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Federal Court of Australia |
Last Updated: 19 February 2004
FEDERAL COURT OF AUSTRALIA
Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 116
KAREN
CAREY-HAZELL v GETZ BROS AND CO (AUST) PTY LTD, PETER THOMPSON and TREVOR
NICHOLLS
W75 OF 2001
KIEFEL J
PERTH
17 FEBRUARY 2004
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KAREN CAREY-HAZELL
APPLICANT |
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AND:
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GETZ BROS AND CO (AUST) PTY LTD
FIRST RESPONDENT PETER THOMPSON SECOND RESPONDENT TREVOR NICHOLLS THIRD RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. Leave to further amend the
statement of claim is refused.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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GETZ BROS AND CO (AUST) PTY LTD
FIRST RESPONDENT PETER THOMPSON SECOND RESPONDENT TREVOR NICHOLLS THIRD RESPONDENT |
REASONS FOR JUDGMENT
1 The applicant seeks to further amend her claim for economic loss. She maintains the same basis as originally claimed, which is to say the income she would have earned as a development investment manager with her brother’s company Westpoint Pty Ltd (‘Westpoint’). The sums claimed and their method of calculation have now changed from what was a largely in-house calculation by Westpoint which relied upon commissions and other benefits paid to its managers.
2 The sums now claimed, which are lesser sums, are put forward by Mr Calder of KPMG. The proposed amendments are based upon the reception of this evidence. It must be observed at the outset that the evidence proposed to be adduced from him is not merely responsive to the respondents’ report by Mr Ashton of PPB Consulting as it was always proposed to be. If it were merely a matter of checking his rates and calculations, this might not prove seriously prejudicial to the respondents, but it is said that it is not obvious how the figures used by Mr Calder are derived, except that they are said to come from Mr Pike’s report.
3 Mr Calder has provided an opinion as to the net present value of two income streams lost to the applicant, the base at $233,000 per annum and the second at twice that. They are said to have been provided by Mr Pike. A statement by Mr Pike is attached to Mr Calder’s report. Mr Pike is a director of a human resources firm and acts as a consultant. He has worked in the area for some 10 years. His report addresses two topics: the suitability of the applicant to the role and her likely success; and an assessment of what people in such a position are likely to earn.
4 As to the first, he relies in turn upon the report of a psychologist, Mr Swanson. It is also therefore largely the basis for Mr Calder’s opinions in this area. It is obviously hearsay and inadmissible, even if one were favoured with a copy of the tests and findings undertaken by Mr Swanson and some explanation provided for the opinion given.
5 As to the second part of Mr Pike’s report, he relies upon information from the Australian Institute of Management National Salary Survey of 2003 and the Avdiev Remuneration Report of 2003 for the property industry, together with information provided by staff at seven companies presumably within the property industry. It is possible that one or both of these reports are recognised as reliable by employers and their consultants. It is not, however, said whether that is the case and the reports themselves are not produced. Insofar as they might need to be proved as a reliable survey, the report goes no way towards doing this.
6 Moreover, absent any explanation from Mr Pike as to how he arrived at his figure of $233,000, it is not possible to say that it is proved only by reference to these surveys and research and not to the information provided by the seven companies. It is submitted for the applicant that Mr Pike is able to give evidence in effect of the research undertaken by him to arrive at his opinion. This is said to be within his capacity as an expert.
7 It may firstly be observed that he has not provided the evidence of his research, nor provided a basis for its reception as such by reference to the size of the sample and the like. It seems clear enough that he has obtained information about salaries paid by these companies and it is not suggested that he is himself familiar with the figures earned by persons in the position of investment development manager or its equivalent. I would not assume that a human resources consultant would necessarily be familiar with the income attributable to all positions and that they are likely to rely from time to time upon the information they acquire.
8 His opinion is based upon facts which are necessary to be proved in the proper way. This would require evidence from those persons who provided the information and they, in turn, would need to be able to establish the recorded factual basis for their advice. None of this has been gone into. Section 60 of the Evidence Act 1995 (Cth) does not avail the applicant.
9 There are other problems with Mr Calder’s report. His figure of $233,000 does not correspond with Mr Pike’s at $254,000 but this might be able to be explained. And, putting aside matters which might be described as evidentiary problems, there are objections taken to the admissibility of his report because parts of it are irrelevant. By way of example, it is pointed out that he assumes the applicant would start work as a development investment manager in question in 1997 when 1998 is pleaded. A discount rate of 3 per cent is allowed for when, at least with respect to the second and third respondents, 6 per cent would be required under state legislation.
10 It is, however, possible that these calculations could be corrected but there would be no point in permitting that course and allowing the amendment unless the figures for income upon which they were based can be proved. At present I am unable to draw that conclusion. An additional difficulty in that regard is that it is not at all apparent why Mr Pike says commissions earned would be the same as salary. Moreover the basis for doubling the income apparently comes from an email which has not been disclosed from a Westpoint employee. It does not appear to be Mr Pike’s opinion and is clearly hearsay.
11 The only part of Mr Calder’s report which appears to be admissible is part 5 which is responsive to Mr Ashton’s report. His comments as to her ability appear to be derived from Mr Pike and the psychologist. Since I cannot disentangle his own views, I would not allow that evidence but would grant leave subject to further objection to permit questions to be put to him in chief if it is to be contended that he is in a position to express an opinion as to the applicant’s ability drawn from her level of training and experience. There is no admissible evidence which otherwise supports the amendment sought and leave to amend is refused.
Associate:
Dated: 19 February 2004
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Counsel for the Applicant:
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Mr BHK Donovan QC with Mr CP Shanahan
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Solicitor for the Applicant:
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Wojtowicz Kelly
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Counsel for the First Respondent:
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Mr NC Hutley SC with Mr D Villa
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Solicitor for the First Respondent:
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Minter Ellison
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Counsel for the Second and Third Respondents:
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Mr WS Martin QC with Mr AS Derrick
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Solicitor for the Second and Third Respondents:
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Clayton Utz
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Date of Hearing:
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17 February 2004
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Date of Judgment:
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17 February 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/116.html