FEDERAL COURT OF AUSTRALIA
Guy v Crown Melbourne Limited [2017] FCA 1104
File number: VID 1274 of 2016 Judge: MORTIMER J Date of ruling: 15 September 2017 Catchwords: EVIDENCE – application of opinion rule – application of s 79 of Evidence Act 1995 (Cth) – admissibility of evidence of lay witness in reliance on s 79 of Evidence Act in circumstances where lay witness has not complied with, and has no capacity to comply with, Part 23 of Evidence Act – not admissible as expert evidence Legislation: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 20, 21
Evidence Act 1995 (Cth), ss 66A, 76, 78, 79
Federal Court Rules 2011, r 23
Cases cited: Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; 202 FCR 564
Date of hearing: 14 September 2017 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 60 Counsel for the Applicant: Mr R Merkel QC, with Mr P Gray QC, Ms Z Maud and Mr C Tran Solicitor for the Applicant: Maurice Blackburn Counsel for the First Respondent: Mr N Young QC with Mr N Hopkins QC and Ms G Coleman Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: Mr P Jopling QC with Mr P Wallis Solicitor for the Second Respondent: King & Wood Mallesons REASONS FOR RULING
VID 1274 of 2016 BETWEEN: SHONICA GUY
Applicant
AND: CROWN MELBOURNE LIMITED (ACN 006 973 262)
First Respondent
ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD (ACN 001 660 715)
Second Respondent
MORTIMER J:
These are the reasons for the ruling I gave on Friday, 15 September 2017.
The applicant proposed to rely on an affidavit from Dr Charles Henry Livingstone.
Objection was taken by both respondents to Dr Livingstone’s evidence. Both respondents objected to the whole of his affidavit. The second respondent (Aristocrat) also raised specific objections to identified parts of the affidavit. The first respondent (Crown) adopted Aristocrat’s specific objections to identified parts if its primary submission was not accepted.
BACKGROUND
Before considering the objections, it is necessary to briefly set out the background of this proceeding and the context to this ruling.
This proceeding concerns a claim against Crown and Aristocrat for breaches of the Australian Consumer Law, which is Sch 2 to the Competition and Consumer Act 2010 (Cth). Crown operates a casino in Melbourne pursuant to the Casino Control Act 1991 (Vic), and in doing so, makes available to the public a poker machine called the Dolphin Treasure electronic gaming machine (EGM). The Dolphin Treasure EGM is manufactured and supplied to Crown by the second respondent, Aristocrat.
The applicant alleges that in making the Dolphin Treasure EGM available to the public, and in manufacturing and supplying the EGM respectively, Crown and Aristocrat…
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- Case
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CaseChat Overview and Summary
The case of Guy v Crown Melbourne Limited involved a legal dispute where the applicant alleged breaches of the Australian Consumer Law by Crown Melbourne and Aristocrat, focusing on the Dolphin Treasure electronic gaming machine. The respondents objected to the evidence provided by Dr. Livingstone, a Senior Lecturer in Epidemiology and Preventive Medicine, regarding the design and features of the gaming machine and their impact on problem gambling. Crown and Aristocrat argued that Dr. Livingstone's evidence was inadmissible because it did not comply with the requirements under the Evidence Act 1995 (Cth) and the Federal Court Rules 2011, particularly regarding the qualifications and independence of expert witnesses. They contended that Dr. Livingstone's opinions were not based on specialized knowledge and lacked the necessary underlying bases.
The central legal issues revolved around the admissibility of Dr. Livingstone's evidence under the opinion rule and section 79 of the Evidence Act 1995 (Cth). The court had to determine whether Dr. Livingstone's affidavit could be admitted as lay witness evidence despite not being qualified as an expert or complying with Part 23 of the Evidence Act. The court examined whether the evidence was based on specialized knowledge and whether Dr. Livingstone's qualifications and independence were sufficient to support his opinions. The applicant argued that the absence of independence did not bar admissibility but rather affected the weight the court should give to the evidence.
