Case: Sampi v State of Western Australia [2005] FCA 777
Outcome: referred to
recognition of the place of expert economic assistance in the manner described by Professor Brunt means that often the point of the expert opinion is to give a form or construct to the facts. It may appear to be an argument put by the witness. So it is. The discourse is not connected with the ascertainment of an identifiable truth in which task the Court is to be helped by the views of the expert in a specialised field. It is not, for example, the process of ascertaining the nature of a chemical reaction or the existence of conditions suitable for combustion. The view or argument as to the proper way to analyse facts in the world from the perspective of a social science is essentially argumentative. That does not mean intellectual rigour, honesty and a willingness to engage in discourse are not required. But it does mean that it may be an empty or meaningless statement to say that an expert should be criticised in this field for "putting an argument" as opposed to "giving an opinion". In this respect, regard should be had to the comments of French J in Sampi v State of Western Australia [2005] FCA 777 at [792] - [793] where his Honour said in dealing with the anthropological evidence in native title cases: Aspects of the reports offered what might properly be called argumentative or taxonomical conclusions or inferences relevant to the claimed determination of native title. To call them such is not necessarily to denigrate them. The judgment of the Court in determining the application is in part evaluative. The Federal Court Rules recognise that there are aspects of so called expert testimony which are argumentative and can be treated as submission. Order 10 r 1(2)(j) provides: 'Without prejudice to the generality of sub-rule (1) or (1A) the Court may ... (j) in proceedings in which a party seeks to rely on the opinion of a person involving a subject in which the person has specialist qualifications, direct that all or part of such opinion be received by way of submission in such manner and form as the Court may think fit, whether or not the opinion would be admissible as evidence.' The rule of court was developed in part to respond to concerns about the way in which rules of evidence might lead to the exclusion of helpful economic testimony in competition law cases. Economic experts typically offer opinions about questions such as market definition relevant to the application of particular provisions of the Trade Practices Act 1974 (Cth). Such opinion is by way of characterisation of primary evidence and is essentially argumentative in character albeit the characterisation is informed by relevant expertise. An anthropologist, as in the present case, may offer an opinion on whether a particular group of people constitute a distinct or discrete society of persons. The nature of the taxonomical exercise is conceptually similar to that undertaken by the economist. There is potentially some tension between the recognition that expert testimony may have the character of submission and the Practice Direction relating to expert witnesses which contemplates acceptance by the expert of a duty to the court in providing opinion evidence and which rejects the proposition that the expert is simply a 'hired gun' for the party who calls him or her. That tension and associated difficulty in the way of accepting expert testimony as evidence can arise where the opinion offered becomes advocacy for a particular outcome. For the above reasons, I conclude that the Commission is entitled to relief arising from contraventions of the Act by Woolworths of s 45(2)(a)(i) and (b)(i) in respect of the Ettamogah and Global Beer episodes and of s 45(2)(a)(ii) and (b)(ii) in respect of all four episodes. It is appropriate to require the Commission to formulate the orders it seeks to reflect my reasons. Prima facie , it would appear to me that the Commission is entitled to declarations of contravention. Whether injunctive relief is appropriate, in the light of the changes to the Liquor Act , may be debatable. The question of penalty also arises. The parties will need to give some attention to a regime for any further evidence (and whether that is appropriate) and a hearing on that issue. An appropriately framed order under Order 29 of the Federal Court Rules should be considered. The question of the timing of the penalty hearing should be addressed by the parties. Subject to argument, I would not be in favour of delaying that until the outcome of any appeal. I will leave these orders to be addressed by the parties and the matter can be discussed on a later occasion. Some orders, do however, need to be made now. I will mark Exhibit AA4 and Administrative Exhibit A14 and make the rulings in relation to Administrative Exhibits A13 and A14 that I have indicated. Also, a significant body of evidence, mainly documentary evidence, was admitted subject to an order under s 50 of the Federal Court of Australia Act 1976 based on commercial confidentiality. I do not propose to vary those orders unless requested to do so. However, if any person, whether Woolworths or Liquorland, or anyone else, seeks to have any part of my reasons not made available to the public, that person will have to persuade me, with evidence, that the administration of justice requires that course, in circumstances where the relevant evidence remains the subject of a s 50 order. To preserve the positions, I will limit, until further order, the publication of some of my reasons on market definition. One paragraph [728] will be distilled from Woolworths and Liquorland material. I will make it confidential to both parties. It appears to be benign, but if I should further disaggregate it, I should be told by Woolworths and Liquorland.