CJD Equipment v A & C Construction [2009] NSWSC 1085

CJD Equipment v A & C Construction [2009] NSWSC 1085

The court exercised its discretion to admit the affidavit and annexed report of the expert, despite the lack of contemporaneous acknowledgment of the code of conduct at the time of preparing the report, because there were no contested issues in relation to the evidence, at least some defendants had used parts of the report, and there was no real prejudice shown. The absence of strict compliance was insufficient, on these facts, to justify exclusion, though strict adherence to r 31.23 is generally required.

Jurisdiction
Australia
Judgment Date
06 October 2009
Procedural Posture
Procedural and Other Rulings / Interlocutory Ruling on Admissibility of Expert Evidence
Outcome
Expert report and relevant affidavit admitted into evidence.
Legal Topics
['expert Evidence' 'admissibility of Expert Reports' 'code of Conduct for Expert Witnesses']
['civil Procedure' 'evidence' 'construction Law'] ['expert Evidence' 'admissibility of Expert Reports' 'code of Conduct for Expert Witnesses']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Interlocutory Ruling on Admissibility of Expert Evidence

Legal Issues

  1. 1 ['Whether an expert report is admissible without contemporaneous acknowledgment of the expert code of conduct.' 'Whether the relevant time for acknowledgment is at preparation of the report or swearing of the affidavit annexing it.' 'Whether there are exceptional circumstances justifying admission of the report despite technical non-compliance.']

Ratio Decidendi

The court exercised its discretion to admit the affidavit and annexed report of the expert, despite the lack of contemporaneous acknowledgment of the code of conduct at the time of preparing the report, because there were no contested issues in relation to the evidence, at least some defendants had used parts of the report, and there was no real prejudice shown. The absence of strict compliance was insufficient, on these facts, to justify exclusion, though strict adherence to r 31.23 is generally required.

Court Disposition

Expert report and relevant affidavit admitted into evidence.

Orders

  • ['Relevant paragraph of and annexure to the affidavit of John Ryder sworn 10 December 2008 are admitted into evidence.']