Chaina v Presbyterian Church

Supreme Court of NSW|2013-02-25|Before: Davies J

Judgment 1In Chaina v Presbyterian Church (NSW) Property Trust (No. 1) [2012] NSWSC 1476 I gave evidentiary rulings pursuant to s 192A Evidence Act 1995 in relation to a large number of witness statements served in these proceedings. I summarised the background to the case and the reasons that such evidentiary rulings were sought. 2By a further Notice of Motion dated 30 January 2013 the Defendants seek similar rulings in relation to the evidence contained in the statements of George Chaina of 8 February 2010 and Rita Chaina of the same date. 3In my earlier judgment I provided reasons why I considered it appropriate to give the evidentiary rulings. The only matter that has altered since that judgment is that a mediation was held in early February 2013 but was unsuccessful. I had suggested one reason for the making of preliminary rulings was that it was better for the parties to know what evidence would be admitted at the hearing to assist their approaches to the mediation - see at [12]. I do not consider that the failure of the mediation and the removal of that reason alters the other reasons I gave for embarking upon this procedure. 4The Defendants say that their objections to the evidence of George and Rita Chaina can be summarised in this way: (a) The evidence of the alleged industrial products pre- and post-1993 is completely irrelevant except to the extent that it concerns particular identified products which were to be relaunched by Proton (the "Relevance Objection"); (b) The evidence relating to the domestic products should be excluded because of failures to identify the alleged test subjects; (c) Further, the evidence relating to the domestic products should also be excluded because of failure to link the formulae with the test subjects; (d) Generalised objections based on form, opinion, expert evidence where the witness is not an expert or has not adopted the Expert Witness Code of Conduct, conclusions, subjective assertions, speculation, no precision and no primary facts stated. 5The response of the Plaintiffs to these four bases are as follows: (a) The evidence of the Plaintiff's industrial business pre- and post- 1993 is highly relevant in that it relates to the skills and expertise of George and Rita Chaina in running a business and formulating products, as well as how those products were received in the industrial market. This is said to be directly relevant to the per quod servitium amisit claim brought by the Fourth and Fifth Plaintiffs and to the loss in the value of shares in the corporate Plaintiffs brought by the Second and Third Plaintiffs. (b) Evidence relating to the domestic products is admissible because it goes to the knowledge and experience of George Chaina, to the continued research, development and testing steps taken by George Chaina when formulating products generally, to the fact that he was creating products within the relevant product categories and was testing these in an attempt to fine tune them for launch in the domestic market and it goes to the role played by Rita Chaina in the testing of products. Even if the evidence is inadmissible in relation to the results of the testing the evidence, it is submitted, is admissible to establish George and Rita Chaina's knowledge and belief in the superiority of the products and their reliance on the same in the subsequent actions taken by them when preparing for the launch. (c) The Plaintiffs say that the alleged failure in the evidence to link formulae with the test subjects does not negate the probative value of the evidence regarding the domestic products. (d) The more generalised objections are dealt with on an example by example basis. 6In relation to the Plaintiffs' general submissions if their evidence relating to the results of testing of the products is inadmissible their own knowledge and belief in the superiority of their products and their reliance on that belief when taking actions to prepare for the launch cannot be relevant. The issue is about the likely success of the products and not their belief.

