Supreme Court New South Wales Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 8) [2013] NSWSC 187 Hearing dates: 25 February 2013 Decision date: 18 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. 7) [2013] NSWSC 139 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 & H Stitt (Defendants) Solicitors: Berrigan Doube Lawyers (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354 Judgment 1This judgment deals with the supplementary statements of George Chaina of 13 July 2012 and with the statements of Rita Chaina. It should be read in connection with my earlier judgment dealing with objections to the evidence of George Chaina: Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139. Many of the objections taken to the statements of Rita Chaina are similar in substance to those taken to George Chaina's statements. 1. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 2 September 2005 Paragraph number Category of Objection Ruling 3, 5, 7, 9, 11(b), 13(b), 14(b) and (c), 17, 18, 20, 21(b), 23(b), 24(b), 25, 26, 27, 28(b), 31, 32 - last sentence Form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct Paragraphs 3, 5, 7 and 9 are rejected as expert evidence which do no comply with the Expert Witness Code of Conduct nor with the principles in Makita. Paragraph 27(b) is rejected for the same reason that the evidence in paragraph 27 of the Statement of 2 September 2005 was rejected - the evidence is not probative of any matter in issue. Paragraphs 13 and 14(b) and (c) are rejected - form. Paragraphs 17, 18, 20 and 21(b) are rejected as conclusions and expert evidence. Paragraphs 23(b) and 24(b) are rejected as conclusions. Paragraph 5 is rejected as expert evidence. Paragraphs 26 and 27 are rejected as hearsay and by reason of their form. Paragraph 28(b) is rejected - form. Paragraphs 31 and the last sentence of paragraph 32 are rejected - form. 2. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 25 September 2005 2Objection is taken to paragraphs 5, 6 and 7 on the basis of form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct. 3Paragraph 5 is rejected by reason of its form. It is a conclusion without any proper basis being demonstrated. 4Paragraph 6 is rejected as hearsay. 5Paragraph 7 is admitted. 3. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 8 February 2010 6Objection is taken to paragraphs 3, 5, 7, 9, 11(a) and (b), 12, 13(b) and (c), 14(b) and (c), 15, 17, 18(a), b) and (c), 19, 20, 21(b), 23, 24(b) and (c), 28(b), 30(b)-(d), 31(b) and (c), 33(b)-(d), 34(b)-(e), 37, 38(b) and (c), 39, 40, 43-48, 50, 51, 53-55, 57-67, 69-78, 80, 84-94, 96(the conversation evidence), 97-101, 103, 104, 105(b). The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct. 7This statement elaborates on matters contained in the statement of 8 February 2010. Generally speaking, the outcome of objections to this statement is determined by the outcome of the objections to the statement of 8 February 2010. Paragraph number Ruling 3, 5, 7 & 9 Rejected as expert evidence 11 Admitted 12 Admitted 13(b) and (c) Admitted 14(b) and (c) Admitted 15 Admitted 17 Admitted 18(a) and (c) Admitted 19 Admitted 20 Sub-paragraph (a) is admitted, sub-paragraph (b) is rejected 21(b) Rejected - form 23 Admitted 24(b) and (c) Rejected - hearsay 28(b) Rejected - form 30(b)-(d) Sub-paragraph (d) is rejected - form. The remainder is admitted. 31(b) and (c) Admitted 33(b)-(d) Sub-paragraph (d) is rejected - form. The remainder is admitted. 34(b)-(e) Sub-paragraph (c) and (d) are rejected as conclusion and expert evidence. The remainder is admitted. 37 Rejected. The whole of paragraph 96 to which this paragraph refers was rejected. 38(b) and (c) Sub-paragraph (b) is rejected - form. The remainder is admitted 39 Rejected as expert evidence. 40 Rejected -- form. 43 Rejected - form 44 Admitted 45 Rejected - hearsay. 46 Sub-paragraphs (a), (b) and (d) are rejected - form. Sub-paragraph (c) is admitted. 47 Sub-paragraph (c) is admitted only as evidence of the witness's belief. The remainder of the paragraph is admitted. 48 Admitted 50 Admitted 51 Rejected - hearsay 53 Sub-paragraph (a) rejected - form. The remainder of the paragraph is admitted 54 This is expert evidence and is rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate. 55 Rejected - form. 57 Sub-paragraphs (b) and (c) rejected - hearsay. The remainder of the paragraph is admitted. 58 Sub-paragraph (b) rejected - hearsay. The remainder of the paragraph is admitted. 