Chaina v Presbyterian Church (NSW) Property Trust (No. 6)

Judgment

1. [1]

   The Plaintiffs bring these proceedings against the Presbyterian Church and others arising out of the death of Nathan Chaina, the son of the Second and Third Plaintiffs and the brother of the First Plaintiff, whilst on a school hike in the Morton National Park on the weekend of 23 and 24 October 1999. The Fourth and Fifth Plaintiffs are companies controlled by the Second and Third Plaintiffs and were in the business of producing chemical speciality products and systems for the industrial laundry, food processing, food service, health care, hospitality and general industry sectors. Those companies bring per quod servitium amisit claims by reason of the nervous shock suffered by the Second and Third Plaintiffs who were, inter alia, their employees.

2. [2]

   The claims brought by the Fourth and Fifth Plaintiffs seek damages for the general decline in business and profits and reduction in future projected income of those companies. These claims involve loss of opportunity costs involving what was said to be a line or lines of products that were being developed by those companies.

3. [3]

   Initially the claim was put on the basis that the Second Plaintiff, George Chaina, had scientific qualifications that came from university and elsewhere. The case was structured on the basis of his giving expert evidence in that regard concerning the products that were then being manufactured and the products that were intended to be manufactured.

4. [4]

   On 29 September 2009 in written submissions Senior Counsel then appearing for the Plaintiffs acknowledged that the Second Plaintiff had no scientific or professional qualifications and that he had not even matriculated from high school. As a result of that admission the Plaintiffs sought to change the basis of the case by leading large amounts of lay evidence dealing with products said to have been produced by the Fourth and Fifth Plaintiffs. Over objection by the Defendants leave was given to file such evidence by Hoeben J (as he then was) who was then managing the proceedings. The material in these statements included evidence from people who had been provided with products by the Second Plaintiff concerning their assessment of those products.

5. [5]

   The hearing is initially fixed on 4 March 2013 for a six week period in which the lay evidence will be heard. At a later time expert evidence will be given.

6. [6]

   Application is now made by the Defendants under s 192A Evidence Act 1995 for rulings in advance of the hearing on much of this lay evidence. The basis of the application is that it will assist in providing a just, quick and cheap resolution of the real issues in the proceedings. Rulings on the evidence made now will enable the parties to be able to prepare the case based on those rulings. If some of the evidence is ruled inadmissible now such a ruling will narrow the basis upon which the hearing will be conducted in March.

7. [7]

   The Plaintiffs oppose the use of s 192A on the basis that this approach is premature. That is because relevance and probative value depend heavily not only on matters of direct relevance but also on issues that are indirect and from which appropriate inferences may be drawn. The Plaintiffs say that there are powerful discretionary reasons why the Court would not embark upon this process. They say that extra expense would be involved if the Plaintiffs are required to redact some or all of the statements now the subject of rulings. They say that by reason of agreements that have already been reached the evidence has been reduced and limited in any event. They say that ordinarily speaking s 192A is used in relation to expert evidence. They point to what was said by Stevenson J in Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951 and in Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953.

8. [8]

   In my opinion, what was said in those and other cases supports the view to which I have come that I should embark on the process of making rulings in advance. In particular, I note the adoption by Stevenson J of what Biscoe J said in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]: Whether the Court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute.

9. [9]

   I also have regard to what was said by Gzell J in Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [15].

10. [10]

    I do not consider there is any basis for the view that advance rulings made under s 192A should ordinarily only be used in respect of expert evidence. The section should be broadly construed consistently with the Explanatory Memorandum to the Amending Act which introduced the section: The power to give advance rulings carries significant benefits in promoting the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty. A broad reading is also consistent with s 56 Civil Procedure Act. I also heed the concerns expressed by Gaudron J in TKWJ v The Queen (2002) 212 CLR 124 at [43] about whether such rulings will give rise to the appearance of a lack of impartiality in the judge making the rulings where the judge is later to hear the case.

11. [11]

    I consider that making advance rulings will assist the parties in knowing which of the voluminous amount of evidence served will be able to be relied upon at a hearing. That, in turn, will enable both of the parties to prepare the case accordingly and make whatever adjustments are necessary for the way the case is put and answered. Considerations of the witnesses to be called or those required for cross-examination will be relevant in that regard. A clarification of what of the lay evidence is admissible may also have a bearing on the expert evidence to be adduced by both Plaintiffs and Defendants. All of this, in turn, is likely to influence the length of the trial.

12. [12]

    A further consideration pointing to acceding to the Defendants' application is that a mediation is scheduled for sometime in February 2013. It is better that the parties know what evidence will be admitted at the hearing to assist their approaches to the mediation.

13. [13]

    By way of further background the following should be noted. The Plaintiffs' business commenced in the early 1980s. In June 1993 a fire destroyed the business premises of the Plaintiffs. Later that year litigation in relation to the fire commenced and was finally settled in 1995.

14. [14]

    Between 1995 and 1999 the Second Plaintiff claims to have developed a number of unique new domestic products and reformulated all of the industrial products. These were proposed to be launched, it is claimed, in late 1999 or 2000.

15. [15]

    As I have mentioned, Nathan died on the weekend of 23 and 24 October 1999. The present proceedings commenced in October 2002.

16. [16]

    The Defendants have divided the lay evidence into categories of objections with the categories described as follows:

17. [17]

    Reference is made in various places to a category G but no description of that category was provided.

18. [18]

    The Plaintiffs' written submissions did not respond to the written submissions of the Defendants that set out the categories above except to make arguments against the proposition that preliminary rulings should be made pursuant to s 192A. However, at an earlier time the Defendants had prepared what is entitled "Defendant's (sic) Amended Schedule of Objections to Lay Evidence of Plaintiffs". The objections made to the various statements in that document largely coincided with the objections taken in the written submissions, although there was not a complete coincidence of objection.

19. [19]

    The Plaintiffs responded to the objections in that Schedule and I have had regard to those responses in making the determinations which appear hereafter. Although, as I have said, there are some instances where further objections have been made by the Defendants in the present submissions, the nature of the objections is covered by objections already made and answered in the Defendants' Amended Schedule. In that way I have had the benefit of the Plaintiff's response to an objection of that particular character.

20. [20]

    I turn now to consider particular objections to evidence.

1. [21]

   As has been indicated in a number of places there is force in the Defendants' objection to the lack of precise identification of products given to friends and family for testing or, from the evidence of Lilly Sukkar, being tested and/or produced by the Plaintiffs. Merely speaking of "household products" or even specific classes of household products is likely to be inadequate to establish matters necessary to show the loss of opportunity or greater profits than might have been made if the Second and Third Plaintiffs were able to work to their pre-accident extent.

2. [22]

   I have allowed evidence concerning the provision of the household products to friends and relatives only insofar as they go to the issue of whether such products were being manufactured. That without anything more would not sustain the claims being made for loss of profits and/or opportunity of profits. Without hearing all of the factual evidence a final ruling on the relevance of this evidence which I have allowed cannot be made.

3. [23]

   If there is a lack of clarity from any of the rulings I have given the parties are at liberty to re-list the matter in the new term to deal with the difficulties. Otherwise the rulings are as I have indicated above. 19 July 2013 - Heading "Statement of David Redfern dated 6 July 2006" amended to read "Supplementary Statement of David Redfern dated 11 November 2011". Amended paragraphs: Paragraph 20 amended.