Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139 Hearing dates: 25 February 2013 Decision date: 01 March 2013 Jurisdiction: Common Law Before: Davies J Decision: Evidentiary rulings as provided in the reasons for judgment. Catchwords: PROCEDURE - evidence - early rulings on the evidence pursuant to s 192A Evidence Act. Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No. 1) [2012] NSWSC 1476 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: J Maconachie QC & J Sharpe (Plaintiffs) R Stitt QC & G L Turner (Defendants) Solicitors: Berrigan Doube Lawyers (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354

Judgment 1In Chaina v Presbyterian Church (NSW) Property Trust (No. 1) [2012] NSWSC 1476 I gave evidentiary rulings pursuant to s 192A Evidence Act 1995 in relation to a large number of witness statements served in these proceedings. I summarised the background to the case and the reasons that such evidentiary rulings were sought. 2By a further Notice of Motion dated 30 January 2013 the Defendants seek similar rulings in relation to the evidence contained in the statements of George Chaina of 8 February 2010 and Rita Chaina of the same date. 3In my earlier judgment I provided reasons why I considered it appropriate to give the evidentiary rulings. The only matter that has altered since that judgment is that a mediation was held in early February 2013 but was unsuccessful. I had suggested one reason for the making of preliminary rulings was that it was better for the parties to know what evidence would be admitted at the hearing to assist their approaches to the mediation - see at [12]. I do not consider that the failure of the mediation and the removal of that reason alters the other reasons I gave for embarking upon this procedure. 4The Defendants say that their objections to the evidence of George and Rita Chaina can be summarised in this way: (a) The evidence of the alleged industrial products pre- and post-1993 is completely irrelevant except to the extent that it concerns particular identified products which were to be relaunched by Proton (the "Relevance Objection"); (b) The evidence relating to the domestic products should be excluded because of failures to identify the alleged test subjects; (c) Further, the evidence relating to the domestic products should also be excluded because of failure to link the formulae with the test subjects; (d) Generalised objections based on form, opinion, expert evidence where the witness is not an expert or has not adopted the Expert Witness Code of Conduct, conclusions, subjective assertions, speculation, no precision and no primary facts stated. 5The response of the Plaintiffs to these four bases are as follows: (a) The evidence of the Plaintiff's industrial business pre- and post- 1993 is highly relevant in that it relates to the skills and expertise of George and Rita Chaina in running a business and formulating products, as well as how those products were received in the industrial market. This is said to be directly relevant to the per quod servitium amisit claim brought by the Fourth and Fifth Plaintiffs and to the loss in the value of shares in the corporate Plaintiffs brought by the Second and Third Plaintiffs. (b) Evidence relating to the domestic products is admissible because it goes to the knowledge and experience of George Chaina, to the continued research, development and testing steps taken by George Chaina when formulating products generally, to the fact that he was creating products within the relevant product categories and was testing these in an attempt to fine tune them for launch in the domestic market and it goes to the role played by Rita Chaina in the testing of products. Even if the evidence is inadmissible in relation to the results of the testing the evidence, it is submitted, is admissible to establish George and Rita Chaina's knowledge and belief in the superiority of the products and their reliance on the same in the subsequent actions taken by them when preparing for the launch. (c) The Plaintiffs say that the alleged failure in the evidence to link formulae with the test subjects does not negate the probative value of the evidence regarding the domestic products. (d) The more generalised objections are dealt with on an example by example basis. 6In relation to the Plaintiffs' general submissions if their evidence relating to the results of testing of the products is inadmissible their own knowledge and belief in the superiority of their products and their reliance on that belief when taking actions to prepare for the launch cannot be relevant. The issue is about the likely success of the products and not their belief.