59 Rejected - form. 60 Rejected 61-63 Rejected - form 64 Sub-paragraph (a) rejected - form. The remainder of the paragraph is admitted. 65 Sub-paragraphs (a) and (b) are rejected - hearsay. The remainder of the paragraph is admitted. 66 Rejected - form and hearsay. 67 Sub-paragraph (b) is rejected - hearsay. The remainder of the paragraph is admitted. 69 The last sentence is expert evidence and is rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate. The remainder is admitted. 70 Rejected - hearsay. 71 Admitted 72 Rejected (the whole of paragraph 170 in the earlier statement was rejected. 73 Rejected - form. 74 Rejected as expert evidence as paragraph 173 was rejected with leave to the Plaintiffs to apply for it to be reinstated if appropriate. 77 Rejected (paragraph 181 in the earlier statement was rejected). 78 Rejected as expert evidence in the same way paragraph 183 in the earlier statement was rejected. 80 Rejected as expert evidence in the same way paragraph 192 in the earlier statement was rejected. 84-86 Rejected as expert evidence in the same way paragraphs 200, 202 and 205 in the earlier statement were rejected with leave to reinstate if appropriate. 87 Rejected - hearsay. 88 Rejected - form. 89 Rejected - paragraph 225 in the earlier statement was rejected. 90 Rejected - form 91 Rejected - hearsay 92 Rejected - hearsay 93 Rejected - hearsay 94 Rejected as paragraph 242(d) was rejected. 96 - from the words commencing "I refer to paragraph 265" to the end of the paragraph Rejected - hearsay 97 Admitted 98 Rejected - form and hearsay. 99 Rejected - form 100 Rejected - form and hearsay. 101 Rejected - hearsay 103 Admitted only as a statement of the witness's belief 104 Rejected as paragraph 330 was rejected in the earlier statement. 105(b) Rejected - hearsay. 4. Supplementary statement of George Chaina dated 13 July 2012 re Statement of 26 August 2010 8Objection is taken to the following paragraphs: 3, 5-67, 69-73, 75, 77-85, 91, 93, 94, 96, 99-102, 104, 105, 109-118, 120-122, 124-133, 138-140, 142-145, 147-165. The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct. 9This statement will be dealt with in the same manner as the statement of 26 August 2010. It is expert evidence and is rejected until the witness's expertise is accepted and it is expressed in proper form. 5. Statement of Rita Chaina dated 16 August 2005 10A general objection is taken to paragraphs 9 to 23 on the basis that they are irrelevant and of no probative value as the evidence does not concern products the subject of the proceedings. The Plaintiffs submit that the evidence is relevant as to the genesis and nature of the business and to Rita Chaina's involvement in the business. 11In my opinion, the evidence is appropriate background evidence about the business and an explanation of Rita Chaina's involvement. It should not be rejected as irrelevant or having no probative value. It will be necessary to deal with specific objections to parts of these paragraphs. Paragraph number Category of Objection Ruling 11 Form Admitted 12 Form Rejected 16 - first sentence Form, non-discovery No time is specified - rejected but with leave to adduce evidence in proper form. 19 Form Rejected 21 - third sentence Form Rejected 22 - the words in the first sentence "which supplied" to the end of the sentence Form Admitted 24 - last sentence Form, speculation Rejected 27 Form Rejected 28 - third sentence to the end of the paragraph Form From the words "and improved" in the third last sentence to the end of the paragraph - rejected. The remainder is admitted. 29 - third and fourth sentences up to the word "complete" Form The third sentence is rejected. The remainder is admitted. 30 - other than the first sentence Form, expert evidence where Expert Witness Code is not adopted The words in the second sentence "based on enzyme technology" and the last sentence rejected. The remainder is admitted. 33 Form, expert evidence where Expert Witness Code is not adopted Rejected as a conclusion and expert evidence. 38 Form Rejected 40 - the fourth and fifth sentences Form & hearsay The fourth sentence is rejected as a conclusion. The fifth sentence is admitted. 