Dimasi v Nangiloc Colignan Farms Pty Ltd (No 2) - [2006] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIMASI & ANOR v NANGILOC COLIGNAN FARMS PTY LTD (No 2)

[2006] FMCA 1007

PRACTICE AND PROCEDURE – Bankruptcy – expert evidence – document examiner – s.79 Evidence Act (Cth) 1995 – whether court should exercise discretion pursuant to s.135 of the Evidence Act.

Evidence Act1995, ss.79, 135

First Applicant:

FRANK DIMASI (TRADING AS F& M DIMASI)

Second Applicant:

MARIA DIMASI (TRADING AS F& M DIMASI)

Respondent:

NANGILOC COLIGNAN FARMS PTY LTD (ACN 008 447 603)

File number:

MLG 512 of 2006

Judgment of:

McInnis FM

Hearing date:

11 July 2006

Delivered at:

Melbourne

Delivered on:

11 July 2006

REPRESENTATION

Counsel for the Applicants:

Mr T. Best

Solicitors for the Applicants:

V.M. Roccisano

Counsel for the Respondent:

Mr W.G. Stark

Solicitors for the Respondent:

Leonard Legal

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 512 of 2006

FRANK DIMASI (TRADING AS F & M DIMASI)

First Applicant

MARIA DIMASI (TRADING AS F & M DIMASI)

Second Applicant

And

NANGILOC COLIGNAN FARMS PTY LTD (ACN 008 447 603)

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter a witness has been called purportedly to give expert opinion evidence for and on behalf of the Respondent. The witness claims to be a forensic document examiner. After conducting a preliminary hearing or voir dire in relation to the admissibility of the evidence, that is, to determine whether or not the court would permit the expert to give evidence, it has been submitted for and on behalf of the Applicants that the court should refuse to permit the witness to give evidence of expert opinion having regard to the lack of expertise and relevant specialised knowledge.
I take the objection to be an objection based upon the principles set out in s.79 of the Evidence Act1995 (the Evidence Act) and take the Applicants’ submissions to be effectively that this witness does not have specialised knowledge based upon training, study and experience. The provision does not require formal qualifications, nor is there a requirement that the knowledge upon which the expert evidence is based has to relate to a specific recognised field of expertise.
In this case, without considering in detail the evidence which has been provided, and in a brief form it is sufficient to note that the witness has not undertaken any specific university training or study relevant to document examination but holds a Bachelor of Science degree. He graduated in Science in December 2001. Whilst undertaking that degree and as an undergraduate, he was employed by an organisation called Scientific Document Services and claims that during the course of that work he effectively undertook what he describes as an ‘apprenticeship’, working with other persons, including a director of the company who owned the organisation, who he describes as ‘document examiners’.
It is not unusual for document examiners to rely upon practical experience, more often than not with the Forensic Science Laboratory or other recognised organisations including Police Services. In this instance, the witness has indicated that since commencing his training described as an apprenticeship whilst he was still an undergraduate, he has performed a significant number of document examinations under supervision and in the last 12 months has regarded himself as fully qualified to undertake that task without supervision. He estimates that he has been required to examine something in the region of 1000 to 2000 documents per year, though closer to the figure of 1000 documents, and that relevantly in the present case a significant proportion of those documents required examination of signatures.
In his Curriculum Vitae which has been referred to in evidence, he indicates that he has participated in a number of activities, however his evidence reveals that effectively only one of those activities could be regarded as relevant to the proposed expert evidence which he has been required to deliver in this case, and that was a document examination, moot court, held in Sydney in January this year where the witness apparently participated in that moot court and gave evidence in relation to signatures on a document as a document examiner.
He has had limited professional exposure and experience in presenting evidence in courts. Indeed, there is only one occasion on which he has given evidence in relation to signatures, and that occurred in April 2006 in a civil proceeding in the County Court of Victoria where he was required to undertake a comparative analysis of signatures on a document. His only other court experience occurred, according to his evidence, in September 2004 in the Magistrates Court in Victoria. On that occasion he was required to undertake ink analysis and to give evidence accordingly. In his Curriculum Vitae he states:
“Since 2004 I have been accepted as an expert witness in the Magistrates Court of Victoria.”
It should more accurately state that on one occasion he was accepted as an expert witness in the Magistrates Court of Victoria when giving evidence regarding ink analysis. To that extent it seems to me the Curriculum Vitae is inaccurate and unhelpful in establishing that the witness has sufficient specialised knowledge for the purpose of giving expert evidence in this case.
It has been submitted for and on behalf of the Respondent that in the absence of a formal qualification in document examination, the court should have nevertheless regard to the high volume of documents that the witness on his own evidence has been required to examine where a significant proportion of those documents involved a comparison of signatures.
When considering the question of permitting an expert witness to give evidence in cases of this kind, I note the requirements of s.79 of the Evidence Act as follows:-
“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.”
As I indicated before, it is not necessary for an expert witness to be formally qualified and I accept that relevant experience will suffice. There is also no requirement, as indicated earlier, that the knowledge upon which the expert opinion evidence is based has to relate to a recognised field of expertise.
This court, further, has a discretion under s.135 of the Evidence Act as follows:-
“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”
It is sufficient to note that the court, in the exercise of a general discretion to exclude evidence pursuant to s.135, may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time. Whilst neither counsel have referred to that discretion, it is incumbent upon the court to consider that as a further factor to consider as to whether or not the court will permit this evidence to be admitted.
First, in my view, it is necessary for the court to form a view as to whether there is sufficient evidence to satisfy the court that the proposed witness has specialised knowledge based on the person's training, study or experience. It seems to me that there is a paucity of material which would support the proposed witness's expertise. However, that paucity of material is to a large extent dependent upon the fact that the witness has not had a significant period of time within which to undertake the task of document examiner.
I am satisfied he has had limited relevant experience in document examination and has undertaken that task under supervision with an organisation which, on his evidence, appears to hold itself out as an organisation capable of undertaking document examination where at least three persons engaged in that organisation have experience in the task greater than that of the proposed witness.
It is, I suppose, inevitable that expert witnesses have to start at some point in their career as document examiners. This witness can only be described as pursuing a career, but is clearly at what I might describe, and I do not mean this is a pejorative way, a ‘fledgling’ career. Nevertheless, that does not preclude him from starting a career in court now. I note in any event that it appears on his evidence he has given evidence as an expert at least on one occasion in the County Court of Victoria and did so in April this year.
Hence I am confronted with a witness without formal qualifications, though with relevant experience, who is appearing in this court on the second occasion as an expert witness in relation to signature evidence. The task of the court is difficult. However, I am satisfied that on the material before me there is sufficient evidence to satisfy me, based upon, predominantly, the relevant experience of the witness, that I should permit him to give expert evidence as a document examiner, and I so rule.
In relation to the general discretion to exclude the evidence, I am not satisfied in the present circumstances that it is appropriate to refuse to admit the evidence as I am not satisfied that the probative value is substantially outweighed by the danger, relevantly in this case, that the evidence might be unfairly prejudicial, be misleading or confusing. However, I stress that in accepting the witness, that does not mean that the court will necessarily place significant weight on the evidence, as that is a matter ultimately for the court to consider in the context of other evidence which is relevant in this case.
The court, in making the ruling, is cognisant of the fact that in this case a most serious allegation is raised by one party against the other in relation to a document claimed to be forgery. Already some evidence has been given about that matter, which in itself, at the very least, has the potential to give rise to issues of perjury. These are extremely serious matters. I have kept in mind the serious and grave nature of the evidence in making my ruling. I will permit the expert evidence to be adduced.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 11 July 2006