Industrial products 7The significant point made by the Defendants concerning the industrial products derives from paragraphs 119 and 120 of George Chaina's statement of 8 February 2010. Those paragraphs say: [119] After the fire in June 1993, Deluxe in very limited quantities continued to supply its Challenger, Classic and Quantum products to existing customers. The business by this time was trading through the company Jean-Pierre Cosmetics Pty Limited and utilising the business name Deluxe Products. It continued to supply the Challenger system to the industrial laundry market, the Classic range of products to commercial housekeeping and kitchen clients and the Quantum range to food processing clients. The focus however at this time was the formulation of the new industrial and domestic ranges. For this reason, I did not take steps to re-establish a capacity to manufacture the Challenger Plus system, nor did we pursue the Nappy Wash product or the Quantum range. Similarly the Jean-Pierre Cosmetics range was not re-established after the fire. [120] At the heart of the proposed industrial product relaunch was technologically superior super concentrated products combined with specifically designed delivery or dosing systems. In addition to the technology of the product and delivery system, the principal strategy behind all of the relaunch industrial products was to provide a "one stop shop". My one stop shop principal involved not only the supply of all chemical products to a particular industry or area of operation but also to supply all ancillary products. The relaunched industrial products were broadly set out in five segments labelled Vision, Spectrum, Quantum, Orbita and Challenger. 8Similarly, in his statement of 2 September 2005 he said at paragraph 70: In the period 1995 to 1999, I developed a number of unique new products and reformulated all of the products. 9The Defendants argue, therefore, that none of the old industrial product lines were to be part of the relaunch and that none of the new or reformulated industrial products were being sold at the time of the accident in 1999. 10The Plaintiff submits that the evidence is relevant as it relates to the skill and expertise of George and Rita Chaina in running a business and formulating products. The Plaintiffs dispute that the older products were not to be relaunched and submit that the evidence of some of the older products demonstrates that the business had already expanded into the domestic market. They say that the evidence demonstrates the market's reception and response to the various product ranges which is relevant to establish the existence of processes employed by George and Rita Chaina in devising new processes. The Plaintiffs concede that such evidence is not to be relied on for the accuracy of its conclusions in relation to product superiority but say there are multiple purposes for which the evidence is legitimately relevant to a fact in issue being the formulation and testing processes of the products. 11In my opinion, if there is no other reason to reject the evidence objected to concerning the industrial products case the evidence is admissible as background evidence showing what had been done prior to the accident in 1999. It may be accepted that a number of the product ranges were not relaunched or proposed to be relaunched after the fire in 1993 but that does not make an account of what had been achieved prior to the fire or between the fire and the accident irrelevant. 12At least one basis for George Chaina asserting the right to give the evidence he does about the products, their make up, development and marketing, is his experience in the area. The specialised knowledge about which s 79 Evidence Act speaks is knowledge based on the person's "training, study or experience". The lack of the earlier claimed qualifications is not fatal to the admissibility of this evidence although it is not easy to discern, particularly in the 2005 statement which was purportedly based on qualifications that he did not have, on what his specialised knowledge was based. The evidence is generally admissible to support any submission that George Chaina should be regarded as an expert. 13There are, however, a large number of particular objections to the evidence which now need to be ruled upon.

Statement of George Chaina dated 2 September 2005 Paragraph number Category of Objection Ruling 19 Form, non-discovery Admitted on the assumption that non-discovery resulted from the destruction of these manuals in the fire. If the assumption is incorrect the evidence is rejected. 23 Form The last sentence is rejected. The remainder is admitted. 24 Form, prepared for purposes of fire proceedings. Admitted 25 Relevance Rejected - the evidence is so lacking in weight as to be irrelevant 26 - first and second sentences Form, prepared for purposes of fire proceedings. If the document at Tab 6 was prepared for the purposes of the fire proceedings it is inadmissible. 26 - the third and following sentences Form Rejected. The statements are not something that the witness saw, heard or otherwise perceived. They are conclusions. Leave is granted to lead admissible evidence of this. 27 Form, documents at Tab 8 prepared for the purposes of litigation. Rejected. The evidence is not probative of any matter in issue. 28 from the words in the penultimate sentence "and cancellation of" to the end of the paragraph Form Rejected 32 - the second sentence up to and including the words "its competitors and" Form Rejected 33 Form Rejected 35 - references to property other than Donald Street Relevance Admitted 37 - the words "including proposed customers for the industrial products Form Rejected 38 - first sentence Form, conclusion Rejected 41 Form If the document at Tab 6 was prepared for the purposes of the fire proceedings it is inadmissible. 42 Form Admitted 43 Form Rejected. No distinction is made in the documents behind Tab 16 which of the products were being supplied by Proton late 1999 and which was proposed to be supplied at that time. 44 - from the third sentence to the end of the paragraph Form, opinion, expert evidence Rejected. The evidence is expert evidence. It is not clear if the witness's expertise is challenged. However, he has not adopted the Expert Witness Code of Conduct. That renders the evidence inadmissible. 46 - the second sentence Form, expert opinion Rejected - the evidence is bad in form. 47 Form, expert evidence Rejected - the statement is a conclusion. 50 - third and fourth sentences Form, expert evidence Rejected - the only purpose of the evidence can be the opinion expressed by Novo Nordisk. If that company is to be put forward as an expert it should be done properly. 