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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
Fuller-Lyons v State of New South Wales (No 2) [2013] NSWSC 445
Hearing dates:
22, 23, 24, 26 and 29 April 2013
Decision date:
29 April 2013
Jurisdiction:
Common Law
Before:
Beech-Jones J
Decision:

Application to exclude expert evidence rejected.

Catchwords:
Opinion evidence - UCPR 31.22 - expert fails to disclose contingency fee and agreement to defer fees - assumptions not set out - expertise.
Legislation Cited:
- Evidence Act 1995 - s 138(1)(a)
- Uniform Civil Procedure Rules 2005 - 31.22, 31.23
Cases Cited:
- Fuller-Lyons v State of New South Wales (No 1) [2013] NSWSC 411
Texts Cited:
- New South Wales Law Reform Commission, Report 109: Expert Witnesses (June 2005)
- Ritchie's Uniform Civil Procedure NSW
Category:
Procedural and other rulings
Parties:
Corey Travis Fuller-Lyons (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
C.T. Barry QC, G.J. Davidson (Plaintiff)
R.J. Burbidge QC, A.C. Casselden (Defendant)
Solicitors:
AC Lawyers (Plaintiff)
Hicksons (Defendant)
File Number(s):
2008/316134

Judgment - Ex tempore

Admissibility of evidence of Mr K. Clemens

1On the fourth day of the trial senior counsel for the defendant, Mr Burbidge QC, made a further application for the exclusion of the report of an expert called by the plaintiff, Mr Klaus Clemens. As I understand it, this application also extended to the oral evidence given by Mr Clemens up to that point in time.

2At the time of the making of the application, Mr Clemens was in the third day of giving evidence. At the conclusion of oral submissions in support of the application, I announced that I rejected it. I stated that I would give my reasons at a later time. These are my reasons for so ruling.

3Mr Burbidge QC identified three matters as supporting his application, each of which he submitted only fully emerged during cross-examination of Mr Clemens. The first concerned a failure on the part of Mr Clemens to disclose his fee arrangements with the plaintiff's solicitors. On 3 May 2012 Mr Clemens sent an email to the plaintiff's solicitors. On the topic of fees, the email stated:

"My daily fee is $[x] per day plus GST and expenses payable at time of settlement of the matter. As a guide a large matter I undertook recently involved three lever arch folders of material and cost the successful client $75K. References can be provided on request."

It was apparent from the terms of that email that this was stated by Mr Clemens in response to a request from the solicitors to provide a copy of his "fee agreement/terms and conditions".

4It seems from the evidence that this exchange was the only written communication between Mr Clemens and the plaintiff's solicitors on the question of his fees. From this it is clear that Mr Clemens agreed to defer the payment of his fees pending the outcome of the proceedings. It is less clear whether there is an agreement to the effect that Mr Clemens will only be paid if the plaintiff obtains a settlement or a verdict in his favour. Mr Clemens' oral evidence revealed some uncertainty about that. I will not resolve that question on this application. For the purposes of the application I assume, without deciding, that it was agreed that Mr Clemens' fees are in some way contingent upon the outcome.

5Uniform Civil Procedure Rule 31.22 provides:

"Expert witness to provide details of contingency fees or deferred payment schemes
(1) A person who is engaged as an expert witness in relation to any proceedings must include information as to any arrangements under which:
(a) the charging of fees or costs by the expert witness is contingent on the outcome of the proceedings, or
(b) the payment of any fees or costs to the expert witness is to be deferred,
in, or in an annexure to, any report that he or she prepares for the purposes of the proceedings.
(2) If a report referred to in subrule (1) indicates the existence of any such arrangements, the court may direct disclosure of the terms of the engagement (including as to fees and costs)."

6According to Ritchie's Uniform Civil Procedure NSW this rule gives effect to a recommendation of the New South Wales Law Reform Commission in its 2005 report entitled "Report 109: Expert Witnesses". Its evident purpose is to ensure transparency by making it known to all that a particular expert witness may have a financial interest in the outcome of the proceedings.

7What is not manifest is the potential consequence of breaching this rule. In that regard the rule can be contrasted with UCPR 31.23 which requires that, without the leave of the Court, expert evidence may not be given unless the expert acknowledges that they have read the expert witness code of conduct and agreed to be bound by its terms.

8There is nothing in the Uniform Civil Procedure Rules which expressly empowers the Court to exclude a report provided by an expert who has failed to comply with UCPR 31.22. Arguably, a failure to comply with UCPR 31.22 might amount to a "contravention of an Australian law" within the meaning of s 138(1)(a) of the Evidence Act 1995, but even then it is difficult to see how the expert's report and oral evidence were "obtained in" contravention of such a law.

9Assuming there exists some discretionary power in the Court to exclude the report for reason of non-compliance with UCPR 31.22, I do not consider that any grounds were established for the exercise of that discretion. In his evidence Mr Clemens said he was unaware of the rule. The contrary was not suggested to him. It was not otherwise suggested that he had sought to hide the basis upon which he charged. Further, it was not suggested to him that any of the opinions expressed in his report were not opinions bona fide held by him, or that they were otherwise influenced by his supposed financial outcome in the proceedings.

10In the circumstances where I could only act upon the basis that Mr Clemens' failure to comply with UCPR 31.22 was a product of his being unaware of the terms of the rule, I do not consider that any discretionary basis for the exclusion of the report was established.

11The next basis for excluding Mr Clemens' report was said to be his supposed failure to set out various assumptions in his report. I am aware of one matter in his report that is a conclusion which was premised upon an assumption that was not expressly set out. I have already ruled upon that matter. In Fuller-Lyons v State of New South Wales (No 1) [2013] NSWSC 411 at [31], I rejected part of Mr Clemens' report. I held that Mr Clemens had failed to set out a particular assumption concerning one of his opinions, which meant that I could not be satisfied that that opinion was substantially based upon his expert knowledge. Ironically that particular opinion was cross-examined back into evidence and the assumptions that lay underneath it were thoroughly explored.

12Otherwise, during the course of the submissions in support of the further application for exclusion, I asked to be advised of the particular assumptions that had been made but not elucidated in his report. I was not provided with any detail thereof. In the absence of such detail the contention that his report was based upon a whole series of unspecified assumptions cannot be taken further and cannot lead to its exclusion.

13The third basis for exclusion, faintly pressed, concerned Mr Clemens' supposed "clear lack of demonstrated expertise in respect of matters of engineering". This contention misconceives the scope of Mr Clemens' report. Although Mr Clemens had some engineering qualifications, as I stated in Fuller-Lyons (No 1) at [21], the scope of Mr Clemens' report concerned safe railway practices. Any observations he made on engineering matters were merely incidental to his addressing the three questions identified in Fuller-Lyons (No 1) at [23].

14Finally, I note one further matter. During the course of submissions it appears to be contended that as a consequence of various answers given by Mr Clemens in cross-examination, the plaintiff's case was now confined to one or perhaps two particulars of negligence. It suffices to state that whether or not that is so is a matter that it is not appropriate for me to address at this point of the trial.

15These are my reasons for my ruling.

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Decision last updated: 01 May 2013