Plaintiff v Defendant

1. After the conclusion of the evidence on the fourth day of trial on 6 February 2026, counsel for the plaintiff (Fed Drive) sought to tender the expert valuation report of Jim Derzekos and Mark Ruttner of FVG Property filed 20 January 2026 (FVG Report). The FVG Report had been prepared on instructions given to it not by Fed Drive, but by the defendant (Kelea). In addition, Fed Drive sought an order under s 136 of the Evidence Act 2008 (Vic) that I limit the use that can be made of the FVG Report in the proceeding.
2. The tender of the FVG Report on this basis is opposed by Kelea.
3. I have determined to admit the FVG Report into evidence, but I decline to exercise my discretion to limit the use to which it may be put under s 136. My reasons follow.

1. In this proceeding, Fed Drive claims that it suffered loss and damage as a consequence of Kelea's rescission of contracts for the sale of industrial zoned land in Melton, in contravention of s 18 and/or s 30(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic), and/or s 12(d) of the Sale of Land Act 1962 (Vic).
2. In seeking to establish and quantify its asserted loss, Fed Drive relies on the evidence of an expert valuer, Eric Vuong of WBP Group. Mr Vuong prepared three expert reports filed in the proceeding. The purpose of Mr Vuong's evidence is to identify and value certain parcels of industrial land at particular points in time.
3. It is important at this juncture to note that the FVG Report filed on behalf of Kelea does not contain any alternative valuation of the parcels of industrial land identified by Mr Vuong. The instructions given by Kelea to Mr Derzekos and Mr Ruttner had enclosed a copy of Mr Vuong's first expert report dated 9 July 2025 (and filed 25 July 2025) and, in summary, invited comment on Mr Vuong's evidence, including comment on the assumptions and methodology relied on by Mr Vuong. In accordance with those instructions, the critical part of the FVG report is Section 11 (General Comments) and provides a number of remarks on what are, in the authors' view, deficiencies in Mr Vuong's approach to his task.
4. Shortly after the delivery of the FVG Report, Fed Drive delivered Mr Vuong's second report dated and filed 23 January 2026, which responded to certain additional instructions from Fed Drive as to the timing of certain valuations. FVG did not provide comment on Mr Vuong's second report.
5. Fed Drive then gave supplementary instructions to Mr Vuong for the preparation of a third expert report. Those instructions, dated 27 January 2026, both referred to and annexed a copy of the FVG Report. The questions asked of Mr Vuong for the purposes of preparing his further expert report were as follows (emphasis added):

Please provide your response to each comment made in section 11 of the FVG Report.

We have provided a table in Word Format which lists each comment. You are free to use this table as a means of organising your response if convenient to you, but leave it up to your expert judgment as to how you wish to format your response.

Please state whether, as a result of the comments made in section 11 of the FVG Report, you wish to change or supplement your conclusions as to:

(a) the parcels of industrial land you identified as being similar to the land acquired by our client in Federation Drive that were available for purchase during the six‑month period commencing 1 October 2021 to 30 March 2022 (Relevant Period) - whether off the plan, or already subdivided;

(b) the details of each identified parcel of land;

(c) the price that any identified parcel of land sold for during the Relevant Period; or

(d) the value of each identified parcel of land as at 9 July 2025.

Additionally, please state whether, as a result of the comments made in section 11 of the FVG Report, you wish to change or supplement any aspect of the retrospective valuation contained in your report dated 23 January 2026.

1. Whilst the pre-populated table enclosed with these instructions sought to summarise the comments made in the FVG Report, it is not a verbatim reproduction of those comments. Some matters of detail are omitted, which I discuss further below at [27].
2. In response to those questions, Mr Vuong prepared a letter dated 30 January 2026 in which he relevantly said:

I do not wish to change or supplement my conclusions in relation to the matters raised in question 2.

The reported purchase price of 91 Collins Road, Melton has been amended to be GST exclusive. I do not wish to change or supplement any other aspect of my report dated 23 January 2026.

