Chaina v Presbyterian Church

Judgment 1On 14 August 2013 I delivered judgment in relation to various expert reports of the Plaintiff: Chaina v Presbyterian Church (NSW) Property Trust (No. 13) [2013] NSWSC 1057. 2In that judgment I considered the reports of six chemical experts to whom I referred as the testing experts - see at [40]ff. I was informed that those six reports were the relevant expert reports against which the assumptions in the other expert reports were to be tested. Although the folder containing those testing experts' reports was provided to me by the Defendants, that was because the Plaintiffs did not have all of the reports available to them in a convenient bundle. Nevertheless, no complaint was made by the Plaintiffs that I had not been provided with all of the relevant reports. 3On 21 August 2013 the Plaintiffs suggested that there was a further expert report, a report of Dr Fong, which ought to have been considered by me in relation to that judgment. This was apparently (although it was not characterised as such) an application by the Plaintiffs to ask me to re-open and vary my earlier judgment. 4A dispute arose about whether this further report had been served on the Defendants. On 22 August 2013 I was provided by the Plaintiffs with a letter from McLachlan Thorpe to Curwoods dated 10 November 2009 and an affidavit of Dennis Hoo Ting Fong sworn 10 November 2009 which was enclosed with that letter. The material in the affidavit was said to be further expert evidence of Dr Fong that ought to have been considered in relation to my judgment. 5The covering letter said this: We refer to the affidavit of Dr Paul Wynn-Hatton sworn 2 November 2009 served on behalf of the defendants. We enclose by way of service, Affidavit of Dennis Fong sworn 10 November 2009 in reply to the affidavit of Dr Wynn-Hatton The plaintiffs propose to rely upon the affidavit of Mr Fong at the hearing of the notice of motion on Friday, 13 November, 2009 and accordingly we propose to provide a copy of the affidavit to His Honour's Associate tomorrow. 6The Notice of Motion referred to was a motion filed by the Plaintiffs on 21 August 2009 requesting more time to serve evidence and expert evidence "in support of superior qualities relating to the Plaintiffs' domestic products. The motion arose from the concession made by the Plaintiffs that the Second Plaintiff, George Chaina, did not have the qualifications he had hitherto claimed. The motion was determined by Hoeben J: Chaina v The Presbyterian Church (NSW) Property Trust (No 3) [2009] NSWSC 1243. 7It was the granting of the motion by Hoeben J which led to the service of the various reports of the testing experts that I discussed in my earlier judgment. This affidavit of Dr Fong appears to have been some evidence to justify the making of the orders sought. 8The Defendants say, and the Plaintiffs do not contradict them, that the affidavit of Dr Fong was not otherwise served upon them as expert evidence in the substantive proceedings. 9An examination of what is contained in the affidavit makes clear the purpose of the affidavit. Paragraph 1 says: I have been retained by the solicitors for the plaintiffs, McLachlan Thorpe Partners, to provide an opinion in relation to the performance and my ability (sic) of certain of the plaintiffs' domestic products relevant to these proceedings. 10Dr Fong also said that he has been provided with two affidavits of Dr Paul Meredith Wynn-Hatton and an affidavit of Richard Williams - two of the Defendants' experts. He went on to say: [3] ...I have been requested by the solicitors for the plaintiffs to provide my opinion on the matters raised and assertions made by Dr Wynn-Hatton and Richard Williams. 11It is not necessary to set out the details of the affidavit which is lengthy. The affidavit is a response to Dr Wynn-Hatton's assessment of certain of the products and the formulae for producing them. It concerns in part the effect of various ingredients on the formulated products including percentages of various ingredients. 12The purpose of the affidavit is entirely different from the purpose of Dr Fong's report of 2 May 2012 which was concerned with a comparison of the performance of eight of the Plaintiffs' formulae against certain specified products of competitors. 13The only reference in Dr Fong's affidavit to the issue that I was required to determine in my earlier judgment appears in paragraph 10. In that paragraph Dr Fong is responding to a comment of Dr Wynn-Hatton. He said: At paragraph 12 of the first affidavit, Dr Wynn-Hatton makes a comment in relation to the changes that have taken place within the ranges of competitors' products. He opines that "any reconstitution of the plaintiffs' products and testing against products available today [would be] meaningless". I disagree with that statement. 14Dr Fong then referred to products that were set out in Appendix 6 of Dr Wtynn-Hatton's affidavit and said that the list included many products that were no longer available. Dr Fong said that the reason for the products being removed from the market was that they failed to perform at levels that met consumer expectation. He then went on to say this: The products that remain on the market have met ongoing and increasing consumer expectation and as such maintain their market share. There is little doubt that the vast majority of products available as at 1999 would not meet the performance standards of those existing on the market today. Accordingly the plaintiffs in testing the formulations in existence as at 1999 against present day products are no doubt somewhat disadvantaged. Nevertheless if the plaintiffs' formulations result in products which when sampled performed at an equivalent or higher level compared to present day products, then the superiority of the plaintiffs' products as against products available in prior years is confirmed. 15Whilst the last sentence of that extract provides some general support for the Plaintiffs' submissions Dr Fong did not reach that same conclusion in his report of 2 May 2012. Rather, Dr Fong simply compared a number of the formulae and products with competitor's products and formed a view, in some cases, that the Plaintiffs' products were superior, and in others that they were on parity with the competitors. 16Dr Fong set out the objective of his May 2012 report in relation to each of the formulae. He said he: ...was asked by McLachlan Thorpe Partners to provide an expert report in relation to the assessment of the Plaintiffs' domestic product range as set out in the typed formulae and manufacturing documentation that they intended to launch shortly after October 1999. The objectives of this report are to detail the evaluation process based on a lever arch file of typed formulae and manufacturing documentation, together with a lever arch file of handwritten documentation provided by McLachlan Thorpe Partners. This report also provides the evaluation evidence to support the potential success of the product launches and the degree of success in the market share captured. 17At least in relation to the products tested by Dr Fong in 2012 if he was of the view that products which were on par with the competitor's products in 2012 would have been superior to the competitors' products in 1999 I would have expected him to say so in his report. Whilst he makes passing reference a few times to products in 1999 or to what was available at that time he does not make any reference to the matter which had appeared in paragraph 10 of his affidavit sworn in support of the motion in 2009. 18Even if I was to have regard to the general statement that he makes in paragraph 10 of his affidavit of 10 November 2009 it would not have altered the opinion I reached in my earlier judgment. This is because Dr Fong was only one of six testing experts and it was necessary to weigh up all of those opinions to determine if the assumptions provided to Professor Layton and Professor Dowling were validated. Some of those experts made reference to some products being unique in 1999 but none made the point that, by reason of developments since 1999, where the Plaintiffs' products were on par with competitors' products in 2010-2012 they would have been superior to competitors' products in 1999 19I do not consider I should reconsider my earlier judgment. That judgment was prepared on the basis of material supplied to me by agreement of both parties. There was no mention of the affidavit of Dr Fong of 10 November 2009. It was not, in any event, served on the Defendants as an expert report to be used in the substantive proceedings. The covering letter makes it quite clear that it was used in relation to the hearing of a particular Notice of Motion. 20However, as I have said, even if I had regard to his statements in paragraph 10 of his affidavit it would not alter the view I reached in my earlier judgment. 21The application to reopen my earlier judgment is refused.