ASIC v Rich [2005] NSWSC 650

ASIC v Rich [2005] NSWSC 650

The admissibility of contested expert opinion evidence must be resolved on a paragraph-by-paragraph basis, applying the statutory rules for expert opinion (s 79) and the court’s exclusionary discretion (s 135). Where expert reasoning is weak, unsupported, based on inadmissible assumptions or extraneous information,...

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; Defendant: John David Rich; Defendant: Mark Alan Silbermann
Jurisdiction
Australia
Judgment Date
08 July 2005
Procedural Posture
Interlocutory Application Regarding Admissibility of Expert Evidence / Post Court of Appeal Remittal; Paragraph by Paragraph Ruling on Admissibility
Outcome
Some paragraphs allowed as expert opinion evidence, others rejected as inadmissible or excluded in discretion, with details specified throughout reasons; ancillary directions given on approach to any further supplementary evidence.
Legal Topics
Expert Evidence, Admissibility, Forensic Accounting, Section 79 Evidence Act, Discretionary Exclusion S 135, Company Financial Reporting
Evidence Corporate Law Expert Evidence Admissibility Forensic Accounting Section 79 Evidence Act Discretionary Exclusion S 135 Company Financial Reporting

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Summary, issues, holding and outcome

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Parties

Australian Securities and Investments Commission

Plaintiff

John David Rich

Defendant

Mark Alan Silbermann

Defendant

Procedural Posture

Interlocutory Application Regarding Admissibility of Expert Evidence / Post Court of Appeal Remittal; Paragraph by Paragraph Ruling on Admissibility

Legal Issues

  1. 1 Whether the Carter forensic accounting report and related supplementary materials are admissible, in whole or in part, as expert opinion evidence under the Evidence Act 1995 (NSW) and the applicable case law; Whether, even if technically admissible, discrete paragraphs or parts should be excluded on discretionary grounds (s135, s136) including unfair prejudice, confusion, or undue waste of time.

Ratio Decidendi

The admissibility of contested expert opinion evidence must be resolved on a paragraph-by-paragraph basis, applying the statutory rules for expert opinion (s 79) and the court’s exclusionary discretion (s 135). Where expert reasoning is weak, unsupported, based on inadmissible assumptions or extraneous information, or otherwise creates risks of unfair prejudice, confusion or undue waste of time, exclusion is warranted. Mere summaries of documents are not admissible as expert opinion. Where parts of the opinion depend on assumptions or unproven facts, they are only admitted subject to limiting directions under s 136, and only if they serve as assumptions underlying an admissible opinion....

Court Disposition

Some paragraphs allowed as expert opinion evidence, others rejected as inadmissible or excluded in discretion, with details specified throughout reasons; ancillary directions given on approach to any further supplementary evidence.

Orders

  • Certain paragraphs of the Carter Report and accompanying supplementary affidavits allowed into evidence as expert opinion; Other paragraphs expressly rejected as inadmissible or excluded under s 135; Directions for ASIC to provide further submissions and notes as to other paragraphs in light of these rulings;...