District Court New South Wales Medium Neutral Citation: Leslie Corbett v South 32 Limited [2018] NSWDC 179 Hearing dates: 14 and 15 March 2018 Date of orders: 15 March 2018 Decision date: 15 March 2018 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Expert report of Steve Williams dated 6 December 2017 is excluded. Catchwords: CIVIL PROCEDURE – expert report – use of expertise – use of inadmissible material Legislation Cited: Evidence Act 1995, s 80 Category: Principal judgment Parties: Leslie Corbett (plaintiff) South 32 Limited (first defendant/first cross-claimant/first cross-defendant to third cross-claim) Illawarra Coal Holdings Pty Limited (second defendant/second cross-claimant/second cross-defendant to third cross-claim) Endeavour Coal Pty Limited (third defendant/third cross-defendant to third cross-claim/fourth cross-claimant) Allfab Constructions Pty Limited (fourth defendant/cross-defendant to first, second and fourth cross-claims/third cross-claimant) Representation: Counsel: Mr R A O'Keefe (plaintiff) Mr G M Watson SC (first, second and third defendants) Mr D Talintyre (fourth defendant) Solicitors: Nikolovski Lawyers (plaintiff) HWL Ebsworth Lawyers (first, second and third defendants) Yeldham Price O'Brien Lusk (fourth defendant) File Number(s): 2016/348238 Publication restriction: None Judgment 1. The first, second and fourth cross-claimants (together "West Cliff") seek to tender the report of Steve Williams dated 6 December 2017. The report is focused principally on questions of causation, giving the author's opinion on what were the causes of the injury to Mr Corbett. Whilst that might not preclude the report going into evidence, [1] I was concerned as to whether Mr Williams had used some relevant expertise in giving his opinion about causation. However, causation in this case involves issues peculiar to the operation of a coal washer plant, an area where Mr Williams appears to have some expertise. 2. Of greater significance is that Mr Williams has been provided with, and at least potentially has relied upon, a large amount of inadmissible material of uncertain content. Whilst an expert might be able to cure reliance on inadmissible material by providing a supplementary report specifically eschewing any reliance on that material, that has not been done. I do not think it is appropriate to leave for the cross‑examiner the task of exploring what might be Mr Williams' opinion in the absence of the inadmissible material. 3. For this reason, I propose to exclude the report. The matter might need to be reconsidered if a supplementary report is provided. 4. I indicated to the parties that I was prepared to consider whether any particular opinion of the witness in the report, or part of the report, should be viewed differently and allowed into evidence, perhaps provisionally. No such particular opinion or part, not subject to the same problem discussed above, was identified. ********** Endnote 1. See s 80 of the Evidence Act 1995. 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: 03 July 2018