Australian Federation of Consumer Organization Inc v Tobacco Institute of Australia Ltd

[1990] FCA 237

CATCHWORDS

PRACTICE AND PROCEDURE - evldence - witnesses outside Australia - unwilling to give evidence in Australia - materiality of evidence - appointment of examiner - discretion - interests of justice

Evidence Act, 1905, s.7V

Federal Court Rules, Order 24

AUSTRALIAN FEDERATION OF CONSUMER ORGANIZATIONS INC.

v TOBACCO INSTITUTE OF AUSTRALIA LIMITED

No. NG 253 of 1987

Sydney

Morling J

17 May 1990

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 253 of 1987
)

GENERAL DIVISION 1

BETWEEN:  AUSTRALIAN FEDERATION OF
CONSUMER ORGANISATIONS INC.

Applicant

AND :  TOBACCO INSTITUTE OF AUSTRALIA
LIMITED

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER	: Morling J.
DATE OF ORDER	:  17 May 1990
WHERE MADE	: Sydney

THE COURT ORDERS AS FOLLOWS:

1.      Application granted.

2.       Costs of application reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 253 of 1987
1

GENERAL DIVISION 1

BETWEEN: AUSTRALIAN FEDERATION OF

CONSUMER ORGANISATIONS INC.

Applicant

AND :  TOBACCO INSTITUTE OF AUSTRALIA
LIMITED

Respondent

Morling J. 17 May 1990

REASONS FOR DECISION ON APPLICATION UNDER
EVIDENCE ACT 1905 SECTION /V

This is an application under s.7V of the Evidence Act 1905 ("the Act") and Order 24 of the Federal Court Rules for the examination of several persons on oath before me as examiner.

The persons who are sought to be examined are

Nicholas Wald, Professor of Environmental and

St Bartholomew's Hospital, University of London; Sir	Preventative Medicine at the Medical College of
Richard Doll, Emeritus Professor of Medrcine, University of Oxford; Dwight Janerich, Professor of Epidemiology at Yale University in the United States of America; and Dimitrios Trichopoulos, Professor of Epidemiology at Harvard University.
Section 7V (1) of the ~vi'dence Act provides that the court may, in its discretion and where it appears in the interests of justice to do so, make, in relation to a person outside Australia, an order for the examination of the person at any place outside Australia.

Section 7V ( 2 ) provides as follows:

In determining whether it is in the interests of justice to make an order under sub-section (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the folloving:

"(2)

(a)	whether the person is villing or able to come to Australia to give evidence in the proceeding;
(b)	vhether the person will be able to give evidence material to any issue to be tried in the proceeding;

(C) whether, having regard t o the interests of the parties to the proceeding, justice will be better served by granting or refusing the order. "

The general nature of the evidence which the applicant wishes to call from the witnesses is as follows:

Sir Richard Doll

It is desired to lead evidence from Sir Richard Doll as to the extent to which epidemiological observ- ations can identify causes of disease such as cancer. The evidence proposed to be called from Sir Richard is referred to in a draft statement which has been furnished to the court and to the respondent. On 1 May I said that I had formed the tentative view that the evidence proposed to be called from Professor Doll would be strictly in reply to the respondent's case, but that I would defer ruling on that question until I had a better understanding of his intended evidence. I have now formed the opinion that Sir Richard's evidence can properly be characterised as evidence in reply. Even if I had been of a different opinion, I would have been disposed to exercise my discretion to allow the applicant to call his evidence. I shall consider later in these reasons the question whether his evidence would be "material to any issue" within the meaning of para. 7V (2)(b) of the Act.

Professor Janerich

In reasons I gave on 1 May I indicated the general nature of the evidence which it is desired to lead

appears that Professor Janerich may have been	from Professor Janerich. As I then observed, it
responsible for the collection of the epidemiologlcal data which was analysed by Dr Varela in a study tendered by the respondent (Ex 52). In a letter of 2 May 1990 to the applicant's solicitors the Professor confirmed that he was the person responsible for collecting the data. On 1 May I said

that the applicant did not need leave to call evidence from Professor Janerich clarifying the findings in Ex 52 and rebutting any parts of it which may be regarded as being adverse to its case. It is desired to lead evidence from him to the effect that the interpretation placed upon Ex 52 by DC Layard, a witness called by the respondent, is

erroneous . The Professor has said in his letter

that Dr Varela's analysis of the data was preliminary, that more detailed work has since been done on the data, and that he considers that the work which has been done shows evidence that environmental tobacco smoke can be a cause of lung cancer. The last statement is qualified to the extent that the Professor has stated that he would not make any final statement on the data at the time of writing his letter. It has been submitted by counsel for the respondent that the results of any unpublished studies would not, in any event, be admissible in evidence. Not having heard full argument on this matter, I shall express no concluded view upon it.

I merely observe that it may be arguable it is

relevant to have regard to the state of knowledge as

at the date when the court is asked to grant injunctive relief. For instance, I think the current state of knowledge as to the association between environmental tobacco smoke and disease could be relevant on the question of whether the court should, in the exercise of its discretion, grant injunctive relief. It is to be noted that one of the respondent's defences is that leave should be refused on discretionary grounds. I defer for the moment consideration of the question whether Professor Janerichps evidence would be "material to any issue'' in terms of paragraph 7V(2)(b) of the Act.

