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Representation: Counsel:
D Reynolds with J Chen (Plaintiff/Cross-Defendant)
B K Nolan (Defendant/Cross-Claimant)
Solicitors:
Addisons (Plaintiff/Cross-Defendant)
Enyo Lawyers (Defendant/Cross-Claimant)

File Number(s): 2023/159221

REVISED EX TEMPORE JUDGMENT

1. HIS HONOUR: The plaintiff tenders what purports to be an expert report of Heath Stewart dated 9 December 2025, a chartered accountant. Annexed to the report of Mr Stewart are a number of documents including what has already been identified and what is in evidence such as the customer betting statement for the relevant period, a spreadsheet prepared and another spreadsheet which purports to be a version of a Microsoft Excel document. The defendant objects to both the report and all the documents accompanying the report on a number of grounds.

2. In particular, the defendant says that:

3. Mr Stewart does not have the expertise to offer the opinion he makes in the sense that he is a chartered accountant. That which he has done does not call for any accounting expertise and further that, having regard to the report, the plaintiff should have called someone with information technology expertise;

4. The report is based on work done by others including other people employed by Mr Stewart. Indeed, it was suggested that one of the persons who did work on the project, that is, the project undertaken by Mr Stewart at the request of the plaintiff, was not actually employed by Mr Stewart. The defendant tendered a LinkedIn document which might have suggested that he was employed by some other company;

5. Mr Stewart himself was unable to say that all the information contained in the documents exhibited to his affidavit were correct, as I understand it, on the basis that he did not do the data entry or the calculations using the accounting and computing software personally;

6. The report is deficient in that it does not identify the persons working within his office who did things such as data entry and worked on the spreadsheets; and

7. That there has been noncompliance with the expert witness code of conduct for a number of reasons, including that:

(a) The question, issue or matter falls outside the expert's field of expertise; (b) There has been no identification of the identity of the persons who carried them out the examinations, tests or other investigations and that person's qualifications; and (c) To the extent that any opinion which the expert has expressed involves the acceptance of another person's opinion, the expert had not identified that person and the opinion expressed by that other person.

3. After extensive submissions from Ms Nolan on behalf of the defendant on the admissibility question, the plaintiff called evidence from Mr Stewart on the voir dire. He was cross examined extensively by Ms Nolan about the matters to which I have referred, including issues of expertise, other persons working on the project, not explaining the terminology that is in his report and calculations being performed using Microsoft Excel macros and Tabula for PDF data extraction. Ms Nolan suggested to Mr Stewart that he had not explained what that was, had not explained how that had worked and had not explained who had done that.

4. Further, it was suggested to Mr Stewart that he had assumed the accuracy of the source documents on which he was relying, and that he made no check or audit of the source documents to make sure they were correct or accurate.

5. In support of the submissions, the defendant relied on Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 (“Lang”), and in particular, the judgment of Gordon and Edelman JJ. In the defendant’s written submissions, Ms Nolan suggests that, having regard to that judgment, it is necessary for the expert to demonstrate a connection between observed facts and any conclusion reached, and this has not been exposed in this case. Lang involved a murder case where there was an issue as to the admissibility of the opinion of a pathologist as relating to knife tracks, and the rotation of the knife.

6. Be that as it may, I accept that the principles set out there remain relevant to all expert evidence cases. Similar statements are to be found in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 and of course the very relevant judgment of Heydon J in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305.

7. As I understand the challenge by the defendant, it is that the expert has not explained the basis on which his opinion has been reached, and that he does not have the expertise to offer the opinion.

8. As is well known, the admissibility of any opinion expressed by an expert witness depends, to a large extent, on his or her qualifications, skill and expertise.

9. It is always important in considering whether an expert's opinion is admissible to understand what the relevant fact in issue is. Expert opinions can only be admissible if they are relevant to a fact in issue. The relevant fact in issue in this matter, to which the expert can give evidence, is the question of whether the annual turnover (and I use that term in general terms) of the plaintiff’s bookmaking business is below $30 million (for the purposes of the plaintiff relying on an exception to the requirements set out in s 15 of the Interactive Gambling Act 2001 (Cth)).

10. The defendant maintains that the plaintiff has failed to comply with parts of that Act and that there is an inconsistency between that Act and the State Act, being the Betting and Racing Act 1998 (NSW), such that the relevant provision in the Betting and Racing Act is rendered void and with the result that the plaintiff has been providing betting services contrary to the terms of the Interactive Gambling Act.

11. In response, amongst other things, the plaintiff relies on the exemptions set out in section 15D of the Interactive Gaming Act that the wagering turnover of the plaintiff for each financial year during the relevant period was less than $30 million. In his expert report, Mr Stewart identifies what he describes as the "aggregated loss" as being around $48,000 in the first financial year being 2019-2020, approximately $14 million in each of the next two financial years, being 2020-2021 and 2021-2022, respectively, and $2,153,1659 in the last financial year, being 2022-2023. The defendant has made plain throughout the conduct of this case that he seeks to challenge the entitlement of the plaintiff to rely on the exemption (if the Act applies at all) and has made it plain that it is up to the plaintiff to prove that the wagering turnover of the plaintiff for the relevant financial year was less than $30 million.

12. The defendant's objections to the plaintiff's affidavits have now been proceeding for nearly two whole days. After a short opening by the plaintiff, Ms Nolan declined to make any opening of substance. The plaintiff sought to tender the plaintiff's affidavits. There were extensive objections. After dealing with that for most of the last two days, for the past two and a half hours we have been dealing with objections and evidence on the voir dire from the expert accountant, Mr Stewart.

