Bannister & Hunter v Transition Resort Holdings (No.2) [2013] NSWSC 1656

Bannister & Hunter v Transition Resort Holdings (No.2) [2013] NSWSC 1656

Because the plaintiff failed to include the report in the draft Court book or give timely notice of its intention to rely on it, and because the defendant was thereby deprived of an adequate opportunity to cross-examine the author in circumstances where there was a dispute with Coffey Geotechnics and a real risk of relying on an untested opinion, the report was admitted only for factual material and annexed test reports, and not to prove Coffey Geotechnics' opinion conclusion.

Jurisdiction
Australia
Judgment Date
08 November 2013
Procedural Posture
Procedural and Other Ruling / During Trial; Objection to Tender of Coffey Geotechnics Site Regrading Report
Outcome
Report admitted except to prove, as opinion of its author, the "Conclusion" stated in it.
Legal Topics
['court Book and Usual Order for Hearing' 'notice of Intention to Rely on Documents' 'admission of Expert Opinion Evidence' 'procedural Fairness' 'opportunity to Cross Examine Report Author']
['practice and Procedure' 'evidence' 'technology and Construction'] ['court Book and Usual Order for Hearing' 'notice of Intention to Rely on Documents' 'admission of Expert Opinion Evidence' 'procedural Fairness' 'opportunity to Cross Examine Report Author']

Case Brief

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Procedural Posture

Procedural and Other Ruling / During Trial; Objection to Tender of Coffey Geotechnics Site Regrading Report

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted to tender the Site Regrading Report for all purposes when it was not included in the draft Court book and notice of reliance was not given in accordance with the usual order for hearing.' "Whether the report should be admitted to prove, as Coffey Geotechnics' opinion, the conclusion that Stage One filling was generally carried out to Level One as defined in a standard." 'Whether admitting the opinion conclusion without prior notice and without the author being called would cause unfair prejudice to the defendant.']

Ratio Decidendi

Because the plaintiff failed to include the report in the draft Court book or give timely notice of its intention to rely on it, and because the defendant was thereby deprived of an adequate opportunity to cross-examine the author in circumstances where there was a dispute with Coffey Geotechnics and a real risk of relying on an untested opinion, the report was admitted only for factual material and annexed test reports, and not to prove Coffey Geotechnics' opinion conclusion.

Court Disposition

Report admitted except to prove, as opinion of its author, the "Conclusion" stated in it.

Orders

  • ['The Coffey Geotechnics report is admitted for all purposes except to prove, as the opinion of Coffey Geotechnics, the "Conclusion" expressed in the report.']