Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 2)

A number of issues have arisen regarding the proposed tender, by the defendants, of a report of Mr O J Burchett, a vocational expert, to which the plaintiff has taken objection. In order to resolve those issues, it is necessary for me to firstly go to certain parts of that report.

The report was obtained by the solicitor for the first defendant on 3 September 2015. There is no dispute that it was served on the solicitors for the plaintiff on 25 November 2015. Paragraph 2 of the report makes reference to the fact that the plaintiff was referred (by the solicitors for the first defendant) to Mr Burchett "for a vocational assessment with the aim of investigating his cognitive skills and vocational interests in order to provide an independent indication of his vocational potential."

Commencing at p. 12 of the report, Mr Burchett canvassed what he described as "some of the specific options" that the plaintiff could consider as an alternative to his former work as a security officer. At the conclusion of his report at p. 18, Mr Burchett stated he agreed to be bound by the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) and that to the best of his ability, his report had been prepared in accordance with that Code. The report concluded with the words:

Mr Burchett's CV was neither attached to, nor incorporated into, his report. Moreover, the report is bereft of any reference to Mr Burchett's training, study or experience in the area in which he is said to have particular expertise.

Commencing at p. 13 of his report, Mr Burchett set out a number of observations in respect of a report of Dr Elizabeth Carter who had undertaken a vocational assessment of the plaintiff in June 2013 at the request of his (i.e. the plaintiff’s) solicitors. As events have transpired, and although the report was served, senior counsel for the plaintiff abandoned any reliance upon it. The tender of that report by the defendants was rejected by me for reasons given in an earlier judgment: Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371.

On 27 September 2017, which was day 8 of the current trial, senior counsel for the plaintiff foreshadowed an objection to the tender of Mr Burchett's report on two bases, firstly, that there was no evidence of his having any specialised knowledge based on any training, study or experience, and secondly, that there was no evidence that any of the conclusions expressed in the report were wholly or substantially based on such knowledge. It followed, in the plaintiff’s submission, that the report was inadmissible and that its tender ought be rejected.

Faced with that objection, those acting for the second defendant obtained a CV from Mr Burchett, which was then served on those representing the plaintiff. That document includes the following:

The plaintiff’s position is that notwithstanding service of Mr Burchett’s CV, the report remains inadmissible and that its tender ought be rejected. Senior counsel for the second defendant, who argued this issue on behalf of all defendants, appeared to concede that even if the CV were admitted into evidence, the report would still be inadmissible because there remains a lack of exposition by Mr Burchett of any reasoning process based upon his training, study or experience. For that reason, senior counsel for the second defendant made an application to call oral evidence from Mr Burchett to support the tender of his report. That course is also opposed by senior counsel for the plaintiff.

There are a multiplicity of issues which now arise. In order to determine them it is necessary for me to firstly refer to a number of legislative provisions.

Part 31 of the Rules contains a number of definitions which are potentially relevant. Rule 31.18, in particular, contains the following:

Rule 31.28 of the Rules governs the disclosure and service of (inter alia) experts’ reports and is in the following terms:

Rule 31.27 of the Rules sets out the requirements for an expert report in the following terms:

Also relevant to the resolution of the present issues are the provisions of s. 79 of the Evidence Act 1995 (NSW) (‘the Act’) which are in the following terms:

Senior counsel for the second defendant effectively conceded that the report of Mr Burchett in its present form was not admissible, hence the need to adduce further oral evidence from him. The concession that the report is presently not admissible arose from the fact that although Mr Burchett’s qualifications may be set out in his CV, neither the report nor the CV demonstrate, with sufficient particularity, his training, study or experience, nor does the report explain how the opinions expressed in it are based upon that training, study or experience. It was the second defendant’s position that it ought be given the opportunity to call oral evidence from Mr Burchett to address those issues. It was submitted that leave was not required and that in the alternative, even if leave was required, any grant of leave was governed by the provisions of r. 31.28 of the Rules. It was submitted that leave should be granted under r. 31.28(4), either because the circumstances were exceptional [r. 31.28(4)(a)] and/or because the evidence sought to be adduced was by way of “update” and was not material going to the substance of the report [r. 31.28(4)(b)].

Senior counsel for the second defendant further submitted that the CV which was tendered on the present application pointed generally to Mr Burchett having the necessary degree of training, study or experience, and that this was a factor bearing upon the exercise of any discretion. It was submitted that such factor favoured both the oral evidence and the report being admitted, and that there was no prejudice to the plaintiff, particularly in circumstances where the plaintiff’s representatives had been in possession of the report since 2015, and where no issue had been taken in respect of Mr Burchett’s expertise, or the admissibility of the report itself, until a matter of days ago.

Senior counsel for the plaintiff submitted that the report in its present form was plainly inadmissible because it failed to articulate how the opinion which was expressed in it was based on Mr Burchett’s training, study or experience. He submitted that in the circumstances, the report was not an “expert report” within the meaning of the definition in the Rules and that as a consequence, the Rules had no application to the resolution of the present issues. Although not expressly stated, the submissions advanced by senior counsel for the plaintiff necessarily encompassed the proposition that if the report were not an expert report, then the provisions of r. 31.28 in particular would have no application.

Senior counsel further submitted that it would be prejudicial to allow any oral evidence from Mr Burchett to be given at this stage. He submitted, in particular, that (to put it bluntly) the plaintiff's representatives did not know what the evidence would be, and that the Rules provided a regime for dealing with expert evidence generally. It was further submitted that a particular forensic decision had been made on the basis of the report of Mr Burchett being found to be inadmissible, namely a decision to no longer rely on the report of Dr Carter.