The court found that Dr. Livingstone's evidence was not admissible as expert evidence due to non-compliance with the relevant legal requirements. While Dr. Livingstone had extensive experience and knowledge related to poker machine gambling, his qualifications and independence did not meet the standards set out in the Evidence Act and the court's practice notes. The court acknowledged Dr. Livingstone's expertise but concluded that his evidence could not be relied upon as expert evidence because it did not comply with the necessary legal standards. Consequently, the objections to Dr. Livingstone's evidence were upheld in part and disallowed in part. The court allowed certain parts of Dr. Livingstone's evidence to be admitted as lay witness evidence, subject to specific conditions, including the ability to cross-examine him on the limited matters of his assistance to the applicant and his belief in her case's underlying tenets.
The central legal issues revolved around the admissibility of Dr. Livingstone's evidence under the opinion rule and section 79 of the Evidence Act 1995 (Cth). The court had to determine whether Dr. Livingstone's affidavit could be admitted as lay witness evidence despite not being qualified as an expert or complying with Part 23 of the Evidence Act. The court examined whether the evidence was based on specialized knowledge and whether Dr. Livingstone's qualifications and independence were sufficient to support his opinions. The applicant argued that the absence of independence did not bar admissibility but rather affected the weight the court should give to the evidence.
The court found that Dr. Livingstone's evidence was not admissible as expert evidence due to non-compliance with the relevant legal requirements. While Dr. Livingstone had extensive experience and knowledge related to poker machine gambling, his qualifications and independence did not meet the standards set out in the Evidence Act and the court's practice notes. The court acknowledged Dr. Livingstone's expertise but concluded that his evidence could not be relied upon as expert evidence because it did not comply with the necessary legal standards. Consequently, the objections to Dr. Livingstone's evidence were upheld in part and disallowed in part. The court allowed certain parts of Dr. Livingstone's evidence to be admitted as lay witness evidence, subject to specific conditions, including the ability to cross-examine him on the limited matters of his assistance to the applicant and his belief in her case's underlying tenets.
Orders
Orders of the court
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Background
Background to the litigation
Objection was taken by both respondents to Dr Livingstone’s evidence. Both respondents objected to the whole of his affidavit. The second respondent (Aristocrat) also raised specific objections to identified parts of the affidavit. The first respondent (Crown) adopted Aristocrat’s specific objections to identified parts if its primary submission was not accepted.BACKGROUND Before considering the objections, it is necessary to briefly set out the background of this proceeding and the context to this ruling. This proceeding concerns a claim against Crown and Aristocrat for breaches of the Australian Consumer Law, which is Sch 2 to the Competition and Consumer Act 2010 (Cth). Crown operates a casino in Melbourne pursuant to the Casino Control Act 1991 (Vic), and in doing so, makes available to the public a poker machine called the Dolphin Treasure electronic gaming machine (EGM). The Dolphin Treasure EGM is manufactured and supplied to Crown by the second respondent, Aristocrat. The applicant alleges that in making the Dolphin Treasure EGM available to the public, and in manufacturing and supplying the EGM respectively, Crown and Aristocrat have contravened ss 18, 20 and 21 of the ACL. Her claims rely on a number of features of the Dolphin Treasure EGM, and, for the ss 20 and 21 claims, on what is alleged to be the way these features “take advantage” of a group of players described by the applicant as “vulnerable players”. In support of these claims, the applicant seeks to adduce evidence from Dr Livingstone in relation to, among other things, the design and configuration of the Dolphin Treasure EGM, features of the Dolphin Treasure EGM which, in his opinion, contribute to addiction to poker machines, and his observations of problem gamblers and the causes, in his opinion, of problem gambling. It is this evidence to which the respondents object.PARTIES’ SUBMISSIONSThe respondents’ submissions Crown submitted the whole of the affidavit is inadmissible opinion evidence because of non-compliance with r 23.11 of the Federal Court Rules 2011. It also submitted the opinions expressed by Dr Livingstone are not wholly or substantially based on his specialised