mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689
Outcome: cited
Furthermore, I am unable to discern in the evidence anything that might be regarded as proof of damages for this purpose: compare Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689. There is no claim for repairs or loss calculated by reference to the price the applicants paid for the truck and its true worth. As discussed below, the evidence led in connection with loss of profits is fundamentally flawed. There is a claim for loss of time for 73 days, which has not been proved. These observations confirm my conclusion that, as the applicants' counsel said, this cause of action can in fact add little to the applicants' primary case. 58 Mr Lowe's evidence was critical to the applicants' case. Mr Lowe was forty-nine years of age when he acquired the truck. He was a qualified mechanic and an experienced truck driver. He had more than twenty years' experience of driving a number of different heavy prime mover vehicles in long-haul interstate transport operations. Mr Lowe and his wife had begun their long-haul goods transport business over twenty years before the purchase of the truck. He had owned and operated numerous different model trucks prior to March 1998, including three Mack trucks. In September 1997, some months before the purchase of the truck in March 1998, he and his wife purchased a new Tautliner semi-trailer. The truck was to be used to transport this semi-trailer, loaded with goods. 59 On or shortly before Friday, 20 March 1998, Mr Lowe spoke to Mr Kumnick at Mack's Adelaide office about buying a new truck to replace the Mack CHR he was operating at that time. Mr Lowe and Mr Kumnick had regular dealings with one another at this time. In this circumstance, Mr Kumnick knew that the replacement truck was for use in interstate haulage. Mr Kumnick made an appraisal of Mr Lowe's Mack CHR and looked into what Mack might offer by way of a replacement.
Case: HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414
Outcome: applied
Subject to the Evidence Act 1995 (Cth), evidence that is relevant in a proceeding is admissible. In order, however, for 'expert' opinion evidence to be admissible, it must fall within s 79 of the Evidence Act 1995 (Cth). This is because opinion evidence is generally inadmissible (see s 76) but s 79 provides that: If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to the evidence of an opinion of that person that is wholly or substantially based on that knowledge. This provision enacts the common law in important respects, although it has consequences of its own. In HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at 427, Gleeson CJ said: ... the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. 192 Section 79 primarily requires: (a) identification of a relevant field of specialised knowledge; (b) a showing that, by reason of training, study or experience, the witness has that specialised knowledge; and (c) a showing that the opinion evidence of the witness is wholly or substantially based on that specialised knowledge.
Case: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 
Outcome: cited
Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 ; [2002] FCAFC 157 at [87] , where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39] . Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561 at [69] per Finn J.
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354
Outcome: cited
Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 ; [2002] FCAFC 157 at [87] , where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39] . Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561 at [69] per Finn J.
Case: Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 
Outcome: cited
Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 ; [2002] FCAFC 157 at [87] , where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39] . Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561 at [69] per Finn J.
Case: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 
Outcome: cited
Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 ; [2002] FCAFC 157 at [87] , where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39] . Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561 at [69] per Finn J.
Case: Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561
Outcome: cited
Furthermore, the facts and assumptions on which the witness bases his or her opinion must be identified and proved, and constitute a proper foundation for the opinion expressed. The field of specialised knowledge must be shown to apply to these facts or assumptions. See, generally, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 per Heydon JA and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 ; [2002] FCAFC 157 at [87] , where a Full Court of this Court observed that many of the matters on which s 79 depends involve "questions of degree, requiring the exercise of judgment". Whether or not an expert has the requisite expertise is, however, a question of fact: see Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [39] . Where an expert purports to give an opinion that lies outside the field of his specialised knowledge, the opinion will be inadmissible: see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 per Lindgren J and Henscke &amp; Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 ; [1999] FCA 1561 at [69] per Finn J.
Case: Rhoden v Wingate [2002] NSWCA 165
Outcome: cited
The proof of facts and assumptions on which an opinion is based is not always straightforward. As Heydon JA said in Rhoden v Wingate [2002] NSWCA 165 at [86] : When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. The witness must differentiate between the assumed facts on which he or she bases his or her opinion and the opinion being proffered. The witness must disclose in what way, if any, the opinion is based on information communicated by another person. If this is not done, then the opinion may be inadmissible or carry diminished weight: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348 and Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [13] . More generally, the reasoning on which the opinion is based must be sufficiently intelligible and transparent to enable the court to form its own assessment about the cogency of the opinion.
