Paino v Paino

Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326 Liversey v Jenkins [1985] AC 424 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED : MB v Protective Commissioner (2000) 217 ALR 631 Paino v Paino [2005] NSWSC 1313 Town of Mosman Park v Tait (2005) 141 LGERA 171

Angela Paino - Plaintiff PARTIES : Salvatore Paino - Defendant

Mr I.G. Harrison SC/Mrs M.T. Bridger - Plaintiff COUNSEL : Mr P. Hallen SC/Mr J.J. Millar - Defendant

Kells The Lawyers - Plaintiff SOLICITORS : Meyer Pigdon - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

JUDGMENT - On admissibility of new report of Mr Natoli. See p 979 of transcript.

1 The hearing of these proceedings was completed in July, except for evidence of the value of land on the island of Filicudi owned by the defendant. In somewhat unsatisfactory circumstances, leave was granted for that matter to be dealt with at a later point. Four days commencing on Tuesday of this week, 13 December, were allocated for the purpose. 2 On that day, the plaintiff sought to rely on a joint valuation report of two persons. For reasons I then gave, that report was rejected: see Paino v Paino [2005] NSWSC 1313. 3 Later on the same day, the plaintiff sought an adjournment to enable her to assemble new valuation evidence. That, as I found, would have occasioned irremediable prejudice to the defendant. The adjournment was refused. The proceedings were stood over to the following morning, Wednesday, 14 December, for a question of costs arising out of the events of the day to be debated. 4 When the court was reconvened yesterday morning, 14 December, the plaintiff indicated that she wished to rely on a new valuation report prepared the previous night by Mr Natoli alone, he being one of the joint authors of the rejected report. The defendant objected to that course and made some submissions. I directed that those submissions be continued today after the defendant and his advisers had had more time to consider the new report. 5 The new report by Mr Natoli is in the Italian language. It was received by the defendant and his valuation expert, both Italian speakers, yesterday morning. An English translation was received by the defendant's legal representatives at 1.15pm yesterday. The English translation is still incomplete. Some of the annexures have yet to be translated. There is also difficulty at this stage, in a few areas, in working out which annexures are intended to be brought over from the rejected joint report to the new report. 6 In contending that the new report prepared by Mr Natoli alone should be rejected, the defendant relies on three grounds: first, the report does not show compliance with rule 31.23(3) of the Uniform Civil Procedure Rules and schedule 7 to those rules; second, the report is obviously late and, the defendant says, reliance on it by the plaintiff would be productive of prejudice to the defendant; and, third, the report, it is said, does not comply with s.79 of the Evidence Act 1995 since it does not specify in the required way and to the required extent and standard the facts observed or assumed on which Mr Natoli relies, or the reasoning processes employed by him, and does not make it clear that the reasoning processes are those of Mr Natoli alone. The submission based on s.79 is supplemented by a submission based on s.135. I shall consider these three areas of debate in reverse order. 7 Before doing so, however, I should refer to relevant features of the report, as they appear from the English translation. After referring to the general features of the Aeolian Archipelago in which Filicudi is located and to the situation and characteristics of the island itself, the report makes observations about the real estate market in Filicudi and legal restrictions of an environmental and town planning kind. There is then a section dealing with the way in which properties have been identified as owned by the defendant. This is followed by a list of the properties consisting of vacant land taken into account as owned by the defendant. Each of the vacant properties is identified by title particulars, area, location, zoning and the extent of the defendant's ownership share. Next follows a list of the improved or built properties taken into account as owned by the defendant. Identification there is by title reference, location and ownership share. 8 Section E, starting on page 31 of the English translation, sets out criteria said by Mr Natoli to have been adopted by him "to arrive at the accurate market price". Reference is made to government calculated taxation value (criterion (a)). Reference is then made to what is called town planning base valuation, which takes account of various kinds of user restrictions (criterion (b)). Then comes the third criterion, criterion (c): "In my valuation, I have taken into account the make-up of the various real estate assets involved (land and building), their current maintenance and usage, their location vis-a-vis roads and means of communication and finally the views that they offer." 9 The fourth criterion (criterion (d)) is one that pays attention to the general state of buoyancy or otherwise of the real estate market in the relevant area. The fifth criterion (criterion (e)) is stated thus: "In conducting my valuation I calculated an average of the unit prices applied in previous sales of real state properties, having intrinsic and extrinsic features applying a valuation parameter expressed in square metres. For this purpose I am referring to the following deeds of sale that, during my above inspection, I found recorded with the Messina Land Agency concerning the island of Filicudi."

