Chaina v Presbyterian Church [2012] NSWSC 1476 | Case summary

Supreme Court of NSW|2012-12-03|Before: Davies J, Hoeben J

Judgment 1The Plaintiffs bring these proceedings against the Presbyterian Church and others arising out of the death of Nathan Chaina, the son of the Second and Third Plaintiffs and the brother of the First Plaintiff, whilst on a school hike in the Morton National Park on the weekend of 23 and 24 October 1999. The Fourth and Fifth Plaintiffs are companies controlled by the Second and Third Plaintiffs and were in the business of producing chemical speciality products and systems for the industrial laundry, food processing, food service, health care, hospitality and general industry sectors. Those companies bring per quod servitium amisit claims by reason of the nervous shock suffered by the Second and Third Plaintiffs who were, inter alia, their employees. 2The claims brought by the Fourth and Fifth Plaintiffs seek damages for the general decline in business and profits and reduction in future projected income of those companies. These claims involve loss of opportunity costs involving what was said to be a line or lines of products that were being developed by those companies. 3Initially the claim was put on the basis that the Second Plaintiff, George Chaina, had scientific qualifications that came from university and elsewhere. The case was structured on the basis of his giving expert evidence in that regard concerning the products that were then being manufactured and the products that were intended to be manufactured. 4On 29 September 2009 in written submissions Senior Counsel then appearing for the Plaintiffs acknowledged that the Second Plaintiff had no scientific or professional qualifications and that he had not even matriculated from high school. As a result of that admission the Plaintiffs sought to change the basis of the case by leading large amounts of lay evidence dealing with products said to have been produced by the Fourth and Fifth Plaintiffs. Over objection by the Defendants leave was given to file such evidence by Hoeben J (as he then was) who was then managing the proceedings. The material in these statements included evidence from people who had been provided with products by the Second Plaintiff concerning their assessment of those products. 5The hearing is initially fixed on 4 March 2013 for a six week period in which the lay evidence will be heard. At a later time expert evidence will be given. 6Application is now made by the Defendants under s 192A Evidence Act 1995 for rulings in advance of the hearing on much of this lay evidence. The basis of the application is that it will assist in providing a just, quick and cheap resolution of the real issues in the proceedings. Rulings on the evidence made now will enable the parties to be able to prepare the case based on those rulings. If some of the evidence is ruled inadmissible now such a ruling will narrow the basis upon which the hearing will be conducted in March. 7The Plaintiffs oppose the use of s 192A on the basis that this approach is premature. That is because relevance and probative value depend heavily not only on matters of direct relevance but also on issues that are indirect and from which appropriate inferences may be drawn. The Plaintiffs say that there are powerful discretionary reasons why the Court would not embark upon this process. They say that extra expense would be involved if the Plaintiffs are required to redact some or all of the statements now the subject of rulings. They say that by reason of agreements that have already been reached the evidence has been reduced and limited in any event. They say that ordinarily speaking s 192A is used in relation to expert evidence. They point to what was said by Stevenson J in Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951 and in Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953. 8In my opinion, what was said in those and other cases supports the view to which I have come that I should embark on the process of making rulings in advance. In particular, I note the adoption by Stevenson J of what Biscoe J said in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]: Whether the Court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute. 9I also have regard to what was said by Gzell J in Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [15]. 10I do not consider there is any basis for the view that advance rulings made under s 192A should ordinarily only be used in respect of expert evidence. The section should be broadly construed consistently with the Explanatory Memorandum to the Amending Act which introduced the section: The power to give advance rulings carries significant benefits in promoting the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty. A broad reading is also consistent with s 56 Civil Procedure Act. I also heed the concerns expressed by Gaudron J in TKWJ v The Queen (2002) 212 CLR 124 at [43] about whether such rulings will give rise to the appearance of a lack of impartiality in the judge making the rulings where the judge is later to hear the case. 11I consider that making advance rulings will assist the parties in knowing which of the voluminous amount of evidence served will be able to be relied upon at a hearing. That, in turn, will enable both of the parties to prepare the case accordingly and make whatever adjustments are necessary for the way the case is put and answered. Considerations of the witnesses to be called or those required for cross-examination will be relevant in that regard. A clarification of what of the lay evidence is admissible may also have a bearing on the expert evidence to be adduced by both Plaintiffs and Defendants. All of this, in turn, is likely to influence the length of the trial. 12A further consideration pointing to acceding to the Defendants' application is that a mediation is scheduled for sometime in February 2013. It is better that the parties know what evidence will be admitted at the hearing to assist their approaches to the mediation. 13By way of further background the following should be noted. The Plaintiffs' business commenced in the early 1980s. In June 1993 a fire destroyed the business premises of the Plaintiffs. Later that year litigation in relation to the fire commenced and was finally settled in 1995. 14Between 1995 and 1999 the Second Plaintiff claims to have developed a number of unique new domestic products and reformulated all of the industrial products. These were proposed to be launched, it is claimed, in late 1999 or 2000. 15As I have mentioned, Nathan died on the weekend of 23 and 24 October 1999. The present proceedings commenced in October 2002. 16The Defendants have divided the lay evidence into categories of objections with the categories described as follows: Category A It is a critical part of the Plaintiffs' case that the Plaintiffs allege in the period between the mid-1990's and October 1999 that Mr Chaina was developing and changing the products which he was proposing to sell and to this end he was constantly experimenting and changing the formulae of the various products. Hence, any statement of a lay or so called "expert" witness which does not identify by date, name or an appropriate description of the relevant product, or service, and is thus non-specific and is therefore irrelevant and has no probative value. Category B Evidence given by customers as to the effectiveness of the Plaintiffs' products and services is again non-specific both as to the product formulae and date and is therefore irrelevant as it has no probative value. Category C Lay witnesses purporting to give evidence of George Chaina's and Rita Chaina's competence, capabilities and abilities particularly witnesses related to or associated with these Plaintiffs are not qualified to express their opinions. None of them possesses the necessary relevant expertise and the statements are non-specific as to date. Therefore their evidence is irrelevant and has no probative value. Category D Again, it is a critical part of the Plaintiffs' case that the Plaintiffs allege that in the period between the mid-1990's and October 1999 Mr Chaina was developing and changing the products which he was proposing to sell and to this end he was constantly experimenting and changing the formulae of the various products. Hence, lay or so called "expert" evidence about testing, is non-specific as to formulae, manufacturing instructions and date. It is therefore irrelevant and has no probative value. Category E Evidence as to comparison with products of other manufacturers is non-specific as to the formulae of the alleged comparative products and is also non-specific as to date. It is therefore irrelevant and has no probative value. Category F Hearsay evidence which is led to establish the truth of the fact is not admissible. If it is admitted as a fact of a conversation having occurred then the weight becomes negligible in the circumstances of this case and should not be permitted to be relied upon.

