Supreme Court New South Wales Medium Neutral Citation: Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 2) [2018] NSWSC 1374 Hearing dates: 27, 28, 29, 30 August 2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Common Law Before: Campbell J Decision: Reject the whole of paragraphs 8 to 14 of the affidavit sworn on 30 August 2018 Catchwords: EVIDENCE – admissibility of evidence – expert evidence - relevance of opinion – whether opinions expressed are wholly of substantially based upon the expert's specialised knowledge – training – education – experience – bare expression of opinion Legislation Cited: Evidence Act 1995 (NSW), s 79 Cases Cited: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Texts Cited: Nil Category: Procedural and other rulings Parties: Reliance Medical Practice Pty Ltd trading as ATF Reliance Medical Practice Trust (First Cross-Claimant) Rodney John Beckwith (Second Cross-Claimant) Voice Print & Data Australia Pty Ltd (First Cross-Defendant) Christian Altenburg (Second Cross-Defendant) Grant Edwards (Third Cross-Defendant) BHD Leasing Pty Ltd (Sixth Cross-Defendant) Representation: Counsel: G A Moore (Cross-Claimants) A J H Morris QC with I Erskine (First and Third Cross-Defendants) A F Fernon (Second Cross-Defendant) L W Chan (Sixth Cross-Defendant) Solicitors: Gorval Lynch (Cross-Claimants) Anthony Delaney Lawyers (First and Third Cross-Defendants) O'Neill McDonald Lawyers (Second Cross-Defendant) Holman Webb (Sixth Cross-Defendant) File Number(s): 2016/362193 ex tempore Judgment - revised 1. I am dealing with objections to a supplementary affidavit by Mr Christopher Benson of 30 August 2018. This is the fourth affidavit that Mr Benson has affirmed in these proceedings. The genesis of this affidavit follows from my rulings on objections made yesterday to the earlier three affidavits and in particular what I referred to as opaque conclusions expressed in his earlier affidavits, some of which were the subject of a judgment yesterday and others the subject of rulings by reference to the reasoning in the judgment. 2. I adjourned to enable Mr Moore of learned counsel for the cross‑claimant and his instructing solicitor to confer with Mr Benson and to produce an affidavit which amplified the matters which I had ruled were inadmissible because of their form. Although I do not have a detailed curriculum vitae from Mr Benson, I am satisfied that he has specialised knowledge for the purpose of s 79 of the Evidence Act 1995 (NSW) ("Evidence Act") in what I will refer to as information technology systems. The difficulty that I saw with the expressions of opinion which I ruled inadmissible may be summarised by saying, first, the facts upon which the opinions were based were not transparent; and, secondly, that the reasoning which led or supported the opinions expressed was not set out in the affidavits. 3. Both matters are essential to the admissibility of expert opinion. Identification of the facts is essential to demonstrate the relevance of the opinion to the facts in issue. The reasoning process supporting the opinion, or leading to the conclusions expressed by the expert, is necessary to demonstrate, in accordance with the provisions of s 79 of the Evidence Act, that the opinions expressed are indeed wholly or substantially based upon the expert's specialised knowledge and do not extend beyond the bounds of his specialised knowledge. 4. Moreover, the primary function of an expert is to convey to the tribunal of fact so much of the expert's specialised knowledge that I need to understand to enable me to make my own decision about the facts in issue, so far as that decision depends upon the application of specialised knowledge to established primary facts. It is not sufficient for an expert to provide a bare expression of opinion. It is absolutely necessary that an expert demonstrates that the opinions expressed are based upon a recognised branch of specialised knowledge founded upon the expert's training, education or experience, or a combination of all three. Unless this is done, the opinion can be treated as no more than an idiosyncratic expression of view which does not satisfy the exception to the exclusionary opinion rule established by the Evidence Act. 5. A number of objections have been taken to aspects of Mr Benson's latest affidavit. I think it fair to say that, as Mr Moore of counsel submits for the cross-claimant, what is in paras 1 to 7 is not the subject of the objection raised by Mr Fernon of counsel, who has taken up the burden of articulating the objections on behalf of each of the cross‑defendants. That material relates to his opinion that matters listed in certain documents which have contractual force between some parties are relevant to a particular aspect of the contract that, I will say, the parties thought they were entering into during October and November 2015. To make myself clear, his opinion, an opinion shared by Mr Goodwin, an expert I heard from yesterday, is that the matters listed, in particular in a document referred to or known as the rental payment agreement by which the supply of relevant goods and services was financed, relate only to one part of what was discussed, and that is the Mitel telephone system. 