51 - third sentence Form, expert evidence Rejected - the statement is a conclusion. 52 Form, expert evidence Rejected - expert evidence where the witness has not adopted the Expert Witness Code of Conduct. 53 - all the words after "I decided not to patent" Form, expert evidence Rejected. The words "the enzyme technology I developed" are a conclusion. The remainder of the paragraph provides the witness's reasons for his decision not to patent. The evidence is irrelevant. 56 Form, expert evidence Rejected - this is expert evidence. 58 Form, expert evidence Rejected - this is expert evidence. 59 Form, expert evidence Rejected - this is expert evidence. 60 - from the third sentence to the end. Form, expert evidence Rejected - this is expert evidence. 61 Form Rejected 62 - the first sentence Form Admitted 63 - from the third sentence to the end Form Rejected 64 - last sentence Form Rejected 65 - the second and third sentence Form, expert evidence I note that the second sentence is not pressed. The third sentence is expert evidence and is rejected. 66 - from the words in penultimate sentence "and the result proved" to the end of the paragraph Form, expert evidence Rejected. The evidence is expert evidence purportedly from the witness and a third party. 67 - the words in the first sentence "that the enzymes were stable" and the second sentence Form, expert evidence Rejected - the evidence is expert evidence 68 - the last sentence Form, prepared for the purposes of litigation Rejected - the evidence should be properly proved from records of the company 70 - except the last sentence Form Rejected 71 - the second sentence Form Rejected 76 - the second last and last sentences Form Rejected 78 Form, prepared for the purposes of litigation The witness says that the document was prepared in mid 1998 and updated from time to time. It is not immediately apparent that the document was prepared for the purposes of litigation. If it was a contemporaneous document not prepared for litigation it is admitted. Otherwise it is rejected. 79 & 80 Form, expert evidence Rejected. The evidence is a conclusion and is expert evidence. 81 Form, expert evidence Rejected. The first sentence is expert evidence. The remainder is rejected on the basis of form. 82 Form Admitted 83 Form Rejected

Domestic products 14In my judgment of 7 December 2012 I dealt principally with statements of various witnesses concerned with the development of products for the domestic market. I noted that there was an issue in the proceedings about whether the Plaintiffs were manufacturing or producing any products for domestic use in the period 1995 to 1999. 15Generally speaking, I rejected evidence of witnesses concerning what they thought of the products provided to them. This was because there was a lack of specificity in many cases about the products provided. It was also because the opinions of family members or friends about the products had little probative value. I did, however, admit evidence which purported to show that domestic products had been or were being developed during this period. 16The Defendants now object to much of the evidence concerning domestic products. The Defendants say that the heart of the domestic products case is that test subjects who seem to be family or close associates all purport to corroborate the Plaintiffs' fundamental point which is that the domestic products, when trialled by the test subjects, were so incomparably better than well known brands which were available to purchase from supermarkets that the Plaintiffs would obtain a significant market share. 17The Defendants criticise the evidence because of the lack of identity of test subjects, the generalised nature of statements about what the majority of the subjects thought or said and the hearsay nature of the evidence. 18The Plaintiffs say that the principle submission of the Defendants is wholly inaccurate because the evidence does not seek to establish the superiority of the Plaintiff's products. 19However, the correctness of the Defendant's assertion is made clear from paragraphs 87, 88, 89, 90 and 91 of the statement of George Chaina of 2 September 2005 that each refer in express terms to the Proton products having "the superior qualities ... in comparison to the existing products on the market" and to statements made in paragraphs 99 and 100 of the same affidavit. There are numerous other examples of such assertions in this and other statements. 20The Plaintiffs further submit that the evidence is admissible to show the steps and processes taken by the Plaintiffs to research, develop and test the formulae, to show that the products were being produced at the relevant time. The Plaintiffs say the alleged hearsay evidence is admissible pursuant to s 60 of the Evidence Act (relevant for a purpose other than proof of the asserted fact) because it goes towards the belief that the Plaintiffs had in the superiority of the domestic products as well as their intentions to redevelop old products and develop new ones in preparation for the launch. 21Subject to specific objections which I will deal with presently, the evidence concerning the domestic products is admissible, generally speaking, because of the issue about whether such products were being produced and developed at the relevant time. Consistently with rulings I gave in my earlier judgment the views of the friends and family are irrelevant and not probative of any issue. The belief of the Plaintiffs that the products were superior is irrelevant. A further problem, identified in my earlier judgment, is the general description of the products. 22It is necessary, therefore, to look to objections to individual paragraphs. Paragraph number Category of Objection Ruling 85 Form, relevance The paragraph is admissible as setting out the witness's intentions. 86 Form, expert evidence The first two sentences and GC3 tab 35 are admitted. The remainder is rejected as constituting expert evidence. It is also too general and amounts to conclusion evidence. 87 Form Rejected 88 - 91 Form Rejected including the annexures 92 Form Admitted 93 - first and second sentences Form If the word "expected" in the first sentence is read as meaning "intended" the evidence is admitted. 99 Form, expert evidence This evidence is conclusionary and is rejected. 100 Form, expert evidence Rejected as expert evidence 101 Form Admitted 103 Form, hearsay The last sentence is rejected on the basis of its form. The remainder of the paragraph is admitted but not as proof of the truth of the matters in the correspondence with Polymer Films.

