Hindsight evidence: Corporate plaintiffs

Although not an injury compensation claim, In the matter of Metal Storm Limited (in liquidation) (receivers and managers appointed) (No 2) [2019] NSWSC 1682 (available on JADE) is of interest for its consideration of the inadmissibility of evidence by reason of section 5D(3)(b) of the Civil Liability Act 2002 (NSW) or section 11(3)(b) of the Civil Liability Act 2003 (Qld), being hindsight evidence as to what a corporate plaintiff would have done differently if the defendant had not been negligent.

Dealing with an objection to the evidence (and ultimately admitting the evidence), the court held at [30]:

Whilst a corporation is an abstract concept, it is not without voice. A corporation can make a statement through its officers or authorised representatives. Where the admissibility of statements containing hindsight evidence is in question, then the answer must be whether the statement of the natural person is a statement “made by the person” who suffered harm, that is, the corporation. In some cases, this will be obvious: a sole director and shareholder is effectively the same thing as the corporation and a statement by them may readily be considered to be a statement made by the corporation. A statement by a former, disenchanted chair of the board of a large publicly listed corporation may be a different matter entirely. A statement by a shadow director may be different again. It may be the case that, if objection is taken to the admissibility of hindsight evidence sought to be given by a person with a past or present association with a corporate plaintiff then a voir dire will be needed to ascertain whether a statement by that person is a statement “by” the corporation under section 5D(3)(b). If it is, then the evidence is not admissible.

And at [38]:

Having regard to this evidence, can Mr Easton’s statements of hindsight evidence be considered to be a statement “made by the person” who suffered harm, that is, ASOF. On the available evidence, can Mr Easton be regarded as ASOF’s sole director, “guiding mind”, director, person responsible for the project in question or decision maker, or is he more distant in the nature of an employee of a related company giving evidence in a sufficient dispassionate capacity that his statements cannot be considered to be a statement made by ASOF? On the evidence available to me, I am not satisfied that a statement made by Mr Easton is a statement made by ASOF. There is insufficient evidence as to the nature of ASOF, its relationship with The Lind Partners LLC and its relationship with Mr Easton for me to be satisfied that this is the case. Accordingly, I admit the hindsight evidence and will give it appropriate weight consistently with Chappel v Hart and Rosenberg v Percival.