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This approach refines the concept of the scope of an expert's "specialised knowledge" in an interesting way. Applying the High Court test, to make Dr Basden's "guesstimates" admissible he would have had to have had "specialised knowledge" of the concentration levels at Dasreef's premises. How could he have obtained such knowledge? Presumably either by conducting measurements at Dasreef or by conducting measurements in environments established as being sufficiently comparable to it. Thus his "specialised knowledge" becomes, in effect, the performance of tests to determine the underlying facts supporting his opinion. Understandably, Mr Hawchar's lawyers submitted that this approach seeks to introduce the "basis rule" into section 79. They pointed to the deliberate non-inclusion of that rule by the Law Reform Commission when the uniform evidence law was proposed, and said that the Court ought not to do now what the legislature had deliberately not done when drafting and enacting the legislation. The Court's riposte was that it was doing no such thing, that it was not concerned with what the common law had been, and that it was simply interpreting the words of the section. By contrast, Heydon J (dissenting) said that the Law Reform Commission had simply got it wrong - that it had assumed (incorrectly) that the basis rule was not part of the common law and that because the Evidence Act, which is not Code, had not abolished that rule it continued to apply along side section 79 to govern admissibility. In effect, he continued to contend for Makita v Sprowles as the appropriate test, with items 4, 5 and 6 being implied from the common law in addition to the section 79 requirements. But the majority disagreed. They said that you had to look at the words of section 79 and them alone: that they had replaced the common law. It must be said, however, that they way in which they looked at section 79 is likely to lead to the same end result as that contended for by Heydon J. The approach adopted by the Court in Dasreef provides a process by which each opinion of your chosen expert needs to be assessed. First, you need to identify the area on which an opinion is required - is it an area of specialised knowledge, and how broadly or narrowly should the relevant area of expertise be defined? Secondly, you need to ask whether your expert is sufficiently experienced/qualified in that area to express an opinion. The breadth or otherwise of the answer to the first question may determine the answer to the second. For example, Dr Basden was accepted as an expert in the measurement of respirable dust concentrations but had never measured the respirable fraction of dry ground sandstone, which was the stone worked by Mr Hawchar at Dasreef. So you need to be very careful and, according to the High Court, very specific, in identifying the area of expertise. Page 13 of 31
By the way, for those interested in the result, Mr Hawchar nevertheless held his judgment for $131,130.43. This was because the High Court (Heydon J again dissenting) said that the impugned findings of the trial judge were immaterial to the result, and that the evidence of the pathologist was sufficient to establish Dasreef's liability. In practice the decision in Dasreef may not result in many changes in the preparation of expert evidence (although it may result in counsel having to put any arguments as to objections to admissibility in a different language, with the common objection of lack of foundation being re-phrased as lack of expertise). The reason for this is that all courts now have practice rules and directions which govern their requirements for expert evidence and which apply in addition to the Evidence Act provisions. These practice rules and directions continue to require the presentation and analysis of expert evidence in the manner set out in Makita v Sprowles. Indeed, only the Federal Court has so far issued any amendments to its Practice Guidelines following Dasreef v Hawchar, and these amendments were part of the complete re-write of the Federal Court Rules which took effect on 1 August 2011. Page 14 of 31
Page 1 and 2: RECENT DEVELOPMENTS IN COMMERCIAL L
Page 3 and 4: Susan Gatford Susan practices in co
Page 5 and 6: Example Orders • On or before ___
Page 7 and 8: • Counsel for a party to cross‐
Page 9: VCAT Practice Note 2 27. If directe
Page 12 and 13: Expert Evidence Presenter: Susan Ga
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Page 16 and 17: The legislation Until recently Vict
Page 18 and 19: Section 80 is also important to rem
Page 20 and 21: Further, Professor Morton gave evid
Page 22 and 23: The High Court refused leave to app
Page 26 and 27: Court practice notes and procedural
Page 28 and 29: (3) If the expert provides to a par
Page 30 and 31: - expert evidence means the evidenc
Page 32 and 33: (A) the opinion; and (B) the factua
Page 34 and 35: (2) The Court may give any directio
Page 36 and 37: Preparing expert evidence So, again
Page 38 and 39: The retainer Once a possible expert
Page 40 and 41: them information as, apart from any
Page 42 and 43: Conclusion Preparing and presenting
Page 44 and 45: SECURITY FOR COSTS Application for
Page 46 and 47: 6. In a recent decision of Derham,
Page 48 and 49: and Execution of Process Act 1992 (
Page 50 and 51: “(H) Whether substantially the sa
Page 52 and 53: Mark-Sensing Shanghai Paper Product
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Page 56 and 57: 3 necessary, within 14 days of leav
Page 58 and 59: 5 the Judge in charge of this list,
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