17Reference is made in various places to a category G but no description of that category was provided. 18The Plaintiffs' written submissions did not respond to the written submissions of the Defendants that set out the categories above except to make arguments against the proposition that preliminary rulings should be made pursuant to s 192A. However, at an earlier time the Defendants had prepared what is entitled "Defendant's (sic) Amended Schedule of Objections to Lay Evidence of Plaintiffs". The objections made to the various statements in that document largely coincided with the objections taken in the written submissions, although there was not a complete coincidence of objection. 19The Plaintiffs responded to the objections in that Schedule and I have had regard to those responses in making the determinations which appear hereafter. Although, as I have said, there are some instances where further objections have been made by the Defendants in the present submissions, the nature of the objections is covered by objections already made and answered in the Defendants' Amended Schedule. In that way I have had the benefit of the Plaintiff's response to an objection of that particular character. 20I turn now to consider particular objections to evidence.

Paragraph number Category of objection Ruling 5 C The second sentence of paragraph 5 is rejected. The observation of the witness has no probative value. 6 F The paragraph is rejected. It is hearsay. 7 A & F The paragraph is rejected. The description of the products "samples of household and cosmetic products" is too broad to have any probative value. The remainder of the paragraph is hearsay. 8 - 18 A, D, E & F There is an issue in the proceedings about whether the Plaintiffs were manufacturing or producing any products for domestic use in the period 1995 - 1999. The credibility of the Second Plaintiff is challenged by reason of the false statements concerning his qualifications. In those circumstances the fact that he provided identified domestic products to the witness is relevant to that issue. That makes admissible the first sentences of paragraphs 10, 11, 13, 14, 15, 17 and 18. The remainder of those paragraphs should be rejected. The witness is not an expert witness and her own personal views about the products are not probative of any issue in the proceedings.

Paragraph number Category of objection Ruling 2 C This is rejected for the same reason as paragraph 5 of the earlier statement was rejected. 3 A, D & F This is rejected because the witness is not an expert and her opinion has no probative value. 4 A, D, E & F This is rejected because the witness is not an expert and her opinion has no probative value.

