Supreme Court New South Wales Medium Neutral Citation: H M & O Investments Pty Limited v Ingram (No.3) [2011] NSWSC 565 Hearing dates: 9 June 2011 Decision date: 09 June 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Evidence admitted. Catchwords: EVIDENCE - objection - no question of principle. Category: Procedural and other rulings Parties: H M & O Investments Pty Limited (First Plaintiff) Teach & Play Pty Limited (Second Plaintiff) Bradley Phillip Ingram (First Defendant) Glenda Louise Ingram(Second Defendant) Representation: Counsel: S A Gregory (Plaintiffs) G Curtin SC / J A English (Defendants) Solicitors: Owen Hodge Lawyers (Plaintiffs) TressCox Lawyers (Defendants) File Number(s): 2009/297464 Judgment (EX TEMPORE) - objection to the evidence of Mr crellin; see transcript p 198 1HIS HONOUR: Objection is taken to the evidence of Mr Gary Crellin comprised in his affidavit sworn 23 July 2010 and in annexure A to that affidavit, and exhibit A and exhibit GC2 referred to in it. In exhibit A, Mr Crellin includes, amongst other things, reports on tests carried out by him as to compliance with relevant requirements of the applicable standard. He reports that in his opinion certain items of equipment did not comply. Those conclusions are summarised in annexure A to his affidavit and are referred to in the body of the text. In exhibit GC2, Mr Crellin annexes a number of photographs relating to equipment at a play centre in Melbourne and a report on at least some of that play equipment. 2To my mind, the underlying reports and photographs (and the other business records such as cutting lists comprised in exhibit A) are admissible as evidence of, or explaining or supplementing, Mr Crellin's tests, observations, measurements and the like. That being so, the allegations made in annexure A to his affidavit, and observations made by him in the body of his affidavit, can be traced back to the test reports. In those circumstances, I think the simpler course is to admit the whole of the material referred to, but on the basis that what is relevant and probative is the evidence of tests, observations and measurements, and that the Court is not bound by Mr Crellin's expressions of opinion as to compliance. I make that point since the question of compliance is to be referred out, pursuant to reasons I gave a moment ago, and I do not want anyone to think that simply because Mr Crellin reports that something failed to comply, the referee is bound to accept that conclusion. 3Mr Crellin also gives evidence that some items of equipment did not comply with the product labelling requirements of the standard. In terms, that is not a pleaded allegation of misleading or deceptive conduct, and the cost of labelling is not a pleaded component of the alternative claim for damages. However, Mr Curtin very fairly conceded that his clients would not be prejudiced if the relevant material were admitted, and accordingly I do admit it. 4To the extent that Mr Crellin's opinions are expressed in terms that particular items of equipment "failed section 4 marking", I read that as a reference to the absence of marking of the kind required by section 4 in the standard. In circumstances where it could hardly be a matter of dispute that the product did or did not have the requisite label affixed to it, I do not think that any prejudice caused by admitting what may be a technically inadmissible expression of opinion as to failure to comply for the purpose of proving absence of the requisite label. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2011