knowledge, and that he has not identified the underlying bases (such as the facts, matters, assumptions or his reasoning process) for the opinions he expresses. Crown relied on the plurality reasons in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [35]-[37]. Aristocrat submitted Dr Livingstone’s affidavit is “in substance an expert report on topics in respect of which he is not qualified and is prepared without him having complied with the relevant requirements of the Federal Court Rules”. In addition to these objections, and following discussions between the parties, the applicant agreed not to read into evidence [33]-[37] and [40]-[41] of Dr Livingstone’s affidavit. This agreement was noted in the joint list of outstanding objections to evidence. After those objections were filed and served, and as a result of discussions between counsel, the applicant informed the Court that the last sentence of [32] of Dr Livingstone’s affidavit was also not pressed. This ruling does not consider those paragraphs. The applicant’s submissions
Evidence
Evidence Before The Court
Further, relying on a decision of Dodds-Streeton J in Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; 202 FCR 564, the applicant submitted absence of independence is no bar to admissibility, but goes to the credibility or reliability the Court should attach to expert evidence from a person who is not independent in the way contemplated by the authorities, by the Harmonised Expert Witness Code of Conduct and by the Court’s Practice Note. DR LIVINGSTONE’S PROPOSED EVIDENCE Dr Livingstone is a Senior Lecturer in the Department of Epidemiology and Preventive Medicine at Monash University, and has occupied that position since 2006. Prior to that he was a Senior Research Fellow with the Australian Institute for Primary Care at La Trobe University. He describes his qualifications in the following way:I have a Bachelor of Arts degree in History and have completed a Postgraduate Diploma in Economic History, a Graduate Certificate in Higher Education, a Masters of Economics degree by research and a Doctorate from the Department of History and Philosophy of Science at the University of Melbourne. My doctoral thesis explored the social and economic history of poker machine gambling in Victoria. He states that he has “written more than 30 peer-reviewed articles, the majority focused on aspects of poker machine gambling including government policy, the operation and the characteristics of poker machines and the ways in which gamblers interact with poker machines”. He also describes how, together with Dr Richard Woolley, he was commissioned by the “former Victorian Gambling Research Panel to conduct research in relation to the technological basis of the Victorian poker machine industry, and changes in that technological basis over time, for the purpose of understanding the relation between technology and consumption behaviour”. This project culminated in a publicly available report entitled “The Changing Electronic Gaming Machine (EGM) Industry and Technology”, published in March 2006. Dr Livingstone deposes that:I have conducted a number of studies in relation to the structural characteristics of poker machines including a recent review of evidence and information paper on structural characteristics. By structural characteristics, I mean the attributes of poker machines such as the configuration of the reels, the images and lights displayed and the sounds emitted, how the machines operate including the rate of spin of the reels, the amount of money inserted and game features such as free spins.For the purpose of my research, and generally, I have conducted interviews, focus groups, or other discussions with hundreds of gamblers who have reported difficulty controlling their use of poker machines, and have also reviewed data in relation to hundreds of interviews or questionnaires conducted by others.(Emphasis in original.) He also outlines other aspects of his work, including his studies and interests in the neurobiology of gambling addiction. He states that:I am reasonably familiar with the literature in relation to the neurobiology of gambling addiction, although I am not an expert in research techniques in neurobiology.
Decision
Reasons for decision
Dr Livingstone’s assistance to the applicant, and his belief in the underlying tenets of her case, may properly be the subject of cross-examination in relation to the evidence I have determined should be admitted. That is a matter for the respondents. On those limited matters, his assistance to the applicant does not, in the circumstances of this case, preclude any reliance by the applicant on his affidavit.Conclusion The respondents’ objections are upheld in part, and disallowed in part.
Ratio Decidendi
Legal Principle Established
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