Harrington-Smith v Western Australia (No 7)

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FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 7) [2003] FCA 893

NATIVE TITLE – case management – expert opinion evidence – numerous voluminous reports of expert witnesses and numerous evidentiary objections to them – how to deal with the objections in the course of the conduct of trial – principles governing decisions on the objections – deficiencies in reports of expert witnesses.

EVIDENCE – application for determination of native title – case management – expert opinion evidence – numerous voluminous reports of expert witnesses and numerous evidentiary objections to them – how to deal with the objections in the course of the conduct of trial – principles governing decisions on the objections – deficiencies in reports of expert witnesses.

Native Title Act 1993 (Cth) s 82
Evidence Act 1995 (Cth) ss 55, 56, 59, 60, 79, 135, 136

Walker v Walker (1937) 57 CLR 630 cited
HG v The Queen (1999) 197 CLR 414 cited

Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324 cited
Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 cited

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 referred to
Ramsay v Watson (1961) 108 CLR 642 cited
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 cited
Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 cited
Quick v Stoland Pty Ltd (1998) 87 FCR 371 referred to
Daniel v State of Western Australia (2000) 178 ALR 542 discussed
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited
Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 cited
Ward v State of Western Australia (1998) 159 ALR 483 cited
Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v States of Queensland [2000] FCA 1548 followed
Welsh v R (1996) 90 A Crim R 364 cited
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 referred to
RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 cited
The Queen v Perry (No 4) (1981) 28 SASR 119 cited
Cross on Evidence (1991) (Australian edition) referred to

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS
ON BEHALF OF THE WONGATHA PEOPLE v STATE OF
WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998

LINDGREN J
20 AUGUST 2003

PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6005 OF 1998

BETWEEN:

RON HARRINGTON-SMITH, LEO THOMAS,
CYRIL BARNES & OTHERS ON BEHALF OF THE
WONGATHA PEOPLE
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

JUDGE:

LINDGREN J

DATE OF ORDER:

20 AUGUST 2003

WHERE MADE:

PERTH

THE COURT DIRECTS THAT:

1.All parties review their objections to the experts’ reports and notify the Associate to Lindgren J by close of business this Friday 22 August 2003 of any objections to the various experts’ reports on which…

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Details
Case
[2003] FCA 893
Decision Date

CaseChat Overview and Summary

In Harrington-Smith v Western Australia (No 7), the dispute involved the admissibility of voluminous expert opinion evidence in a native title case. The case was before the Federal Court of Australia, which was required to decide on the numerous objections raised against the admissibility of the expert reports. The legal issues centered on the principles governing the determination of objections to the admissibility of expert opinion evidence, particularly whether the objections should be ruled upon before or during the trial, and how to handle deficiencies in the expert reports.

The court held that the objections should be considered in the context of the trial, with the experts' reports admitted subject to the weight given to any unresolved objections. The court emphasised that the admissibility of expert opinion evidence is governed by the Evidence Act, which requires the opinion to be based on specialised knowledge derived from the expert's training, study, and experience. The court also noted that the relevance of the evidence is an objective test that does not allow for discretion. The court directed that any objections not ruled upon would be taken into account in determining the weight to be given to the expert evidence. This approach allowed for a flexible management of the trial while ensuring the evidence's admissibility was properly considered.

Ultimately, the court ruled that all objections would be considered, and the experts' reports would be admitted subject to the weight given to any unresolved objections. The court took into account the time constraints and the need for an efficient trial process, while also ensuring that the legal standards for admissibility were upheld. The court's decision balanced the need for thorough examination of expert evidence with the practicalities of managing a complex trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