42 Form Rejected 44 - first sentence Form, speculation, conclusion, relevance Rejected because of its form. 47 - the words in the first sentence commencing "which would be suitable" to the end of the sentence Form Rejected 47 - the words in the penultimate sentence commencing "which it was anticipated" to the end of the sentence Form Rejected 48 Form, expert evidence where Expert Witness Code not adopted Rejected 50 - the words in the first sentence "to arrange" to the end of the sentence Form Rejected 51 Hearsay Rejected 57 - second sentence to the end of the paragraph Form, expert evidence where Expert Witness Code not adopted Rejected 61 - last sentence Relevance & form Rejected 66 - last sentence Form, speculation Rejected. 6. Statement of Rita Chaina dated 29 January 2010 12A similar objection is taken to paragraphs 9 - 27, 34, 44 and 47 as was taken to paragraphs 9 - 23 of the statement of 16 August 2005. In my opinion the evidence is relevant as background evidence demonstrating how the business first came about and what was done to develop it and build it up. It is necessary, however, to consider specific objections to the evidence. Paragraph number Category of Objection Ruling 9 - last sentence Non-discovery of records Admitted 13 - last sentence Form Rejected 14 - from the second sentence to the end of the paragraph Form, speculation, expert evidence where Expert Witness Code not adopted The last sentence is rejected. The remainder is admitted. 16 Relevance, form, hearsay Admitted 17 Form Rejected 18 Form, speculation Rejected 19 - the second sentence to the second last sentence (this is assumed to be in paragraph 19(a)) Form Rejected 19(b) Form The second sentence commencing "a large part of his time" is rejected. The second last sub-paragraph commencing "Many of the products" is rejected as expert evidence. The remainder is admitted. 19(c) Relevance, hearsay The words in the third sentence commencing "Where George outlined" to the end of the sentence are rejected. The words in the penultimate sentence "Where the electronic engineer" to the end of that sentence and the final sentence are rejected. The remainder is admitted. 20 Relevance Rejected 24 Form, hearsay The second sentence and the words in the third sentence "or members of the family" are rejected. The remainder is admitted. 27 Form Rejected 29 - second last and last sentences together with Tabs 2 and 3 to RC3 Relevance, form Rejected on the grounds of relevance. 34 Form, relevance Rejected 47 - the sentence commencing "I said to George" to the end of that sentence Form, hearsay, expert evidence Rejected 52 Form, speculation, non-discovery of documents Rejected 55 Hearsay, relevance Rejected 56 Hearsay, relevance Rejected 58 Form, hearsay Rejected 60 Form, hearsay Rejected 62 Form, hearsay Rejected 68 Form, hearsay, relevance Rejected 75(b) Form Rejected 76 Form Rejected 86 - from the third sentence to the end of the paragraph Hearsay Rejected 89 & 90 Hearsay Rejected 91 - the words in the last sentence "Price Waterhouse Coopers had identified some potential investors" Form, hearsay Rejected 95 & 97 Hearsay Rejected 102 Hearsay Rejected 105 Hearsay Rejected 106 Hearsay Rejected 108 Hearsay The first two sentences are admitted. The remainder is rejected. 109 Hearsay The first sentence is admitted. The second sentence to the words "remember as John" is admitted. The remainder is rejected. 112 - the third sentence to the end of the paragraph Hearsay Rejected 114 Hearsay Rejected 118 - last sentence Form Rejected 119 Form Rejected 122 - from the fourth sentence to the end of the paragraph Form Rejected 7. Statement of Rita Chaina dated 26 August 2010 13The purpose of this affidavit is set out in the first few paragraphs where Mrs Chaina says that her husband gave evidence in his statement of 2 September 2005 of research, formulation and testing over a four year period between 1995 and 1999 for certain products developed by Proton. Mrs Chaina then says that she undertook some of the testing in respect of those products and she goes on to say at paragraph 4: In this statement, I give evidence about the testing which I conducted or was otherwise involved in, in the period predominantly 1995-1999 in relation to Proton's domestic product range. 14In paragraph 7 Mrs Chaina says that when she conducted testing or assisted Mr Chaina with the testing she generally used the products being tested herself and involved members of her family and friends in the testing process. She said this involved either providing the product being tested to members of family and friends who reported their subjective opinions or she had the people over to her house so that she could record the results herself. She also provided them with competitors' products to obtain their opinion as to which product they preferred. 