There then follow references to three such deeds. 10 From there, the report moves straight to a statement of opinion of the value of each item of real estate, introduced by the words: "The combination of the above elements has allowed me to apply the so-called empirical system for the valuation of real estate assets." 11 Immediately after those words appears: "F) - VALUATION OF THE PARCELS OF LAND The valuation of the parcels of land, based on the above method, is therefore as follows:" 12 There is the a list of the unimproved parcels with a value given to each at each of several points of time potentially relevant, according to findings to be made in due course. 13 The improved or built parcels are next dealt with similarly under a heading: "H) - VALUATION OF THE BUILDINGS"

The operative words following are: "As regards the valuation of the buildings, the undersigned believes that the following values should be applied:"

Again, values are given as at several different dates for each property. 14 Mr Hallen SC submits on behalf of the defendant that the report is inadmissible because it is not a report based wholly or substantially on the specialised knowledge of Mr Natoli as required by s.79. Part and parcel of that statutory requirement is that the report provide the trier of fact with criteria enabling evaluation of the expert's conclusions. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA said, in paragraph 59 on page 729: "If Professor Moreton's report were to be useful, it was necessary for it to comply with the prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling an evaluation of the validity of the expert's conclusions." 15 At paragraph 71 of his judgment on page 735, Heydon JA said: "Examining the substance of an opinion cannot be carried out without knowing the essential integers underlying it." 16 That passage was referred to with approval by Spigelman CJ in Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326. I would refer also to a decision of the Court of Appeal of Western Australia in Town of Mosman Park v Tait (2005) 141 LGERA 171. McLure JA said, at paragraph 63: "Dr Ackland did not close the factual basis (if any) or the process of inference he relied on for this opinion. There are a number of pre-conditions for the admissibility of expert evidence. Firstly, the subject matter must be of such a nature as to require a sufficient degree of specialised knowledge to render expert evidence admissible. Secondly, the witness must have relevant expertise in the area. Thirdly, the expert must either prove, by admissible means, the facts on which the opinion is based or explicitly state the assumptions as to the facts on which the opinion is based. Fourthly, the process of inference that leads to the opinion must be stated or revealed in a way that enables the conclusion to be tested and a judgment made about its reliability."

