Milanovic v Ventura Transit Pty Ltd (Ruling No3)
[2022] VCC 950
•27 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-04604
| Zlatko Milanovic | Plaintiff |
| v | |
| Ventura Transit Pty Ltd | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 24 June 2022 | |
DATE OF RULING: | 27 June 2022 | |
CASE MAY BE CITED AS: | Milanovic v Ventura Transit Pty Ltd (Ruling No3) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 950 | |
RULING No.3
Subject:EVIDENCE – CROSS-EXAMINATION
Catchwords: Defendant seeking to cross-examine expert medical witness on failure to disclose financial and property interests with partners of plaintiff law firm by whom retained – whether relationship probative and relevant – real or perceived lack of independence – whether evidence should be excluded as prejudicial – jury trial – cross-examination allowed.
Legislation Cited: Evidence Act 2008
Cases Cited:Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26; Festa v The Queen (2001) 208 CLR 593; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Finance and Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665; R v Clarke [2001] NSWCCA 494; R v Lisoff [1999] NSWCCA 364; Rush v Nationwide News Pty Limited (No 5) [2018] FCA 1622; Toth v Jarman [2006] EWCA Civ 1028;
Judgment: Evidence admissible
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Mr R Paoletti | Zaparas Lawyers |
| For the Defendant | Mr R Middleton QC with Ms F Spencer | Thomson Geer |
HIS HONOUR:
Introduction
1Professor Bittar is neurosurgeon. He was a treating neurosurgeon to the plaintiff before he furnished a medico legal report dated 14 April 2021[1] to the plaintiff’s lawyers.
[1] Plaintiff’s Court Book (‘PCB’) 76-80.
2In prefatory matters expressed in his medico legal report Professor Bittar stated:
“I am a Registered Medical Practitioner in Australia. I hold a Fellowship of the Royal Australasian College of Surgeons and am a practising neurosurgeon in Victoria and Tasmania. I hold a PhD in functional neuroimaging and am a Clinical Professor at Deakin University.
A copy of my curriculum vitae is attached.
Thank you for providing me with a copy of the Civil Procedure Act 2010 (Vic) “Overarching Obligation for Expert Witnesses” paragraphs 16-25 and the Expert Witness Code of Conduct form 44A, Rule 44.01. I have read both of these documents and agree to be bound by them.
In particular:
(i) I am not an advocate of any party.
(ii) I have made all the inquiries which I believe to be desirable and appropriate and that no matters of significance which I regard as relevant have been withheld from the Court.”[2]
[2] PCB 76.
3Professor Bittar’s medico legal report identified how he had formed his opinions concerning the plaintiff on matters neurological.
4On 21 June 2022 Professor Bittar was called to give oral evidence by the plaintiff. He disclosed his examination of the plaintiff and his recourse to investigations that had been provided to him and these included radiological films and he offered opinions on causation and the plaintiff’s prognosis and work capacity.
5In his evidence in chief Professor Bittar was taken by leading counsel for the plaintiff to a history of his examinations of the plaintiff that were expressed in his reports back to the plaintiff’s treating general practitioner as well as to his opinions contained in his medico legal report provided to the plaintiff’s solicitors.
6In cross-examination Professor Bittar’s expertise was not challenged by Mr Middleton. However, Mr Middleton did challenge Professor Bittar on many matters in support of the opinions and conclusions expressed on matters of diagnosis and causation.
7On 21 June during the course of Mr Middleton’s cross-examination of Professor Bittar, Mr Middleton foreshadowed, in the absence of the jury, that he intended to cross-examine Professor Bittar on the existence of a number of commercial properties that his company Bittar Holdings Pty Ltd, of which he is director, owns with a company called YPZZ Investments Pty Ltd, the two named directors of whom are partners in the plaintiff law firm and relatives of Mr Peter Zaparas, the principal of Zaparas Lawyers, the firm that retained Professor Bittar to provide a medico legal report. The principal place of business of Bittar Holdings Pty Ltd and YPZZ Pty Ltd is 3-9 Chester Street, Oakleigh that being an address of an office of the plaintiff law firm.
8Mr Middleton said he wanted to cross examine Professor Bittar on these matters in order to suggest to him that he lacked independence and objectivity in his expression of opinion regarding the plaintiff’s condition.
9Mr Middleton did not contend that in the event Professor Bittar’s lack of independence was established that he would seek a direction that his evidence be excluded and the jury instructed to ignore what they had heard. That is important because in law, a loss of independence by an expert witness will not invariably result in inadmissibility. In fact, on most occasions, it will likely not.
10Because of Professor Bittar’s commitments, I adjourned to Friday morning 24 June 2022 for arguments to be heard on the issue. After having heard the respective submissions made by the defendant orally by Ms Spencer and Mr Fitzpatrick for the plaintiff, I ruled that I would permit questions on the matters to be put to Professor Bittar and that I would publish my reasons as soon as practicable thereafter.
