The defendant reads the affidavit of Richard Ziade sworn 4 December 2019. Mr Ziade is a licensed builder and building consultant. Amongst other things, annexed to that affidavit is a letter of instructions given to him from a representative of the defendant dated 2 October 2013, and a report he prepared dated 3 November 2013.
The plaintiff objects to the admissibility of the affidavit insofar as it annexes Mr Ziade's report dated 3 November 2013 (his 'November 2013 report'). The ground of objection is that the November 2013 report was not prepared in accordance with the procedural requirements set by r 31.23(1) of the Uniform Civil Procedures Rules 2005 (NSW) ('UCPR'). There is no dispute that this contention is correct, but it is also the case that in his affidavit, Mr Ziade deposed that he agreed to be bound by the Expert Code of Conduct ('the Code').
That being so, the defendant presses for the admissibility of the report under r 31.23(3) of the UCPR. That provision states:
"Unless the court otherwise orders, an expert report may not be admitted in evidence unless the report contains an acknowledgement by the expert witness by whom it was prepared that he or she has read the Code of Conduct and agrees to be bound by it."
Mr Ziade prepared another report, dated 20 November 2019, whose content was primarily directed to responding to a report prepared by the plaintiff's building expert, Mr Bournelis. Save for some cross-referencing to his earlier report, he did not seek to reproduce within that second report the content of his November 2013 report. No objection was taken by the plaintiff to this second report. Mr Ziade also was party to a joint report with Mr Bournelis (and Mr Targett) dated 30 October 2020, in which he adhered to his opinions from his November 2013 report.
In support of its application, the defendant relied upon another affidavit from Mr Ziade, sworn on 4 November 2020. In it, Mr Ziade deposed to his significant familiarity with the Code prior to preparing his November 2013 report; as well as his experience as an expert witness prior to that time. He also deposed to having in mind, whenever he is preparing a report for the Court, the requirements of the Code. In particular, he asserted that he is always conscious when expressing opinions not to do so as an advocate for a party or the entity retaining him, and he also indicated his practice that if ever a matter arose in which he felt that he was not qualified to opine, of if there was an insufficiency in material, he would point that out, by necessary qualification to the opinions, in his report.
The defendant relies upon this evidence to found the submission that even though he did not expressly refer to the Code in the November 2013 report, Mr Ziade nevertheless had its contents in his mind. Further, as he had also indicated in his affidavit of 4 December 2019, he has gone back to his November 2013 report, expressly adverted to the Code and Mr Ziade has affirmed that with the benefit of that consideration, in no way does he wish to alter what he said in his November 2013 report.
Mr Ziade was cross-examined on the voir dire about his affidavit dated 4 November 2020. The effect of this was partly to suggest that he may have overstated the position in his affidavit when he gave evidence at one point in his November 2013 report referring to 'bodily distortion' when, in his subsequent report, he had disclaimed expertise in the subject of bodily movement. It was implied that there was some inconsistency in this statement of position. Mr Ziade did not accept that there was any inconsistency. On that particular matter, if there was any inconsistency, of which I am very doubtful, it was only very slight. He was also cross-examined to the effect that his report fell short in specifying some of the matters that the Code suggests should be spelt out in a report, including, not least the acknowledgement of adherence to the Code, but also a declaration of the inquiries the expert made in providing the opinion.
What was apparent, and not seriously disputed by Mr Ziade, was that the defendant's solicitors specifically asked him on 3 June 2019, nearly 6 years after the first report, and after the proceeding had commenced, for him to report again to the firm. The gist of the instructions was for him to give an opinion covering the same subject matter of his opinion he expressed in his November 2013 report. For that purpose, he was supplied his November 2013 report. This letter of instruction was supplemented by a further letter dated 23 October 2019, which referenced the firm's letter of 3 June 2019, and asked Mr Ziade to address the evidence of others, including but not limited to the building consultant expert engaged by the plaintiff, Mr Bournelis. When both of those letters of instruction are considered together, in my view, it was obvious to Mr Ziade that he was being asked to undertake two related or integrated tasks: (a) to revisit the subject matter of his opinions from his November 2013 report, but (b) to also do so in the light of the evidence which the defendant's solicitor had been served during the proceeding. Mr Ziade accepted that he did not engage with that task. He accepted that he declined to accept that instruction. He essentially confined himself to responding to Mr Bournelis' evidence. This, I would interpose, was in contrast with the position of Mr Targett, the engineering expert called by the defendant, who also prepared a report at a time proximate to when the incident occurred, in November 2013, but who, in response to a similar instruction from the defendant's solicitor during the course of this proceeding, prepared a report in this proceeding which manifested a careful reconsideration of his earlier opinion in the light of additional evidence obtained during this proceeding.
At any rate, it was put to Mr Ziade that in the circumstances that I have referred to, by his affidavit sworn in December 2019 he was doing no more than 'rubber stamping' the views he formed in his November 2013 report. Mr Ziade baulked at the somewhat pejorative characterisation, but accepted that although he had reviewed his November 2013 report or the opinions within it, he had done nothing to tangibly indicate that this was so, such as making any alterations.
