Chaina v Presbyterian Church (NSW) Property Trust (No. 17) [2013] NSWSC 1580

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 17) [2013] NSWSC 1580 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Common Law Before: Davies J Decision: Report of Ben Wheaton of January 2012 not rejected at this stage of the hearing Catchwords: EVIDENCE - expert evidence - admissibility - whether assumptions made by expert established Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: In person (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354

Judgment 1Objection is taken to the report of Ben Wheaton of January 2012. There are a number of bases for this. The first is that the author of the report lacks the necessary expertise; secondly, that the report does not relate to the relevant time period, which is the launch in 1999; thirdly, that it contains assumptions that are not supported by the evidence; and, fourthly, that it deals with the domestic market. 2It is accepted by the Plaintiffs that section 6.3 of the report should not now be admitted because it concerns the domestic market. 3The author of the report is a chartered accountant by training and qualification. However, he provides his experience on page 3 of the report showing the particular sort of work that he has been involved in whilst a partner at PricewaterhouseCoopers for ten years and otherwise. That work involved issues of sustainability, risk and compliance. His work at Wheaton Beer, a sustainability consultancy, has involved service to retail clients in sustainable packaging. 4I am satisfied that although page 3 is a somewhat thin CV, he demonstrates the expertise to be able to provide the opinions in the report. 5As to the objection about the time period, he says on page 4 that he is considering the benefits of the Plaintiffs' products which he sets out there over the period 1999 to 2016. Although the report concentrates particularly on the recognition of the significance of environmentally friendly products and that that has particularly developed during the last decade, I consider that, because of the period of time that the author of the report is considering, the report is not inadmissible by reference to matters that have happened in 2007, 2010 and 2011 and so on. The report is not solely concerned with the launch of the products in 99 but is concerned in general terms with how the market would receive the products throughout the period considered in the report. 6The report has other problems, particularly its reliance on a number of assumptions which, to the present time, the evidence in the case does not support. It is in a similar category to a number of other reports in that regard. I do not consider, however, that that makes it inadmissible at this stage. 7It may well be that the failure of proof of the assumptions made will ultimately mean this report will carry very little weight. I do not think I can properly determine that until the conclusion of the case and until I have heard submissions on all aspects of it. 8The report will not at this stage be rejected.