Paragraph number Category of objection Ruling 8 C & F This is rejected for being hearsay and because the witness's opinion of George Chaina is of no probative value. 9 & 10 A, D, E & F Paragraph 9 is rejected because it refers to indefinite products and involves hearsay. In relation to paragraph 10 because there is an issue about whether or not the Plaintiffs were producing domestic products in the period the headings to the sub-paragraphs of paragraph 10 are admitted to show only that George Chaina provided Jason Arraj with such products. The remainder of paragraph 10 is rejected on the basis that the witness's opinion of the products is of no probative value.

Paragraph number Category of objection Ruling 2 C & F Consistently with the rejection of paragraph 8 of the earlier statement this paragraph is rejected. 3 A, D, E & F Consistently with the rejection of paragraph 9 of the earlier statement this paragraph is rejected. 4, 5, 6, 7, 8 & 9 A, D, E & F Consistently with the rejection of parts of paragraph 10 of the earlier statement these paragraphs are rejected.

Paragraph number Category of objection Ruling 3 & 4 C These paragraphs are rejected. The witness's assessment of George Chaina is irrelevant. 6 & 7 A & D The first two sentences of paragraph 7 are allowed. They go to the issue of whether domestic products were being produced by at this time by the Plaintiffs. The remainder of the paragraphs are rejected. The witness's assessment of the products is irrelevant. 8 F This is rejected as hearsay.

Supplementary Statement of Joe Arraj dated 24 January 2012

Paragraph number Category of objection Ruling 2 & 3 C Consistently with the rejection of paragraph 4 in the earlier statement these paragraphs are rejected. 4 A & D Consistently with the rejection of that part of paragraph 7 that dealt with the witness's assessment of the products, sub-paragraphs (a) and (b) are admitted, (c), (d) and (e) are rejected.

Paragraph number Category of objection Ruling 8 A, D & F The last sentence is rejected as hearsay. The remainder of the paragraph is allowed as going to the issue of whether domestic products were being produced. 9 - 21 A, D & E The evidence in these paragraphs is rejected. The witness's assessment of the products is irrelevant. The witness's assessment and her dealings with George Chaina are irrelevant.

Statement of Lorena Severi dated 23 June 2012 Paragraph number Category of objection Ruling 2 A & D This paragraph is admitted as going to the issue of whether domestic products were being produced at this time. 3 C & F This paragraph is rejected as hearsay.

Statement of George Chaina Azar dated 9 November 2009 Paragraph number Category of objection Ruling 11 F Rejected as hearsay.

Statement of Mary Chaina Azar dated 9 November 2009

Paragraph number Category of objection Ruling 5 A & D The paragraph is rejected. The time period is too late and the description too general to be probative of any matter. 6 A, D, E & F The evidence is rejected except as showing that George provided powder and liquid detergents, dishwashing liquid, automatic dishwashing powder, tablets and rinse aid, multipurpose sprays, window cleaner, shower and tile cleaner, hand liquid soap, shampoo and conditioner and skincare products to the witness.

Paragraph number Category of objection Ruling 5 - 8 A, D & F Paragraphs 5 & 6 are rejected as hearsay. Paragraph 7 is rejected because of its generality. 13 - 16 A, D & E These paragraphs are rejected except for the first sentence in paragraph 13. 17 A, D, E & F This paragraph is rejected other than to prove that the products the witness was provided with were a multipurpose cleaner, laundry liquid detergent, laundry powder, fabric softener, window cleaner and toilet cleaner. 18 - 23 A, D, E These paragraphs are rejected except for the first sentence of paragraph 19 down to the words ("which were smaller") and except for the headings in paragraph 22.

Paragraph number Category of objection Ruling 9 C From the second sentence to the end of the paragraph - rejected. The witness's opinion of George Chaina is not probative of anything. 10, 11 & 12 A, C & D The last sentence of paragraph 11 is rejected - this is a conclusion without the facts being stated. The third sentence of paragraph 12 is rejected - hearsay. The remainder of these paragraphs are allowed as establishing the background to the relationship between the witness and the Plaintiffs. 14 & 15 F Paragraph 14 is allowed but not as to the truth of the matters reported. It is allowed on the basis of what was told to the witness to explain his involvement with the Plaintiffs. The first three sentences of paragraph 15 are rejected as amounting only to explanations of the witness's actions or intended actions. The remainder of the paragraph commencing "My qualification for this task" is allowed as providing some basis of the witness's expertise. 17 C This is rejected. The witness's assessment of George Chaina is probative of nothing. 28 C & F This paragraph is rejected. It contains conclusions reached by the witness without the facts being set out. 38 & 41 C These paragraphs are rejected. The witness's observations of George Chaina are probative of nothing. 43 C & F Rejected, hearsay. The witness's observations of George Chaina are irrelevant. 47 - 50 C Rejected - the witness's observations of the persons referred to are irrelevant. 51 - 54 A, D & E These paragraphs are rejected. The basis for the witness's expertise or knowledge of what is contained in these paragraphs is not demonstrated. I note the opening reference in paragraph 53 to the witness's limited knowledge of the size of the domestic market for cleaning products of the time. Leave is given to the Plaintiffs to demonstrate the witness's expertise and knowledge of the matters contained in these paragraphs. 55 C Rejected. The witness's observations of the Second and Third Plaintiffs are probative of nothing.

