AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd

[2009] NSWSC 1291

CITATION:	AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1291
HEARING DATE(S):	27 October 2009
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	27 October 2009
DECISION:	Report rejected, leave granted to adduce supplementary evidence on terms as to adjournment and costs
CATCHWORDS:	EVIDENCE – admissibility of expert report – where report does not sufficiently disclose rationale – leave to adduce supplementary evidence
LEGISLATION CITED:	(NSW) Evidence Act, 1995 s 79(1)
CATEGORY:	Procedural and other rulings
CASES CITED:	Makita v Sprowles (2001) 52 NSWLR 705
PARTIES:	AMI Australia Holdings Pty Ltd (first plaintiff) Advanced Medical Institute Pty Ltd (second plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Rita Almohty (second defendant) Kelly Burke (third defendant) Kate McClymont (fourth defendant)
FILE NUMBER(S):	SC 3219/09
COUNSEL:	Mr M Green w Dr E M Peden (plaintiffs) Mr D R Sibtain w Mr M A Polden (first, third & fourth defendants)
SOLICITORS:	Bruce Stewart Dimarco (plaintiffs) Johnson Winter & Slattery (first, third and fourth defendants) TressCox Lawyers (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 27 October 2009

3219/09 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd & ors

JUDGMENT (ex tempore – admissibility of Professor Day’s report)

1 HIS HONOUR: Professor Day is an eminent consultant physician specializing in clinical pharmacology and rheumatology. He has been asked by the defendants to express an opinion on the following question, “Whether use of AMI products over a period of one to two years enhances the results?” That is obviously enough a request for an opinion on a matter involving expertise.

2 Under the (NSW) Evidence Act 1995, s 79(1), if a person has specialised knowledge based on the person’s training, study or experience the opinion rule does not apply to an opinion of that person that is wholly or substantially based on that knowledge. In the course of endeavouring to answer the question posed, Professor Day says, for example:

Whether it takes two to three weeks for PE to be relieved in the case of PE is unknown to me.

And:

I am unaware of any convincing clinical trial data that provides sound clinical evidence of the effectiveness of either of these medicines in the management of PE.

And, after some pages of material that, it has to be said, does not really respond to the question, he concludes:

You asked about the claimed increasing effectiveness of intranasal sprays for ED and/or PE with continued use for one to two years. I find no published evidence of reasonable quality that supports that contention. Further, the known pharmacology and time course of plasma concentrations of all the drugs that might be included in the sprays do not suggest accumulating effectiveness over one to two years. Such a claim for a prescription of over the counter medicine would require good quality evidence obtained from rigorous clinical trials. There is no such evidence presented in the brochure or available in the literature.

3 At no point does the Professor actually answer the question he was asked. The best inference I can draw from his report is that he is unable to give a direct answer to that question. In my view, this disqualifies him as an expert from answering that question, because he simply does not have the training, study or experience to give an answer to the question which he was posed.

4 I have considered whether his report might nonetheless be admissible on the alternative basis, that although it was not the question he was asked, there is an issue in the case whether there was “no scientific evidence to support such a claim” – namely, a claim that patients would get the best results using AMI products for one to two years. Evidence of relevant literature searches by an appropriate expert in the field might well go to establishing an absence of scientific evidence to support such a claim. But I would have thought that the relevant field was someone with at least some expertise, training or experience in the field of sexual disorders, as opposed to that of clinical pharmacology.

5 Moreover, as Mr Green has argued, the report is replete with observations – some of which have already been mentioned, such as “I am unaware of any convincing clinical trial ...”, or “I find no published evidence of reasonable quality ...” which are pregnant with the suggestion that there is some such evidence, but in the witness’s opinion not of reasonable quality, or some clinical trial data, but in the witness’s opinion not convincing. It ought not be left to the cross-examiner to have to explore those matters. It would be easy enough for a witness properly instructed to set out what literature searches had been undertaken and what the results of those searches were, and the principles in Makita v Sprowles (2001) 52 NSWLR 705, in my view, require no less.

