Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors - [2004] NSWSC 323 - NSWSC 2004 case summary — Zoe

NSWNSWSC

Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors

[2004] NSWSC 323

Supreme Court of NSW|2004-04-20|Before: Einstein J, McClellan CJ, Philip J, Mr P

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2004-04-20

Before

Einstein J, McClellan CJ, Philip J, Mr P

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

CITATION : Stockland (Constructors) Pty Limited & Anor v Darryl I Coombs & Ors [2004] NSWSC 323 revised - 30/04/2004 HEARING DATE(S) : 19/04/04, 20/04/04 JUDGMENT DATE : 20 April 2004

[2]

JURISDICTION: Equity Division Technology & Construction List JUDGMENT OF : Einstein J DECISION : Reasons for rejecting sections of the proposed evidence sought to be tendered from Mr WF Farrant as a Section 79 Evidence Act expert.

[3]

CATCHWORDS : Evidence - Practice and procedure - Expert evidence - Procedure of scheduling objections - Section 79 Evidence Act (1995) - Principles LEGISLATION CITED : Evidence Act 1995 Clark v Ryan (1960) 103 CLR 486 HG v R [1999] HCA 2 Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 123 CASES CITED : Makita (Australia) Pty Limited v Sproules [2001] NSWCA 305 Murphy v R (1989) 167 CLR 94 Quick v Stoland Pty Limited (1998) 87 FCR 371 R V G (1997) 42 NSWLR 451 Trust Company of Australia Ltd v Perpetual Trustees WA Ltd [unreported, Supreme Court of New South Wales,18 September 1996, McClellan CJ in Eq] Stockland (Constructors) Pty Limited (First Plaintiff) Stockland (Properties) Pty Limited (Second Plaintiff) PARTIES : Darryl I Coombs Pty Limited (First Defendant) Philip J Flook Pty Limited (Second Defendant) Retail Design Group (International) Pty Limited (Third Defendant) FILE NUMBER(S) : SC 55046/99 Mr DE Grieve QC, Mr P Dodson (Plaintiffs) COUNSEL : Mr IG Roberts (First and Second Defendant) Ms E Ollson SC (Third Defendant) Cohen & Krass (Plaintiffs) SOLICITORS : Minter Ellison (First and Second Defendants) James Legal Pty Limited (Third Defendant)

[27]

Expertise of Witness in Field of "Specialised Knowledge " There must be an aspect of that field in which the witness is expert, by reason of training, study or experience, and which the witness identifies: see s 79 and Murphy v R (1989) 167 CLR 94 at 111. What must be evidenced is the training, the study or the experience, and how it has made the witness an expert in some aspect of the field of "specialised knowledge". The reasons for judgment of Mason P [ R V G (1997) 42 NSWLR 451 at 459] said that witnesses must identify their expertise " with precision ". 3. Opinion "Wholly or Substantially Based" on Expert Knowledge The opinion proffered must be "wholly or substantially based on that knowledge": s 79. Gleeson CJ said of the witness in question "as Clark v Ryan (1960) 103 CLR 486 illustrates, his opinion had to be related to his expertise". It would seem incumbent on the witness also to identify how the opinion proffered relates to the field of specialised knowledge in which he is an expert. In HG v R in the Court of Criminal Appeal, Mason P doubted that the witness's general expertise and experience established that his opinion was based on "specialised knowledge" ( R v G (1997) 42 NSWLR 451 at 459). That is, the opinion "lacked the requisite scientific rigour ". The training study and experience of Mr Farrant 7 Mr Farrant has given the following evidence:
I am a construction manager employed by the plaintiff ("Constructors").
I obtained my Higher School Certificate in 1969. I commenced a quantity surveying course in 1970 at the New South Wales Institute of Technology. The course was a 5 year part-time course. I completed the course in 1974 and received a Diploma in Technology (Quantity Surveying). I became an associate of the Australian Institute of Quantity Surveyors in about 1975.
During my studies I worked as a student quantity surveyor for Thompson & Wark, quantity surveyors until mid 1974. I was then employed by Ian Turner & Partners, builders, as a student quantity surveyor. I worked in that capacity for several months until a date shortly before I finished my Diploma course. I then worked for McCredie, Richmond and Johns, quantity surveyors, first as a student and then as a quantity surveyor, for about six months. My duties included the preparation of bills of quantities under the supervision of a partner or supervisor.
I left McCredie, Richmond and Johns in about early 1975. I was then employed by Ken Green & Associates Pty Limited, quantity surveyors. I worked as a quantity surveyor carrying out all of the normal duties and functions of a quantity surveyor. I remained in that employment for 12 years. In about 1980 I became a director of Ken Green & Associates Pty Limited. The quantity surveying work which I carried out in that employment included work in relation to schools, hospitals, large houses, multi-storey residential blocks, offices and special purpose buildings.
I ceased working for Ken Green & Associates in late 1986 and was employed by Pipe Couplings Australasia Pty Limited. My duties varied but included work as a chartered quantity surveyor for the company. I spent about 70% of my time working for that company as a chartered quantity surveyor.
In August 1987 I left my employment with Pipe Couplings Australasia Pty Limited and was employed by the plaintiff. I was engaged as a construction manager. At first I reported to a superior, Mr George Coleman who was a licenced builder. Mr Coleman was the head of the commercial construction division. By 1991 Mr Coleman had retired and I was appointed as Construction Manager of the plaintiff. Although I have used my knowledge and experience as a quantity surveyor in the course of my current employment, I am not engaged as a quantity surveyor. From the outset my duties have included supervision and management of the company's construction projects. I do not work on sites supervising the carrying out of building work. I arrange for consultant specialists to prepare documents, I arrange for the calling and letting of tenders, I oversee the construction process on projects, I am involved in the programming of projects, budgeting, site inspections, contract administration and related activities. I say that I have gained expertise in reading architectural and building design drawings and that I am able to identify deficiencies in such drawings.
Building projects on which I have worked in my current employment include: (a) Extensions to Wetherill Park shopping centre; (b) Extensions to Jesmond shopping centre; (c) Alterations and additions to Baulkham Hills shopping centre; (d) Alterations and additions to Merrylands shopping centre; (e) Alterations and additions to Maroubra shopping centre; (f) Major expansion and alterations to the Townsville shopping centre; (g) Major expansion and alterations to the Earlville Shopping centre in Cairns; (h) Construction of a hotel in Darwin, Northern Territory; (i) Work in conjunction with other developers and builders on hotel projects owned or operated by the plaintiff in Canberra, Perth, Sydney and Melbourne.