There followed eight pages of responses to comments made in the FVG Report about Mr Vuong's first report, using the table supplied to him. I refer to the letter and table collectively as the Third Vuong Report.

1. The three columns of the table were labelled as follows:

1. Mr Vuong's responsive comments were inserted in red text under the third column, and were divided into two parts: a first part, 'General Comments', commencing on the first page of the table, and a second part headed as follows:

COMMENTS SPECIFIC TO VALUATION REPORT - TO BE READ IN CONJUNCTION WITH ABOVE GENERAL COMMENTS

1. Mr Vuong was called by Fed Drive at the trial and cross-examined. It is intended that his three expert reports be tendered as part of a single exhibit Court Book.
2. Following cross examination of Mr Vuong, Kelea indicated that it no longer sought to call the authors of the FVG Report nor rely on the FVG Report in this proceeding.
3. It is against this background that Fed Drive seeks both to tender the FVG Report and limit the use which may be made of it.

B Relevant provisions of the Evidence Act

1. Section 56 provides that evidence which is relevant in a proceeding is admissible unless otherwise provided. Of course, evidence is relevant where, if it were accepted, the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55(1)). No distinction is drawn in s 55 between direct evidence and hearsay evidence.
2. Section 59 records the hearsay rule:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

1. The term 'previous representation' is defined in the Dictionary to the Evidence Act as 'a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.'
2. Section 60, which records an exception to the hearsay rule, relevantly provides:

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

Thus, s 60 facilitates the use of hearsay evidence adduced for a non-hearsay purpose to prove the existence of an asserted fact. It is not concerned with the subjective intention of the party seeking to adduce the evidence, but the use to which the evidence, if admitted, would be put, objectively ascertained.[1]

1. Another element of the analysis concerns Part 3.3 and the circumstances in which opinion evidence may be admitted. Section 79 provides an exception to the opinion rule (s 76) in respect of opinion evidence based on specialised (or expert) knowledge. Also relevant is s 77, which provides an exception to the opinion rule in respect of opinion evidence that is admitted because it is relevant otherwise than as opinion evidence. Like the s 60 exception to the hearsay rule, s 77 has the effect that where opinion evidence is admitted for another purpose, it may also be used to prove the facts about which the opinion is expressed.
2. Of course, the admission of hearsay or opinion evidence remains subject to the operation of both s 135, affording the Court a general discretion to exclude probative and otherwise admissible evidence in specified circumstances, and s 136, providing for the discretionary limitation of the use which may be made of evidence that is otherwise relevant for more than one purpose.
3. Section 136 provides:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

1. The present circumstance is somewhat unusual. Fed Drive seeks to tender the untested expert evidence of Kelea's valuer to establish the scope of the instructions given to its own valuer to prepare the Third Vuong Report, and to otherwise facilitate the Court's understanding of the evidence given in the Third Vuong Report. In this sense, the FVG Report is sought to be tendered to establish, at least in part, the factual foundation or basis for Mr Vuong's responsive opinion, in the same way that a party might seek to tender a document such as a photograph, medical record or financial statement provided to and relied upon by an expert witness. However, Fed Drive apprehends that the effect of s 60 is such that if the FVG Report is admitted for that purpose (rather than as proof of the facts and opinions contained in it), it may be relied on for all purposes. For that reason, Fed Drive seeks to limit the use which may be made of the FVG report by the discretion available to me under s 136. Kelea opposes the tender of the document on this basis.