Paragraph number Category of objection Ruling 2 A, D & F Rejected - hearsay. The evidence is not probative of anything.

Paragraph number Category of objection Ruling 2 C Rejected. The witness's observations and assessment of George Chaina are irrelevant. 3 A, D & C Rejected. Hearsay. The witness's opinion about the position of Deluxe is irrelevant. 4-7 F, A & D Rejected. Hearsay. The information is irrelevant. 8 F, A & D Rejected. Hearsay. 9 & 10 C Rejected. The witness's observations of these persons are irrelevant. 11-13 A, D & E These paragraphs stand or fall with paragraphs 51 - 54 of the Statement of 27 February 2007. At the moment they are rejected but leave is given to the Plaintiff to adduce further evidence of the witness's expertise and knowledge in relation to what is contained in them.

Paragraph number Category of objection Ruling 18, 20 & 22 C These paragraphs are allowed (as already redacted) as providing background for the witness's dealings with George Chaina. 30 A, B, D & E Allowed. 33 A, B, D & E Allowed as to the witness's state of mind and as proof that he took on George Chaina as a chemical supplier. 39 A, B, D & E Allowed. 40 - 47 A, B, D & E Paragraph 43 is rejected - the witness does not appear to have expertise to advance his opinion. The remaining paragraphs are allowed. 53-58 F Rejected - hearsay. 62 A, B, D & E Rejected - speculation.

Paragraph number Category of objection Ruling 4 - 7 A & B Paragraph 4 is rejected - it relates to paragraph 43 of the earlier statement which was rejected. Paragraphs 5, 6 and 7 are allowed.

Paragraph number Category of objection Ruling 3 - 9 A, C, D & F Allow paragraphs 3, 4, the last sentence of paragraph 5, the first sentence of paragraph 7. the first sentence of paragraph 8 and the first sentence of paragraph 9. The remainder of these paragraphs is rejected as amounting to hearsay or the witness's irrelevant assessment of George Chaina. 14, 15, 16 & 17 (both paragraphs) A, D & F Paragraph 14 is allowed down to and including the words "I was very impressed" in the third last sentence. The remainder of the paragraph is rejected. Paragraphs 15 & 16 are rejected as hearsay and conclusion. Paragraph 17 (first mentioned) is allowed only to the extent that George Chaina provided the identified household products to the witness. That is justified by the issue about whether domestic products were being produced at that time. The remainder of paragraph 17 (first mentioned) is rejected - the witness's and the witness's wife's opinion of the products is irrelevant. Paragraph 17 (second mentioned) is rejected. 19 C Rejected - the witness's observations of George Chaina are irrelevant.

Paragraph number Category of objection Ruling 2 A, D & F Rejected - too vague to be probative. 3 A, D & F Rejected - hearsay. 4 A, D & F Rejected - hearsay and irrelevant. 5 A, D & F Rejected - hearsay. 6 A, D & F Rejected - the witness's observations concerning George Chaina are irrelevant. 7 A & D Consistently with allowing paragraph 14 of the earlier statement this paragraph is allowed. 8 & 9 A, C, D & F These paragraphs are rejected. 10 A, C, D & F Rejected - hearsay. 11 A. B, C, D & F Rejected - hearsay. The witness's observations are irrelevant.

Paragraph number Category of objection Ruling 3, 4. 5 & 6 A, B, D & F The first sentence of paragraph 4 excluding the words "that George was developing" and the last sentence of paragraph 4 are allowed as going to the issue of whether any domestic products were being produced by the Plaintiffs at this time. The remainder of the paragraphs are rejected as not being probative of any matter.

Paragraph number Category of objection Ruling 2 A, B & D This is rejected as not being probative of any issue.