Case: Arnotts Ltd v Trade Practices Commission (1990 24 FCR 313
Outcome: cited
The proof of facts and assumptions on which an opinion is based is not always straightforward. As Heydon JA said in Rhoden v Wingate [2002] NSWCA 165 at [86] : When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. The witness must differentiate between the assumed facts on which he or she bases his or her opinion and the opinion being proffered. The witness must disclose in what way, if any, the opinion is based on information communicated by another person. If this is not done, then the opinion may be inadmissible or carry diminished weight: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348 and Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [13] . More generally, the reasoning on which the opinion is based must be sufficiently intelligible and transparent to enable the court to form its own assessment about the cogency of the opinion.
Case: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 
Outcome: cited
The proof of facts and assumptions on which an opinion is based is not always straightforward. As Heydon JA said in Rhoden v Wingate [2002] NSWCA 165 at [86] : When assessing the admissibility of expert opinions, it is not the case that an opinion is only admissible if at the close of the case of the party relying on it the evidence establishes each of the assumptions on which it is based on the balance of probabilities. The primary evidence relating to those assumptions might be controversial. Which parts of the primary evidence are to be accepted, and what the correct conclusions from the primary evidence are, are matters for the trier of fact at the end of the trial. The opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions. The witness must differentiate between the assumed facts on which he or she bases his or her opinion and the opinion being proffered. The witness must disclose in what way, if any, the opinion is based on information communicated by another person. If this is not done, then the opinion may be inadmissible or carry diminished weight: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348 and Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [13] . More generally, the reasoning on which the opinion is based must be sufficiently intelligible and transparent to enable the court to form its own assessment about the cogency of the opinion.
Case: National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68
Outcome: cited
It is also accepted that an expert witness is not an advocate for a party and has a paramount duty to the Court and not to the person retaining him: see 'Guidelines for Expert Witnesses' applicable in this Court and National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81-82 per Creswell J. A want of independence, in the case of an expert witness said to be affected by interest or bias, tends to affect the weight to be given to his or her opinion: see FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 (" FGT Custodians ") at [12] per Ormiston JA, with whom Chernov and Eames JJA agreed.
Case: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870
Outcome: cited
In the present context, the respondent also drew attention to s 135 of the Evidence Act 1995 (Cth), which confers a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; (b) be misleading or confusing; or (c) cause or result in undue waste of time. It seems that the failure of a witness to comply with relevant 'Guidelines for Expert Witnesses' may be a factor weighing in favour of the exclusion of his or her evidence, since the expert's opinion is infected by failure to understand his or her responsibilities as an expert: compare United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [15] - [19] per Campbell J. 197 The respondent objected to the admissibility of the opinion of Dr McLean on the basis that: (a) he lacked the requisite "specialised knowledge"; and/or (b) he purported to give opinion on matters outside any "specialised knowledge" he may possess as a result of his training, study or experience; and/or (c) his evidence demonstrated fundamental flaws in its factual basis or in its process of reasoning. The respondent argued that Dr McLean's evidence should be excluded entirely, alternatively, admitted only for the purpose of providing expert opinion on matters relating to the alleged vibration problems of the Lowes' truck. 198 It was apparently common ground that, as at May 2007, Dr McLean was a senior lecturer in the School of Mechanical, Materials and Mechatronics Engineering, in the Faculty of Engineering at the University of Wollongong. A University of Wollongong website stated Dr McLean's research activities to be "Bulk solids, Handling and Physical Processing" and his "area of specialisation ... machine and mechanical system dynamics and evaluation of power and drive requirements for Bulk Solid Handling and Equipment".