More generally, it will ultimately be a matter for me to give to the reports and the individual parts of them such weight as seems appropriate in all the circumstances (see, for example, Walker v Walker (1937) 57 CLR 630 at 634—635 per Latham CJ), including the circumstances referred to in any objections not ruled upon (see [5] above and [46] and [47] below). ‘Such weight as seem appropriate in all the circumstances’ includes the possibility of no weight at all.Legal requirements for admissibility of evidence of expert opinion; assumed factual basis for opinion; relevance The general rule is that ‘evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed’: Evidence Act, subs 76(1). This ‘opinion rule’ assumes that the evidence of the opinion is relevant. Section 78 of the Evidence Act excepts from the opinion rule evidence of certain lay opinions, while s 79 excepts from that rule evidence of certain opinions of experts. Section 79 is as follows:‘If a person has specialised knowledge based on the person’s training, study and experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.’In the present case there are many objections to the effect that particular expressions of opinion lie outside the established ‘specialised knowledge based on the [author’s] training, study and experience’. By providing for an exception to the inadmissibility created by the opinion rule, s 79 goes to admissibility. Again, the section poses an objective test; no discretion is involved; a party raising an objection to admissibility on the ground that the section is not satisfied is entitled to a ruling on the objection; it is for a party, not the judge, to raise the objection; the possibility arises of supposedly expert opinion which does not satisfy s 79 being admitted because an objection is not raised (or, if raised, is not pressed); and in such a case it will be open to the judge to give the evidence no weight. Unfortunately, in the case of many of the experts’ reports, little or no attempt seems to have been made to address in a systematic way the requirements for the admissibility of evidence of expert opinion. Counsel protested that, in order to ensure that the requirements of admissibility are met, lawyers would have to become involved in the writing of the reports of expert witnesses. In the same vein, counsel said, in supporting the admission of certain parts of a report, that they were written in the way in which those qualified in the particular discipline are accustomed to write. Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert’s particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.

Decision

Reasons for decision

LINDGREN J
In any event, counsel have not been able, in response to my invitation, to suggest any better course at this stage in the prevailing circumstances (for several reasons it was not practicable to rule on the objections prior to the commencement of this tranche of hearing dates).CONCLUSION All that I have said above is subject to the right of the parties to press for a ruling on particular objections.[Counsel for the parties indicated that they agreed to the course suggested.] I will make the direction to which I referred at the outset.[Subsequently, lists of 184 objections pressed were supplied. Some ten hours in Chambers were occupied in deciding on them and it took some three hours of hearing time to give the rulings on them (prior to the commencement of cross-examination of the relevant expert witnesses).]

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

It is against the background of the exigencies outlined above that the parties have raised question how the objections can best be resolved.CONSIDERATIONGeneral principles I have decided to indicate the principles that would govern my approach to the objections, and to direct the parties to identify by this Friday 22 August, any objections on which they consider rulings to be necessary. I propose for the parties’ consideration that the experts’ reports be subsequently admitted (when adopted by their authors in the witness box) on the basis that all objections notified and not ruled upon will be taken into account by me as going to weight. In these reasons, I will indicate in a general way shortcomings in some of the reports which are before the Court, but I will refrain from identifying particular reports or passages. Since I have not exercised, or been asked to exercise, the discretion given to me by subs 82(1) of the Native Title Act 1993 (Cth) (‘NT Act’) to order otherwise, the objections fall to be determined in accordance with the rules of evidence: subs 82(1). Reports or parts of reports that are relevant are admissible, except as otherwise provided by the Evidence Act 1995 (Cth) (‘Evidence Act’): Evidence Act, subs 56(1). Reports or parts of reports that are not relevant are not admissible: Evidence Act subs 56(2). The evidence that is relevant is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act, subs 55(1). (I need not discuss the basis on which a court may find evidence to be relevant provided by s 57 of the Evidence Act.) As I understand it, all of the experts’ reports are proffered as expert evidence (not as non-expert opinion evidence or as expert non-opinion evidence) relevant to the issue of the existence of native title (as defined in s 223 of the NT Act). Whether evidence, including expert opinion evidence, is relevant depends on application of the test specified in subs 55(1) (see [9] above) – an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion. Subsection 56(2) is mandatory. A party who objects to the admissibility of evidence is entitled to a ruling on the objection. It is not, however, for the trial judge to raise and determine questions of admissibility, including any which turn on relevance. Accordingly, the possibility arises of irrelevant evidence being admitted because an objection is not raised (or, if raised, is not pressed). Where that happens, the judge will give the evidence no weight, since it is not evidence that ‘could rationally affect ... the [judge’s] assessment of the probability of the existence of a fact in issue in the proceeding’. None of the many objections I have read to date are based on a failure to satisfy the requirement of relevance. All reports or parts of reports admitted, will be admitted ‘subject to relevance’, in the sense that even in the absence of an objection on the relevance ground, I will give any evidence which I do not find to be relevant, no weight.