Paragraph number Category of objection Ruling 12 - 15 A, B, D, E & F The evidence is rejected. The witness's assessment of the Plaintiffs' products is irrelevant. 16 A, B, D, E & F The words in the first and second sentences "George gave me some samples. These included bottle shampoos, conditioners, hand moisturisers, soaps, dish washing detergent and his powdered laundry detergents" are allowed as going to the issue of whether the Plaintiffs were producing domestic products at this time. The remainder of the paragraphs are rejected by reason of hearsay and relevance. 18 C Rejected - the witness's assessment of George Chaina is irrelevant.

Paragraph number Category of objection Ruling 2 & 3 A, B, C, D, E & F Consistently with the rejection of paragraphs 14 and 15 of the earlier statement these paragraphs are rejected.

Paragraph number Category of objection Ruling 32 & 33 A, B, C, D & F Rejected - the witness's assessment of George Chaina is irrelevant.

Paragraph number Category of objection Ruling 2 A, B, C, D & F Consistently with the rejection of paragraph 33 of the earlier statement this paragraph is rejected.

Paragraph number Category of objection Ruling 10 C & F Rejected - the witness's assessment of George Chaina is irrelevant. 14, 15 & 16 A, B, C, D, E & F These paragraphs are rejected as hearsay and because the witness's opinion of the products is irrelevant. 18 - 27 A, B, C, D & E These paragraphs are rejected. Some contain hearsay. The opinion of the witness about the products is irrelevant. 30 C Rejected - the witness's assessment of George Chaina is irrelevant. 32 C & F Rejected - hearsay and irrelevant. 33 & 34 A, D & F The first sentence of paragraph 33 is allowed as going to the issue of whether the Plaintiffs' were producing domestic products. The remainder of the paragraphs are rejected as irrelevant.

Paragraph number Category of objection Ruling 2, 3, 4 & 5 A, B, C, D, E & F Consistently with the rejection of paragraphs 10, 16, 20 & 21 in the earlier statement these paragraphs are rejected.

Paragraph number Category of objection Ruling 5, 6 & 7 C & F Rejected - the witness's assessment of George Chaina is irrelevant. 8 & 9 A, D & E The second sentence of paragraph 9 is allowed. The remainder of the paragraphs is rejected - the witness's assessment of George Chaina and his products are irrelevant. 10 F Rejected - hearsay. 14 C Rejected - the evidence is conclusionary and too general to be probative.

Paragraph number Category of objection Ruling 2 C Consistently with the rejection of paragraph 8 of the earlier statement this paragraph is rejected.

Paragraph number Category of objection Ruling 6 - 9 F Rejected - hearsay.

Paragraph number Category of objection Ruling 4 - 10 A, B, D, E & F Rejected - hearsay, the witness's assessment of the products are irrelevant.

Paragraph number Category of objection Ruling 2(b) & 3 A, B, D, E & F Consistently with the rejection of paragraphs 5 and 9 of the earlier statement these paragraphs are rejected.

Paragraph number Category of objection Ruling 5 F This is allowed as explaining how the deponent came to speak to George Chaina. 7 - 9 A, B, C, D & E Paragraphs 7 & 9 are allowed. Paragraph 8 is rejected as being secondary evidence of a contract. 12 & 13 F Rejected - hearsay. 15 & 16 A, B, C & D Rejected - the witness's own intentions and assessment are irrelevant. 23 & 24 A, B, C & D Rejected - the witness's assessment of Mr and Mrs Chaina are irrelevant.

Paragraph number Category of objection Ruling 6 -11 A, B, D, E & F Paragraphs 6, 8, 9, 10 & 11 are rejected - hearsay. Paragraph 7 is allowed. Mr Palmer's experience is sufficient to make his assessment relevant although there will need to be other evidence linking the products used with the Plaintiffs' claims. 12 - 15 A, B, D and E These paragraphs are allowed given Mr Palmer's experience. However, there will need to be other evidence linking the products to the Plaintiffs' claims. 16, 17, 19, 20, 21, 22 and 23 A, B, D E and F Rejected - hearsay.

Statement of Ray Palmer dated 26 July 2012 (four paragraphs)

Paragraph number Category of objection Ruling 2 - 4 A, B, C, D, E & F Paragraph 2 is allowed excluding the words "to ensure that the laundry was operating effectively". Paragraphs 3 & 4 are rejected - the witness's assessment of Mr and Mrs Chaina are irrelevant - hearsay.

