Case: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313
Outcome: cited
The factual premises upon which the opinion is based, being the material in the Brief to Crop Expert, were identified, disclosed and available to all parties, and the subject of evidence which is itself admissible ( Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 , and see discussion and cases cited in S Odgers Uniform Evidence Law (7th ed) Lawbook Co 2006). While it is preferable that the factual material upon which the expert relies be annexed to the report in compliance with the Federal Court of Australia Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia , in the circumstances of this case I do not consider Mr Frick's expert report inadmissible nor its probative value diminished because of the physical absence of the two volumes of material composing the Brief to Crop Expert from the affidavit or the expert report itself. 297 The applicants submitted further that even if Mr Frick's affidavit were admitted as evidence, the affidavit and Mr Frick's expert report were irrelevant and of no assistance to the Court in determining whether the respondents had a reasonable basis for their predictions as to future performance of the orchards. The grounds of objection raised by the applicants related specifically to Mr Frick's responses to questions during cross-examination and were as follows: &#8226; Mr Frick, in compiling his report, did not speak to Mr Burns or any other Sunstate employee (TS 1327 ll 22-27); &#8226; in compiling his report Mr Frick obtained information from "industry contacts" (TS 1327 ll 32-45); &#8226; in compiling his report Mr Frick did not visit the orchards because of his work commitments (TS 1331 ll 39-46); &#8226; in compiling his report Mr Frick took no steps to assess the accuracy of that information and simply assumed it was accurate (TS 1333 ll 5-18); &#8226; in compiling his report Mr Frick used "experienced grower information and information from other consultants" (TS 1335 ll 36-37); &#8226; Mr Frick refused to disclose the names of the persons from whom he had obtained information used in the preparation of his report (TS 1336 ll 18-47); &#8226; Mr Frick refused to identify the location of the properties from which he obtained data for the purposes of his report (TS 1339 ll 10-42); &#8226; Mr Frick failed to recognise the climatic, geographical and soil differences between the inland Central Burnett Region (upon which he based his assessment of reasonable estimates for the two orchards) and the coastal areas where the two orchards were located (TS 1339-1340). 298 Before turning to consider these objections it is helpful to first identify the factual premises of Mr Frick's expert report. Factual premises of expert report 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). 348 In my view, although these comments represent a common law position as to admissibility of expert opinion evidence as distinct from the position under the Evidence Act , they are relevant to the consideration by the Court under the Evidence Act as to the probative value of the evidence before it (cf Arnotts Ltd 24 FCR 313 at 350).