Groves & Groves (No 4)
[2022] FedCFamC1F 787
•28 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Groves & Groves (No 4) [2022] FedCFamC1F 787
File number(s): SYC 8296 of 2016 Judgment of: HARPER J Date of judgment: 28 September 2022 Catchwords: FAMILY LAW – EVIDENCE – Wife seeks to rely on affidavit and expert report from her GP – Where GP’s report annexes three other reports of treating professionals (“secondary reports”) – Wife concedes first report cannot be entered into evidence – Opinion rule – Expert opinion exception – Primary report based substantially on opinions of other specialists, not on witness’ own expertise – Basis of opinions of other specialists not apparent – Evidence of specialised knowledge not apparent – Wife argues business records exception applies as the secondary reports were provided in ordinary course of referral and report between GP and specialist – Business records exception applicable to hearsay rule – Documents admissible under s 60 and s 69 to explain assumptions underlying primary report – Husband argues court should exercise discretion to limit or exclude evidence – Parts of primary report relying on opinions of other specialists excluded as being unfairly prejudicial and potentially misleading or confusing – Secondary reports separately excluded – Remaining part of primary report admissible as expressions of views as to further management of wife’s health – Where GP annexed details of professional qualifications and employment histories. Legislation: Evidence Act 1995 (Cth) ss 60, 69, 76, 79, 135, 136, 183
Federal Circuit of Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01(1)
Cases cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; [2000] FCA 1463
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 27 September 2022 Place: Sydney Counsel for the Applicant: Mr Kearney SC with Ms Reid Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Hodgson (direct brief) ORDERS
SYC 8296 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GROVES
Applicant
AND: MS GROVES
Respondent
order made by:
HARPER J
DATE OF ORDER:
28 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The evidence of Dr K in her report dated 16 September 2022 under the headings “Mental illness as per [Dr B’s] report using DSM-5 diagnostic criteria”, “Rheumatological diseases as assessed by [Professor N] in her correspondence”, and “Cardiology assessment with [Dr L]” be struck out.
2.The evidence of Dr K under the heading “Ongoing Health issues for assessment and further management” is admissible on a limited basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Groves & Groves has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are long-running property proceedings between the Applicant Husband (“the husband”) and the Respondent Wife (“the wife”). In support of her proposals for property adjustment orders, and in particular in relation to the considerations required by s 79(4)(e), by reference to s 75(2) of the Family Law Act 1975 (Cth), the wife seeks to rely upon an affidavit of Dr K, which was filed on 20 September 2022. The husband objects to the affidavit being relied upon at all, or in the alternative, that it should be excluded on the basis of s 136 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The wife has raised the issues of her health many times in the course of these proceedings on their somewhat tortured path to final hearing. Orders were made in this respect on 10 February 2021, and again on 2 August 2021. I will return to those orders later in these reasons.
It appears from the affidavit of Dr K that the wife herself, bearing in mind she has been self-represented for a considerable period in the course of the proceedings, instructed Dr K directly by a letter of instruction dated 12 September 2022. In her report dated 16 September 2022, Dr K makes reference to reports of other health professionals, in particular Dr B, Professor N, and Dr L, each of whom have consulted with the wife. The way Dr K’s affidavit is constructed, it appears that the reports of those three health professionals are attached, in effect, to the report of Dr K.
Dr B’s report addresses contentions about the mental illnesses currently suffered by the wife. It can be put to one side, because the wife conceded in argument that the nature of the content of Dr B’s report was such that its admissibility could not be sustained.
That then leaves for consideration of the reports of Professor N and Dr L, and then ultimately the report of Dr K herself. The husband objects to the admissibility of Dr K’s affidavit and by implication, the reports of Professor N and Dr L, on a number of grounds.
I referred earlier to the orders of the Court on 10 February 2021. The relevant orders were Orders 7 and 8, which are in the following terms
7. That should the wife intend to assert at and for the purposes of the final hearing as to property division and/or maintenance in these proceedings that she has any health and/or medical condition relevant for the purposes of s75(2)(a) and/or 75(2)b) of the Family Law Act 1975 (“the Act”), the wife provide to the husband’s Lawyers within 14 days from date of these Orders:
7.1 details of the medical and/or health condition asserted (“Medical Condition”), the severity of that Medical Condition and details as to the extent the qife maintains same impacts on her ability to obtain and/or maintain paid employment and/or her income earning capacity and/or income.
8. Within 28 days, the wife is to serve reports from those treating doctors and therapists, upon whose evidence she seeks to rely at the Hearing, addressing those matters referred to in order 7.1.
It can be seen that Order 7, in particular, required particulars of the assertions of the wife’s medical and health conditions, and the severity of those conditions, to be provided to the husband’s lawyers within 14 days. Order 8 required service of reports from treating doctors and therapists, upon whose evidence the wife sought to rely at hearing.
Following those orders, on 2 August 2021, Order 1(b) required the wife to pay a fee of $1778.70 to Dr B for the preparation of his report, and thereafter file the report forthwith. No separate affidavit by Dr B has ever been forthcoming, and I note here there has never been a separate affidavit from Professor N.
