Portal Software v Bodsworth [2005] NSWSC 1228

New South Wales Supreme Court

CITATION : Portal Software v Bodsworth [2005] NSWSC 1228

HEARING DATE(S) : 17 October 2005

JUDGMENT DATE : 17 October 2005

JUDGMENT OF : Brereton J

CATCHWORDS : EVIDENCE – Expert evidence – expert witness code of conduct – where late affidavit complies with expert witness code but earlier does not – affidavit evidence – whether expert's affidavit is "report" or "oral evidence" – held, it is "oral evidence" – dispensing with strict requirements of code.

Uniform Civil Procedure Rules Pt 31 r 23 LEGISLATION CITED : Evidence Act s 135

Barack v WTH Pty Limited [2002] NSWSC 649 Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 CASES CITED : Jermen v Shell Co of Australia Ltd [2003] NSWSC 1106 Langbourne v State Rail Authority [2003] NSWSC 537 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870

Portal Software International Pty Ltd (plaintiff) PARTIES : Jason Bodsworth (defendant)

FILE NUMBER(S) : SC 3250/05

R Alkadamani (plaintiff/respondent) COUNSEL : M White (defendant/applicant)

Haywards Solicitors (plaintiff/respondent) SOLICITORS : Watkins Tapsell (defendant/applicant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

MONDAY 17 OCTOBER 2005

3250/05 PORTAL SORTWARE INTERNATIONAL PTY LTD v JASON BODSWORTH (No. 2) JUDGMENT - (On admissibility of affidavits of Mitchell Bezzina; see p 46 of the transcript.) 1 HIS HONOUR: Mr Alkadamani, for the plaintiff, seeks to read two affidavits of Mitchell Bezzina sworn 17 October 2005. Mr Bezzina previously swore an affidavit on 23 August 2005 and a supplementary affidavit on 4 August 2005. The affidavits of 17 October 2005 are in substitution for and in substantially identical terms to those earlier affidavits, save that they include the following: I have read the Expert Witness Code of Conduct Schedule 7 to the Uniform Civil Procedure Rules. I agree to be bound by the Schedule 7. Further, I specifically confirm that in swearing this affidavit, and to swearing my affidavit of 23 August 2005, I have done so in accordance with the obligations set out in, inter alia, clause 2 and clause 4 (of the Expert Witness Code of Conduct).