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. [43] [2001] NSWSC 944 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 19/10/01 JUDGMENT DATE : 25 October 2001 Idoport Pty Limited (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr R Titterton (Plaintiffs) Mr J Sackar QC (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehills (Defendants) CATCHWORDS : Directions as to admissibility of evidence. DECISION : Rulings given in template form. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION – COMMERCIAL LIST 25 October 2001 Einstein J 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 1 Objections were taken by the defendants to paragraphs in the statements of W Mackay, J C Gillick and S Mustonen. 2 The transcript of argument and written submissions from both parties makes plain that most of the issues were covered in the judgment [2001] NSWSC 529 given by the Court on 27 June 2001 relating to the evidence of Mr Ling. 3 I see no to revisit that judgment. The issue concerns the proper application of the principles set out in that judgment. 4 I publish the Court rulings in relation to each of the objections. I certify that paragraphs 1 - 4 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 25 October 2001 ___________________ Susan Piggott Associate 25 October 2001 NATIONAL AUSTRALIA BANK LIMITED & ORS ats IDOPORT PTY LIMITED & ORS DEFENDANTS' OBJECTIONS TO THE STATEMENT OF WILLIAM MACKAY PARAGRAPH OBJECTION DEFENDANTS' SUGGESTED RULING PLAINTIFFS' SUGGESTED RULING COURT'S RULING [O][R] Relevance/opinion – inadmissible under ss 55, 56 – second hand evidence of opinions of Messrs Campbell and Nash that require specialised knowledge and not shown to be based on such knowledge – reasoning process of Messrs Campbell and Nash not clear – inadmissible under Pt 3.3.* Sentences Agree 6, 7, 8 – "A Conv" 9 (sixth, seventh & part of eighth sentences – "I also recall Chris Campbell … enthusiastic about Ausmaq") Likely to be misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. A Conv Sentence 9 -Res/Leave Hearsay Alternatively, [O] [A Conv] Relevance – state of mind of this witness or third persons not relevant – inadmissible under ss 55, 56. A Subj Op. 9 (part of eighth sentence – "…and his enthusiasm was infectious") [O][R] See previous ruling Probative value substantially outweighed by danger that the evidence might be misleading or confusing and/or cause or result in undue waste of time- should be excluded under s135 Alternatively, leave to supplement Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. A Subj Op 11 (first, second, third & fourth sentences – "When the NAB took over … that it had done so.") Opinion – not necessary to obtain an adequate account of the witness' perception of the matter or event not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss78,79* [O][R] Alternatively, leave to supplement A Subj Op Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – should be excluded under s135. Relevant – inadmissible under ss55,56. 11 (fifth sentence –"To my knowledge … similar project.") Opinion – "similar project" – not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness' perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* [O] [R] The first plaintiff no longer presses this sentence Reject Probative value substantially outweighed by danger that the evidence might cause or result in undue waste or time – should be excluded under s 135. Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. A Subj Op. 11(sixth sentence – "At the time that NAB …to the financial advisers.") Opinion – not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness' perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* [O][R] Alternatively, leave to supplement A Subj/Op Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants, misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. Relevance - state of mind of this witness not relevant – inadmissible under ss 55, 56. A Subj Op. 12 (second sentence to end of para –"However, I realised ...") Opinion – not based on what the witness saw, heard or otherwise perceived bout a mater or event – not necessary to obtain an adequate account of the witness' perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss78, 79. [O][R] Alternatively, leave to supplement Res/Leave Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants, misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. 14 (last sentence – "I remember saying to someone …") Opinion – second-hand evidence of witness' opinion - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under s 79.* [O][R] Press – perfectly admissible direct evidence Allow as Conv Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – should be excluded under s 135 Hearsay 16 [O][R] Leave granted to supplement Res/Leave Probative value substantially outweighed by danger that the evidence might be misleading or confusing and/or cause or result in undue waste of time – no identification of "people from Ausmaq" - other more detailed evidence regarding planning for superannuation & equities on Ausmaq available – should be excluded under s 135. Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56. A Subj Op. Res/Leave 17 (first sentence) [O][R] Alternatively, leave to supplement Before arguably ruling Opinion - not necessary to obtain an adequate account of the witness' perception of the matter or event – inadmissible under s 78. A Subj/Op Relevance – state of mind of this witness not relevant – inadmissible under ss 55, 56 A Subj Op. 17 (last sentence) Opinion not contemporaneous – not necessary to obtain an adequate account of the witness' perception of the matter or event inadmissible under s 78. [O][R] Alternatively, leave to supplement Reject Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants and/or cause or result in undue waste of time – other more detailed evidence regarding superannuation and Ausmaq available – should be excluded under s 135. 18 Relevance – not admissible under ss 55, 56. [O][R] Press Reject Sentence 1- A Subj/Op Relevant – state of mind of this witness not relevant – inadmissible under ss55, 56. A Subj Op 19 (second sentence to end of para), 20, 21, 22, 23 Opinion – not contemporaneous - not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness' perception of the matter or event - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* [O][R] Alternatively, leave to supplement Sentence 2- Reject 24 (last sentence) Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. [O][R] A Subj Op A Subj/Op Opinion - not contemporaneous - not based on what the witness saw, heard or otherwise perceived about a matter or event - not necessary to obtain an adequate account of the witness' perception of the matter or event - not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79* Alternatively, leave to supplement Para 25 Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. First sentence- A Subj Op Res/Leave 25, 26, 27 Opinion - not contemporaneous – not based on what the witness saw, heard or otherwise perceived about a matter or event – not necessary to obtain an adequate account of the witness' perception of the matter or event – not based on any disclosed specialised knowledge reasoning process not disclosed – inadmissible under ss 78, 79.* [O][R] Alternatively, leave to supplement Balance- Reject Probative value substantially outweighed by danger that the evidence might be unfairly prejudicial to the defendants, be misleading or confusing and/or cause or result in undue waste of time – should be excluded under s 135. Paras 26 & 27 Allow as Subj/Op Para 28 Sentence 1 - Res/Leave to add date then allow Sentences 2 to 4 – Allow Sentence 5- Res/Leave Sentence 6 – Allow Sentence 7- Reject 28 – 32 and "WM7" Relevance – inadmissible under ss 55, 56. [O][R] Press Para 29 Allow first sentence, reject balance Para 30 Allow Para 31 Allow Para 32 Allow sentences 1-4, reject sentence 5, WM7 – Allowed as business record 33 (second sentence) Relevance – state of mind of this witness not relevant –inadmissible under ss 55, 56. [O][R] A Subj Op Res/Leave Opinion – not contemporaneous – not based on what the witness saw, heard or otherwise perceived about a matter or event – not necessary to obtain an adequate account of the witness' perception of the matter or event – not based on any disclosed specialised knowledge – reasoning process not disclosed – inadmissible under ss 78, 79.* Alternatively, leave to supplement * To the extent that any part of Mr Mackay's statement might otherwise be admitted as expert opinion evidence under s 79 contrary to the defendants' objection, it is submitted that such evidence should be rejected pursuant to Part 36 Rule 13C of the Supreme Court Rules. NATIONAL AUSTRALIA BANK LIMITED & Ors ats IDOPORT PTY LIMITED & Ors DEFENDANTS' OBJECTIONS TO THE STATEMENT OF MR JOHN CHARLES GILLICK DATED 27 JUNE 2000 PARAGRAPH OBJECTION DEFENDANTS' SUGGESTED RULING PLAINTIFFS' REPLY COURT'S RULING 4 (first sentence) Conclusion [O][R/leave] Press. R/Leave [A Op] [A Subj] 4 (second and third sentences) Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] R/Leave Contemporaneous opinion of financial planners and relevant to likely success of AUSMAQ. 5 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. Alternatively, leave. Allow as Contemp Opinion Press "AUSMAQ also benefited clients by reducing transaction costs" only as [A Op] and [A Subj]. Press balance of first sentence generally. Press second sentence generally. 6 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press third sentence generally except for the word "substantially" which is pressed only on the basis of [A Op] and [A Subj]. Allow as per plaintiffs' reply Press fourth sentence generally except for the word "substantially" which is pressed only on the basis of [A Op] and [A Subj] Press fifth sentence generally except for the word "substantial" which is pressed only on the basis of [A Op] [A Subj]. Press last sentence. 