Mimi's Fine Foods Pty Ltd v Cimino [2012] NSWSC 1209

Supreme Court New South Wales

Medium Neutral Citation: Mimi's Fine Foods Pty Ltd v Cimino [2012] NSWSC 1209 Hearing dates: 27 August 2012 Decision date: 27 August 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Leave to rely on expert evidence refused Catchwords: PRACTICE & PROCEDURE - evidence - leave to rely on expert evidence at late stage - factors considered Category: Interlocutory applications Parties: Mimi's Fine Foods Pty Ltd (Plaintiff) Oreste Cimino (First Defendant) Nicola Cimino (Second Defendant) Representation: D Farrar (Solicitor) (plaintiff) Gary Ashworth (Solicitor) (defendants) Farrar Lawyers (Plaintiff) Ashlaw Associates (Defendants) File Number(s): 2010/ 331151

Judgment (ex tempore) 1HIS HONOUR: I refuse leave to rely on the affidavit of Matthew John Reynolds sworn 7 August 2012. 2When they were last before the Court on 6 August 2012, the Court fixed these proceedings for hearing initially on 18 September 2012 with a three-day estimate, made the usual order for hearing and made directions in connection with written submissions. 3I proceed on the basis that at that time the Court, and counsel for the defendant, were told that there was a further affidavit to be served on behalf of the plaintiff. I proceed also on the basis, which is uncontroversial, that neither the Court nor counsel for the defendant was told that that affidavit was to be one of an expert witness. It is probable that, having been informed that a further affidavit was to be served, I would have said something to the effect that if there was an issue about it, then that could be dealt with at the trial. 4No application has been made at any earlier stage of the proceedings for directions in connection with expert evidence and, as I understand the position, no expert evidence has been adduced to this point. 5As it is clear that there is a very substantial issue about the subject affidavit, it has been brought forward to be dealt with today. In circumstances where the Court had been told that the matter is effectively ready for hearing, the matter has been fixed for hearing, and no application has hitherto been made under the expert evidence rules for directions in connection with expert evidence, I think it is quite inappropriate to allow an affidavit of an expert witness to be introduced at this very belated stage. In this, I am particularly influenced by the circumstance that no evidence is put before me to explain why the Court had not earlier been advised that there was to be expert evidence, nor as to why expert evidence is necessary to resolve any issue in the case. 6For those reasons, I refuse leave to rely on the affidavit of Matthew John Reynolds of 7 August 2012. 7I order that the plaintiff pay the defendant's costs of today. 8The proceedings are otherwise adjourned for hearing to commence on 23 October 2012. 9I vary the usual order for hearing as previously made in respect of the dates for written submissions, so that the plaintiff is to lodge and serve its written submissions by 16 October, and the defendant is to lodge and serve its written submissions by 19 October 2012.

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