15The remainder of the affidavit deals with this testing process in relation to various different categories of product. 16In her first statement of 16 August 2005 Mrs Chaina discloses that she has a Bachelor of Pharmacy from the University of Sydney and that she completed a two year course in microbiology. Thereafter she worked as a pharmacist until she commenced to work for Deluxe. She said that during the seven year period she ran a pharmacy at Condell Park she gained experience in the overall running of a small business such as account management, budgeting, marketing and financing. 17There is no evidence at all suggesting that Mrs Chaina has any expertise in product testing or statistics. The evidence given in the present statement is expert evidence. Mrs Chaina has not adopted the Expert Witness Code of Conduct. 18Because her expertise is not demonstrated and because, in any event, the Expert Witness Code of Conduct has not been adopted the whole of the material in the affidavit is rejected. 19Further, the affidavit contains large amounts of hearsay, and the affidavit is expressed in general and conclusionary terms so that even if Mrs Chaina was allowed to put it forward as an expert it would not satisfy the requirements of either the Expert Witness Code of Conduct or the principles in Makita. 8. Supplementary statement of Rita Chaina dated 13 July 2012 re Statement of 16 August 2005 Paragraph number Category of Objection Ruling 3, 4, 5, 6, 7, 9 (the last two sentences), 10, 11 (the last sentence), 13, 14, 15, 17 (from the words "I formed the view" to the end of the paragraph), 18, 19, 20 & 21 Form, hearsay, speculation, no primary facts, expert evidence where witness has not adopted the Expert Witness Code Paragraph 3 is admitted. Paragraph 4 is rejected. Paragraph 6 is rejected. Paragraph 7 is admitted. The last two sentences of paragraph 9 are rejected as expert evidence. Paragraph 10 is rejected. The last sentence of paragraph 11 is rejected as expert evidence. Paragraph 13 is rejected. Paragraph 14 is rejected. Paragraph 15 is rejected. In paragraph 17 the words "I formed the view" to the end of the paragraph are rejected. Paragraph 18 is rejected. Paragraph 19 is rejected. Paragraph 20 is rejected. Paragraph 21 is rejected. 9. Supplementary statement of Rita Chaina dated 13 July 2012 re Statement of 29 January 2010 Paragraph number Category of Objection Ruling 3, 5, 6, 7, 8, 10, 11, 14, 15, 16 & 17 Form, hearsay, speculation, no primary facts, expert evidence where witness has not adopted the Expert Witness Code Paragraph 3 is rejected. Paragraph 5 is admitted. Paragraph 6 is rejected. Paragraph 7 is rejected both because of its form and because it contains expert evidence. In paragraph 8 the fourth, fifth and sixth sentences are rejected. The last sub-paragraph commencing "In my role at Deluxe" is rejected as expert evidence. Paragraph 10 is rejected. Paragraph 11 - the last two sentences are rejected. Paragraph 14 is rejected. In paragraph 15 the second sentence is rejected. Paragraph 16 is rejected. In paragraph 17 the words "I am not the same person as I was prior to the tragedy" are rejected. The remainder is admitted. 10. Supplementary statement of Rita Chaina dated 13 July 2012 re statement of 26 August 2010 20The whole of this statement is rejected on the same bases as the statement of 26 August 2010 was rejected. Statement of George Chaina dated 25 September 2006 21I dealt with the objections to this statement in my earlier judgment (Chaina (No. 7)). For the sake of consistency I need to modify certain rulings I gave in relation to the objections to paragraphs 122 to 142. I said in respect of those paragraphs (inter alia): Some of the evidence is expert evidence and is admitted subject to it being established that the witness has expertise and subject to issues associated with the adoption of the Expert Witness Code of Conduct. 22Elsewhere when dealing with objections based on the evidence being expert evidence I have rejected the evidence but given leave to the Plaintiff to apply for its reinstatement if and when Mr Chaina is shown to be an expert. For consistency that is the ruling I now intend to apply to those parts of the following paragraphs which have not already been rejected for other reasons: Paragraphs 133, 139, 140, 141 and 142. ********** 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: 18 March 2013