Platinum Investment Management Limited v Chief Commissioner of State Revenue [2009] NSWSC 988

New South Wales Supreme Court

CITATION : Platinum Investment Management Limited v Chief Commissioner of State Revenue [2009] NSWSC 988 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 17 September 2009 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 17 September 2009

DECISION : Leave refused. Experts to prepare a joint statement of extent to which they agree and disagree to be presented to the Court at hearing.

CATCHWORDS : PROCEDURE - Miscellaneous Procedural Matters - Further Evidence - application by defendant for leave to adduce further expert evidence explaining extent to which opinions have altered as result of leading plaintiffs experts evidence in reply - report completed - suggestion that plaintiff have leave to serve a further expert report in response - issue limited to share valuation on one or two bases

CATEGORY : Procedural and other rulings

CASES CITED : Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951.

PARTIES : Platinum Investment Management Limited (Plaintiff) Chief Commissioner of State Revenue (Defendant)

FILE NUMBER(S) : SC 1140/08

COUNSEL : M Richmond (Plaintiff) R Seiden and E Bishop (Defendant)

SOLICITORS : PricewaterhouseCoopers (Plaintiffs) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 17 SEPTEMBER 2009

1140/09 PLATINUM INVESTMENTS MANAGEMENT LIMITED v CHIEF COMMISSIONER OF STATE REVENUE EX TEMPORE JUDGMENT 1 This matter came before me on 14 October 2008 when the parties said they were ready for trial and provided available dates. I opened an ECM court. 2 Hammerschlag J had made pre-trial directions on 17 September 2008 under which the defendant was to serve his expert evidence by 31 October 2008. 3 On 16 October 2008 the matter was set down for hearing before me for two days commencing on 30 July 2009 and I made further pre-trial directions. 4 The defendant sought an extension of time to serve his expert report and on 3 November 2008 I extended the time to 21 November 2008. 5 On 4 December 2008 the defendant sought a further extension of time and foreshadowed that he might seek particulars and seek leave to serve a supplementary expert report. On the same day the plaintiff indicated that it would consent to a further extension of time to 12 December 2008 if a guillotine order was made and if it had leave to serve expert evidence in reply by 27 February 2008. 6 I stood the matter over before me in open court on 12 December 2008. By then the defendant had served its expert's report. I ordered the plaintiff to serve any expert evidence in reply by 27 February 2009 and stood the matter back into the ECM court. 7 On 27 February 2009 the plaintiff sought an extension of time to serve its expert evidence. On 3 March 2009 I extended time to 27 March 2009 with the warning that it should act in a timely fashion if it sought to vary court orders. The plaintiff served its expert evidence in reply on 27 March 2009. 8 On 30 March 2009 the plaintiff sought the vacation of the hearing dates on the basis that its senior counsel was no longer available on 30 July 2009. On 2 April 2009 I vacated the hearing and set the matter down for hearing before me for two days commencing on 26 October 2009. A repetition of such an order is unlikely in view of the High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951. 9 The defendant sought leave to serve a further expert report. The application was opposed and I adjourned the matter into open court today to hear oral argument. 10 The further report explains the extent to which the expert's opinions in his first report are qualified as a result of the plaintiff's expert's report in reply. The report has been completed and is ready for service. 11 The plaintiff submits that the experts should meet and produce a joint report. The defendant says the expert is available for only portion of the time leading up to the hearing. 12 The issue in this matter that calls for the assistance of expert opinion is limited to the question of the value of shares on one or two bases. That seems to me to be an issue that can be dealt with to the satisfaction of the parties and the court by the witnesses dealing with the matters contained in the existing reports. 13 Three expert reports have been served. The suggestion that a further report of Mr Bryant should be served today with liberty to the plaintiff to serve any reports in reply by 12 October 2009 seems to me to be a matter of overkill. The suggested five reports would all be with respect to the limited issue. 14 The application is made late in the day from the chronology that I have been handed and the defendant has been in possession of the report in reply since 27 March 2009. 15 I reject the application that the defendant be given leave to serve an affidavit of Mark Bryant dated 31 August 2009. 16 It follows that there is no reason for an order that the plaintiff serve evidence in reply by 12 October 2009. 17 It does seem to me, however, that I would be assisted if the experts met before the trial and produced a joint statement identifying the extent to which their opinions are in agreement and in disagreement. 18 At trial I will have the experts sworn or affirmed together and will have them give evidence together. 19 I order the experts for the parties to meet together at least seven days before the commencement of the hearing and meet or communicate with each other thereafter if necessary to prepare a joint statement of the extent to which they agree and the extent to which they disagree with the opinions expressed by them in their reports, the joint statement to be presented to the court at the hearing. I make orders in terms of paragraphs 3 to 9 of the short minutes of order, initialled by me, dated by me and placed with the papers. I adjourn the matter back into the ECM court.