The Evidence Act - Gordon & Jackson

EXPERT EVIDENCE
The Evidence Act
Section 56 - admissibility
(1) Except as otherwise provided by this Act, evidence that is relevant in a
proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible
Section 55 - relevance
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted,
could rationally affect (directly or indirectly) the assessment of the probability of the
existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence
Section 76 - opinions
The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the
existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate
or other document given or made under regulations made under an Act other than
this Act to the extent to which the regulations provide that the certificate or other
document has evidentiary effect.
Section 79 - expert opinions
If a person has specialised knowledge based on the person's training, study or
experience the opinion rule does not apply to evidence of an opinion of that person
that is wholly or substantially based on that knowledge.
see also section 80, evidence as to the ultimate issue
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The common law
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Heydon J's six requirements at [85]
1. the opinion has to be on an area that the Court accepts is an area of specialised
knowledge;
2. the witness must demonstrate that by reason of specified training, study or
experience they are an expert in that area;
3. the opinion must be on matters within that area of expertise;
4. the expert must state, and the party calling the expert must prove, the facts on which
the expert opinion is based;
5. if any facts relevant to the opinion are assumed they must be identified and proved in
some other way; and
6. the expert must explain how the opinion expressed was reached.
Items 1, 2 and 3 reflect section 79. Items 4, 5 and 6 are not expressly found in section 79,
but were assumed to operate in parallel with section 79 until recently.
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (Heydon J dissenting)
held that the common law rules 4, 5 and 6 above are not part of the test for admissibility of
expert evidence in Australian courts: the criteria set out in section 79 of the Evidence Act are
the sole determinants of admissibility.
BUT see
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd and others [2012] VSC
99 at [86] - [98]
Matthews v SPI Electricity Pty Ltd (Ruling No 9) [2012] VSC 340.
Court Rules and Codes of Conduct
Purposes: - to require early written disclosure
- to require disclosure in a way that clearly reveals any admissibility issues
- to emphasise to all concerned that the principal role of an expert is to assist
the court in reaching a more reliable decision
- to stress the need for experts to be independent
Order 44 of the Supreme, County and Magistrates' Court Rules and Form 44A;
Division 23.2 of Part 23 of the Federal Court Rules and Practice Note CM7
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Division 15.2 of the Federal Magistrates Court Rules 2001
VCAT Practice note PNVCAT 2
see also sections 37M and 37N of the Federal Court of Australia Act 1976 (Clth) and
sections 16-27 of the Civil Procedure Act 2010 (Vic)
A regime of full disclosure by experts and a duty not to mislead by silence or omission.
What's coming
sections 65F-65Q of the Civil Procedure Act 2010 (Vic) as proposed by section 10 of the
Civil Procedure Amendment Act 2012 currently before the house and due to come into
operation on or before 1 May 2013
Preparing expert evidence
1. What do you need?
what facts in issue cannot be proved with lay evidence?
2. Where do you look?
3. The retainer
4. Expert evidence and client legal privilege
sections 119, 122 and 126 of the Evidence Act
ASIC v Southcorp (2003) 46 ACSR 438
Temwell v DKGR [2003] FCA 930, [2003] FCA 967, [2003] FCA 985
Roads Corporation v Love [2010] VSC 253
5. Keep your expert at arms length
Day v Perisher Blue (2005) 62 NSWLR 731
6. Defining the playing field: instructing your experts
identify the parties and the dispute
attach copies of all relevant documents (checking that no privileged material such as
draft witness statements is disclosed)
state any assumptions you want the expert to make (and ensure sure you can prove
those assumptions)
ask the expert to set out their relevant experience
ask for an opinion - either generally or as a series of questions
ask the expert to identify the documents on which the opinion is based
give guidelines as to the form of the report you want
attach the relevant code of conduct or Court Rules
7. presenting expert evidence to the Court
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Susan Gatford, Barrister
Owen Dixon Chambers
205 William Street
Melbourne VIC 3000
Telephone: +61 3 9225 7556
Fax: +61 3 9225 6127
Email: susangatford@vicbar.com.au
Qualifications
B.Sc. (Hons). University of Melbourne
LL.B. Monash University
LL.M. University of Melbourne
Admitted to legal practice: 7 March 1994
Signed the Victorian Bar Roll: 23 May 2002
Nationally accredited mediator: 16 December 2011
Susan practices in intellectual property and general commercial law.
Following a science degree majoring in genetics and botany, Susan completed an LLB whilst working
in a range of administrative and executive roles within various Victorian Courts and the Victorian
Attorney-General's Department. She entered legal practice in 1994 with Jerrard & Stuk Lawyers, a
boutique Melbourne CBD commercial law firm, becoming Partner, Intellectual Property and
Information Technology in 1998. During her time with the firm, Susan completed a Master of Laws
with a focus on intellectual property law. She also became a registered Trade Marks Attorney.
Susan signed the bar roll in 2002. Her practice has been principally based in the Federal Courts of
Australia in Melbourne, Sydney, Brisbane and Adelaide as well as the Commercial Court of the
Supreme Court of Victoria. The majority of her work is in intellectual property but she also maintains a
general commercial practice.
Susan has conducted numerous trials both as sole counsel and with various Senior Counsel and also
many hearings at IP Australia. A number of cases that have proceeded to hearing in which she has
appeared as counsel are listed on her profile page at www.vicbar.com.au.
In addition to trial and appellate appearances, Susan is experienced in advice work, drafting
pleadings, appearing in interlocutory applications and at mediations. She recently gained national
accreditation as a mediator.
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