“Remarkable timing” and “striking similarity”

Background

A company that operated a large e-commerce business selling Chinese-sourced products was hit by resignations: three employees left to join a competitor.

The former employer commenced proceeding against those employees claiming that they had breached their duties to maintain the confidentiality of important information.

As part of its case the former employer arranged for a report “concerning the use and treatment of information pertaining to the identities and details of suppliers in China” from an expert who ran a business helping clients source products from Chinese suppliers and was also the author of a book on the subject.

A “remarkable timeline”

The Court paid attention to a timeline that it described as “remarkable” – the expert had delivered a sixteen page report the day after receiving her letter of instruction.

Under cross examination the expert initially claimed that she had prepared the report “within 24 hours” of receipt of instructions but from her later evidence – described as “unsatisfactory” and “at times confusing” – it became clear not only that the preparation had begun much earlier, but also that the report was “a collaboration” between her, and the lawyers that engaged her.

A “striking similarity”

The Court also recognised what was described as a “striking similarity” between a paragraph in the expert report and a paragraph in one of the witness statements, from which it inferred that the “sentences were drafted by the same person, in this case, one or more lawyers.”

Conclusion on the expert evidence

In New Aim Pty Ltd v Leung [2022] FCA 722 the Court found:

  • It might be “perfectly appropriate” for an expert’s report to be settled in an admissible form by someone other than the expert – especially where the expert was unfamiliar with the form and content requirements – but if so, the fact of such assistance, details of all relevant correspondence, and a summary of any oral advice, should be disclosed.
  • It wasn’t clear who was responsible for drafting which parts of the report, but “most of the report was, at least initially, the product of drafting by the lawyers for the applicant” albeit that it was based on material of a non-specific nature provided by the expert.
  • What had occurred in this case “went well beyond permissible guidance” about admissibility.
  • The Court could not be satisfied that the opinions in the report “truly represented the expert’s honest and independent opinions” and so the report could not be admitted to evidence. The concerns were so pronounced that they also tainted the expert’s oral evidence, which the Court also rejected.

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