Fundamentally, the admissibility of expert opinion evidence is governed by s. 79 of the Act which I have previously set out. In order to be admissible under s. 79, evidence of expert opinion must satisfy two principal criteria, namely:

Even when the CV is taken into account, the report of Mr Burchett in its present form, fails, at the very least, to satisfy the second of those two criteria and is not admissible. That particular shortcoming has given rise to the application that oral evidence be adduced.

Moreover, and having regard to the various definitions contained within the Rules, I am not satisfied that Mr Burchett, on the state of the present evidence at least, is an “expert” as defined. Mr Burchett may well have some knowledge of the matters, or some of the matters, set out in his report. What his experience may be, and how that experience is said to allow him to express the opinions that he has expressed, is not articulated in the report. In those circumstances, I am not satisfied that Mr Burchett is an expert. Accordingly, his report, at least in its present form, is not an “expert report” within the meaning of the Rules. If Mr Burchett is not an expert, and if his report is not an expert report, then it must follow that the provisions of r. 31.28 have no bearing upon the present circumstances, and in particular have no bearing upon resolving the issue of whether or not the foreshadowed evidence should be allowed.

It follows that in my view, it is not a question of whether leave should be granted pursuant to r. 31.28(4) to allow the first defendant to call oral evidence from Mr Burchett. The questions posed are more fundamental:

Obviously, I have not heard the evidence which is sought to be adduced. However, the factual outline that I have provided will give some general idea of the issues to which it would go if it were permitted. The purpose of adducing it would appear to be to render (or to seek to render) admissible, evidence which is not presently admissible, namely Mr Burchett’s report. Bearing in mind my understanding of the issues to which the evidence goes, I am prepared to proceed on the assumption that it is relevant within the meaning of s. 55 of the Act and otherwise admissible. In those circumstances, the question becomes whether or not it ought be excluded in the exercise of my discretion under s. 135 of the Act which is in the following terms:

Before considering the provisions of s. 135 as they apply to the facts of the present case, a number of observations should be made in relation to its operation.

Firstly, the section requires me to carry out a balancing exercise, the nature of which was set out in Dyldam Holdings Pty Limited v Jones [2008] NSWCA 56 at [78].

Secondly, in order to exercise the discretion conferred by s. 135 and exclude the evidence, I am not required to conclude that the probative value of the evidence is substantially outweighed by unfair prejudice. I am required only to come to the view that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial: Seven Network Limited v News Limited (No 8) [2005] FCA 1348; (2005) 224 ALR 317 at [16].

Thirdly, it is important to bear in mind that even if evidence is prejudicial in the sense that it is adverse to a party's case, that that does not lead to a conclusion that there is a danger that it might be unfairly prejudicial.

Finally, procedural defaults such as the failure of a party to serve material upon which that party later seeks to rely can give rise to a danger of unfair prejudice: Haoui v The Queen [2008] NSWCCA 209; R v Rice (No 4) [2014] NSWSC 1525; R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364. I note in passing that each of those authorities dealt with s. 137 of the Act because they were decisions made in criminal proceedings. However, s. 137, s. 135, speaks of the danger of unfair prejudice. Accordingly, those authorities remain relevant in considering and resolving the present issues.

Bearing those matters in mind, I turn firstly to an assessment of the probative value of the evidence. As I have said, I am not aware of its precise nature, but I proceed on the assumption that it will go to the issues that I have already identified. I am prepared to accept in those circumstances, even without hearing it, that its probative value is likely to be reasonably high. However, I am satisfied that such probative value is substantially outweighed by the danger of unfair prejudice to the plaintiff, such that it should be excluded. This is so for a number of reasons.

Firstly, the evidence goes directly to the ultimate admissibility of Mr Burchett's opinion. That is obviously not a peripheral matter. If the evidence were allowed, the plaintiff would find himself in a position where he was being required to meet, for the first time, evidence of which he was previously unaware, without having any detail of what Mr Burchett was going to say.

Secondly, that position would be confronted by the plaintiff against a background of a regime in the Rules which provides for the service, in advance, of evidence of expert opinion. In those circumstances, the degree of unfair prejudice already faced by the plaintiff is heightened.

Thirdly, on the material which is presently before me, Mr Burchett's report was obtained two years ago. For the reasons I have already articulated, its form is plainly inadmissible. The regime set by the Rules imposes obligations, both on experts and parties to litigation of this nature, to ensure that expert evidence is produced and served in a particular way. In the present case that regime, at least as far as it governs the admissibility or form of expert reports, has not been adhered to.

Fourthly, it is no answer to say that the objection to Mr Burchett’s report which is now advanced by the plaintiff was only recently foreshadowed. Absent any specific order (no such order having been made in the present case) it could be reasonably expected that like any other evidence, objection might be taken to it at the time that it was tendered. That is precisely what happened in the present case.

Fifthly, the danger of unfair prejudice which I have already identified is compounded by the fact that prima facie, a decision was made by senior counsel for the plaintiff (on the basis of the report of Mr Burchett not being admitted) that certain other evidence, namely the report of Dr Carter, would not be relied upon. Significantly, the report of Dr Carter and the report of Mr Burchett go to the same general issue.

In all of these circumstances, to allow further oral evidence to be adduced which, if accepted, might render admissible a report which is plainly inadmissible, would in my view give rise to a danger of unfair prejudice to the plaintiff which substantially outweighs any probative value that the evidence might have.

Accordingly, the tender of Mr Burchett's report is rejected and the application to lead further evidence from Mr Burchett is refused.