LANGBOURNE v STATE RAIL AUTHORITY

-1- DLJ 4 Ex tempore: revised

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STATE RAIL AUTHORITY OF NEW SOUTH WALES (Defendant)

JUDGMENT (SCR Pt 36 r 13C - expert's report - compliance - admissibility - "otherwise" order - discretion) 1 There has arisen for decision an admissibility point which is as important as it is in one respect exquisite. 2 It was on 19 May 2003 that, by consent, Professor Joubert's first report dated February 2002 was admitted in these proceedings as exhibit B. Today, as exhibit M, a document I will describe as itself is described, a "further report" dated 6 June 2003 was admitted. What I will describe as objections to internal components of both reports I have dealt with in an earlier ruling. 3 The objection with which I am presently concerned is that founded upon the operation of SCR Pt 36 r 13C relating to expert witnesses. The objection being taken is that neither report bears on its face evidence of compliance with r 13C(2)(b). The rule states: 36.13C(1) For the purposes of this rule and rule 13CA "expert witness" means an expert engaged for the purpose of: (a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or (b) giving opinion evidence in proceedings or proposed proceedings; 'the code" means the expert witness code of conduct in Schedule K. (2) Unless the Court otherwise orders (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code; (b) unless an expert witness's report contains an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it: (i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note; and (ii) the report shall not be admitted into evidence. (c) oral evidence shall not be received from an expert witness unless: (i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it; and (ii) a copy of the acknowledgement has been served on all parties affected by the evidence. (3) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness: (a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report; and (b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with. (4) This rule shall not apply to an expert engaged before this rule commences.