Statement of Ray Palmer dated 26 July 2012 (three paragraphs)

Paragraph number Category of objection Ruling 2 B & E The words in paragraph 2A "and he advised me that it dispensed the correct amount of chemical to water ratio" are rejected - hearsay. The remainder of the paragraph is allowed. 3 F Rejected - hearsay.

Statement of Dr Arpad Phillip dated 28 January 2010

Paragraph number Category of objection Ruling 3 F The paragraph is allowed down to the words "telephone call from George" - the remainder is rejected - hearsay. 4 A & D The paragraph is allowed down to the words in the third line "and Lilly Sukkar" - the remainder of the paragraph is rejected - hearsay and irrelevant. 6 F Allowed. The conversation merely explains the witness's further involvement. 8 F Rejected - hearsay. 12 A & D Allowed. 13 A, D & F Rejected - hearsay. 14 A & D Rejected - these are conclusions and contain implied hearsay. 19 & 20 A, D & F Rejected - hearsay. 26 A, D & F The evidence is allowed. There will need to be other evidence linking the products to the Plaintiffs' claims.

Statement of Dr Arpad Phillip dated 14 November 2011

Paragraph number Category of objection Ruling 2 A & D Consistently with the rejection of most of paragraph 4 of the earlier statement this paragraph should be rejected. 3 F Consistently with the rejection of paragraph 13 of the earlier statement this paragraph should be rejected. 4 A & D Consistently with the rejection of paragraph 14 of the earlier statement this paragraph should be rejected. 5 A, D & F Consistently with the rejection of paragraph 20 of the earlier statement this paragraph should be rejected.

Paragraph number Category of objection Ruling 17 - 21 F Rejected - hearsay.

Paragraph number Category of objection Ruling 4 F Consistently with the rejection of paragraph 17 of the earlier statement this paragraph should be rejected.

Paragraph number Category of objection Ruling 13 A, B, D & E The evidence should be rejected. The witness's assessment is of little probative value. 15 A, B, C & D Rejected - The witness's assessment of George Chaina is irrelevant.

Paragraph number Category of objection Ruling 3 A & B Consistently with the rejection of paragraph 13 of the earlier statement this paragraph should be rejected. The reference to paragraph 15 of this affidavit is not understood.

Paragraph number Category of objection Ruling 5 - 8 C Rejected - The witness's assessment of George Chaina is irrelevant. 10, 11 & 12 A, D & F Rejected - hearsay. 13 A, D & E Rejected - the witness's observations of the testing on unspecified products are irrelevant. 14 F Rejected - hearsay.

Paragraph number Category of objection Ruling 2 & 3 A, C, D & E Consistently with the rejection of paragraphs 6 & 13 of the earlier statement these paragraphs should be rejected.

Paragraph number Category of objection Ruling 5 - 9 C & F Rejected - these events are too remote in time to have any relevance to the issues. 12 - 14 F Rejected - hearsay. 15 A, D & E The second sentence is allowed as going to the issue only of whether any products for domestic use were being produced by the Plaintiffs at the time. The remainder of the paragraphs is rejected. 16 & 17 A, D, E & F Rejected - hearsay. 18 - 22 A, D & F Rejected - partly hearsay, partly because the witness does not have the expertise to be able to make the comments or observations that appear. 24 - 28, 30, 33, 44, 45, 51, 58, 65, 66 and 74 F Rejected - hearsay.

Paragraph number Category of objection Ruling 2 - 5 C & F Consistently with the rejection of paragraphs 5, 6, 7 and 8 of the earlier statement these paragraphs are rejected.

Paragraph number Category of objection Ruling 26 A, C, D & E Rejected - the statements in this paragraph are too general to carry weight and it is not clear if Mr West has the expertise to express the opinions in the paragraph. 28 F Rejected - hearsay. 29 & 30 A & D Rejected - the matters contained in paragraph 29 are too remote to be relevant. The matters in paragraph 30 demonstrate the deponent cannot give meaningful evidence about the matters.

Paragraph number Category of objection Ruling 2 A & D Rejected - the material in this paragraph and in the annexed statements is too remote in time and is irrelevant to the issues in the present case. 4 & 5 F Rejected - hearsay.

Paragraph number Category of objection Ruling 2(b) A & D Consistently with the rejection of paragraph 26 of the statement of 1 August 2006 this paragraph is rejected. 3 A & D Consistently with the rejection of paragraph 29 of the statement of 1 August 2006 this paragraph is rejected.