6 In my view, therefore the evidence of Professor Day should be rejected.

On application to adduce further evidence of Professor Day

7 In the light of my rejection of Professor Day’s report, the defendant seeks leave to adduce oral evidence from him on three topics, namely, first, why is a pharmacologist an appropriate person to give evidence on the question (precisely what question is something to which I shall have to return); secondly, what literature searches did Professor Day undertake in order to reach the conclusions expressed in his reports (and, implicitly, what were the results of those searches); and, thirdly, what were the thresholds that he applied in expressing or in reaching conclusions expressed in terms “convincing” or “reasonable evidence”, or to that effect.

8 As I think I foreshadowed in the judgment just given, it seems to me that Professor Day is, on the material presently before me, not really able to answer the precise question that he was posed. However, as also foreshadowed in that judgment, he may be able to give relevant evidence on the related question, whether there was “no scientific evidence to support such a claim”. Such evidence might come from him in one or both of two guises so far as the evidence presently suggests. First, as he hints in the last paragraph of his preliminary report of 9 October 2009, the pharmacology of the drugs used might be inconsistent with the claim, although he does not go as far as to say that in the passage cited above. The questions which it is suggested he might be asked would not address the fundamental problem with that sentence, that as it stands it is a mere ipse dixit and does not descend to any detail so far as what are “all the drugs that might be included in the sprays”, and what are their respective known pharmacologies and the time patterns of their plasma concentrations.

9 I can readily see why, in the context of that aspect of evidence that might be adduced from him, a pharmacologist would be an appropriate expert. It is not on that account that that aspect of the evidence that he might give was rejected, but because of the manifest insufficiency of the opinion he expresses in that respect to surmount the Makita principles, that require his reasoning to be exposed.

10 The second area in which, potentially, his evidence might be relevant is that of a literature search. This involves, as it presently seems to me, no personal expertise or knowledge on his part, but an ability to do no more than make reasonably informed searches of the literature using a computer or other searching method. It is in that context that I expressed the opinion that I would have thought that someone experienced in the field of treatment of sexual dysfunction, or research in that field, might be more appropriate than a pharmacologist.

11 It is evident, on the face of Professor Day’s report, that the information he has assembled by search, and his existing knowledge of the drugs in question, are based principally on their uses in fields other than that of sexual medicine. It is in connection with their use in the field of sexual medicine that a literature search would be most significant for the purposes of this case. But, whether a pharmacologist or some other person, even a lawyer, be the appropriate person to conduct the relevant literature search, is not the most important issue. One would need to know what searches were conducted and the results of those searches, and – as Mr Sibtain has foreshadowed – what thresholds were applied to reach the conclusions expressed in qualified terms.

12 Had those matters been set out in the report then the major defects I perceived in the report would have been overcome. It would have been possible for the cross-examiner to approach the case knowing the basis upon which the Professor’s conclusions were expressed and, therefore, appropriately armed to cross-examine. Prima facie that is evidence that could be allowed, now subject to any question of prejudice arising from its lateness.

13 It seems to me practically inevitable that if that evidence is permitted to be given now, there will be an application for an adjournment because it seems to me difficult, though not impossible, that the plaintiffs could be in a position to meet it now. That said, as any such adjournment would be attributable to the defendants, it would be the defendants who would have to bear the costs of it, and in all likelihood the interlocutory injunction would continue during the adjournment, which (as I have foreshadowed) might have to be for a period of some months.

14 I have some responsibility to other users of the courts to manage cases in a way that, as far as possible, does not result in the waste of court time. However it may well be that other witnesses can be dealt with over the remaining time available today and tomorrow, and Professor Day’s evidence resumed at some later stage. It is a serious step to exclude a party from adducing evidence that it wishes to adduce and which might be capable of being put in admissible form.

15 Although my mind has vacillated somewhat on the topic, I have come to the conclusion that the least risk of injustice is involved in permitting the questions sought to be asked to be asked, but bearing in mind that the defendants are on notice that if they do so they are liable to suffer, if the plaintiffs seek it, an adjournment and the associated costs, and the continuation of the injunction in the meantime.

16 I will therefore permit, in principle, the proposed questions to be asked.

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