4 The objection crystallised after some short evidence in chief by the witness and consequent upon some evidence in cross-examination of him by Mr Greenwood SC which elicited the following answers to the following questions: "Q. At any time before February 2002 have you ever seen the Court code of conduct? A. Which court? Q. The New South Wales Supreme Court or the New South Wales District Court code of conduct? A. I have seen them in South Australia… Q. Have you ever seen? A. Not in Victoria and only with Mr Cowling's report from New South Wales." 5 After lunch today evidence was given on the voir dire, to determine this point, by Professor Joubert who said that he had read the code the conduct which accompanied, as I understand it, Mr Cowling's report. He said he would have taken no different approach in reaching his conclusion had he, at the time, read the schedule. He had read the code of conduct over the lunch adjournment. It was similar to a cognate provision, as I understand it, in the rules of the Supreme Court of South Australia. He also gave evidence that to his knowledge, he and Mr Cowling are the only persons with expertise in this country who deal with what I will generally describe as railway accidents. He gave evidence that he received exhibit A on the voir dire, a letter bearing date 28 February 2000 from the plaintiff's solicitors to him at his address in Brighton, Victoria. He was unable to say when precisely that letter was received. 6 Mr Potter, the plaintiff's solicitor, gave evidence on the voir dire and through him an exhibit was tendered, exhibit B, being an e-mail from his secretary to himself identifying Professor Joubert as a train expert and giving details of his address and telephone number. Part of exhibit B is an undated file note of a conversation with took place between Mr Potter and Professor Joubert in which the subject matter was an inquiry by Professor Joubert as to the location of the accident, Professor Joubert's requirement of a plan of the section of the line and information as to the speed of the train. Professor Joubert gave an indication of his fees in terms of exact figures, which are referred to in the file note. 7 Mr Potter agreed there was no other communication between him and Professor Joubert other than the telephone conversation and the letter of 28 February and he agreed that had the letter not been dispatched he would not have received anything from Professor Joubert. 8 Instructions, I accept, had been obtained prior to the letter of 28 February, that an expert be engaged to assist the plaintiff. 9 The second report presently in evidence in the action, (exhibit M), namely that of 6 June, is described as a further report which, to put it as acutely as possible, came into existence after the view which took place in Wagga Wagga some weeks ago and which on its face, in some respects, says things different to that contained in the first report. 10 Assuming that Pt 36 r 13C applies to the present matter in dispute, useful guidance as to its application is obtained from the judgment of Einstein J in Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2000] NSWSC 980. His Honour's ruling which was adverted to by the tendering party in this case is instructive on several bases. First, there was evidence before his Honour in that case that the author of the report was ignorant of the existence of the schedule prior to the day upon which he was examined on that subject. Secondly, his Honour refers to an earlier decision of Barrett J in Barak Pty Ltd v W T H Pty Ltd [2002] NSWSC 649 in which a similar problem arose but in which his Honour, Barrett J, had evidence from the relevant person that at the relevant time, that is on the preparation of the report as I understand it, he was aware of the requirements of the experts' code the conduct that is laid down and who had read schedule K and had read it prior to swearing the relevant affidavit. 11 Next, the significance of Einstein J's ruling is his Honour's remarks in paragraph 9 as to the requirement of strict compliance with SCR Pt 36 r 13C. His Honour said: "To my mind, considerable significance attaches to enforcing strict compliance in the expert witness provisions now found in Pt36 r13C. Questions of the significance of the opinions of experts have been mooted over a very extended period of time and the schedule K and Pt 36 r 13C(1) Expert Witness Code Of Conduct was promulgated with the clear intent that only reports by experts who have proceeded in accordance with the stated norms of conduct, should be relied upon and may be admitted into evidence. The significance of the Code Of Conduct emerges clearly from the whole of the Code as well as from the 'general duty to the court' section of schedule K as well as from the stipulations as to the form of expert's reports. " 12 Next it was quite clear that his Honour, and correctly in my view, considered the determination of whether an "otherwise" order should be made was discretionary and his Honour had in mind the now well-known observations of Hayden JA (as he then was) in the Court of Appeal in Makita Australia Pty Ltd v Sproules (2001) 52 NSWLR 705 at paragraph 79. 13 Bearing in mind especially what Einstein J said in paragraph 9 as to the significance and importance of compliance with that part of this court's rules, on a discretionary basis I would admit the contentious material. The factors predisposing me to admit the material are: first, what must be taken to have been a deliberate and considered consent to the tender of the original report in the course of the hearing in Wagga Wagga some weeks ago. Secondly, the statement made by senior counsel for the defendant today that no prejudice is incurred by his client by reason of the apparent failure to comply with the rule. Thirdly, the evidence given on voir dire that the expert, having read the schedule over lunch time would not have changed his approach or opinion. Fourthly, in the evidence in the cause, as opposed to the voir dire, of his acquaintance with what I must infer to be a cognate rule of the Supreme Court of South Australia. 14 The final matter which would predispose me to the exercise of my discretion in favour of the party is this. The Practice (Ritchie), in reproducing r 13C of Pt 36 notes r 13C as having been inserted in the rules of the court by amendment number 337 gazetted in Gazette number 9 on 28 January 2000 at page 452. The Gazette discloses that the commencement date of SCR Pt 36 r 13C was 1 March 2000. 15 Assuming against the plaintiff that the initial engagement as sought in the letter of 28 February was received in the normal course of the mail on 1 March, and taking the rule to be effective from 1 March, then the engagement was so close to the commencement of the rule and was captured by the rule and to exclude it by reason of failure to comply would be unjust. 16 It is accepted that the year 2000 was a leap year. There were 29 days in February and 1 March was a Wednesday. I mention that exquisite point because r 13C itself in sub-r 4 says that the rule as a whole does not apply to an expert engaged before the rule commences. I suppose it can only be a matter of speculation as to whether in the happenstance of the year 2000 being a leap year a letter from Wagga Wagga dated 28 February would have been received in Melbourne in the ordinary course of mail on 29 February and therefore before the date of the commencement of the rule. The exercise is really academic: for the principal reasons for the exercise of the discretion in the plaintiff's favour to which I have referred, I will overrule the objection and admit the reports, or, rather, confirm their status as admitted evidence. **********

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