Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 2) [2017] NSWSC 1372

Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 2) [2017] NSWSC 1372

Mr Burchett's report was inadmissible because, even taking his CV into account, it did not sufficiently demonstrate how his opinions were wholly or substantially based on specialised knowledge from his training, study or experience. The report was not shown to be an expert report within the Rules, so r. 31.28 did not govern the application. Assuming the proposed oral evidence was relevant and otherwise admissible, its probative value was substantially outweighed by the danger of unfair prejudice to the plaintiff, including because it would be new evidence directed to the admissibility of the opinion, arose against the expert evidence service regime, followed a long-standing plainly...

Jurisdiction
Australia
Judgment Date
29 September 2017
Procedural Posture
Common Law Procedural Ruling Concerning Expert Evidence / During Trial, on Objection to Tender of Expert Report and Application to Call Oral Evidence From the Proposed Expert
Outcome
Evidence rejected; application refused.
Legal Topics
['disclosure of Expert Reports' 'admissibility of Expert Opinion Evidence' 'specialised Knowledge' 'discretion to Exclude Evidence' 'unfair Prejudice']
['practice and Procedure' 'evidence'] ['disclosure of Expert Reports' 'admissibility of Expert Opinion Evidence' 'specialised Knowledge' 'discretion to Exclude Evidence' 'unfair Prejudice']

Case Brief

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Procedural Posture

Common Law Procedural Ruling Concerning Expert Evidence / During Trial, on Objection to Tender of Expert Report and Application to Call Oral Evidence From the Proposed Expert

Legal Issues

  1. 1 ["Whether Mr Burchett's report was admissible as expert opinion evidence under s. 79 of the Evidence Act 1995 (NSW)." 'Whether oral evidence from Mr Burchett should be permitted to support the tender of his report.' 'Whether r. 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) governed the application to call oral evidence.' 'Whether the proposed oral evidence should be excluded under s. 135 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Mr Burchett's report was inadmissible because, even taking his CV into account, it did not sufficiently demonstrate how his opinions were wholly or substantially based on specialised knowledge from his training, study or experience. The report was not shown to be an expert report within the Rules, so r. 31.28 did not govern the application. Assuming the proposed oral evidence was relevant and otherwise admissible, its probative value was substantially outweighed by the danger of unfair prejudice to the plaintiff, including because it would be new evidence directed to the admissibility of the opinion, arose against the expert evidence service regime, followed a long-standing plainly...

Court Disposition

Evidence rejected; application refused.

Orders

  • ["The tender of Mr Burchett's report is rejected." 'The application to lead further evidence from Mr Burchett is refused.']