Paragraph number Category of objection Ruling 7, 10, 14 & 16 F Allow the first sentence in paragraph 7, reject the remainder as hearsay. Reject paragraph 10 - hearsay. Allow the first two sentences in paragraph 14, reject the remainder as hearsay. Allow what remains of paragraph 16 including annexure "E".

Paragraph number Category of objection Ruling The whole F Any evidence of what was said between the witness and Mr Chaina is rejected as hearsay.

Paragraph number Category of objection Ruling 10 & 11 A, D & F The evidence is allowed because it is introductory. Hearsay is not involved. 13 A, C, D & F The first two sentences are allowed. The third is rejected. The evidence is relevant to the issue of the production of products by the Plaintiffs. The deponent's opinion about the Plaintiffs is, however, irrelevant. 14 & 15 A, D & F The evidence is allowed. To the extent that it includes the substance of discussions with Mr Chaina the evidence is for the purpose of explaining the supply of the particular chemical Teric 537 Paragraph 15 is rejected as being hearsay and the irrelevant assessment of the Plaintiffs by the deponent. 16 A, C, D & F Rejected - the information in the paragraph is irrelevant to the issues.

Paragraph number Category of objection Ruling 9 F Rejected - hearsay. 11, 12, 13 & 22 C & F Rejected - hearsay and the witness's opinion of George Chaina is irrelevant. 27 F Rejected - hearsay. 34 C Rejected - opinion not based on expertise. The statement "even more successful" is too vague to be of assistance.

Supplementary Statement of David Redfern dated 11 November 2011

Paragraph number Category of objection Ruling 2 F Allowed. 3 & 4 A, D & F Paragraphs 3(a) and 4 are allowed. Paragraph 3(b) is rejected. 5 F Consistently with the rejection of paragraph 15 in the affidavit of 6 July 2006 this paragraph is rejected. 6 C & F Consistently with the rejection of paragraph 16 in the affidavit of 6 July 2006 this paragraph is rejected.

Paragraph number Category of objection 6 C 13 & 16 C 19 F 34, 35 & 37 F 39 A & D 46, 47, 49, 50 & 55 F 60, 61 & 62 A & D 63 C 64 A & D 81 A, D & F 82 & 83 A, D & F 88 & 89 A, D & F 90 A, D & F 91, 92 & 93 A, D, E & F 94 A, D & F 95 - 134 A, D, E & F Paragraph 100(vii) - the Paragraph 101(iii) - the Paragraph 103 - hearsay; Paragraph 126 - the last Paragraph 128(iii) - the Paragraph 130 - irrelevant; Paragraph 133 - this must Ruling Rejected - the witness's observation of George Chaina is irrelevant. Rejected - these are conclusions which must in part be based on hearsay or inference. Rejected - this evidence must be based on hearsay. Rejected - hearsay. Rejected - irrelevant. The event predates the relevant period and is irrelevant. Rejected - this is either hearsay or is evidence which could only have been given as a result of hearsay. Rejected - this evidence concerns products developed in the early 1990s at an irrelevant time for the issues in the case. Rejected - the witness's observations and conclusions about George Chaina are irrelevant. Rejected - this predates the fire and is irrelevant to the issues in the case. Rejected - hearsay. These paragraphs are rejected on the basis of form. Leave is given to the Plaintiff if evidence can be adduced in the proper form about these products and the linking of them to the Plaintiffs' claim. Part of the form problem is the lack of identification and specificity of the products. Rejected - these paragraphs are partly based on hearsay and are also conclusionary. The first sentence is rejected. The remainder is allowed. These paragraphs are allowed but there would need to be other evidence linking matters to the Plaintiffs' claims. Rejected - this is too general and is a conclusion. These paragraphs are allowed as the evidence of a witness who was involved in the system George Chaina in the testing and development of products except for the following passages: second sentence - hearsay; second and third sentences are admitted only to the extent that George Chaina said this to the witness and not to the truth of the matters; sentence commencing "I recall telling George" to the end of the paragraph - the witness's opinion of the product is irrelevant; last sub-paragraph commencing "I have a very sensitive scalp" to the end of the paragraph - irrelevant; be based on hearsay because the witness was not involved in the process.

