Case: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893 ; (2003) 130 FCR 424
Outcome: cited
reports and supplementary reports numbered 30 (some were by joint authors) and were contained in 34 volumes, some of them quite thick. The 1426 evidential objections to the reports were the subject of my judgment in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893 ; (2003) 130 FCR 424 (' Harrington-Smith v Western Australia (No 7) '). Pursuant to directions made under Order 34A of the Federal Court Rules ( 'FCRs'), after the filing and service of experts' reports, but prior to the hearing of the expert evidence, some (unfortunately not all) expert witnesses within the same discipline conferred and produced a joint report identifying areas of agreement and disagreement. On the hearing, expert witnesses within the same discipline were sworn in immediate succession to one another, and had the opportunity in the witness box to question each other and to make summary statements of their opinions on the areas of disagreement. After that process was complete, each expert was cross-examined and re-examined in the conventional manner. I was informed from the bar table that hundreds of applications in respect of areas in the Goldfields region were filed with the National Native Title Tribunal ('NNTT') under the NTA as in force before 30 September 1998, the date of commencement of the Native Title Amendment Act 1998 (Cth) ('the Amending NTA'). (Where it is necessary to distinguish between them, I will refer to the NTA as in force before 30 September 1998 as 'the Old NTA', and to that as in force on and after that date as 'the New NTA'.) The Amending NTA had the effect that applications made to the NNTT under the Old NTA which were pending at 30 September 1998 were taken to have been made to this Court under the relevant provisions of the New NTA: see the Amending NTA, Schedule 5, Pt 3 Item 6 and Pt 9 Item 36. The non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts In Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].