Trajkovski v Commonwealth Insurance Limited [2020] NSWDC 693

Trajkovski v Commonwealth Insurance Limited [2020] NSWDC 693

Non-compliance with UCPR r 31.23(1) is not merely technical in this commercial cause as Mr Ziade’s report lacks transparency in reliance on materials, demonstrates unwillingness to reconsider earlier opinions, and retrospective acknowledgment of the Code cannot cure substantive omissions. The report’s admissibility may be confined to observations only, to ensure the trier of fact benefits from evidence formed independently and informed by specialised knowledge.

Jurisdiction
Australia
Judgment Date
05 November 2020
Procedural Posture
Civil / Procedural Ruling on Expert Report Admissibility
Outcome
Report admitted in evidence only as proof of observations, not opinions.
Legal Topics
['expert Evidence' 'admissibility' 'code of Conduct' 'non Compliance With Procedural Requirements']
['practice and Procedure'] ['expert Evidence' 'admissibility' 'code of Conduct' 'non Compliance With Procedural Requirements']

Case Brief

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Procedural Posture

Civil / Procedural Ruling on Expert Report Admissibility

Legal Issues

  1. 1 ['Whether an expert report not compliant with UCPR r 31.23(1) can be admitted under r 31.23(3)' 'If so, on what terms']

Ratio Decidendi

Non-compliance with UCPR r 31.23(1) is not merely technical in this commercial cause as Mr Ziade’s report lacks transparency in reliance on materials, demonstrates unwillingness to reconsider earlier opinions, and retrospective acknowledgment of the Code cannot cure substantive omissions. The report’s admissibility may be confined to observations only, to ensure the trier of fact benefits from evidence formed independently and informed by specialised knowledge.

Court Disposition

Report admitted in evidence only as proof of observations, not opinions.

Orders

  • ['Pursuant to r 31.23, the report of Mr Ziade dated 3 November 2013, Annexure D to his affidavit of 4 December 2019, is admitted as proof only of observations therein.']