Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953

Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953

There was good reason to exercise the s 192A power because expert evidence in reply was likely and deferring admissibility rulings could cause inconvenience and delay. Applying the distinction between admissible content evidence of foreign law and inadmissible application evidence, the Court rejected passages in Professor Swisher's report that construed the parties' agreement, commented on the facts, addressed irrelevant insurance practice or relevance matters, or were not pressed, and otherwise held the report admissible. The report's heading was treated for the purposes of the application as a statement that Professor Swisher had read and agreed to be bound by the Expert Witness Code of...

Jurisdiction
Australia
Judgment Date
21 August 2012
Procedural Posture
Interlocutory Applications / Preliminary Rulings Pursuant to S 192 a of the Evidence Act 1995 on the Admissibility of Passages in an Expert Affidavit Concerning Foreign Law
Outcome
Specified passages of Professor Swisher's report were rejected; otherwise the report was admissible. Costs were reserved for further submissions.
Legal Topics
['expert Reports' 'advance Ruling' 'foreign Law' 'content Evidence' 'application Evidence' 'admissibility']
['evidence' 'civil Procedure' 'private International Law'] ['expert Reports' 'advance Ruling' 'foreign Law' 'content Evidence' 'application Evidence' 'admissibility']

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Procedural Posture

Interlocutory Applications / Preliminary Rulings Pursuant to S 192 a of the Evidence Act 1995 on the Admissibility of Passages in an Expert Affidavit Concerning Foreign Law

Legal Issues

  1. 1 ['Whether it was appropriate to make advance rulings under s 192A of the Evidence Act 1995 on the admissibility of proposed expert evidence before the hearing.' "Whether passages in Professor Swisher's affidavit concerning Virginia law were admissible content evidence or inadmissible application evidence." 'Whether the absence of an express acknowledgement that Professor Swisher had read the Expert Witness Code of Conduct prevented admission of the report.' 'Whether particular passages were inadmissible because they were irrelevant, contained commentary on facts, expressed opinions on construction of the contract, or were not pressed.']

Ratio Decidendi

There was good reason to exercise the s 192A power because expert evidence in reply was likely and deferring admissibility rulings could cause inconvenience and delay. Applying the distinction between admissible content evidence of foreign law and inadmissible application evidence, the Court rejected passages in Professor Swisher's report that construed the parties' agreement, commented on the facts, addressed irrelevant insurance practice or relevance matters, or were not pressed, and otherwise held the report admissible. The report's heading was treated for the purposes of the application as a statement that Professor Swisher had read and agreed to be bound by the Expert Witness Code of...

Court Disposition

Specified passages of Professor Swisher's report were rejected; otherwise the report was admissible. Costs were reserved for further submissions.

Orders

  • ['The last sentence of paragraph 6 of Professor Swisher\'s report, commencing "As I opine below", is rejected.' "Paragraph 8 of Professor Swisher's report is rejected." "The last sentence of paragraph 10 of Professor Swisher's report is rejected." "The first sentence of paragraph 11 of Professor Swisher's report is...