Chaina v Presbyterian Church (NSW) Property Trust (No. 18) [2013] NSWSC 1600

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 18) [2013] NSWSC 1600 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Common Law Before: Davies J Decision: The report of Professor Graham Dowling of 4 August 2006 is allowed into evidence Catchwords: EVIDENCE - expert evidence - admissibility - some factual material relied upon by expert not in evidence - whether report should be rejected prior to completion of trial - whether opinion infected by rejected evidence Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139 Chaina v Presbyterian Church (NSW) Property Trust (No. 16) [2013] NSWSC 1494 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 1In Chaina v Presbyterian Church (NSW) Property Trust (No. 16) [2013] NSWSC 1494 I determined that the report of Professor Graham Dowling of 4 August 2006 should not be rejected by reason of the assumptions that he had apparently made concerning the superiority of the Plaintiffs' industrial products. Objection is now taken to the report on other grounds. A large number of objections has been taken, but they largely fall into two types of categories. 2The first category is based on the fact that Professor Dowling has provided his report on the basis of a number of documents that are not in evidence in the case, or have been expressly rejected as part of the evidence in the case. In particular, objection was taken to more than half the schedule of documents on pages 3 and 4 of the report. 3Some of those documents have now been tendered, that is the various financial reports of the three companies, their tax returns and the tax returns of Mr and Mrs Chaina. 4Some of the other documents, particularly the affidavit of Mr Jerogin, a statement of Mr West in the insurance proceedings and a number of parts of the exhibits GC1, GC2 and GC3, have either been expressly rejected or have not been placed into evidence. I note in that regard that Professor Dowling makes express reference to tabs 8 and 25 in GC1 and GC2 respectively. In Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139, I rejected those tabs of the annexures to the documents along with the paragraphs where they are referred to. 5The second major objection to this report is connected to the first but in some cases is separate from it. That is, it is based on assumptions that Professor Dowling has made (not the superiority assumption dealt with in Chaina (No. 16)) and which, either by reason of documents not being in evidence or by the evidence otherwise not satisfying the assumptions, it is said are not made out. Accordingly, it is said that the opinions should not be allowed to stand. 6I accept that a very great deal of this report appears to be based on material that is not part of the evidence in the case. In that regard, the statement of John West made in the insurance proceedings assumes a large role in that regard. Other assumptions have not so far been established by the evidence. 7It would not be feasible to strike out those parts of the report that contain the assumptions which have not been proved. The opinion at the end of the report would be meaningless if that was to happen because the striking out would remove part of the reasoning process for the opinions expressed. The issue is, therefore, whether the report is so infected by the material which has not otherwise been proved that the opinion that Professor Dowling reaches cannot be allowed to stand. 8One of the reasons that I permitted this report to be readmitted in the proceedings was because there was a certain lack of clarity and ambiguity about the way Professor Dowling had proceeded in his report. I took the view that there may well be factual issues which would have to be determined at the end of the case and when final submissions were made. In some cases, it may be that there is other evidence than what Professor Dowling refers to which would provide some support for some of the assumptions that he makes. 9I have not, in the time available to me, had a chance to re-read all of Mr and Mrs Chaina's extensive Statements to see if any of the further evidence is to be found in those Statements. In any event, that is really a matter for submission at the end of the case. I think the fairer course is, therefore, that the whole of the report should be admitted into evidence at this stage, subject to the removal of the sentence commencing on line 4 in paragraph 18 that I have already ruled is inadmissible for form reasons. 10My reading of the report at the moment suggests that the report has been badly infected by the factual material that is not otherwise proved. Whether or not that should ultimately mean the report has no weight is something that I will have to determine after I have heard submissions, particularly from the Plaintiffs. 11That report is therefore allowed into evidence.