Case: Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559
Outcome: cited
Branson J in Quick v Stoland explained in detail the legislative rationale for this position, and Lindgren J in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 summarised in detail the historical background including the Australian Law Reform Commission's Interim Report on Evidence (ALRC No 26, 1985). It is unnecessary to repeat the reasoning of their Honours here. 336 Finally, in relation to packout rates and validation of the data in the DPI publication, this is not a situation where Mr Frick is relying on data in, for example, peer-reviewed journal articles and texts (cf discussion in Alphapharm [2008] FCA 559 at [779] ). 337 In my view expert evidence of Mr Frick as to yields and packout rates is relevant in this case in the sense defined in s 55(1). It is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. It is prima facie admissible. The key question is whether the Court should exercise its discretion under s 135 to exclude the use of Mr Frick's expert report in light of the circumstances I have already outlined, because its probative value is substantially outweighed by the danger that it might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 350 Seventh, as I observed earlier in this judgment this is not a situation where the expert has sought to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, and which is hearsay, as a basis for the expert opinion (cf for example Bodney [2008] FCAFC 63 at [92] , Alphapharm [2008] FCA 63 at [762] ). 351 Finally, while I do not fault Mr Frick's motives in seeking to verify that the packout figures provided to him were achievable and to validate the yield information before him, and while I understand his reasons for not wishing to disclose his industry sources, this is not a situation where, for example, he has himself produced a report on the basis of undisclosed data which has been published in a reputable journal and subject to peer review and independent criticism (cf discussion in Alphapharm [2008] FCA 63 at [776] - [779] ). Mr Frick's expertise may have qualified him to know which (unidentified) growers and industry consultants to contact, and to ask for relevant information upon which he could base his opinion, however it is not reasonable that the applicants in the context of these proceedings should be expected to accept such a process without question, where sources were not identified. 352 Overall, I consider that there is such a blurring in Mr Frick's expert report of unidentified facts from unidentified sources, material from admitted sources, and his own specialist knowledge that its probative value is exceeded by the prejudice to the applicants and the risk that it is misleading or confusing. I am unable to extricate from the report his opinion, as distinct from unidentified hearsay evidence upon which his opinion may be based. 353 For the reasons I have given I exclude Mr Frick's expert report from evidence pursuant to s 135 Evidence Act .