Fermiscan v James

[2009] NSWSC 474

CITATION:	Fermiscan v James [2009] NSWSC 474
HEARING DATE(S):	25/5/09, 26/05/09, 27/05/09, 28/05/09, 29/05/09
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	26 May 2009
DECISION:	See paragraph [16] of the judgment.
CATCHWORDS:	EVIDENCE - affidavit evidence - deponent unavailable for cross-examination - whether to exercise court's discretion and allow affidavit to be read.
LEGISLATION CITED:	Uniform Civil Procedure Rules
PARTIES:	Fermiscan Limited (First Plaintiff) Fermiscan Australia Pty Limited (Second Plaintiff) Fiberscan Pty Limited (Third Plaintiff) Veronica Jean James (First Plaintiff)
FILE NUMBER(S):	SC 50044/08
COUNSEL:	A S Martin SC / S A Wells (Plaintiffs) C D Wood (Defendant)
SOLICITORS:	Piper Alderman (Plaintiffs) Middletons (Defendant)
LOWER COURT JURISDICTION:	Supreme Court (Master)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

26 May 2009 (ex tempore – revised 26 May 2009)

50044/08 FERMISCAN LIMITED & ORS v VERONICA JEAN JAMES

JUDGMENT – on application under rule 35.2 of the UCPR p106

1 HIS HONOUR: The defendant wishes to read an affidavit of Professor Harald zur Hausen sworn 15 May 2009. The plaintiffs have given notice for Professor zur Hausen to attend for cross-examination on his evidence (UCPR r 35.2(1)). Professor zur Hausen is not available. Accordingly, he not being dead, his affidavit cannot be read "unless the court orders otherwise" (r 35.2(3)).

2 As I have indicated in previous judgments on the admissibility of evidence, these proceedings concern, among other things, the question of whether the defendant has disparaged the plaintiffs or their products or officers by the publication of various documents to various people. The documents in question include a letter written by her to Professor zur Hausen, in his capacity as editor in chief of the International Cancer Journal, and an article submitted by her under cover of that letter for publication in that journal.

3 If Professor zur Hausen's affidavit is permitted to be read, his evidence will be to the effect that nothing in the letter caused him to form an opinion about any Fermiscan company one way or the other, and, by inference, to think the lesser of any Fermiscan company or to call into question the abilities of any of its officers or employees.

4 The plaintiffs wish to say that the letter and the article are critical of a Mr Corino and a Dr French, employees of or consultants to one or other of the Fermiscan companies. There is no doubt that those gentlemen wrote an article dealing with x-ray diffraction of human tissue. There is no doubt that the letter and the draft article to which I have referred mentioned Mr Corino and Dr French. Indeed, in the letter, the defendant said that she did not wish either of them to be a reviewer of her paper. Further, it seems that, in the draft article, the defendant criticised the paper published by Mr Corino and Dr French.

5 Professor zur Hausen's evidence would say also that in his experience as editor in chief of the International Journal of Cancer, "[i]t is standard procedure for all authors to suggest preferred reviewers or to request that one or another be excluded" and that the decision to publish "is based on the expert evaluation of our editors regarding its potential scientific merit. Conflicts of opinion among individuals do not play a role here." Thus, Professor zur Hausen would say, "the comments in the letter directed to other potential reviewers [ie Mr Corino and Dr French] did not lead me to form any opinion about those individuals".

6 When the question of Professor zur Hausen's availability for cross-examination was raised, I asked senior counsel for the plaintiffs, Mr Martin, to indicate the intention of cross-examination. Would it be "directed to impeaching what the professor says or obtaining further material from him which you will be submitting supports your case?" (T 46.45). Mr Martin replied "The latter, your Honour" (T 47.1).

7 I take it from that, that Mr Martin does not seek to attack the views expressed by Professor zur Hausen, to the extent of suggesting that they are not held or not reasonably held.

8 When it was known that Professor zur Hausen was required for cross-examination (and it cannot be suggested that the plaintiffs were in any way tardy in giving notice that he was) attempts were made to procure his attendance, either in person or by audiovisual link. So far as the latter means is concerned, it appears that before evidence can be taken in the Federal Republic of Germany (which is where Professor zur Hausen lives and works) it is necessary for a letter of request to be issued, and for a number of other procedural steps to be taken. The evidence is that it would take of the order of four weeks (at a minimum) for those steps to be completed.

9 Further, it has become apparent today that it is unlikely that Professor zur Hausen will be available to give evidence, by any means, "in the next few weeks". An email enquiry made of the managing editor of the International Journal of Cancer produced the response that Professor zur Hausen would not be available over that time period "as he is undergoing major surgery".

10 In opposing the application for leave to be given to read the affidavit notwithstanding the unavailability of the deponent for cross-examination, Mr Martin referred at some length to what he said was the unexplained delay in obtaining the affidavit. It is correct to point out, as Mr Martin submitted, that the defendant's affidavits were required to be filed by 6 May 2009 (see the Court's orders of 27 February 2009, when among other things the matter was fixed for hearing to commence yesterday).

11 Mr Martin referred to the evidence of the defendant's solicitor, Ms Owen. Ms Owen said that she had first contacted Professor zur Hausen early in July last year, but that a decision was not made to call him (or to seek to obtain evidence from him) until shortly before 23 March 2009. It was on that date that an email was sent to the professor, seeking his assistance. She explained the delay between 27 February and 23 March by saying that her attention, and presumably that of counsel, had been focused on retaining experts and preparing the more complex evidence. That does not seem to me to be a totally unreasonable explanation.

12 However, I think, the issue of delay (explained or otherwise) is really a non-issue. As I have said, the affidavit should have been filed by 6 May 2009. It was served a fortnight late, on 20 May 2009. Had it been served on 6 May 2009, and had notice been given shortly thereafter that Professor zur Hausen was required to attend for cross-examination, any attempt to set up an audiovisual link would have been met by the two obstacles that confront that course today. Firstly, the delay inherent in the process - of at least four weeks - would mean that the link would not be in place by today or tomorrow. Secondly, and more obviously, Professor zur Hausen's medical condition would render it, if not impossible then at least extremely unlikely, that he could give evidence by any means.

13 Mr Martin submitted that the inability to produce Professor zur Hausen for cross-examination was of the defendant's own making. That simply cannot be correct because, as I have sought to show, if his evidence had been served in time, and if a notice had been given shortly thereafter, we would be in the same position as we are now.

14 Mr Martin submitted further that in those circumstances it was an "extraordinary indulgence" to permit a party to rely on untested evidence, and to deprive the opposing party of the opportunity to test that evidence. That complaint would be of real substance if Mr Martin's intention had been to seek to impeach what Professor zur Hausen said. However, as he has acknowledged, that was not his intention.

15 No doubt, Mr Martin might have sought to cut down such force as Professor zur Hausen's evidence might have, by putting other scenarios to him. Perhaps, he would have succeeded in doing so. However, it seems to me that I can accommodate that possibility by evaluating Professor zur Hausen's evidence against the evidence of other scientific experts that have been given (some of which has been admitted without any requirement for them to attend for cross-examination) as to what happens in the rarefied heights of science with which the substantive matter of these proceedings is concerned.

16 In the circumstances, I think it is appropriate to exercise the discretion inherent in r 35.2(3) and to give the defendant leave to read Professor zur Hausen's affidavit even though he is not available for cross-examination.

17 I repeat that the question of its weight is another matter altogether.

**********