James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18

New South Wales Court of Appeal

CITATION: James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18

HEARING DATE(S): 13 February 2009

JUDGMENT DATE: 18 February 2009

JUDGMENT OF: Giles JA; McColl JA; Macfarlan JA

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within 7 days; (2) Appeal allowed; (3) Set aside the rulings: (a) that the analysts' reports tendered by the applicant not be admitted; and (b) that those of the analysts' reports going to the issue of the sale of the Gypsum business be admitted limited to use in relation to that issue; (4) Set aside the order for entry of the digital content of the analysts' reports in (b) in the court record database; (5) Respondent to pay the applicant/appellant's costs of the application for leave to appeal and appeal; (6) Remit the discretionary refusal to admit the analysts' reports to the trial judge for reconsideration.

CATCHWORDS: EVIDENCE - opinion evidence - expert's assumptions included a number of market analysts' reports - assumptions challenged by tender of other analysts' reports - not necessary first to put the other analysts' reports to expert - discretionary refusal to admit the other analysts' reports flawed by failure to assess probative value.

CATEGORY: Principal judgment

Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 54 ACSR 326; CASES CITED: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 58 ACSR 414; Browne v Dunn (1893) 6 R 67; re HIH Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler [2001] NSWSC 1168; (2001) ACSR 214;

PARTIES: James Hardie Industries NV - Applicant Australian Securities and Investments Commission - Respondent