Then on 7 September 2022, that is, very close to the commencement of the final hearing on 27 September 2022, the Court made an order extending time for the wife to file a trial affidavit and “any affidavit concerning her medical issues” by 19 September 2022. The wife failed to comply with this order, in the sense that she only filed such affidavit material one day later, on 20 September 2022. More importantly, the manner in which the expert evidence other than Dr K is presented through the affidavit of Dr K, so the husband argues, does not comply with the orders of 7 September 2022 and prejudices the husband.
It is clear on its face that the report of Dr K is based substantially on the expert opinions of the other named specialists and not, at least clearly, on her own expertise.
It is important at this point to refer to some fundamental provisions of the Evidence Act. Section 76 renders opinions inadmissible to prove the existence of facts upon which such opinion is based, unless one of the various exceptions in the following sections apply. Relevantly, s 79(1) allows opinions of experts based upon specialised knowledge. The husband argues that the basis of the opinions given by both Professor N and Dr L are not given, and the basis upon which they express any view based on specialised knowledge is not apparent on the face of the reports.
Nonetheless, the wife argues that the reports of both Professor N and Dr L were provided to Dr K as the wife’s treating practitioner in the ordinary course of referral and report between a GP and specialist. The argument was that the reports were business records, and as a consequence, by reason of s 69 of the Evidence Act, the hearsay rule does not apply. I will return to this question later in these reasons. However, the immediate question is whether the reports contained admissible expert opinion evidence based upon proved or provable assumptions of fact. This requires a somewhat detailed consideration of each report.
The report of Dr L is dated 19 July 2022. That is sometime before the orders made on 7 September 2022. In order for the s 79 exception to apply, the Court must be satisfied that Dr L has specialised knowledge based on his training, study or experience. There is no such evidence given by Dr L himself or available from other sources, apart from inferences available from the face of his report itself. Such inferences can be drawn by reason of s 183 of the Evidence Act.
However, as pointed out by the Full Court of the Federal Court in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 (“Ocean Marine Mutual”), this does not necessarily assist the wife. The relevant passages of that judgment are as follows:
20. S183 does not, however, dispense with proof of matters that needs to be provided before opinion evidence becomes admissible. Consistently with its terms, it merely enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken. This in no way modifies the general rule that before opinion evidence is admissible, it must be demonstrated by admissible evidence on the voir dire that the requirements of s79 have been satisfied.
21. The primary judge considered that it was permissible to examine the reports and draw inferences from the form and contents of them. His Honour considered that it was permissible to take into account:
•the factual context in which a report was produced;
•the description and designation of the person making the report;
•the contents and language of the report and the nature of the assertions made in it;
•the form of the report;
•the expressed qualifications of the person making it as set out in the report.
22. However, it is not permissible to conclude from those matters alone that an author of a report has any specialised knowledge, except to the extent that the report states (or it otherwise appears from admissible evidence) what that knowledge is. Nor is it permissible, by reason of those matters alone, to conclude that any specialised knowledge that the author of a report has is based on any training, study or experience of the author. Thus, it is not permissible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person has any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based.
23. The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge.
Returning to the report of Dr L, on the face of his report, it is clear that he works in a practice called O Health Service. He signs his report as a cardiologist, with reference to qualifications. Apart from these acronyms, there is no other evidence on the face of his report concerning his qualifications. As pointed out by the Full Federal Court in Ocean Marine Mutual, these are not matters from which it is permissible to conclude that he has any specialised knowledge, except to the extent that the report states what the knowledge is. Nor is it permissible to conclude that he has any specialised knowledge based on any particular training, study or experience.
In the report itself, there is included reference to “palpitations” and “occasional ventricular (2780) and rare atrial (6) ectopy”, for example. These are examples which could support an inference of specialised knowledge in cardiology.
However, in my view, as pointed out in Ocean Marine Mutual, they are insufficient to justify any inferences which would give content to what that specialised knowledge might be. Dr L also refers to psychological issues, although there is no basis to infer any expertise in Dr L in such areas. For example, he makes reference to abuse of a financial and psychological nature by the husband. He refers to several conditions suffered by the wife, which seemed to be information from the wife herself, or perhaps from other specialists. In short, it appears from the face of his report that Dr L records observations and results of other consultations with doctors in this sense.
Turning then to the so-called report of Professor N, it appears on its face to be in fact progress notes made on 7 June 2022 by Professor N, who appears to work in the rheumatology clinic at the M Hospital. It appears to me that the progress notes were made as part of the ordinary recordkeeping of the rheumatology clinic. There is nothing on the face of those notes to indicate the training, study or experience of Professor N, except perhaps the very fact that she works at M Hospital. There is no other reference to any qualifications of Professor N.
It is important to note here that the wife herself gives no evidence in her affidavit contextualising the circumstances in which she consulted with either Dr L or Professor N, and I refer here to paragraphs 156 to 159 of her trial affidavit filed on 20 September 2022. Accordingly, I am not persuaded that the s 79 exception applies to either Dr L’s report, or the progress notes of Professor N. To the extent those documents record an opinion of either person, in my view they are rendered inadmissible by reason of the application of s 76.