7 (second and last two sentences) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press. Alternatively, press only on the basis of [A Op] [A Subj]. Allow 8 (first and second sentences, and third sentence - "planners such as") Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. Mr Gillick is able to speak on behalf of Cameron Walshe planners in respect of the period and the issues discussed. Alternatively, [A Subj/Op]. Allow 8 (third sentence – "are perceived by Cameron Walshe") Hearsay. [O][A Subj/Op] Press. See response to preceding objection. Res/Leave 9 (first sentence "planners such as") Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. See first plaintiff's response to para 8 (1st and 2nd sentences) objection. Further, in relation to para 9 the objected to sentence expressly identifies the planners as ones who are "such as Cameron Walshe's planners". Allow 10 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. Not an opinion. In relation to the first sentence Mr Gillick can record from personal knowledge how planners were remunerated. Press second sentence on the basis of s.78. Alternatively, press second sentence as [A Op] and [A Subj]. Press third sentence. Allow 11 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press [A Op] and [A Subj]. The views of persons in the financial services industry with the experience/ seniority of Mr Gillick are relevant to the Court's assessment of the likely success of the AUSMAQ Service. R/Leave 12 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. Not an opinion in so far as it records an observable fact, namely, that in a specified period (1995-1997) no other system had the "ability to execute orders for managed funds electronically". Alternatively, [A Op] and [A Subj]. R/Leave 13 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] [A Op] [A Subj]. See first plaintiff's response to para 11 objection. R/Leave Allow second sentence as A Subj/Op 14 (second to fourth sentences) Opinion. [O] [A Subj/Op] Agree as to second sentence. Press third sentence: Mr Gillick can state that Investment Link did not have a particular feature (ie. "did not facilitate transactions in managed funds") and that because of that matter, amongst others, Cameron Walshe did not use it. Agree re: fourth sentence. Allow balance 15 (first sentence – "the") Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press. Allow Press as s.78 opinion re second and third sentences which flows from fourth and fifth sentences. 15 (second to fifth sentences) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Fourth sentence is not an opinion and is pressed generally. Allow Fifth sentence is an inevitable consequence of the matters recorded in the fourth sentence. 17 (first sentence) Opinion. [O] [A Subj/Op] Press. Mr Gillick can state as a fact whether for Cameron Walshe and its clients the necessary information was provided in an appropriate format. Allow 17 (third to fifth sentences) Opinion. [O] [A Subj/Op] Agree A Subj/Op 17 (last sentence) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Press. Res/Leave [O] [A Subj/Op] and 18 (second sentence to end) Opinion. s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Press Allow Otherwise, [O][R] [O] [A Subj/Op and 19 Opinion. s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Press Allow Otherwise, [O][R] [O] [A Subj/Op] and s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe 20 Opinion. Otherwise, [O][R] Press Allow 21 (second sentence – "and in the financial planning industry generally,…" and last sentence) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] [A Op] [A Subj] Reject 22 Relevance. [O] [R] Relevant to the importance of client ownership issues to financial planners. Allow 23 Relevance. [O] [R] As per para 22. Allow [O] [A Subj/Op] and A Subj/Op 24 Opinion. s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Agree s.136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Otherwise [O][R] Otherwise [O][R] [O] [A Subj/Op] and 25 (second sentence – "and the planners…the case today." and third sentence) Opinion. s 136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Agree A Subj/Op Otherwise [O][R] 26 (first sentence and second sentences) Opinion. [O][A Subj/Op] Agree. [A Subj/Op] 26 (third sentence) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press. Mr Gillick is recording that he had no knowledge that any other system had such a capability. That is not an opinion. Alternatively, [Op] [Subj]. [Op][Subj] Reject 26 (last sentence) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press. Mr Gillick is in a position to record the likely attitude of Cameron Walshe and what it would or would not have done assuming a particular state of affairs. Such evidence is materially relevant to the loss of opportunity issues in the proceedings. S135 Probative value of evidence substantially outweighed by danger that evidence might be unfairly prejudicial to defendants. 27 (third sentence – "which at that time had no similar competitor") Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press words "which at that time had no similar competitor". s.78 opinion. Allow Op/Subj Press generally except for the word "substantially" which is only pressed as [Op] [Subj]. 28 (second sentence) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O] [R] Reject 29 (first sentence - "attractiveness") Opinion. [O] [A Subj/Op] Agree re: the word "attractiveness" but press balance of sentence generally. A Subj/Op] 29 (quotes) Hearsay. [O] [A Conv] Press generally against fourth defendant. Agree [O] [A Conv] re: balance of defendants. [O] [A Conv] Press. Mr Gillick can record: 30 (first sentence) Form. [O] [R/leave] (a) that conversations occurred; R/leave (b) that the substance of those conversations in respect of a particular matter (namely fees) is contained in specific documents. Alternatively, leave. 