Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 3) [2012] NSWSC 937

Supreme Court New South Wales

Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 3) [2012] NSWSC 937 Hearing dates: 9 August 2012 Decision date: 14 August 2012 Before: Price J Decision: Evidence admitted Catchwords: EVIDENCE - admissibility - whether expert witness code of conduct applicable Legislation Cited: Uniform Civil Procedure Rules 2005 r 31.18, r 31.23(1), r 31.23(3), r 31.23(4) Cases Cited: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 Category: Procedural and other rulings Parties: Roads and Traffic Authority of New South Wales (plaintiff) Mr Toepfer (defendant; cross-claimant) CGU Insurance Limited (1st cross-defendant) Vero Insurance Limited (2nd cross-defendant) NTI Limited (3rd cross-defendant) Representation: Mr Glissan QC + Mr Manion (plaintiff) Mr Toepfer in person unrepresented (defendant; cross-claimant) Mr Deakin QC + Mr Stockley (cross-defendants) File Number(s): 2009/293003

Judgment 1HIS HONOUR: During his testimony, Ken Pankhurst demonstrated that he had specialised knowledge based on his training and experience as a rigger that enabled him to express various opinions, including what was required to remove the counterweight ropes, and the necessity of removing those ropes from the counterweights. It was plain that the opinions of Mr Pankhurst were wholly or substantially based on that knowledge. His opinions were admissible as they fell within s 79(1) Evidence Act 1995. However, one of the matters raised by Mr Deakin QC in opposition to the admissibility of the evidence of Ken Pankhurst was that Mr Pankhurst had not complied with the expert witness code of conduct. As this objection was rejected in a summary fashion, it is presently convenient to supplement my reasons for not acceding to Mr Deakin's objection. 2Rule 31.23(1) Uniform Civil Procedure Rules 2005 (UCPR) requires an "expert witness" to comply with the code of conduct set out in Schedule 7. Rule 31.23(3) provides that an expert's report may not be admitted in evidence unless the report contains "an acknowledgement by the expert witness...that [he] has read the code of conduct and agrees to be bound by it." Similarly, oral evidence from an "expert witness" may not be received, unless the court is satisfied that the expert witness has acknowledged that he agrees to be bound by the code of conduct that he has read: r 31.23(4). The court may dispense with either of these requirements by ordering otherwise, but should not do so except for good reasons. Exceptional circumstances are not required: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [56] - [62]. 3The definitions of "expert" and "expert witness" are found in r 31.18 UCPR. "Expert" means "in relation to any issue, ... a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence." 4"Expert witness" means: "an expert engaged or appointed for the purpose of: (a)providing an expert's report for use as evidence in proceedings or proposed proceedings, or (b)giving opinion evidence in proceedings or proposed proceedings." 5Mr Pankhurst is an "expert" within r 31.18 UCPR. Nevertheless, I do not think that the definition of "expert witness" in r 31.18 UCPR embraces him. The New South Wales Roads and Traffic Authority (the RTA) employed him as a surveillance officer on the Batemans Bay Bridge. He was a qualified rigger whose job was to replace the wire ropes on that bridge which was of a similar construction and design as the Hexham Bridge. Both bridges featured a vertical lift span that was raised and lowered by means of wire ropes and counterweights. The RTA instructed Mr Pankhurst in July 2003, to attend a site meeting at the Hexham Bridge in relation to the management of the counterweight ropes. He viewed the damage and expressed his views as to particular aspects of the work that he was asked to consider. 6At the time court proceedings were not contemplated, but work was being done to ascertain the extent of the damage to the bridge and to repair it. As an employee of the RTA, Mr Pankhurst was neither engaged for the purpose of providing a report for use as evidence nor for giving opinion evidence in proceedings, nor proposed proceedings. 7Mr Pankhurst does not then fall within the expert witness definition by swearing an affidavit in the present proceedings. He gives evidence as an employee of the RTA of what he saw and did in 2003 and of the opinions that he proffered. He was not engaged or appointed for the purpose of giving opinion evidence in proceedings or proposed proceedings: Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 at [11]. I concluded that the expert witness code of conduct did not apply.