13. As I said to Ms Nolan during the course of submissions about the admissibility of the expert accounting report, I have already admitted the plaintiff's evidence as to the annual turnover and the source document, being the betting account statement setting out all of the defendant's bets over the relevant period of approximately three years which run into the thousands, such that the particular significance of the opinion of the expert accountant as to the turnover was somewhat difficult to understand. Be that as it may, the plaintiff pressed it and the defendant objected.

14. I raise this because during the course of argument, I pointed out to Ms Nolan that the plaintiff had been in the witness box, and she had not sought to challenge the plaintiff on the accuracy of the source documents being the client statement which purports to record every bet made by the defendant over the relevant period, the amount of it, and the win or loss. I raise this because yesterday afternoon, when Ms Nolan was making submissions about the admissibility of the source document, I asked whether she was seeking to challenge its authenticity or accuracy. I understood that she had not had the opportunity to review it in detail or had decided not to. I then directed that she review the document overnight and make any submission on its content.

15. At 10am this morning, I asked Ms Nolan as to whether she had reviewed the document. She said that she had between the hours of 4pm and 2am and had found many errors in it. Of course, I accept that. However, I raised with Ms Nolan why she had not raised the errors she had found with the plaintiff when he was in the witness box. I raised my concern that he should be recalled so that she could put the many errors that she had found to the plaintiff. Suffice to say, Ms Nolan indicated that she did not want to do so. I have now raised with Ms Nolan three times that I would not be accepting a submission that there were errors in the client statements if those errors are not pointed out to the plaintiff.

16. I again raised this in the context of the expert accountant. The expert accountant was giving evidence. Mr Stewart was in court to answer any questions. I again raised with Ms Nolan why she was not raising the many errors she had found in the source document with Mr Stewart. Suffice to say, Ms Nolan’s submission was that she is not required to do so. The defendant maintains that he does not have to prove any errors.

17. Of course, that is always a matter for counsel's forensic decision having regard to the way counsel wants to run the case, but I am addressing the question of admissibility in circumstances in which Ms Nolan chose not to challenge the accountant on the authenticity or accuracy of the source document on which he relied. Rather, she put questions to him asking him, to the effect, that he could not be certain of the accuracy, he could not be certain of the entry of the amounts.

18. As I said, one of the very well-known reasons why the Court might reject an expert opinion is if it is based on incorrect information, that is, inaccurate financial records. I can only say that I do not understand why the defendant did not put to either the plaintiff or the expert accountant anything at all about the many errors that the defendant contends is in the source documents.

19. Be that as it may, the question still remains whether the accountant's report is admissible. The submissions made by Ms Nolan rather strike at the heart of forensic accounting and the way forensic accounting experts prepare reports and give evidence.

20. Any persons involved in this type of litigation understands that forensic accountants are often used in matters involving calculations involving a large amount of numbers, or to determine things like loss of income or loss of profit or other losses. Ms Nolan's submission is that the report should be rendered inadmissible because the expert accountant, Mr Stewart, has plainly relied on people working in his office to do the data entry and prepare the spreadsheet who were not identified in the report, and he has not spoken or given evidence about their expertise.

21. I reject that submission. Plainly, Mr Stewart is the principal in a firm, which employs other people. The idea either that he has to do all the work himself, such as data entry in a case such as this, or identify every person who might have worked on the job, including bookkeepers of 30 years' experience who are experienced in data entry, is, in my view, a submission without merit.

22. Similarly, the suggestion that a chartered accountant does not have the expertise to give evidence about using accounting software, such as Microsoft Excel macros or other types of software he has referred to, is also rejected.

23. During the course of cross examination of Mr Stewart, a chartered accountant of considerable experience, he was asked questions about why he did not include in his opinion more explanation about the use of what is described as Tabula for PDF. He explained that he was not intending to refer to something that derives from AI, but rather just that everything was being done in table format.

24. In response, Ms Nolan put to the witness he was simply making it up, that is, he was making up his evidence. I questioned Ms Nolan about the basis on which she would put to an experienced chartered accountant that, in effect, he was making up evidence; in a sense, lying in the witness box. I asked her to withdraw it. Ms Nolan declined to do so.

25. No basis was ever put to the witness as to why he was said to be making up evidence. Mr Stewart explained three times that Ms Nolan was misinterpreting the word "tabular" and that it was just a shorthand way of describing use of tables. It is a matter for Ms Nolan whether she wants to accept that, but in my view, there was no basis for putting the proposition that the witness was making up his evidence in the witness box. It is of considerable concern that such a proposition was put without a proper foundation by counsel of Ms Nolan's experience.

26. The Court takes very seriously suggestions by counsel to witnesses that they are, in effect, lying in the witness box without there being any proper basis for doing so. I do not accept that a chartered accountant who accepts a job as an independent expert must disclose the identity of every employed chartered accountant or other persons such as the bookkeeper who works on the job for the purposes of preparing documents such as spreadsheets. I do not accept that a chartered accountant, who was asked to go through approximately 6,000 to 7,000 individual bets and calculate the amounts referred to therein for the purpose of coming up with a total, does not have the expertise to offer his opinion as to the total because he is not an expert in information technology and has not explained in his report how Microsoft Excel macros and Tabula is used for PDF data extraction.

27. In my view the report is admissible and will be admitted.

28. Similarly, the documents exhibited to the report are also admitted.

29. The defendant also sought a limitation pursuant to s 136 of the Evidence Act 1995 (NSW) in respect of the documents, which are described as turnover records provided to the plaintiff to Mr Stewart, the expert accountant, consisting of on-course and telephone betting summaries for the period 1 July 2019 to June 2023 and spreadsheets providing raw data of the plaintiff’s turnover records as well as setting out Mr Stewart’s analysis of that data. I do not understand how these documents could be said to be misleading or unfairly prejudicial. In the circumstances, I also decline to make a 136 order in respect of the exhibits to Mr Stewart's affidavit.

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