33 (second sentence to end) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [A Op] [A Subj]. Matter relevant to attractiveness of AIDC account. Reasoning sufficiently disclosed. Mr Gillick sufficiently experienced in financial services industry as to provide material evidence to the Court. A Op 34 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] As per para 33. A Op 35 Opinion. [O][A Subj/Op] Agree. [A Subj/Op] Reject "and other planners". 37 (first sentence – "and other financial planners", and second to fourth sentences) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Press. [A Op] [A Subj] Sentences 2-4 Res/Leave 38 (quote) Hearsay. [O][A/Conv] Press generally as disclosing the views of a financial planning groups' executive management [A Conv] [A Subj] [A Op]. A Conv 47 Form. [O][R/leave] Press. Allow 50 Form. [O][R/leave] Press. Allow 51 Opinion. [O][A Subj/Op] Press. Allow as "Subj/Op" 52 Opinion not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [A Op] [A Subj]. Relevant to expectations of planners at the time and their interest in Allow as "Subj/Op" AUSMAQ 57 Opinion. [O][A Subj/Op] Press first sentence. Agree re: second sentence. First sentence – allow Second sentence – A.Subj.Op 58 Opinion. [O][A Subj/Op] Press. Allow 59 (last sentence) Opinion. [O][A Subj/Op] Agree. A Subj/Op 60 (second, third and fifth sentences) Opinion. [O][A Subj/Op] Agree. A Subj/Op 61 (first sentence) Opinion. [O][A Subj/Op] Press. Mr Gillick can state from personal knowledge that it was easier to use AUSMAQ subsequent to initial registration of a client. The word "far" is pressed only on the basis of [A Op] [A Subj]. Word "far" allowed as "A.Op". Balance allowed. 62 (second to last sentences) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [A Subj/Op] R/Leave – Allow if shown to be contemp statement of opinion. [O] [A Subj/Op] and 63 Opinion. s136 limiting order - evidence limited to Gillick opinion of Cameron Walshe Financial Planners and clients of Cameron Walshe. Agree A Subj/Op Otherwise, [O][R] 64 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [A Op] [A Subj] A Op These opinions are material to the Court's assessment of the significance of the criticisms raised by the defendants. 65 (third sentence - "by financial planners and,"). Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Agree only in relation to the words "by financial planners and". Reject "financial planners'. Allow balance. 66 (third and fourth sentences) Opinion. [O][A Subj/Op] Agree. A.Subj/Op 67 (second sentence) Opinion. [O][A Subj/Op] Agree. A.Subj.Op [Op] [Subj] 68 (third sentence) Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Op Subj Relevant to financial planners' perceptions and the reasons why they were or were not interested in AUSMAQ after NAB acquisition. 69 Opinion not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] See response to preceding objection. Op Subj 70 (third to last sentences) Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [Op] [Subj] Op Subj [Op] [Subj] 71 Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] Op Subj Relevant to Share Entitlement Trust. See T.2901, lines 15-37 and MFI P87, Vol. 1, tab 5, p6. NATIONAL AUSTRALIA BANK LIMITED & Ors ats IDOPORT PTY LIMITED & Ors DEFENDANTS' OBJECTIONS TO THE STATEMENT OF SARI MUSTONEN PARAGRAPH OBJECTION DEFENDANTS' SUGGESTED RULING PLAINTIFFS' SUGGESTED RULING COURT'S RULING 8 Opinion. [O][ A Subj/Op] Agree A Subj/Op 11 (third, fourth and fifth sentences) Opinion. [O][A Subj/Op] Agree A Subj/Op 16 (first two sentences) Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [O] [A Subj/Op], alternatively [R/leave]. Res/Leave 17 Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [O] [A Subj/Op], alternatively [R/leave]. Res/Leave 18 (fourth sentence) Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [O] [A Subj/Op], alternatively [R/leave]. A Subj/Op 21 (second sentence – "and that seemed to be understood… that I spoke to") Opinion. [O][A Subj/Op] Agree. A Subj/Op 21 (second last sentence) Opinion. [O][A Subj/Op] Agree. A Subj/Op 22 (first sentence – "and that was…reports concerning other transactions") Opinion. [O][A Subj/Op] Agree. A Subj/Op 23 (first sentence – "but in my experience…brokers will accept orders") Opinion not contemporaneous – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [O] [A Subj/Op], alternatively [R/leave]. Res/Leave 24 (last two sentences) Opinion. [O][A Subj/Op] Agree. A Subj/Op 28(iii) (last sentence) Opinion. [O][A Subj/Op] Agree. A Subj/Op 28(v) (last sentence) Opinion – not based on demonstrated specialised knowledge and reasoning process – not necessary to understand the witness' factual evidence - state of mind of witness not relevant - no probative value – cause or result in undue waste of time –unfairly prejudicial to defendants - be misleading or confusing – ss.55, 56, 76, 78, 135 Evidence Act. [O][R] [O] [A Subj/Op], alternatively, [O] [R/leave]. Res/Leave 28(vi) (last three sentences) Speculation – no evidentiary foundation whatsoever. [O][R] The plaintiffs do not press these sentences Reject Last Modified: 06/13/2002 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. 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