Supreme Court New South Wales Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd (No 4) [2014] NSWSC 930 Hearing dates: 20 June 2014 Decision date: 20 June 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Evidence admitted Catchwords: PRACTICE AND PROCEDURE - Expert evidence - Proof of matters relied upon by expert Cases Cited: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 764 (No 3) Category: Procedural and other rulings Parties: Plaintiff: Macquarie International Health Clinic Pty Ltd Defendant: Sydney Local Health District Representation: Counsel: Mr R. Dubler SC and Mr A. Harding (Plaintiff) Defendant: Mr G. Burton SC, Mr H. Stowe and Mr G. Antipas (Defendant) Solicitors: Plaintiff: S Moran & Co Defendant: Bolzan & Dimitri File Number(s): 2000/34949 and 2010/90340 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: During the course of the hearing yesterday I rejected paragraphs 75 to 88 of the affidavit of Linda Griffiths sworn 12 June 2014: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 3) [2014] NSWSC 828. 2I was satisfied, and remain satisfied, that the general area about which Ms Griffiths has been called to give evidence is an area capable of being the subject of specialised knowledge derived from experience. I also remain satisfied that Ms Griffiths has that relevant experience. 3The defendant now seeks to read an affidavit of Ms Griffiths sworn on 19 June 2014, which has been prepared in the light of the reasons which I gave yesterday. The burden of those reasons was threefold. First, that as the evidence stood yesterday, it was not always apparent what facts were being relied upon by Ms Griffiths in expressing her views. Second, it was not always clear what process of reasoning she applied in reaching particular conclusions. Third, it appeared to me to be appropriate for her evidence, if it was to be advanced as expert evidence, to have been prepared in accordance with the Expert Code of Conduct. 4Ms Griffiths' affidavit of 19 June 2014 satisfies all of the concerns which I expressed in my reasons of yesterday. The objection that has been developed, with skill and determination by Mr Harding of Counsel for the plaintiff, has been based upon the proposition that when carefully examined Ms Griffiths' affidavit had so many difficulties of logic and apparent relevance that I could be satisfied at this stage that it was of such little probative weight that it ought not be admitted. I do not accept that submission. Read in its terms and in the context of the other parts of her earlier affidavits which have been admitted into evidence, the Court is able to discern both the facts on which she has relied and the process of reasoning in which she has engaged. At this stage, that is looking only at the question of admissibility, this latest affidavit satisfies the requirements to be admitted as expert evidence. 5That is not to say that there is not a deal of force in Mr Harding's criticisms of the affidavit. With respect to the approach Ms Griffiths has adopted, most if not at all of Mr Harding's submissions were submissions that I would have expected to be put at the conclusion of the hearing as to why her opinions ought not ultimately be accepted. However, those submissions go to the merits rather than admissibility. 6This is a long and complex trial. The evidence is not being led in what might be called the usual or expected order. The size of the case and the number of issues it involves has meant that, as a matter of practice management, the parties have had to present their respective cases and lead their evidence in ways shaped more by the availability of witnesses and the capacity of the parties to have, as it were, closed off particular areas of evidence before it has been presented to the Court. There is a great deal more evidence that the Court has yet to receive. In those circumstances it would be quite premature for me to form a view that Ms Griffiths' evidence, taken on its face, suffers from such serious deficiencies that it is ultimately going to be of no weight whatever and ought be ruled inadmissible at this stage. 7However, the very considerations to which I have just referred do give rise to one observation that I should make for the assistance of the parties. In a case where the evidence is being adduced in what might be called the more traditional order, where issues have been raised as to whether primary facts relied upon by experts have otherwise been proven, the court can admit evidence of an expert upon an undertaking from counsel calling that expert that primary facts not yet apparently proven will be proven. Because of the way this case is proceeding, it is not practical to adopt that approach. However, it is important to ensure that the plaintiff has all proper opportunities to raise again any concerns it has about Ms Griffiths' evidence before the plaintiff is required to cross-examine her. 8It is entirely a matter for the defendant to form a view as to whether or not matters which are ultimately to be seen as matters of primary fact upon which Ms Griffiths has based her opinions have been properly proven. The appropriate course in these proceedings is to indicate that before the plaintiff cross-examines Ms Griffiths I will afford the plaintiff an opportunity to renew any objections that it has to her evidence insofar as it may be said primary material has not been proven. Putting this another way, it will not be acceptable at the time Ms Griffiths is called to give evidence for the defendant to seek to keep its options open in terms of proof of other matters. By the time she is called the defendant must have determined what additional evidence, if any, it proposes to adduce to support the matters relied upon by Ms Griffiths, and have given proper notice to the plaintiff of that material. 9Subject to that reservation in favour of the plaintiff I admit the affidavit of Ms Griffiths of 19 June 2014. 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: 14 July 2014