The question is whether the Court should 'otherwise order' for the purposes of r 31.23(3).
[2]
PRINCIPLES
Rule 31.23 of the UCPR has been described as serving the purpose of ensuring that expert witnesses effectively warrant the integrity of their opinion evidence (NSW Civil Procedure Handbook, Lawbook Co 2020, [r 31.33.40] pp 766-767).
The plaintiff argues that the retrospective adherence to the Code by an expert who had already prepared a report which prima facie did not comply with the requirements of the Code is inadequate and would not justify an order under r 31.23(3) of the UCPR. He refers to a decision of Ball J in Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160, where one of the parties also sought to have a report admitted on the basis of a belated indication that an expert agreed to be bound by the Code, but the Court declined to make the order now sought by the defendant.
In Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279, Young JA (Beazley JA and Handley AJA agreeing) alluded to the proposition of the primary judge that in preparing reports without having agreed to be bound by the Code, there is a real risk that the expert will have committed to a particular form of opinion which an ex post facto adoption of the Code cannot cure. His Honour observed that that proposition:
"…has some validity, but it must not be elevated into a general rule. Each case must be considered on its merits. The Court may consider that the assumed "real risk" is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the Court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence."
Following on from what Young JA said in Hodder Rook, in Welker, Ball J said (at [35]):
"Those circumstances include the nature of the instructions that were actually given to the expert, the expert's prior familiarity with the code, the extent to which the report on its face appears to comply with the code and the evidence subsequently given by the expert concerning the question whether he or she complied with the code at the time and whether his or her opinions have been affected by non-provision of it. It is for the party seeking to lead the evidence to satisfy the court that the non-compliance with UCPR r 31.23 has not affected the objectives of the rule, or that there are other reasons which justify a departure from it."
I respectfully adopt those principles.
I would also note that in Portal Software v Bodsworth [2005] NSWSC 1228, Brereton J (as his Honour then was) indicated at [5] that the nature of the case is also a relevant consideration: there is a higher degree of alertness to strict compliance required in a commercial cause than there is, say, in a personal injury action.
The plaintiff made the following points:
1. Mr Ziade formed concluded views about matters 6 years before his second report when litigation was not in prospect. By his affidavit sworn in December 2019, he effectively rubber-stamped the views in the November 2013 report. This meant that there was a real risk that he had committed to an opinion which the retrospective adoption of the code could not cure.
2. Mr Ziade's first report did not comply with the Code. Not only was there a lack of acknowledgment of adherence to it, but Mr Ziade did not declare the inquires he had made. In Counsel's written submissions, reference was also made to the omissions to state the assumptions and material facts relied upon and the extent to which he took into account the loss adjuster's views.
3. Although he was not challenged as to his familiarity with the Code, this was insufficient.
4. There was a concern that the information that Mr Ziade was supplied with in October 2013, namely a loss adjustor's report (with photos) which contained probably inadmissible and critical views of the credibility of the plaintiff, may have infected Mr Ziade's own views.
5. It was inexplicable that, unlike Mr Targett, Mr Ziade did not accede to the opportunity of a fresh reconsideration of his earlier opinion without reference to evidence obtained through the course of the proceeding.
The defendant, in response, submits that, firstly, Mr Ziade's evidence that he had the Code in mind should be accepted. Secondly, there was no serious concern that he should not be accepted when he said that he did not knowingly attempt to provide an opinion when not qualified to do so, without qualification. Thirdly, having regard to case management objectives, and its obligations in that regard, the plaintiff should have communicated its objection to Mr Ziade's on this basis sooner than it did. Fourthly, Mr Ziade adhered to the opinions again in the Joint Expert report, to which the plaintiff took no objection.
[3]
CONSIDERATION
Firstly, I accept that Mr Ziade honestly believed that when preparing his November 2013 report, he was doing so consistently with the spirit, if not necessarily the letter, of the requirements of the Code in mind and, implicitly, of course, that he was familiar with that Code.
Nevertheless, I am concerned that the process of the compilation of the opinion indicates omissions which adherence to the requirements of the Code may have avoided. For example, I am concerned that Mr Ziade may have been affected by communications from the loss adjuster and possibly other information, but there is no clear delineation in his November 2013 report as to what he relied upon. A feature of expert opinion evidence in a judicial proceeding is that solicitors for parties provide instructions based upon the lay evidence, or perhaps also expert evidence of other witnesses, which is anticipated will be given at the hearing. Of course, no one would assume that the evidence to sustain instructions to an expert will ultimately be admissible, but at least it is identified transparently. A vice of Mr Ziade's November 2013 report is that this has not occurred.