Professor Trichopoulos

The evidence proposed to be called from Professor Trichopoulos is designed to refute criticism of his published work which has been admitted as part of the applicant's case in chief. On 1 May I expressed the opinion that this evidence would not be strictly in reply and I then also declined to exercise my discretion to allow it to be called. At the time I made that decision, I expressed opinion that if Professor Trichopoulos was called, the respondent might need to recall several of its overseas witnesses to again give evidence in Australia. As I

indicated subsequently to 1 May, I am satisfied that

I was wrong in that opinion. I think that should the respondent desire to call any evidence in reply to Professor Trichopoulos, Professor Tweedie, who resides in Brisbane, would be the witness most likely to be called. I doubt very much whether the respondent would find it necessary to call both Professor Tweedie and Dr Layard. If I am wrong in

this opinion, I think Dr Layard's evidence could be taken with 'little addit~onal expense. I am of the opinion that I should, in the exercise of my discretion, allow Professor Trichopoulosl evidence to be called. Again, I defer consideration of the question of "materialityn of the evidence proposed to be called from him.

Professor Wald

Professor Wald was a member of the Committee of the National Research Council which prepared the report which is the applicant's Exhibit D ( 3 ) . It is desired to lead evidence from him on the subject of meta-analysis and, in particular, to answer criticisms of the use of meta-analysis in relation to studies dealing with the alleged association between environmental tobacco smoke and lung cancer. When giving my reasons on 1 May 1990 I referred in some small detail to the type of evidence which it was sought to lead from Professor Wald, and it is

unnecessary to set it out again.

Materiality

I turn now to consider the question whether all or any of the evidence proposed to be called would be "evidence material to any issue to be tried in the proceeding". I am satisfied that evidence of the kind

which it is proposed to lead from the four witnesses will be material to the issues which arise in the present proceedings. Counsel for the respondent has pointed out that para 7V (2)(b) refers to evidence which is "materialn, as distinct from evidence which may be merely admissible or relevant. He made the point that if the witnesses had been based in Australia, the court would not have compelled their attendance by subpoena because of the principles referred to in such cases as Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc [l9841 2 NSWLR 327, see especially at 334-336. He argued that the mere fact that expert witnesses who reside overseas may be able to give opinion evidence on an issue arising in the proceedings does not make their evidence "materialn in the relevant sense. He further submitted that the reputation that may be enjoyed by a witness is irrelevant to the question of the materiality 0.f his evidence. On the other hand, counsel for the applicant submitted that the evidence is material, and that even if it is not, materiality is but one factor to be taken into account in determining

whether the interests of justice require the making of an	order under s.7V of the Act.
I do not think that it can be said that the evidence of any of the proposed witnesses would not be material in the relevant sense. That is not to say, of course, that the materiality of the evidence is sufficient to justify the exercise of the court's
discretion in favour of granting the application.

-

I agree with the argument advanced on behalf of the respondent that materiality for the purposes of the current application is a concept which goes beyond mere relevance within the meaning of the rules of evidence. I also agree with his submission that in determining whether evidence is material for the purposes of s.7V consideration is required to be given to the importance of the evidence in the scheme of the case, its likely weight in the contest between the parties, the cost involved in taking the evidence, and the inconvenience caused to the court or the opposing party if an order is made under the section.

However, the evidence which the applicant desires to call from each of the four witnesses is of a kind which, if accepted by the court, could well be of considerable importance in the resolution of the dispute between the parties. It is neither possible nor desirable for me at this stage of the proceedings to express firm views about the significance of the evidence. It is sufficient, in my opinion, that it is

plainly material evidence for the purposes of para

7V(Z)(b) of the Act.

Counsel for the respondent has submitted that it cannot be said with any confidence that any of the witnesses will be able to give evidence which is material in the relevant sense until copies of their proofs of evidence are available. Whilst it would be preferable

to have proofs of evidence from the witnesses, I do not think the absence of them at this stage of the proceedings prevents the court from forming an opinion whether the witnesses will be able to give material evidence. I have referred above, with more or less particularity, to the evidence proposed to be called from each intended witness. I think there is sufficient before me to rule that, in respect of each witness, he is able to give material evidence.

It is hardly necessary to add that it would be a prerequisite to any witness being called that a proof of his evidence be furnished to the respondent in sufficient time to enable counsel to be in a position to cross- examine the witness.

I am satisfied that each of the proposed four witnesses is unwilling to come to Australia to give evidence in the present proceedings within such a time as will make it possible to permit the hearing to be concluded without unreasonable delay.

