Hoffmann v Challis [2016] NSWSC 268

Supreme Court New South Wales

Medium Neutral Citation: Hoffmann v Challis [2016] NSWSC 268 Hearing dates: 26 February 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) I admit the affidavit of Mr John W Rotunno sworn on 24 February 2016. Catchwords: PRODEDURE – admissibility of evidence of expert – where no mention of awareness of code of conduct– where expert is experienced foreign lawyer giving evidence about law in that jurisdiction PRODEDURE – admissibility of evidence of expert – whether wholly or substantially based on expert's specialised knowledge Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Dasreef v Hawchar [2011] HCA 21; 243 CLR 588 Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 Category: Procedural and other rulings Parties: Darren George Challis (Applicant) David Hoffman (Respondent) Representation: Counsel: D Sibtain and P Horobin (Applicant) R Gration (Respondent) Solicitors: Atanaskovic & Hartnell Lawyers (Applicant) K & L Gates (Respondent) File Number(s): 2015/349993

EX TEMPORE JUDGMENT - REVISED 1. Mr Sibtain has objected to the affidavit of Mr Rotunno, Attorney at Law, which deals with the law of enforcing foreign judgments applicable in the State of Illinois, United States of America. Mr Sibtain submits that it does not comply with r 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) which requires an acknowledgement of compliance with the expert code of conduct. Mr Rotunno is a partner in the practice in Illinois of the plaintiff's law firm. Mr Sibtain also argues that Mr Rotunno's affidavit does not comply with the requirements for the admissibility of expert evidence as expounded in Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]. Mr Gration joins issue on each of those points, whilst acknowledging that there is no acknowledgement by the expert of compliance with the code of conduct as required by the Rules. 2. The potential relevance of Mr Rotunno's evidence is that this is an application for security for costs in a defamation action brought by a foreign resident plaintiff. The motion was filed on 10 December 2015. The affidavit in support was not sworn and filed until 24 February 2016. The affidavit of Mr Rotunno was prepared in compliance with a direction given by the registrar only this week for the filing evidence in reply. 3. I accept Mr Sibtain's argument that the relevant principles about implied compliance with r 31.23 are set out in the judgment of Ball J in Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [35]. There his Honour pointed out that in deciding whether to "order otherwise" as permitted by r 31.23 the court is required to consider all the circumstances of the case. His Honour went on: "Those circumstances include the nature of the instructions that were actually given to the expert, the expert's prior familiarity with the code, the extent to which the report on its face appears to comply with the code and the evidence subsequently given by the expert concerning the question whether he or she complied with the code at the time and whether his or her opinions have been affected by non-provision of it. It is for the party seeking to lead the evidence to satisfy the court that the non-compliance with UCPR r 31.23 has not affected the objectives of the rule, or that there are reasons which justify a departure from it." 1. I bear in mind that in ruling on this matter I am dealing with an important interlocutory matter, but an interlocutory matter nonetheless, in terms of an application for security. I do not have the letter of instruction and I do not have any explanation as to why Mr Rotunno was not given the code and asked to make the usual acknowledgement in respect of his compliance with it. I take into account that: he is an Attorney at Law; an active practitioner in the state of Illinois since 1976; an experienced litigator; and a speaker to professional organisations, also occasionally at the Northwestern University School of Law in Chicago. 2. I think a lawyer giving opinion evidence about foreign law for the purpose of an action in New South Wales is in a different category from perhaps some other branches of expertise. A lawyer can be taken to know the importance of the considerations of impartiality and the main purpose of expert evidence is providing assistance to the court rather than the party requesting the opinion. These considerations underpin all expert evidence. Looking at his affidavit it is I think a scholarly work. From its text, and that context, I am well satisfied that Mr Rotunno has done no more than set out in an objective and impartial way his opinion as to the operation of that part of the law, and practice, of Illinois that I have made reference to. it is clear that he, as all able counsel in good standing do, has drawn attention to decisions which may suggest the contrary to his opinion as well as those which support it. Applying Ball J's test I am satisfied by implication that from the outset Mr Rotunno approached his task in a manner entirely consistent with the expert code of conduct. 3. So far as the Makita v Sprowles objections are concerned I remind myself that there are three basic conditions for the admissibility of expert evidence as expounded in Heydon JA's (as his Honour then was) judgment in Makita: the relevance of the opinion; the possession of specialised knowledge by the expert; and the expressions of opinion which are demonstrably based, substantially at least, upon that specialised knowledge. 4. There is no doubt about the relevance of the opinion on the question of the ease and convenience of enforcing any order for costs made in these proceedings in favour of the defendant in Chicago; this matter must be relevant to the exercise of my discretion in relation to whether to order security, and if so on what terms. 5. There can be no doubt that Mr Rotunno is possessed of specialised knowledge. He has set out his qualifications as an attorney in the first paragraph of his report. 6. So far as the third matter is concerned it is clear from Mr Rotunno's report that the opinions he expresses are based upon his specialised knowledge. As I have said, his affidavit, and the opinions he expresses in it, are backed up by what is obviously the considerable scholarship of a well-qualified and very experienced attorney. 7. I bear in mind that in the plurality judgment in Dasreef v Hawchar [2011] HCA 21; 243 CLR 588 at [37], where the justices indicated that the requirements of Makita do not have to be expressly observed in every case. Their Honours gave the example of a diagnosis offered by a "specialist medical practitioner". Much, in the case of a qualified professional in a recognised area of expertise, will be implicit, rather than expressed. 8. In my judgment it is clear from the content of his affidavit that the opinions expressed by Mr Rotunno are, and are shown to be, substantially based upon his specialised knowledge. I admit his affidavit sworn on 24 February 2016.