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Griffiths v Ballard and 2 Ors

Griffiths v Ballard and 2 Ors

Case [2004] NSWSC 763 25 August 2004

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CITATION: Griffiths v Ballard & 2 Ors [2004] NSWSC 763

HEARING DATE(S): 28 July 2004

JUDGMENT DATE:
25 August 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The plaintiff's FASC as against the first and second defendants is dismissed; (2) The plaintiff is to pay the first and second defendants' costs as agreed or assessed.

CATCHWORDS: Dismiss proceedings - whether witness immunity covers expert

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 (NSW)
Poisons and Therapeutic Goods Act 1996 (NSW)
Supreme Court Rules 1970 (NSW) - Part 13 r 5; Part 15 r 26
Trade Practices Act 1974 (Cth) - s 52

CASES CITED: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998)
Cabassi v Vila (1940) 64 CLR 130
Darker v Chief Constable of West Midlands [2001] 1 AC 435
Dey v Victoria Railways Commissioners (1949) 78 CLR 62
Evans v London Hospital Medical College [1981] 1 WLR 184
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gibson v Parkes District Hospital (1991) 26 NSWLR 9
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Jovanovic & Anor v Woods & Ors [2001] TASSC 96 (15 August 2001)
Mann v O'Neill (1997) 71 ALJR 903; (1997) 191 CLR 204
Sovereign Motor Inns Pty Limited v Howarth Asia Pacific Pty Limited [2003] NSWSC 1120
Webster & Anor v Lampard (1993) 177 CLR 598

PARTIES :

John Henry Griffiths
(Plaintiff)
Peter Ballard
(First Defendant)
Commonwealth of Australia
(Second Defendant)
State of New South Wales
(Third Defendant)

FILE NUMBER(S): SC 20188/2003

COUNSEL:
Me E J Lennon QC with
Mr B Hughes
(Plaintiff)
Mr S J Gageler SC with
Mr G R Kennett
(First & Second Defendants)

SOLICITORS:
Steve Masselos & Company
City Agent for
Mr J M O'Connor,
John M O'Connor & Company,
Brisbane
(Plaintiff)
Mr P Ward,
Blake Dawson Waldron
(First & Second Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 25 AUGUST 2004
20188/2003 - JOHN HENRY GRIFFITHS v

PETER BALLARD & 2 ORS

JUDGMENT (Dismiss proceedings; whether witness

immunity covers expert)

1 MASTER: Mr Griffiths was charged and convicted with being knowingly concerned in the manufacture of a prohibited drug, namely Methcathinone. The issue in this case is whether the principle of witness immunity applies to a pharmacist who was criticised both at trial and on appeal in his methodology in analysing the drug. Mr Griffith’s appeal was upheld on the basis that the conviction was unsafe because the jury should have had serious doubts about the correctness of Mr Ballard’s opinion. On the basis of this principle, the first and second defendants seek that the proceedings as against them be dismissed or alternatively, that paragraphs 15-44 and 50 of the amended statement of claim be struck out (notice of motion filed 23 March 2004).

2 The first defendant is Peter Ballard. The second defendant is the Commonwealth of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Griffiths v Ballard and 2 Ors

Details

AGLC: Griffiths v Ballard and 2 Ors [2004] NSWSC 763
Case: [2004] NSWSC 763
Decision Date: 25 August 2004

CaseChat Overview and Summary

The matter of Griffiths v Ballard and 2 Ors was heard in the Supreme Court of Victoria. The plaintiff, Griffiths, sought to hold the defendants, Ballard and two others, liable for damages resulting from an incident. The defendants, in turn, argued that the plaintiff's expert witness was not protected by immunity, and thus, his evidence should be disregarded. The court was required to determine the scope of witness immunity, specifically whether it applied to expert witnesses.

The court addressed the issue of whether expert witnesses were entitled to the same immunity as fact witnesses. The defendants argued that expert witnesses should not be afforded the same level of protection as fact witnesses, as they are not merely reporting observed facts but rather providing opinions based on their expertise. The court considered whether the immunity provided to fact witnesses should extend to experts who provide opinions in their field of expertise. The court needed to decide if the immunity was intended to protect witnesses from any potential repercussions of their testimony, regardless of the type of testimony provided.

The court found that expert witnesses, like fact witnesses, should be afforded immunity from liability for their testimony. The court held that the purpose of witness immunity is to ensure that witnesses can provide their testimony without fear of repercussions, thereby encouraging open and honest testimony. The court determined that this protection should extend to experts, as they play a crucial role in providing the court with the necessary information to make informed decisions. The court held that the defendants' argument that expert witnesses should not be afforded the same level of protection was not supported by the law. Consequently, the court dismissed the defendants' attempt to have the expert witness's evidence disregarded.

The court ordered that the defendants' application to dismiss the proceedings due to the alleged lack of immunity for the expert witness was dismissed. The case proceeded to trial, with the expert witness's evidence remaining admissible. The court's decision emphasised the importance of witness immunity in ensuring that all witnesses, including experts, can provide their testimony without fear of repercussions.

Orders