Paragraph number Category of objection Ruling 3 & 6 C Consistently with the rejection of paragraphs 13 & 16 of the earlier statement these paragraphs are rejected. 14 F Consistently with the rejection of paragraph 34 of the earlier statement this is rejected. 31 F Rejected as hearsay. 35, 36, 39 & 40 A & D Paragraphs 35 & 36 are rejected consistently with the rejection of paragraph 61 of the earlier statement. Paragraphs 39 & 40 are rejected on the basis of form but both with paragraphs 82 & 83 in the earlier statement to which they refer leave is given on the same terms. 41 F Rejected as hearsay. 43 & 44 A, D, E & F These paragraphs are allowed. 47 F Rejected as hearsay and as otherwise being too general to be probative. 48 - 80 A, D, E & F These paragraphs are allowed for the same reasons that paragraphs 95 - 134 are allowed in the earlier statement except for the following passages: Paragraph 53 - the last sentence - hearsay. Paragraph 60 - the last sentence - hearsay.

Paragraph number Category of objection Ruling 9 - 16 A, B, C, D & F Rejected - the material is irrelevant to the issues in the case. 17 - 22 A, B, C, D & F Rejected. The witness's observations about George Chaina are irrelevant to the issues in the case. 26 - 28 A, D & F Rejected except for the first sentence of paragraph 27 - hearsay.

Paragraph number Category of objection Ruling 3 - 9 & 10(a) B, C & F Consistently with the rejection of paragraphs 14 - 18, 20 - 22 of the earlier statement these paragraphs are rejected. 11 A, D & F Paragraph 11(a) is allowed, paragraph 11(b) is rejected.

Statement of Suzanne Mercier dated 11 February 2010

Paragraph number Category of objection Ruling 7 & 8 F The evidence is allowed not as the truth of the statements but on the basis that the Plaintiffs said those things which led the witness to take the action she described in the statement. 14 F Rejected - hearsay. 23 F Rejected - the witness's assessment of the Second and Third Plaintiffs is irrelevant.

Paragraph number Category of objection Ruling 3 F Rejected consistently with the rejection of paragraph 23 in the earlier statement. The reference to paragraph 14 in this statement is not understood.

Paragraph number Category of objection Ruling 13 & 14 C & F Rejected - hearsay. 18 & 19 C & F Rejected - the witness's assessment of George Chaina is irrelevant.

Paragraph number Category of objection Ruling 8 F Allowed. 11, 13 & 15 F This evidence is allowed on the basis that Mr Chaina and the witness said those matters recorded to one another at meetings. The evidence is not allowed as truth of what Mr Chaina said. The purpose of the limited use of the evidence is to explain what the witness thereafter did in terms of his engagement. 19 F Rejected - the witness's assessment of George Chaina is irrelevant.

Paragraph number Category of objection Ruling 5 & 6 F The conversations are allowed as proof of what Mr Chaina said to the witness but not as the truth of the assertions contained in the conversations. The purpose of the limited use is to enable an understanding of what the witness thereafter did. 11 - 15 & 19 A & F The evidence is allowed but the conversations are admitted only on the basis that Mr Chaina said those things and not on the basis of the truth of his assertions. 22 A & D The first sentence is rejected by reason of its form. The industrial products are not identified. The remainder of the paragraph is rejected as being irrelevant.

Paragraph number Category of objection Ruling 2 F This is allowed going to the witness's understanding only. 3 F This paragraph is allowed. 4 F This paragraph is allowed there having been no objection to paragraph 17 in the earlier statement. 5 F This paragraph is rejected for the same reason that the first sentence of paragraph 22 in the earlier statement was rejected.

21As has been indicated in a number of places there is force in the Defendants' objection to the lack of precise identification of products given to friends and family for testing or, from the evidence of Lilly Sukkar, being tested and/or produced by the Plaintiffs. Merely speaking of "household products" or even specific classes of household products is likely to be inadequate to establish matters necessary to show the loss of opportunity or greater profits than might have been made if the Second and Third Plaintiffs were able to work to their pre-accident extent. 22I have allowed evidence concerning the provision of the household products to friends and relatives only insofar as they go to the issue of whether such products were being manufactured. That without anything more would not sustain the claims being made for loss of profits and/or opportunity of profits. Without hearing all of the factual evidence a final ruling on the relevance of this evidence which I have allowed cannot be made. 23If there is a lack of clarity from any of the rulings I have given the parties are at liberty to re-list the matter in the new term to deal with the difficulties. Otherwise the rulings are as I have indicated above.

Amendments 19 July 2013 - Heading "Statement of David Redfern dated 6 July 2006" amended to read "Supplementary Statement of David Redfern dated 11 November 2011". Amended paragraphs: Paragraph 20 amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2013

Chaina v Presbyterian Church

At a glance

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Before

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Judgment (75 paragraphs)

Parties

Cases Cited (5)

Cited By (7)