Case: Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136
Outcome: applied
Had a breach of the condition created by s 71 occurred, would the applicants' damages claim have been made out? The applicants' statement of claim sought damages or compensation by reference to various provisions of the TPA, including ss 73 , 75AD, 82 and 87 . At no stage in the proceeding, however, have the parties referred again to s 73. The authorities are clear that no action for damages lies under s 82 for breach of a condition implied by s 71 of the TPA: see Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 (" Austral ") at 141 per Gleeson CJ, Gummow and Hayne JJ, citing Brennan J in Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283 at 285-286. Provisions such as ss 75AD and 87 are of no assistance in this context. I accept, however, that the Court may award damages in respect of a breach of a s 71 condition by virtue of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In Austral , at 141, the joint judgment said: The claim in contract for damages for breach of obligations imposed by provisions such as ss 71 and 74 of the Trade Practices Act involved obligations that are statutorily created and take effect by a legal fiction, namely that the parties made a contract including the relevant obligations. That is how Brennan J analysed the matter in Arturi v Zupps Motors Pty Ltd. It follows that a party claiming damages for breach of such an obligation asserts a right which owes its existence to federal law thereby, in a State court, attracting the exercise of federal jurisdiction invested under s 39(2) of the Judiciary Act . If, as the High Court stated, a State court deciding a s 71 claim is exercising federal jurisdiction under s 39(2) of the Judiciary Act , then it follows that a federal court can entertain the same claim under s 39B(1A)(c) because the obligation created by s 71 "owes its existence to federal law". See also LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575. In any event, the applicants' s 52 claim would provide an independent basis for jurisdiction over the s 71 claim.
Case: Arturi v Zupps Motors Pty Ltd (1980) 49 FLR
Outcome: cited
Had a breach of the condition created by s 71 occurred, would the applicants' damages claim have been made out? The applicants' statement of claim sought damages or compensation by reference to various provisions of the TPA, including ss 73 , 75AD, 82 and 87 . At no stage in the proceeding, however, have the parties referred again to s 73. The authorities are clear that no action for damages lies under s 82 for breach of a condition implied by s 71 of the TPA: see Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 (" Austral ") at 141 per Gleeson CJ, Gummow and Hayne JJ, citing Brennan J in Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283 at 285-286. Provisions such as ss 75AD and 87 are of no assistance in this context. I accept, however, that the Court may award damages in respect of a breach of a s 71 condition by virtue of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In Austral , at 141, the joint judgment said: The claim in contract for damages for breach of obligations imposed by provisions such as ss 71 and 74 of the Trade Practices Act involved obligations that are statutorily created and take effect by a legal fiction, namely that the parties made a contract including the relevant obligations. That is how Brennan J analysed the matter in Arturi v Zupps Motors Pty Ltd. It follows that a party claiming damages for breach of such an obligation asserts a right which owes its existence to federal law thereby, in a State court, attracting the exercise of federal jurisdiction invested under s 39(2) of the Judiciary Act . If, as the High Court stated, a State court deciding a s 71 claim is exercising federal jurisdiction under s 39(2) of the Judiciary Act , then it follows that a federal court can entertain the same claim under s 39B(1A)(c) because the obligation created by s 71 "owes its existence to federal law". See also LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575. In any event, the applicants' s 52 claim would provide an independent basis for jurisdiction over the s 71 claim.
Case: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575
Outcome: cited
Had a breach of the condition created by s 71 occurred, would the applicants' damages claim have been made out? The applicants' statement of claim sought damages or compensation by reference to various provisions of the TPA, including ss 73 , 75AD, 82 and 87 . At no stage in the proceeding, however, have the parties referred again to s 73. The authorities are clear that no action for damages lies under s 82 for breach of a condition implied by s 71 of the TPA: see Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 (" Austral ") at 141 per Gleeson CJ, Gummow and Hayne JJ, citing Brennan J in Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283 at 285-286. Provisions such as ss 75AD and 87 are of no assistance in this context. I accept, however, that the Court may award damages in respect of a breach of a s 71 condition by virtue of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In Austral , at 141, the joint judgment said: The claim in contract for damages for breach of obligations imposed by provisions such as ss 71 and 74 of the Trade Practices Act involved obligations that are statutorily created and take effect by a legal fiction, namely that the parties made a contract including the relevant obligations. That is how Brennan J analysed the matter in Arturi v Zupps Motors Pty Ltd. It follows that a party claiming damages for breach of such an obligation asserts a right which owes its existence to federal law thereby, in a State court, attracting the exercise of federal jurisdiction invested under s 39(2) of the Judiciary Act . If, as the High Court stated, a State court deciding a s 71 claim is exercising federal jurisdiction under s 39(2) of the Judiciary Act , then it follows that a federal court can entertain the same claim under s 39B(1A)(c) because the obligation created by s 71 "owes its existence to federal law". See also LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575. In any event, the applicants' s 52 claim would provide an independent basis for jurisdiction over the s 71 claim.