Statement of George Chaina dated 25 September 2006 23The Defendants object to the whole of this affidavit on the basis of its form and that it contains expert evidence when Mr Chaina has not adopted the Expert Witness Code of Conduct. Given that there are specific objections to the form of particular paragraphs I consider that I should regard the overall objection as being based on its containing expert evidence. I do not consider that it does purport to give expert evidence. Rather, it contains factual material associated with what Mr Chaina expected he would need to have done and the people he would need to have employed at the proposed plant. In addition, it contains factual evidence of what he believed the business would have done in terms of its production and size. 24It is necessary, therefore, to consider particular objections. Paragraph number Category of Objection Ruling 4 - last sentence Form, comment, speculation and conclusion Admitted 5 - first sentence Form, expert evidence Although the statement is one of some generality, further specific information is given in the last sentence of the paragraph. The sentence should be admitted. 6 Form, expert evidence Bearing in mind the portions of this paragraph which are not now pressed the witness is able to give this evidence as a matter of fact rather than expert opinion. 9 Form, expert evidence Rejected on the basis of form, the evidence is too general to be probative. 10 Form, expert evidence Rejected. The evidence is too general to be probative. 11 - second sentence to end of paragraph Form, hearsay Rejected on both grounds.

Statement of George Chaina dated 8 February 2010 25There are some generalised objections in the first instance. Paragraphs 26 - 45 are objected to on the basis of their form, their relevance and it is submitted that the material contains no nexus to any issue in the proceedings. It seems to me that, in the absence of the formal qualifications previously claimed by George Chaina, he will be endeavouring to show expertise and knowledge through experience in different occupations particularly in those involving chemical products. The material contained in these paragraphs is relevant for that purpose. I do not consider the generality of the material excludes it on the basis of its form. 26Objection was also taken to paragraphs 48 - 118 on the same basis. Again, it seems to me that this evidence is relevant showing the background to the position of the business in the 1990s as well as demonstrating how George Chaina acquired the knowledge and expertise which he now claims. The Defendants also claim that the evidence offends s 102 of the Evidence Act which makes inadmissible credibility evidence about a witness. I do not consider that the rule is offended because the evidence does not appear to me to be used to give the witness credibility but rather to provide the basis for his claimed knowledge and expertise. 27It is necessary, therefore, to consider the individual paragraphs for specific objections. Paragraph number Category of Objection Ruling 47 Form All but the first sentence is rejected. It is, in any event, irrelevant. 50 - third sentence Form, conclusion The words "a large number of" are rejected. 53 Form Admitted 54 Form, conclusion Admitted 55 Form, hearsay in respect of the conversation The paragraph is admitted up to the words "finally rinsing them". The remainder of the paragraph is rejected. 56 Form The words in the third sentence "a full range of" are rejected. The remainder of the paragraph is admitted. 57 - first sentence Form The word "significant" is rejected - the remainder of the sentence is admitted. 57 - last two sentences Form The sentences are admitted excluding the words "predominantly because there were very few people at the auction who knew what most of the products were". 58 Form The last sentence is rejected. The remainder of the paragraph is admitted. 59 - fourth sentence to end of paragraph Form, comment The objected-to portions of the paragraph are admitted excluding the sentence which reads "a number of other organisations had received similar commissions" and the words in the antepenultimate sentence "as superior to all others". 60 - other than the last two sentences Form The first sentence is rejected. The remainder of the paragraph is admitted. 61 - other than the first sentence Form Admitted 64 Form Admitted 67 - second to sixth sentences Form The words in the sixth sentence commencing "and on almost every occasion" to the end of the sentence are rejected. The remainder of the paragraph is admitted. 68 - the conversation evidence Hearsay, relevance, form The sentence commencing "I put to Pearce" to the end of the paragraph is rejected. 70 Form Admitted 71 - fourth sentence to end of paragraph Form, expert evidence The portion commencing with the fourth sentence down to the words "the competitors product and" are rejected. The remainder is admitted. 72 Form, hearsay The first four sentences are rejected. The remainder is admitted. 73 Form, hearsay The first sentence is admitted. The words in the penultimate sentence "we were granted the contract" are admitted and the last sentence is admitted. The remainder is rejected. 