Countouris v Kallos [2007] NSWSC 944

New South Wales Supreme Court

CITATION : Countouris v Kallos [2007] NSWSC 944

HEARING DATE(S) : 23/08/07 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 23 August 2007

DECISION : Hearing before Expert Evidence Judge postponed.

CATCHWORDS : EVIDENCE [55]- Expert evidence- When to be permitted- Handwriting evidence not ordinarily allowed when alleged writer of disputed material available- Uniform Civil Prodecure Rules 31.19

LEGISLATION CITED : Civil Procedure Act 2005, ss 56-60 Uniform Civil Procedure Rules 2005, Pt 31 r 19

PARTIES : Peter Countouris (P) Efthymios Kallos (D)

FILE NUMBER(S) : SC 2881/07

COUNSEL : T Tzovaras (S) (P) K Gourlie (S) (D)

SOLICITORS : Tzovaras Legal (P) Watson & Watson (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 23 August 2007

2881/07 – COUNTOURIS v KALLOS JUDGMENT 1 HIS HONOUR: This matter is in the duty list because it is a relatively urgent matter with respect to the affairs of people associated with the Greek Orthodox Church at Burwood. The problem is with the election of a controlling committee. 2 There is a notice of motion returnable before the Expert Evidence Judge next Wednesday to allow expert evidence. The expert evidence appears to be associated with the cross-claim. The point that is concerning the defendants/cross-claimants is that some proxies appear to have been forged. They want expert evidence to enable the court to determine which is the forgery and which is the authentic proxy. 3 However, the solicitor for the plaintiffs/cross-defendants, Mr Tzovaras, said that would not be the best evidence. He said that this was a situation where everyone is a member of the one Parish and the best evidence is just for someone to say "that proxy is mine, the other one is not". There is no need for expert evidence. 4 Mr Gourlie, for the defendants, says that to ask everyone concerned - and I think there are about 33 people - is far more time consuming than getting expert evidence. 5 The court when determining whether to give leave to adduce expert evidence under Pt 31 r 19 and following of the Uniform Civil Procedure Rules 2005 has to bear in mind the overriding purposes set out in ss 56 to 60 of the Civil Procedure Act 2005. 6 In my view, Mr Tzovaras is correct when he says: (1) that the best evidence is the evidence of the persons themselves, if they are available, as to whether or not they signed the proxy or which proxy they signed; and (2) that as everyone concerned attends the one Church, affidavits should easily be obtained. 7 Accordingly, I will postpone the hearing before the Expert Evidence Judge until after 17 September 2007 so that that evidence can be obtained. If there are situations where the maker of the proxy is dead or is overseas and cannot be contacted then it may be proper for expert evidence, by way of a handwriting expert, to be given with respect to the remainder. That matter is reserved. 8 Accordingly, the time for the defendants to file evidence is fixed as at 4 pm on 17 September 2007. I will adjourn the motion to the Expert Evidence Judge's list at 9 am on 19 September 2007 with liberty to apply on two days' notice to the Duty Judge. 9 The second matter will travel with this matter and be with the Expert Evidence Judge on 19 September 2007.