Chaina v Presbyterian Church (NSW) Property Trust (No. 8)

This judgment deals with the supplementary statements of George Chaina of 13 July 2012 and with the statements of Rita Chaina. It should be read in connection with my earlier judgment dealing with objections to the evidence of George Chaina: Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139. Many of the objections taken to the statements of Rita Chaina are similar in substance to those taken to George Chaina's statements.

Objection is taken to paragraphs 5, 6 and 7 on the basis of form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

Paragraph 5 is rejected by reason of its form. It is a conclusion without any proper basis being demonstrated.

Paragraph 6 is rejected as hearsay.

Paragraph 7 is admitted.

Objection is taken to paragraphs 3, 5, 7, 9, 11(a) and (b), 12, 13(b) and (c), 14(b) and (c), 15, 17, 18(a), b) and (c), 19, 20, 21(b), 23, 24(b) and (c), 28(b), 30(b)-(d), 31(b) and (c), 33(b)-(d), 34(b)-(e), 37, 38(b) and (c), 39, 40, 43-48, 50, 51, 53-55, 57-67, 69-78, 80, 84-94, 96(the conversation evidence), 97-101, 103, 104, 105(b). The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

This statement elaborates on matters contained in the statement of 8 February 2010. Generally speaking, the outcome of objections to this statement is determined by the outcome of the objections to the statement of 8 February 2010.

Objection is taken to the following paragraphs: 3, 5-67, 69-73, 75, 77-85, 91, 93, 94, 96, 99-102, 104, 105, 109-118, 120-122, 124-133, 138-140, 142-145, 147-165. The bases of the objections are form, hearsay, speculation, no primary facts stated, conclusion, opinion, expert evidence, witness has not adopted the Expert Witness Code of Conduct.

This statement will be dealt with in the same manner as the statement of 26 August 2010. It is expert evidence and is rejected until the witness's expertise is accepted and it is expressed in proper form.

A general objection is taken to paragraphs 9 to 23 on the basis that they are irrelevant and of no probative value as the evidence does not concern products the subject of the proceedings. The Plaintiffs submit that the evidence is relevant as to the genesis and nature of the business and to Rita Chaina's involvement in the business.

In my opinion, the evidence is appropriate background evidence about the business and an explanation of Rita Chaina's involvement. It should not be rejected as irrelevant or having no probative value. It will be necessary to deal with specific objections to parts of these paragraphs.

A similar objection is taken to paragraphs 9 - 27, 34, 44 and 47 as was taken to paragraphs 9 - 23 of the statement of 16 August 2005. In my opinion the evidence is relevant as background evidence demonstrating how the business first came about and what was done to develop it and build it up. It is necessary, however, to consider specific objections to the evidence.

The purpose of this affidavit is set out in the first few paragraphs where Mrs Chaina says that her husband gave evidence in his statement of 2 September 2005 of research, formulation and testing over a four year period between 1995 and 1999 for certain products developed by Proton. Mrs Chaina then says that she undertook some of the testing in respect of those products and she goes on to say at paragraph 4: In this statement, I give evidence about the testing which I conducted or was otherwise involved in, in the period predominantly 1995-1999 in relation to Proton's domestic product range.

In paragraph 7 Mrs Chaina says that when she conducted testing or assisted Mr Chaina with the testing she generally used the products being tested herself and involved members of her family and friends in the testing process. She said this involved either providing the product being tested to members of family and friends who reported their subjective opinions or she had the people over to her house so that she could record the results herself. She also provided them with competitors' products to obtain their opinion as to which product they preferred.

The remainder of the affidavit deals with this testing process in relation to various different categories of product.

In her first statement of 16 August 2005 Mrs Chaina discloses that she has a Bachelor of Pharmacy from the University of Sydney and that she completed a two year course in microbiology. Thereafter she worked as a pharmacist until she commenced to work for Deluxe. She said that during the seven year period she ran a pharmacy at Condell Park she gained experience in the overall running of a small business such as account management, budgeting, marketing and financing.

There is no evidence at all suggesting that Mrs Chaina has any expertise in product testing or statistics. The evidence given in the present statement is expert evidence. Mrs Chaina has not adopted the Expert Witness Code of Conduct.

Because her expertise is not demonstrated and because, in any event, the Expert Witness Code of Conduct has not been adopted the whole of the material in the affidavit is rejected.

Further, the affidavit contains large amounts of hearsay, and the affidavit is expressed in general and conclusionary terms so that even if Mrs Chaina was allowed to put it forward as an expert it would not satisfy the requirements of either the Expert Witness Code of Conduct or the principles in Makita.

The whole of this statement is rejected on the same bases as the statement of 26 August 2010 was rejected.

I dealt with the objections to this statement in my earlier judgment (Chaina (No. 7)). For the sake of consistency I need to modify certain rulings I gave in relation to the objections to paragraphs 122 to 142. I said in respect of those paragraphs (inter alia): Some of the evidence is expert evidence and is admitted subject to it being established that the witness has expertise and subject to issues associated with the adoption of the Expert Witness Code of Conduct.

Elsewhere when dealing with objections based on the evidence being expert evidence I have rejected the evidence but given leave to the Plaintiff to apply for its reinstatement if and when Mr Chaina is shown to be an expert. For consistency that is the ruling I now intend to apply to those parts of the following paragraphs which have not already been rejected for other reasons: Paragraphs 133, 139, 140, 141 and 142.