74 - third sentence to end of paragraph Form The last two sentences are admitted. The remainder of the portion is rejected. 77 - last sentence Form Rejected 78 - second sentence to end of paragraph Form Rejected 80 - apart from first sentence Form, comment Rejected 81 - last sentence Admitted 82 - last sentence Admitted 83 - second sentence to end of paragraph Form, relevance The second sentence is admitted. The fifth sentence ("As I have indicated above") is admitted. The remainder is rejected. 84 Form, relevance Rejected but the Plaintiffs are given leave to lead admissible evidence in relation to the contracts obtained with specified hotels. 85 Form, relevance The first two sentences are admitted, the remainder is rejected. 86 - apart than last sentence Form, comment Rejected. The evidence does not concern relevant products. 87 - first sentence Form Rejected 88 Form Admitted 89 - third sentence to end of paragraph Form Admitted 90-97 Form Paragraph 92 from the second sentence to the end is rejected. Paragraph 93 from the third sentence to the end is rejected. Paragraph 94 - the first two sentences are rejected. Paragraph 95 is rejected except for the words "we supplied Mr Whippy and Just Juice" and the last two sentences. Paragraphs 96 and 97 are rejected. The remainder of these paragraphs are admitted. 98 - first sentence and words in the second sentence "to deal with this expansion" Rejected 98 - third, fourth, fifth and sixth sentences Form Rejected 98 - sentence commencing "consistent with this expansion" Form, comment Admitted 98 - last sentence Form, relevance Rejected 100 - 110 Form, relevance, hearsay These paragraphs are rejected but with leave to the Plaintiffs to make further submissions as to why they should be admitted. They are rejected at present on the basis of form, hearsay and relevance. 114 - last sentence Form Rejected. 115 Form, comment Rejected 116 Form Rejected 117 - last sentence Form, speculation, expert evidence Rejected 119 - third sentence Form Rejected 120 Form The first sentence is rejected. The second sentence up to and including the words "delivery system" is rejected. The remainder is admitted. 121 Form Admitted 122 - 142 Form, hearsay, speculation, expert evidence Subject to specific matters these paragraphs are admitted. They suffer from form problems in that they purport to be a general description or summary of the matters referred to. They are only admitted as providing general evidence of what the witness said he had done. Some of the evidence is expert evidence and is admitted subject to it being established that the witness has expertise and subject to issues associated with the adoption of the Expert Witness Code of Conduct. The generality of the evidence means that it is of limited probative value in establishing precisely what the Plaintiffs had formulated and achieved at the relevant time. Matters requiring special comment are these: Para 122 - the ninth and tenth sentences ("the feedback that I received ... incredibly easy to use") are rejected. Para 123 - the second and third sentences are admitted only as the witness's belief in the matters set out. The words in the last sentence ("while still providing...") to the end of the paragraph are rejected. Para 124 - the fifth and sixth sentences ("my experience ... with multiple bills") are admitted only as the witness's belief in those matters. Para 126 - the words in the fifth sentence ("and I found it produced fantastic results") are rejected. Para 129 - only the first sentence is admitted. Para 134 - the last two sentences are rejected. Para 137 - only the first sentence is admitted. Para 138 - the fifth and sixth sentences ("The samples ... market at that time") are rejected. Para 139 - the last sentence is rejected. Para 140 - the first sentence is rejected. The eighth sentence ("This again was a technological revolution") is rejected. The 14th sentence ("As at 1999 ...") is rejected. In the last sentence the words "As at 1999 ... an international company" are rejected. Para 141 - the first sentence is rejected. The remaining evidence in paragraphs 133, 139, 140 and 141 is expert evidence and is admitted subject to the witness establishing his expertise and subject to the adoption of the Expert Witness Code of Conduct. Para 142 - only the first sentence is admitted. 143 (a) - from the words "for the owner of the laundry" to the end of the sub-paragraph Form Rejected 143(b) from the words "the PLC systems" to the end of the paragraph Form The first two sentences in the portion objected to are admitted. The remainder commencing "For example" to the end of the paragraph are rejected. 144 - 148 Form, hearsay, speculation, expert evidence The comments concerning form and the generality of the evidence made with respect to paragraphs 122 to 142 above apply here also. In addition, the following specific rulings are made: Para 144 - the third sentence is admitted only as a statement of the witness's belief. Para 145 - the word "unprecedented" in the last sentence is rejected. Para 146 - the first two sentences are admitted. The remainder are rejected. Para 147 - the first sentence is rejected. The sentence commencing "at the conclusion of the trial" and the next sentence including the conversation are rejected. Para 148 - rejected. 