Authority is then cited, including Makita v Sprowles. 17 Against that background, it is necessary to return to the content of the report with special reference to criterion (c) and criterion (e). 18 Criterion (c) says that Mr Natoli has taken into account, property by property, a number of characteristics. He refers to current maintenance and usage, location vis-a-vis roads and means of communication, and the views the property offers. But in relation to none of the properties does he actually say anything about current maintenance and usage, location vis-a-vis roads and means of communication or the views offered. 19 A property valued at, for example, 244,000 Euros on a stated date may have panoramic views. Or it may look straight into the wall of the next-door house. The property may be conveniently placed near a road; or it may be at the top of an almost impassable mountain track. It may be habitable or uninhabitable. The trier of fact is not told any of this; nor is the potential cross-examiner. 20 When one comes to criterion (e), there is again no explanation and no means of obtaining relevant knowledge. The central theme is one of comparable sales. Yet nowhere are the elements of comparability even hinted at. Has a subject property consisting of a capacious house with water views and all amenities been compared with a modest dwelling in a back street or even vacant land? We are not told and cannot tell. Again, the trier of fact and the potential cross-examiner are denied what an expert opinion is meant to give them. 21 It is true that there is material about sales of other properties, but that material floats free. It is not linked, by the author, to any of the particular properties he has purported to value. The trier of fact must, of course, accept that there are some aspects of the processes of experts and their evaluations that are simply inherent in the expertise and cannot be rationally explained by reference to facts. The matters I have just mentioned are by no means at all in that category. They are matters on which a valuer can properly and intelligently be tested. 22 Mr Hallen's submission as to the inadmissibility of the new report, by reference to s.79 and the Makita principles is supplemented, as I have said, by a submission based on s.135. The unfair prejudice perceived is as I have indicated already: the cross-examiner is denied a large body of material that ought properly to be available to probe and test the expert's opinion. 23 Mr Hallen referred, in that connection, to the judgment of Hodgson J in the case of MB v Protective Commissioner (2000) 217 ALR 631 where, speaking of a particular piece of expert evidence, his Honour said at page 632: "Even if it were technically admissible it would, in my opinion, be unfair to give the other party the task of teasing out all the circumstances that the witness had in mind so that rejection under s.135 of the Evidence Act 1995 would be justified." 24 That is the position here, according to Mr Hallen. The opposing party is not expected to administer a questionnaire designed to bring to the surface factual matters and processes of reasoning central and key to the formation of the expert's opinion. That is something that must be done by the party presenting the expert evidence and which the expert evidence itself must present on its face. Without it, the opposing party is at an unfair disadvantage in not having a proper base from which to subject the expert opinion to critical scrutiny. 25 Mr Harrison SC made two submissions on behalf of the plaintiff in response to the submissions of Mr Hallen on the s.79 and s.135 points. First, he said that the report of the defendant's expert, Mr Scafidi, which has been served, exhibits the same features as Mr Natoli's report in relevant respects, so that we may have here a reflection of the norm in Italy. But that, of course, says nothing about the admissibility of Mr Natoli's report according to the statutory criteria prescribed by the Evidence Act or its assessment in the way contemplated by s.135. 26 Second, Mr Harrison said that Mr Hallen's submissions show an appreciation of the report and its content suggesting that he will be well able to cross-examine on it. I do not accept that submission. The contrary must be the case. 27 I accept Mr Hallen's submissions on the question of admissibility and the s.135 issue. In my judgment, the new report of Mr Natoli is inadmissible because of the opinion rule in s.76 of the Evidence Act and it is not made admissible by s.79. If it were admissible, which I have held it is not, its probative value in the absence of the explanations, discussion and analysis that are missing would not be great and that probative value would, in terms of s.135, be outweighed by the prejudice arising from that absence, so far as the opportunity to test and probe sensibly by cross-examination is concerned. In summary, therefore, I rule that the report is not admissible and that if it were admissible, it would, as a matter of discretion, be excluded under s.135. 28 I desire to say something about the matter of lateness. The report and English translation were prepared in great haste following the rejection of the joint report on 13 December. There are discrepancies, obvious even to someone unable to read Italian, between the Italian and English versions. Mr Hallen and his colleagues have found several so far. I have no doubt that they would find others in time. Most disturbing of those found to this point is the inclusion in the English translation of a passage that simply does not appear at all in the Italian original. The passage deals with valuation of the improved land and reads as follows: "For the purposes of the valuation of the buildings, the comments made under points E, F, G and H in my valuation dated 4 July 2005, and those made under points B, C and D in the valuation dated 10 July 2005 still apply, as do the prices indicated therein for the relevant years." 29 I say that this is disturbing because if, in reality, Mr Natoli has simply adopted facts and methodology from the report I rejected on Tuesday, being the joint report, then this new report is, in a very real sense, tainted. 30 As I say, the passage I have quoted does not appear in what is said to be the Italian original. It is only in what purports to be an English translation of the Italian original. That leads to the second disturbing aspect, namely, that that major discrepancy and other discrepancies that have been identified so far mean that the defendant would have to be given time to see whether the translation is defective in other ways as well, some of which could be material. If that time were given, the plaintiff would have achieved, by the back door as it were, the adjournment I declined to give on Tuesday afternoon because of the irremediable prejudice it would have involved for the defendant. 31 Another matter of prejudice for the defendant from a timing point of view comes from the assessment by the defendant's expert that he would need to return to Italy to check records relevant to at least two matters that appear in this new report, but did not appear in the rejected joint report. The plaintiff would thus again achieve a de facto adjournment if that course had to be followed. 32 These matters going to fairness and prejudice would have weighed heavily against allowing the plaintiff to rely on the new report even if it had been admissible and had not been such as to attract the exercise of the s.135 discretion. 33 Much was said in argument about the fact that the experts are in disagreement as to the exact parcels of land on Filicudi owned by the defendant. It is clear that he owns many. Mr Harrison seeks, on behalf of the plaintiff, to draw from the disagreement some form of suggestion that the defendant has not discharged the duty of frank disclosure that applies in proceedings under the Property Relationships Act in accordance with the principle in Liversey v Jenkins [1985] AC 424, the applicability of which to such proceedings has been recognised by this court. Mr Hallen's response is that it was never put to the defendant in cross-examination, or even hinted, that he has been delinquent in that way. In view of the position I have reached with respect to the new valuation report sought to be relied upon by the plaintiff, I need say no more about that matter; nor is there any need for me to deal with the rule 31.23(3) and schedule 7 issue, particularly in light of the intimation of the evidence that Mr Natoli would have given on it, had he re-entered the witness box. 34 [Note: Since the Italian original and the purported English translation have not been admitted and no affidavit annexing them has been filed, steps have been taken to preserve their identity by placing them in the court file in an envelope marked: "Report of Mr Natoli - Italian original and purported English translation - rejected 15 December 2005".] **********

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