However, that it not the end of the matters that need to be considered. That conclusion, in my view, deals with the separate admissibility of either report. There is, however, no doubt that Dr K relied upon both the report of Dr L and the progress notes of Professor N as the basis for at least parts of her report which is attached to her affidavit. The application of s 69 of the Evidence Act to those documents as business records in my view leads to the conclusion that to the extent they contain out of court representations of fact, both s 69 and s 60 renders their content admissible to explain the assumptions underlying Dr K’s report.
This then raises the application of s 136 of the Evidence Act, upon which the husband also relies. Section 136 is in the following terms:
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
I note here also that s 135 gives the Court a discretion to refuse to admit evidence when its probative value is substantially outweighed by the danger that the same factors might apply, or might cause, or result in, undue waste of time.
Part 7.1 of the Federal Circuit of Family Court of Australia (Family Law) Rules 2021 (Cth) deals with expert evidence. Rule 7.01(1), however, provides as follows:
7.01 Application of Part 7.1
(1) This Part (other than rule 7.14) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
…
Assuming that the evidence of Dr K falls within that subrule, I will assume that r 7.10, which deals with the requirement for permission from the Court for a party to rely upon an expert other than a single expert, and r 7.11, which sets out the process for applying for such permission, do not apply to the evidence of Dr K. Nor do r 7.21, dealing with the form of an expert report, and r 7.22, dealing with the contents of an expert report, apply.
However, that leaves for consideration, as noted, the question of whether the exclusionary provisions of the Evidence Act should be brought into play. There was no dispute that in the ordinary course, the wife should have obtained separate affidavits from her treating health professionals. The orders of the Court made in 2021 made this abundantly clear. In my view, compliance with Order 1 of 7 September 2022 clearly required affidavits from each treating health professional upon whom the wife proposed to rely for final hearing.
I note here that the wife has had the report of Dr L since mid- 2022, and the notes of Professor N were dated in mid-2022, suggesting there was more than ample time for affidavits to be obtained from each of those health professionals, even after the orders of 7 September 2022. The absence of any affidavit material from either of these treating health professionals is unexplained by the wife in her evidence. The manner in which the wife seeks to rely upon their evidence through Dr K means, of course, that neither Dr L nor Professor N can be subject to cross-examination. In my view, that leads squarely to the conclusion that the admission of those reports or those parts of Dr K’s report which relies upon them or seeks to record, in summary or precis form, the contents of those reports, would be unfairly prejudicial to the husband and might be misleading or confusing for the Court.
For those reasons, I exclude those parts of Dr K’s report which rely upon Dr L and Professor N, and I separately exclude those two reports on the basis of s 136 of the Evidence Act. If that conclusion is wrong, I separately find that the use of the report of Dr K, to the extent that she relies upon Dr L and Professor N, should be limited to setting out the basis of those parts of her report. But, I am also persuaded that even if that was a permissible course, a conclusion would be inevitable that those parts of Dr K’s report probably have no probative value and should therefore be excluded on the basis that they are irrelevant.
That leaves for consideration the balance of Dr K’s report, which sections are to be found under the heading “Ongoing Health issues for assessment and further management”. That part of the report contains seven dot points, followed by a list of medications currently taken apparently by the wife. Dr K, having provided an affidavit, is available for cross-examination. The dot points set out are apparently Dr K’s opinion of what needs further assessment and management in relation to the wife. To the extent these are an expression of opinion, there is no evidence of the qualifications of Dr K, for example, to express a clinical diagnosis in relation to, for example, chest pain, and I note that Dr K refers again back to Dr L in this regard, or cognitive behavioural therapy to improve sleep and social connections.
However, I propose to admit that part of Dr K’s report on the limited basis that those are expressions of view as to what might require further management in relation to the wife’s health, without demonstrating or proving any particular factual basis for that opinion, other than what I infer to be the observations of Dr K of the wife as her patient. I also admit the list of medications set out at the end of the report, on the basis that, I infer, they are observations of Dr K herself, or record her own knowledge as a general practitioner of the medications currently being taken by the wife.
In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, the majority made the point at [37] that
a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge,”
and that “will require little explicit articulation or amplification once the witness has described his or her qualifications and experience.”
Whilst I am not satisfied either Dr L or Professor N satisfy those requirements, the affidavit of Dr K does include, as an annexure, details of her professional qualifications and employment histories, sufficient to justify the admission of the latter part of her report as identified as being observations she has made, in my view, based upon her specialised knowledge as a medical practitioner, enabling her to express opinions in the latter part of her report based upon that list of medications.
Accordingly, I reject the evidence of Dr K in her report under the headings “Mental illness as per [Dr B’s] report using DSM-5 diagnostic criteria”, “Rheumatological diseases as assessed by [Professor N] in her correspondence”, and “Cardiology assessment with [Dr L]”, but permit in the manner indicated the material under “Ongoing Health issues for assessment and further management”.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 28 September 2022. Associate:
Dated: 17 October 2022
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