149 Form, opinion, hearsay Admitted 150 Form, hearsay The words in the last sentence "who informed me" to the end of the sentence are rejected. 151 Form, opinion, hearsay, speculation The first sentence is rejected - conclusion. From the words "At pages 109 to 111" to the end of the paragraph rejected - hearsay and conclusion. 152 Relevance Rejected 153 Form, opinion, hearsay, expert evidence The second sentence, the penultimate sentence and the final sentence are rejected. 156 - 158 Form, speculation, expert evidence The paragraphs are rejected as constituting expert evidence. The witness's expertise has not yet been established but in any event he has not adopted the Expert Witness Code of Conduct. Leave is given to the Plaintiffs to have these paragraphs reinstated if appropriate. Notwithstanding any such leave, in paragraph 158 the words in the fourth sentence ("We're incredibly successful as the") are rejected and the final sentence is rejected. 161 - 169 Form, hearsay, speculation, expert evidence At para 161 the third sentence is rejected. In the fifth sentence the word "innovative" is rejected. The last two sentences are expert evidence. They are rejected at the present time with leave to the Plaintiffs to apply for them to reinstated if appropriate. Para 162 - the first sentence is admitted. The second sentence is rejected. Para 164 - the first sentence is admitted. The remainder is rejected. Para 166 - the first two sentences are admitted. The remainder is rejected. Paras 168 & 169 - rejected - further the relevance of these paragraphs is not apparent. Para 169 concludes by referring to the fire and saying "the project stalled at that time and was not thereafter pursued". 170 - 171 Form, hearsay, speculation, expert evidence Para 170 is rejected for the same reasons paras 168 - 169 were rejected. Para 171 - the third and fourth sentences are admitted only as to the witness's belief in the matters set out. 172 Form Admitted 173 - 175 Form, hearsay, speculation, expert evidence This is expert evidence and is rejected but with leave to the Plaintiffs to have it reinstated if appropriate. 176 - from the sentence commencing "through reverse engineering" to the end of the paragraph Form This is expert evidence and is rejected but with leave to the Plaintiffs to have it reinstated if appropriate. The third last sentence and the final sentence of the paragraph are, nevertheless, rejected. 179 - from the sentence commencing "the results of these EMPA to the end of the paragraph Form Rejected 180 - 182 Form, hearsay, speculation, expert evidence Para 180 - the first and last sentences are rejected. The remainder is admitted. Para 181 is rejected. The products are not specifically identified. Para 182 - the first two sentences are rejected - form and hearsay. The remainder of the paragraph is expert evidence and is rejected with leave to the Plaintiffs to have it reinstated if appropriate. 183 - the first sentence Form, speculation, expert evidence This is expert evidence and is rejected with leave to the Plaintiffs to have it reinstated if appropriate. 184 Form, speculation, expert evidence This is expert evidence and is rejected with leave to the Plaintiffs to have it reinstated if appropriate. 186 Form, speculation, expert evidence This is expert evidence and is rejected with leave to the Plaintiffs to have it reinstated if appropriate. 192 - 194, 196, 197 - from the sentence commencing "I reverse engineered" to the end of the paragraph, 199 - from the 5th sentence to the end of the paragraph, 200, 201, 202, 204 (except the second sentence) and 205 commencing with the words "I have researched the use of" to the end of the paragraph Form, speculation, expert evidence, no primary facts stated Para 192 - the words in the final sentence commencing "which I was confident" to the end of the paragraph are rejected. The second, seventh and remaining part of the eighth sentence are expert evidence which is rejected but with leave to the Plaintiffs to have it reinstated if appropriate. The remainder of the paragraph is admitted. Para 193 - the first sentence to the words "liquid laundry market" are rejected. The remainder is admitted. Para 194 - This is expert evidence and is rejected with leave to the Plaintiffs to have it reinstated if appropriate. Para 196 - rejected. Para 197 - the objected portion is rejected as expert evidence but with leave to the Plaintiffs to have it reinstated if appropriate. The portion of para 199 objected to and paras 200 & 201 are rejected as expert evidence with leave to the Plaintiffs to reinstate if appropriate; however, the last and 4th last sentences of para 201 are rejected in any event Para 202 - the first two sentences are rejected as expert evidence but with leave to the Plaintiffs to reinstate if appropriate. The remainder of the paragraph is admitted. Para 204 - the first sentence is admitted. The last sentence is rejected. Para 205 - the objected portion is rejected as expert evidence with leave to the Plaintiffs to reinstate if appropriate. 