[28]

Of these projects, the Cairns shopping centre project was the largest project which I have undertaken. That project, which was carried out from 1992 to 1996, is the subject of the present dispute. The next largest shopping centre project was the Townsville project, which was as complex as the Cairns project. The Townsville project was carried out immediately before the Cairns project. [Statement of WN Farrant of 30 August 2000] 8 Although there are a number of opinions sought to be given by Mr Farrant the nature of these opinions has been conveniently captured and relevantly characterised in the schedules of section 79 objections prepared on behalf of the first and second defendants and with additional characterisation and detail in the schedule prepared on behalf of the third defendant. The convenient course is to append that schedule, that is the first and second defendants' schedule, to this judgment [as Appendix "A"]. 9 There is no doubt that Mr Farrant is, by his training, study and experience, shown to have acquired specialised knowledge in certain areas permitting him to express opinions wholly or substantially based upon that knowledge. In this regard he has acquired specialised knowledge in the following areas: · quantity surveying expertise; · the ability to read and understand architectural and building design drawings; · construction and project management of construction projects including the overseeship of the construction process · the making of arrangements for consultant specialists to prepare documents; · the making of arrangements for the calling and letting of tenders. 10 He has also had an extensive involvement in the programming of construction projects, the budgeting of those projects, site inspections of such projects, contract administration and related activities. This is however essentially the role of an overseer. Not a Programming Expert 11 Mr Farrant is not, however, a programmer with programming expertise in terms of the ability to assess the timing, the logic and methodology of the design and construction processes to be in a position to assess and determine with precision how the various disciplines and the works may be managed to create the ultimate 'as built' construction, but his construction and project management experience has permitted him to gain some general knowledge of some of these processes. Not an Architect 12 Clearly he is not an architect and his training, study and experience does not extend to being in a position to express an opinion as to the standards required of an architect in terms of the discharge of its professional duties. Not an Engineer/No Structural Steel Detailing Expertise 13 Clearly he is not an engineer and does not have structural steel detailing expertise. He has not been shown, by his training, study or experience, to have acquired specialised knowledge on the basis of which to be in a position to express opinions on the ability of a structural steel detailer or fabricator to understand the design. Matters on which opinions are sought to be expressed 14 Particular matters upon which Mr Farrant is put forward as having the requisite specialised knowledge and in respect of which he seeks to express opinions include:

[40]

8 Whether particular drawings show a level of particular competence or incompetence and the gradation of competence in this regard. 9 The assessment of the likelihood of consequential loss being suffered by others 15 In my view Mr Farrant has not been shown by his training, study or experience, to have acquired specialised knowledge on the basis wholly or partly of which to be in a position to express opinions on areas enumerated as 1 (a), 1 (b), 2(b), 2 (c), 2 (d), 2 (e), 2 (f), 3,4,5, 6, 7 (a), 7 (b), 7 (c), 8, and 9. 16 There is some difficulty in determining whether or not Mr Farrant has been shown to have, by his training, study or experience, acquired specialised knowledge on the basis of which wholly or partly to be in a position to express opinions on area 2 (a) [whether particular documents including engineering drawings produced by the architect were deficient as being either insufficiently clear or being incomplete]. 17 The difficulty, it seems to me, arises because the issue is one of degree. Since Mr Farrant has acquired specialised knowledge in terms of an ability to read and understand architectural and building design and engineering drawings it would appear that he would have acquired specialised knowledge on the basis wholly or partly of which to be in a position to express opinions as to deficiencies in terms of certain types of lack of clarity in those drawings or in terms of certain types of incompleteness in those drawings. The problem lies in the detail. There may well be minutiae concerning, for example, parameters of structural steel detailing with which Mr Farrant has no familiarity and no specialised knowledge. But there will may well be matters in respect of which at a macro level, he has the specialised knowledge upon which, even if only partially, to be able to base opinions as to lack of clarity or incompleteness. For those reasons it is presently, as a matter of case management, simply not possible or practicable for the Court, in advance and at this stage of the hearing, to hand out rulings rejecting his evidence as not meeting the section 79 criteria. The proper course is to admit evidence given by him on area 2 (a) and to treat with the difficulties of degree as a matter of weight. 18 It is appropriate to further note in this regard that the third defendant has sought to thumbnail sketch areas in respect of which Mr Farrant is said not to have acquired relevant specialised knowledge as including: · the adequacy of design methodology [that is to say whether drawings required further detail before tender or construction]; · the resolution of design issues [that is to say whether there were defects in the drawings].