Case: Evans Deakin Proprietary Limited v Sebel Furniture Limited [2003] FCA 171
Outcome: applied
helpful and reflective summary of principle in relation to the reception of expert evidence having regard to the Uniform Evidence Act (of which the Evidence Act is an exemplar), is to be found in the judgment of Allsop J, as his Honour then was, in Evans Deakin Proprietary Limited v Sebel Furniture Limited [2003] FCA 171 at [670] . His Honour there observed: Central to the orderly and admissible presentation of any expert evidence is the clear identification of the opinions that the expert seeks to present. This is a separate question from whether, for the opinions of the expert to be admissible, the basis of the opinions on the assumed facts must be set out, about which there may be different views expressed in Makita and Quick v Stoland . I think, however, any such difference is unlikely, in most cases, to be of significance in the light, in particular, of s 135 of the Evidence Act and its likely application to disembodied and unsubstantiated expressions of opinion, a matter to which reference was made in Quick v Stoland . If I may say so, without intending to put to one side the comprehensive reasons of Heydon JA in Makita or the careful reasons of the Judges in Quick v Stoland, in this case I particularly bear in mind what Gleeson CJ said in HG v The Queen at 727: "The opinions of Mr McCombie were never expressed in admissible form." And then his Honour emphasised this: An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Then a little later: Argument in this Court proceeded on the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Then again Allsop J emphasised this in Gleeson CJ's reasons in HG v The Queen [1999] HCA 2 at [39] : Even so, the provisions of section 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. This particular passage goes to the second basis upon which objection is taken to Mr Tait's opinion, which is that it is non-compliant with the requirements of the exception to the opinion rule, found in s 79 of the Evidence Act . Though initially, on the face of the report itself, I was apprehensive as to whether Mr Tait had exposed any particular expertise in relation to fish ecology and biology as applied to lungfish, I am satisfied, having regard to his supplementation of his experience in the affidavit filed this morning by leave, that he does have experience in relation to the ecology and management issues associated with the passage of freshwater fish, including lungfish, over barriers. The difficulty is that his report, as I have observed, ranges much more widely than the issues on the pleadings. Further, insofar as section 4 in particular of the report is concerned, that appears to be but a mere collation, as opposed to, overtly, the views of someone experienced with lungfish enlarging upon, by reference to his own specialised knowledge, the views of others which he regards as correct and appropriately included by way of highlighting particular qualities of the lungfish. There is also the vice elsewhere evident in the report, insofar as it may be relevant, of not making plain what is fact and what is opinion.