Beslic v MLC Ltd (No 2) [2016] NSWSC 746

Supreme Court New South Wales

Medium Neutral Citation: Beslic v MLC Ltd (No 2) [2016] NSWSC 746 Hearing dates: 4 – 5 February 2016 Decision date: 09 June 2016 Jurisdiction: Equity Before: Robb J Decision: 1. Direct the parties to bring in short minutes of order to give effect to the rulings on evidence in this judgment Catchwords: PROCEDURE – application for advanced rulings on admissibility of evidence pursuant to s 192A of the Evidence Act 1995 (NSW) – plaintiff sought advance ruling in respect of affidavits and expert opinion evidence – whether the four grounds of objections to the first defendant's affidavits by underwriter witnesses render that evidence inadmissible – HELD evidence of underwriter witnesses relevant but of low probative value – HELD underwriter witnesses' evidence to be properly characterised as state of mind and not opinion evidence – HELD discretionary power of court to exclude evidence not exercised in this instance as deficiencies in the evidence may be fairly and reasonably dealt with at trial – RULINGS given on admissibility of individual parts of underwriter witness's affidavits – whether expert reports of the second defendant inadmissible on grounds identified by the plaintiff – expert evidence proposed to be used to prove that certain evidence was fabricated by the plaintiff – HELD evidence as it stands insufficient to prove fabrication – HELD such deficiencies in evidence may be properly dealt with by trial judge – HELD plaintiff's application to render the evidence inadmissible at trial rejected Legislation Cited: Evidence Act 1995 (NSW) Insurance Contracts Act 1984 (Cth) Cases Cited: Beslic v MLC Ltd [2015] NSWSC 908 Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Seltsam Pty Ltd v McNiell [2006] NSWCA 158; (2006) 4 DDCR 1 Category: Procedural and other rulings Parties: Damien Beslic (plaintiff) MLC Ltd (first defendant) AXA Financial Planning Ltd (second defendant) Representation: Counsel: E G Romaniuk SC / M A Kumar (plaintiff) J Gleeson QC/ C Purdy (first defendant) HJ Neal (second defendant)