207 - 209 Relevance These paragraphs form part of the group of paragraphs objected to as being irrelevant in the industrial products case. For reasons given earlier the paragraphs should not be rejected for that reason because the material in them is admissible background material and is also capable of being used as support for any assertion that George Chaina has acquired knowledge and expertise. Paragraphs 208 and 209 are further objected to on the basis of conclusion, speculation and expert evidence. Para 208(a) - the last sentence is rejected. Para 208(e) - the last sentence is rejected. Para 209 - the second sentence, the penultimate sentence and the final sentence are rejected. 210 - the second sentence Form, conclusion, speculation, expert evidence The reference to the Statement of 24 December 2009 and GC4 is not understood. 212 and 213 (b) Form, conclusion, speculation, no primary facts stated, Except for the last two sentences of para 213(b) this evidence is only admissible as the witness's belief in the conclusions he formed leading him to take the steps referred to in the last two sentences of para 213(b). They are not evidence of the facts stated. expert evidence 215 - from the sentence commencing "this book was in fact" to the end of the paragraph and 216 Form, speculation, no primary facts stated, non-discovery Rejected. If the evidence is solely for the purpose of showing expert knowledge in the witness leave is granted to adduce the evidence in proper form. 222 - 224 Conclusion, speculation, no primary facts stated, The witness may give evidence of what tests were carried out but the explanations in para 224 constitute expert evidence which are rejected with leave to the Plaintiffs to reinstate if appropriate. The fact of the testing does not appear to be probative of anything. expert evidence 225 Conclusion, speculation, no primary facts stated, Rejected. The evidence consists of conclusions with no facts. It appears to be irrelevant because the products concerned ceased to be manufactured after the fire in 1993 as the paragraph discloses. expert evidence 226 - from the second sentence to the words "then the range could be expanded" Conclusion, speculation, no primary facts stated, Rejected. The portions objected to contain conclusions unsupported by primary facts. expert evidence 226(b) - the last sentence Conclusion, speculation, no primary facts stated, Rejected expert evidence 229 - from the fourth sentence to the end of the paragraph Relevance, form, speculation, conclusion, no primary facts, expert evidence Rejected 230(c) Form, expert evidence, no primary facts stated Admitted 231 Form, hearsay Rejected 234 - second sentence Form Rejected 235 - last sentence Form, hearsay Rejected 236 Form, hearsay Rejected 238 Form, hearsay Rejected 239 - fourth sentence to the end of the paragraph Form, hearsay Rejected 240 - commencing "the product was a single use" to the end of the paragraph Form, hearsay Rejected 241 - the second sentence to the end of the paragraph Hearsay Rejected 242(b) - from the third sentence to the end of the sub-paragraph Speculation, conclusion, no primary facts stated, expert evidence Rejected 242(d) - the words in the sentence from "I commissioned" to the end of the sentence Form, expert evidence Rejected 242(d) - the last sentence Form, relevance Rejected 242 - final sub-paragraph Form, relevance and hearsay Rejected 246 - the words in the fifth sentence commencing "products which were innovative" to the end of the sentence Form, speculation Rejected 247 - the fifth sentence to the end of the paragraph Relevance Rejected 249 Relevance, form, speculation, conclusion, expert evidence Rejected 250 - the first sentence Form, speculation, conclusion, no primary facts stated, expert evidence Rejected 254 & 255 Relevance Rejected 261 Relevance Rejected 262 - from the second sentence to the end of the paragraph Relevance Rejected 264 - from the third sentence to the end of the paragraph Relevance, hearsay Rejected 265 - from the fifth sentence to the end of the paragraph Form, Relevance Rejected 287 - last sentence Form, expert evidence Admitted 289 - last sentence including the conversation Hearsay Rejected 291 Form, relevance, hearsay Admitted up to the sentence commencing "I recall Gerard Martin" - thereafter rejected 293 - the last sentence including the conversation Hearsay Rejected 296 - from the last sentence to the end of the paragraph Hearsay Rejected 297 Hearsay Rejected 298 Form, speculation, conclusion, expert evidence Rejected down to and including the words "purchase arrangement". The remainder is admitted. 306 - the third sentence Hearsay Rejected 311 - the last two sentences Form, speculation, conclusion, expert evidence Rejected 312 - the last sentence Speculation, conclusion, hearsay Rejected 313 - the fourth and fifth sentences Speculation, conclusion, expert evidence Rejected 315 - except the first sentence Form, hearsay, speculation, conclusion, expert evidence Rejected 316 - from the words in the third sentence "where he said to me" to the end of the paragraph Form, hearsay Rejected 317 - apart from the last sentence Form and relevance Admitted only as the belief of the witness 320 - from the second sentence to the end of the paragraph Relevance Rejected 321 - from the second sentence to the end of the paragraph Form and relevance Rejected 325 - the last sentence Form Rejected as to form. In addition it is difficult