AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v John David RICH & Ors [2005] NSWCA 152

Reported Decision : 54 ACSR 326 (2005) 23 ACLC 1111

New South Wales Court of Appeal

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v John David RICH & Ors [2005] NSWCA 152 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13, 14 April 2005

JUDGMENT DATE: 20 May 2005

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 181; Ipp JA at 182

DECISION: 1 Leave to appeal granted; 2 Direct the Appellant to file a Notice of Appeal within 7 days; 3 Appeal allowed; 4 Set aside Austin J's ruling that the Carter Report is inadmissible or should be excluded; 5 Opponents/Respondents to pay Claimants/Appellant's costs of the Appeal; 6 Remit the issue of costs at first instance to Austin J

CATCHWORDS: EVIDENCE - Expert Evidence - Admissibility - s76 and s79 Evidence Act 1995 - Where expert first formed opinions based on information not disclosed in report - Whether sufficient for admissibility that expert report discloses facts and reasons asserted as basis for the opinion - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Where trial judge did not analyse probative value of evidence - Whether fundamental error - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Expert report - Weight to be given to fact that facts and reasons asserted as basis for the opinion were not the basis upon which the opinions were first formed

Australian Securities and Investments Commission Act 2001 (Cth): ss 19, 68. LEGISLATION CITED: Corporations Act 2001 (Cth): s 180. Evidence Act 1995: ss 76, 79, 135.

Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 Bell v F S & U Industrial Benefit Society Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987) Clough v Tameside and Glossop Health Authority [1998] 1 WLR 1478 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 Elliott v Ivey (Unreported, Supreme Court of New South Wales, Sperling J, 23 April 1998) HG v The Queen (1999) 197 CLR 414 Holtman v Sampson [1985] 2 Qd R 472 Lewis v The Queen (1987) 88 FLR 104 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED: National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer') [1993] 2 Lloyds Rep 68 Pollock v Wellington (1996) 15 WAR 1 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 R v Fowler (1985) 39 SASR 440 R v Gilfoyle [2001] 2 Cr App R 57 R v Turner [1975] QB 834 Ramsay v Watson (1961) 108 CLR 642 Steffen v Ruban (1966) 84 WN (Pt 1) NSW 264; [1966] 2 NSWR 622 Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324