1. The mere provision of a document to an expert, and reliance by the expert on it, does not make it admissible. First, the document must be admissible in accordance with the provisions of the Evidence Act. Second, considerations arising under the Civil Procedure Act 2010 (Vic) in respect of the conduct of a civil trial may also inform the exercise of any relevant discretion in respect of the admission of documentary evidence.[2]
2. Fed Drive submits that if the FVG Report is not admitted, the Third Vuong Report would be rendered meaningless. It contends that I cannot sufficiently understand the instructions given to Mr Vuong, and his response to them in the Third Vuong Report, in the absence of the admission of the FVG Report into evidence.
3. Kelea contends that the Third Vuong Report was entirely self-contained - that is, by Mr Vuong accepting the invitation of his instructors to utilise the pre-populated table which summarised in the second column the issues raised in the FVG Report, Mr Vuong can be taken to have accepted that the table contained each comment to which he would respond, with his responses contained in red in the third column. Further, it was submitted that Mr Vuong was not directly cross-examined on any aspect of the FVG Report. Its position is thus that the FVG Report is insufficiently probative to justify its admission but, if it is so admitted, it is evidence for all purposes.
4. There is some merit in Kelea's argument that Mr Vuong's expression of opinion in the Third Vuong Report is confined to the comments and responses summarised in the table appended to his letter. However, I consider the better view to be that the Third Vuong Report more broadly incorporates by reference matters set out in the FVG Report, but does not represent those matters in full. Importantly, question 1 directs Mr Vuong to comments made in section 11 (General Comments). Fed Drive's table does not reflect the detail of FVG's commentary in that section. But even putting aside question 1, my conclusion is supported by reference to Mr Vuong's responses to questions 2 and 3, which called for a reconsideration of Mr Vuong's opinions in light of the matters set out in section 11. In respect of question 2, Mr Vuong stated that his opinion was unchanged in respect of each of the issues specified in his instructions. In respect of question 3, Mr Vuong again stated that his opinion was unchanged, save that it is apparent that as a consequence of his review of the FVG Report he sought to amend the purchase price of a particular sale identified in his report to remove the GST component.
5. It is difficult to fairly evaluate those conclusions without reference to the FVG Report. Had Fed Drive not sought to tender the FVG Report, some reference could have been made to the positive statements and corrections made in the Third Vuong Report, and some conclusions reached on the basis of those matters. However, Fed Drive does seek to tender the FVG Report, and I do not accept Kelea's contention that the Third Vuong Report is entirely self-contained without reference to it or, alternatively, that the assumptions which form the foundation of the Third Vuong Report are entirely cited within that report.
6. It follows that the FVG Report is relevant to a consideration of the Third Vuong Report, in that it is sufficiently probative of contested aspects of Mr Vuong's opinion to justify its admission. Further, the opinions expressed in the FVG Report are, at least substantially, based on the specialised knowledge of the authors, through their training, study, and experience as valuers. The FVG Report would, of itself, be otherwise admissible under s 79 as an exception to the opinion rule.
7. I accept that it is open to Fed Drive to tender the FVG Report for the purpose of identifying the instructions, foundation or assumptions on which the opinions of Mr Vuong expressed in the Third Vuong Report are based. The FVG Report forms part of the Court Book which is to be tendered as a single exhibit.
8. The question also arises as to whether the FVG Report otherwise constitutes hearsay evidence in the context of the Third Vuong Report. Of course, there is no challenge by Kelea to the admission of the Third Vuong Report on the basis that it relies on hearsay in the form of the FVG Report. Rather, Fed Drive seeks to tender the report for the limited purpose of explaining the assumptions on which the Third Vuong Report is based. In this context, Fed Drive assumes that the FVG Report (or statements made or expressions of opinion within it) constitutes a 'previous representation' for the purposes of s 59 of the Evidence Act. I accept that where an expert is not called to give evidence in the proceeding, the expert's report filed in the proceeding may be analogous to an affidavit not read,[3] and at least capable of falling within the relevant definition, although there is some doubt as to whether that is the correct analysis in circumstances where an expert report contains both statements of fact and opinion.
9. Assuming for present purposes that s 60 is engaged as a consequence of the tender of the FVG Report for a purpose other than proof of any asserted fact contained within it, Fed Drive's concern about the potential operation of s 60 to the present circumstances is not illusory. A similar issue would have arisen had Fed Drive argued that s 77 was engaged as a consequence of the tender of the FVG Report for a purpose other than proof of any asserted fact about which an opinion had been expressed. With that observed, I do not consider that it is necessary for me to rule on whether or which parts of the FVG Report ought properly be considered as opinion evidence or hearsay evidence. In each case, the difficulty identified by counsel for Fed Drive arises - once the FVG Report is admitted, it may be relied on for all purposes,[4] unless I exercise my discretion to limit the use which may be made of it under s 136 of the Evidence Act.

