Tyneside Property Management Pty Ltd & ors v Hammersmith Management Pty Ltd & ors [2011] NSWSC 395

Tyneside Property Management Pty Ltd & ors v Hammersmith Management Pty Ltd & ors [2011] NSWSC 395

The report was admissible because it formed part of the business records of at least Roche Group Pty Ltd and a copy formed part of the records of Gary Truswell & Associates Pty Ltd, was kept for business purposes, was not prepared or obtained for litigation, and therefore satisfied s 69; the opinions in it also satisfied s 79 because Mr Truswell had specialised knowledge as a civil and structural engineer relevant to project management practices and standards. His inability to comply with the expert witness code of conduct, due to association with the defendants and the pre-litigation character of the opinion, did not bar admissibility.

Jurisdiction
Australia
Judgment Date
17 February 2011
Procedural Posture
Procedural and Other Ruling / Defendants' Tender of a Pre Litigation Expert Report; Plaintiffs Objected on Hearsay and Opinion Grounds
Outcome
Pre-litigation expert opinion admitted.
Legal Topics
['hearsay' 'business Records Exception' 'opinion Evidence' 'expert Opinion' 'specialised Knowledge' 'expert Witness Code of Conduct']
['evidence'] ['hearsay' 'business Records Exception' 'opinion Evidence' 'expert Opinion' 'specialised Knowledge' 'expert Witness Code of Conduct']

Case Brief

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Procedural Posture

Procedural and Other Ruling / Defendants' Tender of a Pre Litigation Expert Report; Plaintiffs Objected on Hearsay and Opinion Grounds

Legal Issues

  1. 1 ["Whether a consulting engineer's report fell within the business records exception to the hearsay rule under s 69 of the (NSW) Evidence Act 1995." 'Whether opinions contained in a business record also had to satisfy an exception to the opinion rule under s 78 or s 79 of the (NSW) Evidence Act 1995.' 'Whether non-compliance with the expert witness code of conduct prevented admission of an out-of-court expert opinion expressed before litigation was contemplated.']

Ratio Decidendi

The report was admissible because it formed part of the business records of at least Roche Group Pty Ltd and a copy formed part of the records of Gary Truswell & Associates Pty Ltd, was kept for business purposes, was not prepared or obtained for litigation, and therefore satisfied s 69; the opinions in it also satisfied s 79 because Mr Truswell had specialised knowledge as a civil and structural engineer relevant to project management practices and standards. His inability to comply with the expert witness code of conduct, due to association with the defendants and the pre-litigation character of the opinion, did not bar admissibility.

Court Disposition

Pre-litigation expert opinion admitted.

Orders

  • ['The report of Gary Truswell & Associates Pty Ltd dated 26 September 2002 is admitted.']