVIS AUSTRALIA JUDGMENT - on admissibility under Pt 36 r 13C(2), see p 20 of transcript 1 The plaintiff has filed and served an affidavit of Mr Byrnes, a consulting architect and planner, to which is annexed a report by him which does not contain an acknowledgement by him that he has read the code of conduct in Schedule K to the Supreme Court Rules and agrees to be bound by it. 2 The defendant, relying on Pt 36 r 13C(2)(b), submitted that service of the report was not valid service and that the report should not be admitted into evidence. 3 Mr Byrnes has given oral evidence. I gave leave for him to be examined on matters relevant to the defendant's objection. Immediately after being sworn, and also at the end of his evidence, he was examined about the code of conduct as follows: "Q. Are you aware of the requirements of the Experts' Code of Conduct that is laid down in the rules of this Court? A. Yes, I am. Q. I think they are set out in schedule K. Have you read schedule K? A. Yes, I have. Q. Were you are of schedule K prior to swearing your affidavit? A. Yes, I was. Q. In approaching the material that is set out in your affidavit, did you comply with schedule K to the best of your ability? A. I did." And later: "Q. I asked you some questions about the expert's code and in particular schedule K -- A. Yes. Q. - - to the rules of this Court, and did you agree to be bound by the code and schedule K? A. Absolutely, yes." 4 There have thus been unequivocal statements by Mr Byrnes under oath acknowledging that he had read the code in Schedule K and agreed to be bound by it. I am satisfied that that position may be taken to relate back to the time when he prepared the report. 5 In those circumstances, the intent of the rule of ensuring that only reports by experts who have proceeded in accordance with stated norms of conduct should be relied upon can be seen to be satisfied and it is appropriate that the Court make an order under the opening words of Pt 36 r 13C(2) displacing the operation of para (b), that is, an order that service of the report annexed to Mr Byrnes' affidavit was valid service and that the report is admitted into evidence. I so order. ********** Last Modified: 07/25/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.