6. As I understand the issues that are being litigated before me, there is no real argument about that particular matter. However, to the extent to which Mr Benson has expressed opinions about the efficacy of what was proposed by Voice Print & Data Australia Pty Ltd ("VPD"), the first cross-defendant, there is considerable dispute. 7. One of the difficulties is that much of paras 8 to 14 do no more than restate matters that were objected to by the responding parties and rejected by me yesterday. They might be expressed in clearer language but the assumptions or facts upon which the opinions are based have not been made clearer, nor has the basis of the opinions been expressed. For instance, at para 8 of the new affidavit, Mr Benson says, I infer some time before November 2015 because it is not otherwise stated, that Reliance, the cross‑claimant, developed inefficiencies with its database. When that occurred, as I have said, is not made clear. What the symptoms of it were is not specified, nor is any diagnostic test carried out by Mr Benson explained. And no opinion is expressed explaining what the diagnosis for those inefficiencies was. 8. He has stated, and he was involved in this work, that the inefficiencies were solved by upgrading a particular software licence, referred to as SQL. There is no explanation as to why that was sufficient to cure the problem. It must also be said, I interpolate, that there is no case brought that some remedy should have been proffered by VPD other than what it suggested. 9. Paragraph 9 is in these terms, "The Mitel telephony system will not improve the scanning inefficiency nor the database inefficiency." Initially I was inclined to think that was self‑evident. Why would a telephone system improve scanning or improve a database? But having heard Mr Fernon's submissions about the matter, I am not satisfied that it is self‑evident as I was inclined to think. And it seems to me that in any event the opinion that the system suggested by the first cross-defendant would not improve the problems, really needs to be explained: (a) so I can understand it; and (b) so that I can understand that the opinion is indeed based upon Mr Benson's specialised knowledge. 10. Those matters really only perpetuate what I regarded as the vice, or tendency, for Mr Benson to express opaque conclusions. Those vices, I regret to say, continue throughout the balance of the affidavit. Paragraph 10, for instance, points out that the server first installed by CCTS, which I think other evidence indicates was in 2013, was modular and capable of being expanded to meet growing demands. Mr Benson also states that the original equipment remains sufficient for Reliance's purposes, notwithstanding they now operate four sites. However, the evidence otherwise indicates that there have been improvements made. They are not dealt with in para 10, and the opinion that the equipment remains sufficient for this purpose is, in my view, opaque. I do not understand what sufficient means in this regard. Does it mean the bare minimum? Or, does it mean something else? 11. Again, para 11 refers to database inefficiencies. In para 12 there is a statement that, "The equipment first installed in 2013 shows no signs of failures or hardware degradation or a need for a replacement." The expert says, "It remains current, suitable and fully functional." But the standard by which one assesses currency, suitability and full functionality are nowhere explained in the affidavit, and it is impossible for me to look behind those conclusions. Moreover, and perhaps more to the point, it would be impossible for cross‑examining counsel to look behind them without, as Heydon JA put it in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, setting off on a journey into the dark, as his Honour also wryly expressed, "with the perils that usually face journeys into darkness": Makita at 731 [62]. 12. Paragraph 13 says that Reliance's current IT needs are being fully met and there has been no need to increase the database system since the software was upgraded. There is no description of what those needs were and nor is there any explanation of the expression, "fully met". I am again left unsure by what standard that conclusion is proffered. Paragraph 14 again refers to the database inefficiency and reaffirms Mr Benson's view that since the software upgrade "the database issue has been resolved". I remain none the wiser as to what that database issue was in the first place. 13. It seems to me that for the reasons I gave yesterday and for the reasons I have reiterated today, the affidavit of 30 August 2018 at least from paras 8 to 14, does not amplify the earlier expressions of opinion that I rejected in any meaningful way which would render those opinions admissible, and I reject the whole of paras 8 to 14. ********** 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: 06 September 2018