Case: Quick v Stoland Pty Ltd (1998) 87 FCR 371
Outcome: discussed
His Honour observed at [24] - [25] that 'the Evidence Act does not, in terms, require, as a condition of admissibility, that an expert witness state distinctly and fully the facts assumed as the basis of his or her opinion: cf ALRC Report No 26 ('Evidence') vol 1, par 750; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374 per Branson J; Daniel v State of Western Australia (2000) 178 ALR 542 (RD Nicholson J) at [5]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 per Branson J at [10]. But expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted: cf Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 648-649. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted. If I cannot discern in a report, distinguishing between them, the expert's opinion and all facts assumed by the expert on which that opinion is based, I will not be able to be satisfied: &#8226; that the assumed facts are, to a sufficient degree, the actual facts as I find them to be, to make that opinion "relevant" for the purposes of s 56 of the Evidence Act (cf Quick at 374 per Branson J; Sydneywide at [14] per Branson J); or &#8226; (perhaps) that the opinion proffered is one substantially based on the expert's specialised knowledge, for the purposes of s 79 of the Evidence Act (cf Makita at [85] per Heydon JA) While perhaps it cannot be said that in all cases evidence of expert opinion will be inadmissible if an expert does not separately list all the factual assumptions underlying his or her report, if this is not done, there is a substantial risk that the court will not be able to be satisfied on reading the report, as to what they were, with the result that the opinion will be inadmissible. If the expert does not state and distinguish between all the factual assumptions underlying the opinion and the opinion itself, can I be satisfied that the two criteria of admissibility mentioned are met? ' 472 At least in the context of expert anthropological reports, the line between an opinion and the fact upon which that opinion is based is not always clear. This is especially the case because expert anthropology reports often rely on hearsay evidence from members of the tribe itself. Judgments are made by the anthropologist about the significance of such evidence. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 162, Blackburn J said (in the context of hearsay argument) that '[t]here is no doubt a considerable difference in degree between the extent to which statements made by other persons form the basis of conclusions in clinical medicine and in anthropology'. It is trite that Australian indigenous cultures have a distinctly oral tradition, rather than one based on documentary records. This is borne out in the preparation of expert anthropology reports and genealogies. Nor is the distinction necessarily simple to draw in cases involving mathematical or scientific expert evidence. In Quick v Stoland Pty Ltd (1998) 87 FCR 371, a case involving the expert evidence of a 'qualified accountant and registered auditor with extensive experience as an insolvency practitioner', Branson J said at 375 that '[T]he distinction between evidence of "fact" and evidence of "opinion" assumes a dichotomy which is not always easy to draw'. Her Honour also referred to ALRC Report No. 26, Vol 1, para 156, where the decision of Cox J in Perry is considered.