The use to which the FVG report is put should not be limited under s 136

1. Fed Drive seeks a ruling in the following form:

Pursuant to s 136 of the Evidence Act 2008 (Vic), the use to be made of the [FVG Report] is limited to establishing the instructions provided to Eric Vuong for the purposes of preparation of [the Third Vuong Report], and the matters to which Mr Vuong was responding in the table that formed part of the [Third Vuong Report].

1. Fed Drive submitted that the first limb of s 136 should be deployed to limit the use to which the FVG Report may be put in this proceeding - that is, there is a danger that admission of the FVG Report for all purposes might be unfairly prejudicial to Fed Drive. In particular, as Kelea had elected during the course of trial not to call the authors of the FVG Report, with the consequence that the authors were not cross‑examined on the opinions expressed, it was submitted that there would be a serious prejudice to Fed Drive if the 'cost' of putting Mr Vuong's instructions before the Court in a comprehensive manner was that the untested opinions in the FVG Report were accepted into evidence for the purposes of those opinions.
2. Kelea's submissions were confined to the admission of the evidence more generally, and did not point to any prejudice to it of the s 136 limitation proposed by Fed Drive.
3. In considering the exercise of my discretion, it is important to make two preliminary observations. First, the fact that hearsay or opinion evidence admitted in this way may be relied on under ss 60 or 77 to prove the existence of asserted facts does not compel the conclusion that it will or must be relied on for this purpose.
4. Second, and relatedly, the question of the weight to be accorded to the FVG Report is a topic in respect of which it is open to the parties to make submissions and, ultimately, a question for me in making my decision on the issues before me in the proceeding. Having been admitted, the FVG Report may be given such weight as I consider appropriate in all the circumstances. The fact that Kelea elected not to call the authors of the FVG Report, with the consequence that they were not cross examined on the opinions expressed in the report, is an example of a matter that it could be relevant for me to take into account in considering the use that may be made of the FVG Report.
5. As observed by Cooper J in[&]Lardil Peoples v State of Queensland:55 [2000] FCA 1548, [26].

... s 60 does not give to the hearsay evidence a weight or cogency which the circumstances do not warrant. The absence of an order under s 136 of the Act does not prevent the respondents from contending that in the circumstances of this case, the hearsay statements should be given little or no weight and should not be relied upon.

1. It is also relevant to my assessment of the relative prejudice to Fed Drive that the FVG Report is limited to comments made in respect of Mr Vuong's first report dated 9 July 2025. Although it may be accepted that Mr Vuong's second report dated 23 January 2025 substantially replicates his first report, it adds an assessment of the value of various properties at an additional date, 21 December 2023. The FVG Report does not address these additional assessments of value.
2. Finally, as mentioned above at [6], whilst the FVG Report does include some opinion evidence in respect of asserted deficiencies in Mr Vuong's first report, it does not seek to positively advance any alternative and untested valuation evidence on the question of loss and damage. Thus, even if I was ultimately persuaded that I should accept any opinions expressed in the FVG report, they at most comment on or qualify Mr Vuong's opinions in his first report.
3. In all of the circumstances, I decline to exercise the s 136 discretion to limit the use to which the FVG Report may be put. It is a matter for the parties to address me on the question of the relative weight which should be attributed to it when the matter resumes for final address.

[1] Schanker v The Queen [2018] VSCA 94, [100] (Tate, McLeish JJA and Kidd AJA).

[2] See, for example, Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 29) [2013] VSC 537, [14]-[17] (J Forrest J).

[3] See Federal Commissioner of Taxation v Bosanac (No. 7) (2021) 390 ALR 74; [2021] FCA 249, [32]-[36] (McKerracher J).

[4] See, for example, the observations of O'Bryan J in the context of ss 59-60 and ss 76-77 of the Evidence Act 1995 (Cth) in Malone v Queensland No. 3 [2022] FCA 827, [53]-[58].[&]