Case: Australian Security and Investments Commission v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764
Outcome: considered
To the extent that Mr Frick relied on the material in the Brief to Crop Expert in giving his evidence, his evidence is relevant and unobjectionable. During cross-examination much was made of the fact that Mr Frick relied upon records provided to him without ascertaining by inspection, reference to Mr Burns, or otherwise their accuracy, or whether they were a sufficient basis upon which he might give the opinions contained in his report. However: &#8226; I am satisfied by Mr Frick's evidence that in producing his report, he preferred to conduct his own investigations and utilise his own information and experience (TS 1332 ll 2-11) rather than consult with Mr Burns. I am satisfied that Mr Frick's reasons for refraining from consulting Mr Burns in relation to the material in the Brief to Crop Expert were reasonable, namely that Mr Frick did not wish to be influenced by Mr Burns, whose position had been to maximise yield, or have his thought processes influenced by anyone involved in this case (TS 1330 ll 6-7, 1332 ll 19-21). I note that in any event the material with which Mr Frick was briefed included the farm managers' reports, and that he had reference to those reports prepared by Mr Burns (TS 1330 ll 20-21) as well as his own knowledge of the orchards from his work for previous owners of the relevant properties (TS 1335 l 20). &#8226; I am not persuaded that Mr Frick's approach in basing his expert report on material provided by the respondents (which, as I have noted, is in evidence) impacted adversely on the probative value of his report or otherwise renders his opinion irrelevant. Indeed as was pointed out by Sperling J in Elliot v Ivey [1998] NSWSC 116: The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession. Thus it is that an expert witness has a much more limited role than that of a solicitor acting for a client. In particular, expert witnesses are not bound to use all information they might previously have obtained. On the contrary, expert witnesses are bound to confine their attention to specified factual assumptions which are made known to the court. The opinion is then only as good as the assumptions are established by evidence to be correct. (cf comments of Spiegelman CJ in ASIC v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764 at [171] and discussion in I Freckelton &amp; H Selby Expert Evidence (3rd ed) Lawbook Co 2005 p 629) 328 The general rule that hearsay evidence is not admissible, as recognised by s 59 Evidence Act , is relaxed in relation to expert opinions. Traditionally if expert witnesses relied on the existence or non-existence of some fact which was basic to the question on which they were asked their opinion, that fact needed to be proved by admissible evidence (JD Heydon Cross on Evidence (subscription service vol 1) Butterworths para 33825). However this so-called "basis" rule was extended at common law to allow knowledge of the expert derived from general experience to legitimately contribute to the opinion arrived at in the expert report. This knowledge derived from general experience could at common law be contrasted with specific information sought by an expert from third parties for comparative purposes as a basis for his or her opinion such information would likely be hearsay unless it were disclosed and admitted, and the resultant opinion therefore inadmissible ( English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421, Arnotts Ltd 24 FCR 313 at 350-351 and ASIC v Rich [2005] NSWCA 152 ; 218 ALR 764 at 800). 346 Fifth, the respondents in their written submissions relied upon comments of Spiegelman CJ in the New South Wales Court of Appeal in ASIC v Rich at [171], which are as follows: An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated... There will be occasions in which matters of this character are proper to be explored for the purposes of determining the weight to be given to the opinion. The mere fact that there must have been use of some extraneous material, even of the extensive character identified by his Honour, does not of itself necessarily lead to a conclusion that the evidence is of low probative value. In many cases the opinion will plainly be capable of being supported by the underlying facts proven or assumed. If so, the fact that a broader range of information may originally have been availed of would not necessarily detract to any significant degree from the probative value of the evidence given. Any such conclusion must depend on the particular circumstances of the matter under consideration.