FEDERAL COURT OF AUSTRALIA
Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577
File number: NSD 103 of 2023 Judgment of: LEE J Date of judgment: 8 December 2023 Date of publication of reasons: 12 December 2023 Catchwords: PRACTICE AND PROCEDURE – whether lipreading evidence should be permitted to be adduced by first respondent notwithstanding delayed service on applicant – admissibility of lipreading report pursuant to s 79 of the Evidence Act 1995 (Cth) (EA) – whether lipreading report should be excluded in exercise of discretion in s 135 of the EA – evidence permitted to be adduced Legislation: Evidence Act 1995 (Cth) ss 76, 79, 79(1), 135
Federal Court of Australia Act 1976 (Cth) s 37M(1)
Cases cited: Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336
Honeysett v R [2014] HCA 29; (2014) 253 CLR 122
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McNickle v Huntsman Chemical Company Australia Pty Ltd (Additional Expert Conclave) [2022] FCA 1596
R v BD (1997) 94 A Crim R 131
R v Luttrell [2004] EWCA Crim 1344; [2004] 2 Cr App R 31
R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681Australian Law Reform Commission, Evidence (Interim) (Report 26, 1985)
Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000)
Stephen Odgers, Uniform Evidence Law (3rd ed, LBC Information Services, 1998)
Stephen Odgers, Uniform Evidence Law (18th ed, LawBook Co, 2023)Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 39 Date of hearing: 8 December 2023 Counsel for the Applicant: Mr S Whybrow SC with Mr M Richardson SC and Mr N Olson and Mr D Helvadjian Solicitor for the Applicant: Mark O’Brien Legal Counsel for the First Respondent: Dr M Collins KC with Mr T Senior Solicitor for the First Respondent: Thomson Geer Lawyers Counsel for the Second Respondent: Ms S Chrysanthou SC with Mr B Dean Solicitor for the Second Respondent: Gillis Delaney Lawyers ORDERS
NSD 103 of 2023 BETWEEN: BRUCE LEHRMANN
Applicant
AND: NETWORK TEN PTY LIMITED ACN 052 515 250
First Respondent
LISA WILKINSON
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The first respondent be permitted to adduce into evidence the report entitled, “Lip Read Transcription Of Soundless Recorded Speech”, prepared by Mr Tim Reedy on 19 November 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION AND BACKGROUND
The first respondent, Network Ten Pty Limited (Network Ten), wishes to call in its case Mr Tim Reedy, who describes himself as a “forensic lipreader”.
Mr Reedy was engaged by Network Ten to prepare a…
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Details
- Case
- [2023] FCA 1577
- Decision Date
CaseChat Overview and Summary
The matter before the court involved a dispute between Bruce Lehrmann and Network Ten Pty Limited, concerning the admissibility of lipreading evidence presented by the latter. The Federal Court was tasked with determining whether the lipreading evidence should be permitted despite the delayed service on Lehrmann. The court also needed to decide whether the lipreading report should be excluded under the discretion provided in section 135 of the Evidence Act 1995 (Cth) (EA).
The court examined the legal issues surrounding the admissibility of the lipreading report under section 79 of the EA. It considered whether the witness had specialised knowledge and if the opinion was based on that knowledge. The court also assessed whether the evidence should be excluded under the discretion in section 135 of the EA, taking into account factors such as whether the evidence would confuse or mislead the court and the undue delay in serving the evidence. The court found that the evidence met the criteria for admissibility and did not warrant exclusion under the discretionary powers.
The court ruled that the Reedy Report could be adduced as opinion evidence under section 79 of the EA, as it was based on the specialised knowledge of the witness. The court further held that the evidence should not be excluded under section 135 of the EA, as the potential relevance of the evidence outweighed the incremental time required to deal with the matter. The court allowed the first respondent to adduce the report into evidence, noting that the weight given to the evidence would depend on the conclusions drawn following the cross-examination of the witness.
ORDERS:
1. The first respondent be permitted to adduce into evidence the report entitled, “Lip Read Transcription Of Soundless Recorded Speech”, prepared by Mr Tim Reedy on 19 November 2023.
The court examined the legal issues surrounding the admissibility of the lipreading report under section 79 of the EA. It considered whether the witness had specialised knowledge and if the opinion was based on that knowledge. The court also assessed whether the evidence should be excluded under the discretion in section 135 of the EA, taking into account factors such as whether the evidence would confuse or mislead the court and the undue delay in serving the evidence. The court found that the evidence met the criteria for admissibility and did not warrant exclusion under the discretionary powers.
