Haissam Assafiri v The Shell Company of Australia

[2010] NSWSC 930

CITATION:	Haissam Assafiri v The Shell Company of Australia [2010] NSWSC 930
HEARING DATE(S):	18/08/10
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	18 August 2010
DECISION:	I reject the affidavit.
CATCHWORDS:	EVIDENCE - opinion evidence - report of expert does not state assumed or observed facts - no indication of reasoning process - unfair to opposing party - report rejected.
LEGISLATION CITED:	Evidence Act 1995 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 The Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157
PARTIES:	Haissam Assafiri (Plaintiff) The Shell Company of Australia Limited (Defendant)
FILE NUMBER(S):	SC 2007/266565
COUNSEL:	F C Corsaro SC / M Auld (Plaintiff) R P L Lancaster SC / N Bilinsky (Defendant)
SOLICITORS:	Koffels Pty Limited (Plaintiff) Allens Arthur Robinson (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

18 August 2010 (ex tempore - revised 19 August 2010)

2007/266565 HAISSAM ASSAFIRI v THE SHELL COMPANY OF AUSTRALIA LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff relies upon an affidavit of Mr Frank Mosca, an architect. Objection is taken to that affidavit on an number of bases. One is that it is not evidence in reply. I think that it is, essentially for the brief reasons that I indicated yesterday in relation to the evidence of Mr Candrakis.

2 The next ground of objection is as to expertise. It is clear that Mr Mosca has academic and practical qualifications as an architect. His curriculum vitae, which for this purpose I assume to be correct, indicates the range of works that he has done. I am satisfied that, on the face of his curriculum vitae, he is qualified to give evidence in relation to matters of an architectural nature. It is however by no means clear that the brief report relied upon could be so described.

3 The next two grounds of objection relate to want of any demonstration of an intellectual basis for, or methodology employed to reach, the conclusions expressed and as to the facts observed or assumed upon which the opinions are based. In my view, those objections are well founded. Mr Mosca tells us in his affidavit that he has been given certain documents. He then says that he had prepared a letter setting out his views in relation to the rebuilding of the structure "and any other matters relevant". It does not appear how those views arise out of the documents to which he refers in the previous paragraph. Nor does that appear from the report.

4 There is some debate as to whether demonstration of a logical chain of reasoning based on the application of expertise to assumed or observed facts leading to the conclusions expressed is a condition of validity or a question of weight - see, in the Court of Appeal, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; and in the Full Court of the Federal Court of Australia, The Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157. If it were necessary to express a view, it would probably be appropriate to follow the guidance offered by Heydon JA in the former case. But in my view it is not necessary to do so because even if the report were technically admissible (and I have grave doubts that it is) the total want of any rational reasoning process requires that it be rejected under s 135 of the Evidence Act 1995 (NSW).

5 To admit the report would put the defendant's counsel to the task of cross-examining in an attempt to impeach the conclusions expressed, without knowing how those conclusions were reached. There is a very real risk that, in that process, the conclusions might be shown to be supported by some appropriate chain of reasoning. It is in my view entirely inappropriate to put on a report that is totally devoid of any rational process of reasoning and leave the defendant to the choice either of not cross-examining (and taking the risk that, despite what I have said, some of the opinions might be accepted) or cross-examining (and taking the risk of validating those opinions).

6 I reject the affidavit.

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