James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 4) [2013] NSWSC 1663

James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 4) [2013] NSWSC 1663

The letters did not set out in terms the advice given by Mr Toyne to Mr Waugh as factual evidence. The first letter expressed Mr Toyne's views about the business and reasons for a pessimistic view in terms that made cross-examination difficult, and the second letter expressed an opinion from reviewed financial records about a reduction in gross fees and its cause. Those matters, if admissible at all, were admissible under s 79 of the Evidence Act 1995 (NSW). Because the expert evidence requirements in the Uniform Civil Procedure Rules 2005 (NSW) had not been complied with, fairness required rejection of the tender.

Jurisdiction
Australia
Judgment Date
04 November 2013
Procedural Posture
Common Law; Procedural and Other Ruling Concerning Evidence Admissibility / Ex Tempore Ruling on Tender of Letters During Hearing
Outcome
Tender rejected
Legal Topics
['admissibility of Opinion Evidence' 'expert Evidence' 'evidence Act 1995 (nsw) S 79' 'uniform Civil Procedure Rules 2005 (nsw) R 31.23, R 31.24 and R 31.27' 'tender of Letters From Business Consultant']
['evidence' 'civil Procedure'] ['admissibility of Opinion Evidence' 'expert Evidence' 'evidence Act 1995 (nsw) S 79' 'uniform Civil Procedure Rules 2005 (nsw) R 31.23, R 31.24 and R 31.27' 'tender of Letters From Business Consultant']

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Procedural Posture

Common Law; Procedural and Other Ruling Concerning Evidence Admissibility / Ex Tempore Ruling on Tender of Letters During Hearing

Legal Issues

  1. 1 ['Whether two letters from Mr Craig Toyne dated 2 July 2012 and 26 February 2013 were admissible.' 'Whether opinions in the letters fell within s 79 of the Evidence Act 1995 (NSW).' 'Whether the letters complied with the expert evidence requirements in Uniform Civil Procedure Rules 2005 (NSW) r 31.23, r 31.24 and r 31.27.' 'Whether the letters were instead admissible as factual evidence of advice given to Mr Waugh and the reasons for that advice.']

Ratio Decidendi

The letters did not set out in terms the advice given by Mr Toyne to Mr Waugh as factual evidence. The first letter expressed Mr Toyne's views about the business and reasons for a pessimistic view in terms that made cross-examination difficult, and the second letter expressed an opinion from reviewed financial records about a reduction in gross fees and its cause. Those matters, if admissible at all, were admissible under s 79 of the Evidence Act 1995 (NSW). Because the expert evidence requirements in the Uniform Civil Procedure Rules 2005 (NSW) had not been complied with, fairness required rejection of the tender.

Court Disposition

Tender rejected

Orders

  • ['I reject the tender of the letters of 2 July 2012 and 26 February 2013.' 'The Court will entertain an application from Mr Morris as to whether he wishes to call Mr Toyne to give oral evidence about admissible matters.']