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 "JMG" v National Australia Bank Limited & Ors. [44] [2001] NSWSC 960 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 25/10/01 JUDGMENT DATE : 29 October 2001 Idoport Pty Limited (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr R Alkadamani (Plaintiffs) Mr J Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehills (Defendants) CATCHWORDS : Evidence - Objections as to admissibility LEGISLATION CITED : Evidence Act 1995 DECISION : Rulings given. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION – COMMERCIAL LIST Einstein J 29 October 2001 50113/98 Idoport Pty Limited & Anor v National Australia Bank Limited and 8 Ors 50026/99 Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus 3991/00 Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors. Judgment on objections to Statement of Stephen Coleman of 13 March 2001 1 The defendants have taken a number of objections to the statement of Mr Stephen Coleman dated 13 March 2001. Mr Coleman is put forward by the plaintiffs as a person having, by his training study or experience, been shown to have acquired specialised knowledge within the meaning of section 79 of the Evidence Act so as to be capable of expressing opinions of an expert nature based wholly or substantially on that specialised knowledge. As I understand the position, the defendants accept that Mr Coleman satisfies the section 79 criteria in principle but rely upon suggested lack of transparency of reasoning processes and suggested bare assertions for the purpose of pressing the subject objections. Other bases for the objections are to be found in MFI D 233 in the template prepared to identify both the defendants' objections and suggested rulings and the plaintiffs suggested rulings. 2 Mr Coleman is presently proposed to be cross-examined from the commencement of term next year. Hence the importance of the parties being given as clear an indication as possible as to the rulings on the subject objections. Clearly where rulings can be given they should be given so that as appropriate, if a 'reserve/leave' ruling is given, Mr Coleman may be given an appropriate opportunity to supplement the statement in an attempt to overcome admissibility problems. 3 The rulings are as follows: Paragraphs Ruling allow paragraph 3.1.4 excluding last sentence. Grant leave in relation to last sentence. 3.1.1 - 3.1.5 allow paragraph 3.1.5 allow paragraphs 3.1.1,3.1.2 and 3.1.3 on the basis that they are to be read as going no further than and that the reasoning is based upon paragraphs 3.1.4 and 3.1.5. Section 136 order accordingly. 3.2.1, 3.2.3 Allow 3.3.1 Allow 3.3.4 (last sentence - Allow "and significantly more complex") 3.3.5 reserve/leave 3.3.6 (first and last sentences) reserve/leave 3.3.7 reserve/leave 3.3.8 reserve/leave 3.3.9 allow on basis that it relates to technical requirements or technical capacity only-section 136 order accordingly 3.4.2 reserve/leave 3.4.3 reserve/leave 3.5.1 allow first sentence. Reserve/leave as to 2nd sentence 3.5.2 (2nd sentence) allow 3.5.3 allow 3.5.4 allow 3.6.2 allow 3.7.1 (a) (2nd paragraph, last sentence) reserve/leave 3.7.1 (c) (2nd paragraph-"The timeframe… by October 1997") reserve/leave 4.1.5 reserve/leave 5.1.9 (first point-"Shares is more complex") reserve/leave 5.2.5-5.2.9. Reserve/leave 5.2.11-5.2.13. Reserve/leave 5.4.6 5.4.6 - reserve/leave to specify derivation of figures. 5.4.7- 5.4.10 allow 5.5.4 reserve/leave 5.5.7 reserve/leave 5.6.1.1 allow 5.6.2.1 reserve/leave 5.6.2.4 (first sentence) reserve/leave 5.6.2.4 (last sentence) reserve/leave 5.6.2.6 (2nd paragraph-"Therefore … size) reserve/leave 5. 6.3.2 reserve/leave 5.6.3.3 reserve/leave 5.6.3.4 reserve/leave 5 .7.1 reserve/leave 5.8.1.1 reserve/leave 6.1 allow first and 2nd sentences. Reserve/leave as to third sentence 6.2 reserve/leave 6.5 reserve/leave 6.6 reserve/leave 6.7 - 6.8 reserve/leave. Leave needed because the court has reserved on 6.5 and 6.6 6.9 (last sentence) reserve/leave 6.11 ("but based upon… be required") reserve/leave 6.13 (first bullet point, 2nd sentence) allow 6.15 (first sentence) ruling as agreed - see schedule 6.16 (for sentence) allow 6.16 (last sentence) allow 6.17 (2nd sentence) allow 6.18 (quotations from articles) allow 6.19 allow 7.3.9 reserve/leave 7.3.10 (last two sentences) reserve/leave 7.4 (first sentence) reserve/leave 7.4 (last two sentences) order as proposed by defendants 7.7.2 (for sentence) reserve/leave 7.8 (last sentence) reserve/leave 7.15.3 ("I believe… frame") reserve/leave 7.15.6 (last two sentences) reserve/leave 7.21 (last two sentences) reserve/leave 7.25 (last sentence) Allow 7.31 (last sentence) reserve/leave 7.32 (last sentence) Allow 7.37 (last sentence) reserve/leave 7.42 (last sentence) Allow 7.46 (last sentence) reserve/leave 7.48 ("in my opinion… its people") reserve/leave 7.49 (last sentence) reserve/leave 7.52 (third sentence-"and in fact… markets") reserve/leave 7.57 (last sentence) reserve/leave 7.61 (2nd sentence) Allow 8.7 reserve/leave 8.16 (third sentence) reserve/leave 8.18 (last sentence) ruling as agreed I certify that paragraphs 1 - 3 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 29 October 2001 ___________________ Susan Piggott Associate 29 October 2001 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.