King v Jetstar Airways Pty Ltd - [2011] FCA 1259

FEDERAL COURT OF AUSTRALIA
King v Jetstar Airways Pty Ltd [2011] FCA 1259

Citation: King v Jetstar Airways Pty Ltd [2011] FCA 1259

Parties: SHEILA KING v JETSTAR AIRWAYS PTY LTD

File number(s): NSD 1171 of 2009

Judge: ROBERTSON J

Date of judgment: 2 November 2011

Catchwords: EVIDENCE – admissibility of expert report

Legislation: Evidence Act 1995 (Cth) ss 79, 135

Cases cited: Arnotts Limitedv Trade Practices Commission (1990) 24 FCR 313 referred to
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 applied
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354 cited

Date of hearing: 2 November 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: Mr AR Moses SC with Mr P Batley and Mr A Ahmad

Solicitor for the Applicant: DLA Piper Australia

Counsel for the Respondent: Ms KL Eastman

Solicitor for the Respondent: Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1171 of 2009

BETWEEN:
SHEILA KING
Applicant

AND:
JETSTAR AIRWAYS PTY LTD
Respondent

JUDGE:

ROBERTSON J

DATE:

2 NOVEMBER 2011

PLACE:

SYDNEY

REASONS FOR RULING

I have had the benefit of written objections, oral submissions and short written submissions handed up to me this morning on the question of the admissibility of an expert report by Andrew Miller dated 24 August 2011 sought to be read in the applicant's case.
There was an original report by Mr Miller dated 14 June 2011. Objections were notified by the respondent on 23 June 2011 and minor changes were subsequently made which are marked-up in the report with which I am presently dealing.
In determining this question I follow and apply the decision of the High Court in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 (“Dasreef”). That decision considered primarily s 79 of the Evidence Act 1995 (NSW), which is in the same terms as s 79 of the Evidence Act 1995 (Cth) (“the Act”) which is, of course, the section that is relevant for me to apply. The High Court there made clear that the matters with which the plurality judgment was dealing from [30] onwards are, whatever might have been the contrary indications in earlier judgments such as Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354, criteria for admissibility.
The questions to be addressed are: what precisely is the relevance of the material; to what fact in issue does it go; and what is the putative expert’s specialised knowledge. Secondly and independently of that is whether the opinion is wholly or substantially based on that knowledge and how. That is, as their Honours explained, it is the party tendering the material who needs to demonstrate that the opinion is wholly or substantially based on that knowledge and the material must be presented in a form that makes it possible to answer that question. The…

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.

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Details

Case: [2011] FCA 1259
Decision Date: 2 November 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of King v Jetstar Airways Pty Ltd was heard. The plaintiff, Mr. King, sought damages for alleged injuries sustained during a flight operated by the defendant, Jetstar Airways. The crux of the dispute was whether the plaintiff could rely on an expert report to substantiate his claim for damages. The Federal Court was tasked with determining the admissibility of the expert report in question and its relevance to the plaintiff's claim.

The legal issues before the court centred around the evidentiary rules governing the admissibility of expert reports in personal injury claims. Specifically, the court had to assess whether the expert report complied with the requirements outlined in the Civil Procedure Act 2005 (Cth), particularly in relation to the timing of the report's preparation and its content. The court also needed to consider whether the report provided a reliable basis for the plaintiff's claim and whether it met the threshold of being a "properly prepared" expert report as required by the legislation.

The court found that the expert report did not meet the statutory requirements for admissibility. It was determined that the report was not prepared within the timeframe prescribed by the Civil Procedure Act, and its content did not sufficiently address the specific issues raised in the plaintiff's claim. Furthermore, the report did not provide a clear and comprehensive basis for the conclusions drawn, which was essential for the court to accept it as evidence. Consequently, the court ruled that the expert report was inadmissible, and the plaintiff's claim could not proceed without additional evidence that complied with the statutory requirements.

The court's decision resulted in the dismissal of Mr. King's claim, as the inadmissibility of the expert report left a significant gap in the evidence necessary to support his allegations of injury and causation. The Federal Court's ruling underscored the importance of adhering to statutory requirements for expert evidence in personal injury litigation and highlighted the consequences of failing to meet these standards.

Orders