Discretion

I turn now to consider the crucial question whether it would be in the interests of justice to make the order sought or whether, having regard to the interests of the parties to the proceedings, justice would be better served by refusing to make the order. I

have been greatly exercised in my mind in reaching a decision on this question. Since I have ruled that the applicant does not need leave to call some of the evidence in its case in reply, it would be very difficult for me to insist on the hearing being completed before the applicant had the opportunity of calling that evidence, whether in Sydney or in London. If I refuse to make the order now sought and counsel for the applicant requested me to hear the evidence of the witnesses in Sydney at the earliest date when his instructing solicitor could arrange their attendance, it would be difficult for me to refuse his request. If I heard the evidence in Sydney, the conclusion of the proceedings would be considerably delayed, perhaps for months. Moreover, the cost of the witnesses coming to Australia would be considerable, albeit considerably less than the cost of taking their evidence overseas.

Counsel for the respondent has urged a number of
matters in opposition to the application. He has said

that no injustice will be suffered by the applicant if

the evidence is not taken. He argued, correctly, that

the absence of the evidence would not be a fatal flaw in the applicant's case, but that is not to say that the applicant's case would not be weakened by the absence of the evidence. The evidence 1s of a kind which is highly relevant to some part of the applicant's case. The extent to which epidemiological observations can identify causes of disease such as cancer, meta-analysis and the

weight, if any, to be attached to the Trichopoulos study will all be matters of considerable relevance and importance in the determination of the Issues which arise in the proceedings. Counsel for the respondent also submitted that the purpose of the evidence would be, in effect, to bolster the applicant's case in chief. However, the limltatrons whlch I have placed upon the evidence which the applicants may be entitled to call will mean that, in substance, it is evidence designed to refute criticisms of parts of the applicant's case. I should add that it has always been a nice question (-

the reasons I gave on 1 May) whether all of the evidence which the applicant desires to call might be described as evidence in reply which the applicant could call as of right.

Counsel for the respondent has also submitted that, in the case of Sir Richard Doll, he is not uniquely qualified to give evidence about epidemiology. I agree that this is so, but I do not regard that as being of much, if any, significance on the present application.

of his evidence.	It does not detract from the materiality and importance
The authorities tend to suggest that, if it is shown that a witness is out of the jurisdiction and that his evidence is material and the court has no power to enforce his attendance, an order will usually be made for

the taking of his evidence overseas, see Williams v Mutual Life Association of Australasia (1904) 4 S.R.(N.S.W.) 677 at 680, Willis v Trequair (1906) 3 CLR

912 and Hardie ~ u b b e r Company Pty Ltd v General Tire h

Rubber Company (1973) 47 ALJR 462. Whilst these decisions tend to support the applicant's case on the present application, I do not think they are authority for the proposition that I do not have a discretion to refuse it.

Since I have ruled that the applicant may calls the intended evidence in reply, and since the applicant obviously regards the evidence as being important to its case, I think I should not, by refusing the application, effectively put it beyond its power to call the evidence. The issues in the case are of considerable importance. I referred to the nature of the issues in the reasons I gave on 1 Hay. I then said that the issues raised by the litigation are of considerable public importance, as well as being of considerable commercial importance to

the tobacco industry. I then said:

"If it is correct that there is little evidence

and nothing vhich proves scientifically that cigarette smoke causes disease in non-smokers, the industry is entitled to convey that information to the public and to sell cigarettes uninhibited by unjustified claims that smokers of cigarettes may be endangering the health of non-smokers. On the other hand, if the statement in the advertisement is misleading, members of the public should not be misled on such an important question affecting their health . Thus the issues in the case are of more general importance than those vhich commonly arise in ordinary private litigation."

Since the commencement of the litigation the parties must have expended very considerable time and expense in preparing and presenting their cases, and in meeting the cases made against them. Considerable though the additional cost will be of taking evidence overseas, it will be much exceeded by the total cost of the proceedings.

Taking into account all the considerations I have come to the conclusion that it would be in the interests of justice to accede to the application and that justice would better be served by granting it.

Accordingly, the application is granted. Pursuant to s.7V(3) of the Evidence Act I give the following directrons relating to the procedure to be followed in and in relation to the examination:

1.      On or before 25 May the applicant's solicitors shall make available to the respondent's solicitors or their London agents such documents as may be

produced by the witnesses in response to the requests made of them.

2.      On or before 28 May 1990 the applicant's solicitors shall furnish to the respondent's solicitors proofs of the evidence proposed to be given by each witness.

3.      The examination shall take place in ond don or at such other place as I may deem necessary or desirable, and at times to be determined by me.

The applicant has submitted a draft order
which, save for one matter, appears to be in appropriate
terms. The matter to which I refer is the question of

costs. The appropriate order in respect of the costs of the examination is that such costs should be reserved.

Counsel for the respondent has sought an order that the applicant should pay the costs of the present application. However, I think the better course at this stage of the proceedings is to reserve the costs of the application.

I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Decision on Application under Evidence Act 1905 Section 7V of his Honour Mr Justice

Morling.

~ S s i a t -@>---

Date:  17 l9qO

Counsel for applicant:  N.F. Francey

instructed by:  Cashman h Partners

Counsel for respondent:  B.S.J. OIKeefe Q.C. with
B.W. Walker

instructed by:  Clayton Utz

Date of Ruling:  17 May 1990