Secondly, I also consider that on the basis of information or assumptions which are not clearly delineated, Mr Ziade has formed opinions which he is not seriously willing to reconsider. This much is established by his unexplained decision to refuse to accede to his instructing solicitor's express instruction to him to revisit the subject matter of the opinion he had expressed in the November 2013 report in the light of lay and expert evidence. In my view, that was unreasonable and was indicative of an expert whose mind was made up and who was unwilling to at least consider the possibility that the opinions he had reached 6 years before, during which interval, I infer, he would have turned his mind to a great many other things, should be altered.
Thirdly, as was noted in Portal Software, this matter is a commercial cause, where it may be expected that greater stringency with procedural requirements to be observed.
Fourthly, and without drawing any final conclusions on the matter, there are certain indications in Mr Ziade's second report, which was ostensibly prepared for use in this proceeding, about which no objection is taken, in which Mr Ziade appears to stray beyond the normal remit of an expert into casting aspersions upon the content of the plaintiff's expert's report which would contravene one of the requirements of the Code; namely that an expert not act as an advocate for a party, such as where he uses the epithets 'exaggeration' (item 9.1.2(vi)) and 'misleading' (item 9.1.4(iii)). He even concluded his supplementary report by questioning Mr Bournelis' "objectivity". Further, it is astonishing that having been instructed by the defendant's solicitors to essentially revisit the opinions expressed in his November 2013 report with reference to adherence to the Code, Mr Ziade went on to neglect that instruction when he focussed his second report on his criticisms of Mr Bournelis. This has some salience in a context where, in his November 2013 report, Mr Ziade was privy to the inadmissible opinion of a loss adjuster regarding the plaintiff's credibility and also the content of the instruction which he received from the insurer (not a solicitor) on 2 October 2013 which was highly suggestive of the conclusions that the author of the instruction sought.
I am not convinced in the circumstances that the non-compliance with the rule is merely 'technical'.
I do not consider that the plaintiff's omission to indicate this objection prior to the hearing amounts to a waiver or that it is precluded from raising it, if it well founded. Even if the objection had been taken earlier, there is no indication as to what, if anything, the defendant may have done to cure the problem that was latent back in 2013 before the proceeding commenced.
Further, the circumstance that to some extent Mr Ziade's opinions may partly have been reproduced in later reports does not assist the defendant's case in having the Court make the order it seeks. To the contrary, in circumstances where the plaintiff has not objected (at least on the current basis of non-adherence to the Code) to later opinions by Mr Ziade, including the joint expert report, which manifest those contained in his November 2013 report, indicate that there is no serious prejudice to the defendant if the order is not made in the absolute terms sought by the defendant.
I am not prepared, therefore, to have Mr Ziade's November 2013 report admissible in relation to the opinions expressed within it.
The question in my mind is whether to make an order admitting the report, but subject to a term that its admissibility be confined to the observations that were made by Mr Ziade during his inspection in October 2013. Mr Ziade's observations were made with the benefit of specialised knowledge. Another question is whether it is practicable to sever a statement of observations from statements of opinion.
Counsel for the plaintiff indicated that he would not object to Mr Ziade's report being admitted on the basis that it be confined to his observations and not his opinions.
To take an example, the section in Mr Ziade's report titled 'Item 3 - Determination' is clearly opinion, supported by reasoning. But there are many indications in Items 1 & 2 which amount to observations and some of those, I note, have been agreed upon by the plaintiff's own building expert.
An analogy that springs to my mind is in personal injury cases where evidence from treating doctors soon after an event about their examination of an injured claimant is habitually admissible on the issue of the injuries that are sustained; but is treated by Courts distinctly from the evidence of medical experts later retained for the purposes of litigation. Here, of course, to the extent that it is possible to distinguish observations from opinion, they were formed on 22 October 2013, about 7 weeks after the event in question.
As to the Court's power, by its terms, r 31.23(3) provides a blanket prohibition upon the admissibility of a report that does not comply, unless the Court otherwise orders. Arguably, that implicitly suggests a binary choice: admissibility and non-admissibility. Nevertheless, the ability to order under the rule lies in the Court's discretion and the exercise of the discretion can be done on particular terms.
In my view, the Court would be assisted by Mr Ziade's observations, informed as they are by specialised knowledge which the trier of fact does not possess. Although it is true that observations were also made of the property by Mr Targett on the same day (22 October 2013), it appears that Mr Ziade formed his observations independently and separately from Mr Targett, and both experts have different specialties.
I am inclined to make order to admit the report but subject to the term that it be admitted only as proof of the observations formed by the expert and not as evidence of the opinions based upon the observations. I consider that I am able to distinguish these two concepts but will invite Counsel, in their final submissions, to make further arguments as to what parts of the report fall within the category of observations. With the benefit of that assistance, I will thereafter form my own conclusions as to what part of his report constitutes (admissible) perceptions and what part represents (inadmissible) opinion in my findings.
Therefore, pursuant to r 31.23, I order that the report of Mr Ziade dated 3 November 2013, which is Annexure D to Mr Ziade's affidavit dated 4 December 2019, is admitted but on terms that its admissibility is confined only to the observations referred to in that report.
[4]
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Decision last updated: 13 November 2020