The court ruled that the Reedy Report could be adduced as opinion evidence under section 79 of the EA, as it was based on the specialised knowledge of the witness. The court further held that the evidence should not be excluded under section 135 of the EA, as the potential relevance of the evidence outweighed the incremental time required to deal with the matter. The court allowed the first respondent to adduce the report into evidence, noting that the weight given to the evidence would depend on the conclusions drawn following the cross-examination of the witness.
ORDERS:
1. The first respondent be permitted to adduce into evidence the report entitled, “Lip Read Transcription Of Soundless Recorded Speech”, prepared by Mr Tim Reedy on 19 November 2023.
Orders
Orders of the court
1. The first respondent be permitted to adduce into evidence the report entitled, “Lip Read Transcription Of Soundless Recorded Speech”, prepared by Mr Tim Reedy on 19 November 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
This afternoon, I heard argument and determined that Network Ten should be allowed to adduce the Reedy Report as opinion evidence within the meaning of s 79 of the Evidence Act 1995 (Cth) (EA). My reasons for doing so are as follows.B SECTION 79 OF THE EVIDENCE ACT It is well at the outset to say something generally, but briefly, as to the operation of s 79 of the EA. Of course, s 76(1) provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. An exception to the “opinion rule” exists for “expert opinion” or “opinions based on specialised knowledge” and is set out in s 79. As a starting point, two conditions must be met for an opinion to be admissible under s 79 of the EA: first, the witness must have “specialised knowledge based on a person’s training, knowledge and experience”; and secondly, the opinion must be “wholly or substantially based on that knowledge”: McNickle v Huntsman Chemical Company Australia Pty Ltd (Additional Expert Conclave) [2022] FCA 1596 (at [15]). It is important that consideration of these two stages is not elided and, more generally, that attention be given to the “factual basis rules” governing admissibility of opinion evidence. As I explained in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 (at 458 [500]–[501]):500The High Court warned in Dasreef (at [37]) that the admissibility of opinion evidence is not to be determined by focussing on statements made in decided cases divorced from the context in which those statements were made, but rather upon the requirements of the Evidence Act. Hence the proper focus is on whether it can be said that the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and in relation to which the opinion is “wholly or substantially based”, applies to the facts assumed or observed in the particular case so as to produce the relevant opinion. By reference to the judgment of Heydon J in Dasreef, John Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 (at [98]) identified three “factual basis rules” which apply under s 79, being: (1) are the facts and assumptions on which the expert’s opinion is founded disclosed (assumption identification rule)? (2) is there evidence admitted, or to be admitted before the end of the tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (proof of assumptions rule)? and (3) is there a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge (statement of reasoning rule)?501These “factual basis rules” are fundamental and reflect the essential basis upon which an expert opinion is of any utility … it is worth having regard to the reasons of Spigelman CJ (with whom Giles and Ipp JJA agreed) in Australian Securities and Investments Commission v Rich (2005) 218 ALR 764, which contains a detailed analysis of the underlying basis as to why such rules exist. As part of that analysis, Spigelman CJ made reference to the reasoning in HG v The Queen (1999) 197 CLR 414, including the statement by Gleeson CJ (at [41]), that expert evidence:… required identification of the facts [the expert] was assuming to be true, so that they could be measured against the evidence; and … demonstration or examination of the scientific basis of the conclusion.(Spigelman CJ’s emphasis.)(Emphasis in original).C THE ARGUMENTS ADVANCED BY MR LEHRMANN
Decision
Reasons for decision
I am also confident I will not be confused or misled by the evidence (135(b)). Furthermore, the incremental time in dealing with this matter, given the potential relevance of the evidence, could not be described as undue in the circumstances (s 135(c)). For completeness, I note that in exercising the general discretion to exclude evidence, as is evident from the above, I have had regard to all s 192(2) EA matters to the extent relevant.D CONCLUSION AND ORDERS For the foregoing reasons, I will allow the Reedy Report to be adduced into evidence. I hasten to add that the mere fact I have allowed this evidence to be adduced says nothing about the weight I ultimately will give to it. This will depend upon the conclusions I draw following the foreshadowed cross-examination of Mr Reedy, among other things. The cogency and relevance of Mr Reedy’s evidence will, in the end, be assessed together with all the other evidence adduced.
Ratio Decidendi
Legal Principle Established
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