to see its relevance 329 - the last three sentences Form, speculation, conclusion, no primary facts, expert evidence Rejected 330 - second sentence to the end of the paragraph Form, speculation, conclusion, no primary facts stated, expert evidence Rejected 331 - from the sentence commencing "during the course of that meeting" to the end of the paragraph Hearsay, relevance Rejected 333 - from the second sentence to the end of the paragraph Hearsay, relevance Rejected 335 - from the last sentence ("at the conclusion") to the end of the paragraph Hearsay Rejected 338 - from the fifth sentence ("I recall attending") to the end of the ninth sentence ("relationship with karma") Form, speculation, conclusion, no primary facts stated, expert evidence These sentences are admitted except for the words "which were successful" in the eighth sentence and the words after the word "premises" in the ninth sentence. 339 - the last sentence including the conversation Relevance Rejected 340 - the last sentence including the conversation Hearsay Rejected 343 - the words in the penultimate sentence "while in course of reverse engineering a number of products" Form, speculation, conclusion, no primary facts stated, expert evidence Rejected because of its form. Leave to the Plaintiffs to lead admissible evidence on the point. 349 - second sentence to end of the paragraph Form, hearsay, speculation Rejected 361 Relevance, hearsay The first two sentences are rejected as irrelevant. The third, fourth and fifth sentences are admitted. The final sentences containing the conversation are rejected as hearsay. 371 - last sentence including the conversation Relevance Rejected.

Statement of George Chaina dated 26 August 2010 28The purpose of this statement appears in paragraphs 2 and 3 of the statement as follows: [2] In paragraphs 87-91 of my first statement dated 2 September 2005 ("my first statement") I gave evidence that I conducted research, formulation and testing over a four year period between 1995 to 1999 for certain products developed by Proton Technology Ltd, the Fourth Plaintiff ("Proton") which compared favourably and in many cases exceeded the performance of competitors' products. [3] This statement provides a factual basis upon which the assertions of superiority in paragraphs 86 to 91 of my statement are based. 29Paragraphs 87 to 91 of the first statement have been rejected by me because of their form. In particular, the thrust of those paragraphs was simply that the various categories of products which Proton proposed to supply had the superior qualities outlined at Tab 37 of GC3 in comparison to other products on the market. 30Objection has been taken to a large number of paragraphs in this immense affidavit consisting of 676 paragraphs. The objections taken are consistent for almost all of the paragraphs objected to. Those objections are on the basis of form, opinion, expert evidence, witness has not adopted the Expert Witness Code, conclusion, subjective, speculation, no precision and no primary facts. A few paragraphs have been objected to on the basis of hearsay. 31What is apparent from a reading of this affidavit is that it consists, almost in its entirety, of expert evidence. This is because, although George Chaina is describing the actual testing process that he undertook (which description may be accepted as evidence of fact) the only purpose of doing so is to reach conclusions such as those found, for example, in paragraphs 30, 37, 40, 49 and so on. 32My present understanding is that George Chaina's expertise is an issue in the proceedings and has not yet been determined. However, in any event, he has not acknowledged the Expert Witness Code nor agreed that he was bound by it when expressing the conclusions contained in many or most of the paragraphs objected to in this affidavit. If the evidence is, as I perceive, expert evidence, it would be required to comply with r 31.27 UCPR. It clearly does not do so. The requirements are mandatory. 33The problem is particularly highlighted by a reading of some of the conclusions that are reached in such paragraphs as 49, 68, 70, 72 and 97. These conclusions are stated without any basis for them being demonstrated, as far as can be discerned, from the testing process carried out. There are numerous other examples of this throughout the affidavit. 34There are other conclusions expressed which do not provide the primary facts or are clearly based on hearsay - paragraphs 21 and 35 are examples. 35The approach that I intend to take to this very long affidavit is that the Defendants' objections to the specified paragraphs are all upheld for the reasons that the evidence is expert evidence. If George Chaina is found to be an expert and the report constituted by the affidavit is expressed in proper form with due acknowledgement of the Expert Witness Code its admissibility will be reconsidered. 36Objection is taken to paragraph 2 which contains a conclusion about paragraphs earlier rejected. The only purpose for which paragraph 2 is admitted is to provide an understanding of the purpose of the whole affidavit.

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: 06 March 2013

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)

Cited By (3)