11After giving my ruling the jury reconvened and the trial continued. Professor Bittar attended later in the day for the resumption of his evidence.
12The reasons that follow are confined to, and informed by, the state of the evidence and the materials and arguments that were raised on 21 June and subsequently addressed on the morning of 24 June 2022.
13The Order 44A code of Conduct is expressed as follows:
EXPERT WITNESS CODE OF CONDUCT
Application of Code
1. This Code of Conduct applies to any expert witness engaged or appointed—
(a) to provide an expert’s report for use as evidence in proceedings or proposed proceedings; or
(b) to give opinion evidence in proceedings or proposed proceedings.
General Duties to the Court
2. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.[3]
[3] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r44.01, Form 44A.
14It may be appreciated that a need to disclose any impediment to an expert witness’s independence may extend beyond the obligations identified in the Code. That the obligation is broader and exists as a principle of fairness and is not exhaustively codified, as has been highlighted in various UK decisions. For example, in Toth v Jarman[4] the Court of Appeal said this:
“Where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible.”[5]
[4] [2006] EWCA Civ 1028.
[5] Ibid [102].
15The Court rejected arguments that disclosure of conflicts of interests was not necessary unless there was a request to disclose, stressing that interests which were not obviously material should be disclosed by the expert to the party they were instructing and by that party to the other parties to the proceedings. It was held that it was for the court to determine whether a conflict of interest was material or not.
Opinion evidence
16Section 79 of the Evidence Act 2008 (Vic) (‘Evidence Act’) stipulates an exception to the admissibility of what is otherwise objectionable evidence if:
(a) the witness has specialised knowledge derived from training, study, or experience; and
(b) the opinion expressed by the witness is wholly or substantially based on that specialised knowledge.
17In Rush v Nationwide News Pty Ltd (No.5)[6] (‘Rush’), Wigney J admitted evidence of friends of the plaintiff notwithstanding submissions that the witnesses “will necessarily be incapable of being impartial”[7] and had utilised unidentified information. His Honour noted that s 79 of the Evidence Act imposes no requirement for the evidence to be independent or impartial. He concluded the relevant principles had been properly summarised by Dodds-Streeton J in Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4)[8] where her Honour held:
“In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert’s evidence, but rather, the significant risk that it will fail to persuade.”[9]
[6] [2018] FCA 1622.
[7] Ibid [8].
[8] [2012] FCA 385.
[9] Ibid [35].
18In Rush, Wigney J concluded that:
“In other words, an actual or perceived lack of independence, impartiality or objectivity of an expert witness goes to weight, not admissibility.”[10]
[10] Rush [2018] FCA 1622 at [36].
19To like effect, Riordan J in Finance and Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling)[11] held that there was no requirement either in the expert witness code of conduct contained in the Supreme Court’s rules or elsewhere which compelled Mr Silvia, a person engaged as an expert on complex financial transactions and who had engaged in undisclosed but extensive communications with the lawyers who retained him. In answer to the plaintiff’s contention that Mr Silvia had engaged in misleading conduct and contraventions of his overarching obligations, His Honour held that “unless the earlier retainers and communications constituted matters upon which his opinions as expressed in his report were based, Mr Silvia was not required to disclose them under the Code or otherwise.”[12] Mr Silvia, therefore, had not engaged in misleading conduct in failing to disclose, amongst other things, details of his previous retainers. However, they may be relevant to the issue of weight.
[11] [2019] VSC 665.
[12] Ibid [53].
20Had the controversy before me required it, I would have concluded that Professor Bittar’s expert evidence need not be independent in order for it to be admissible. Thus, the question is reduced to whether the tribunal of fact, in this proceeding constituted as a jury, may hear the questions that the defendant seeks to put that amount to an accusation of a lack of independence by Professor Bittar and that the non-disclosure of his commercial arrangements, if known, may give rise to real or apprehended bias and affect the weight the jury may give to the opinions expressed by Professor Bittar in light of the relationship with the plaintiff law firm.
21Mr Fitzpatrick submitted that the questions he anticipated Mr Middleton wished to ask Professor Bittar about the commercial interests Professor Bittar shares with partners of the plaintiff law firm, if permitted, would be unfairly prejudicial to the plaintiff. However, Mr Fitzpatrick failed to identify prejudice other than the risk that the jury might consider that Professor Bittar’s opinion was expressed favourably to the plaintiff for a collateral purpose being his shared commercial relationship with partners of the plaintiff law firm.
22Section 135 of the Evidence Act operates to exclude evidence that is logically probative and so satisfies s 55 (“Relevant evidence”) but insufficiently probative by reason of being “substantially outweighed by the danger that the evidence might”[13] run foul when considered against one or more of the following three policy concerns[14]:
·unfair prejudice to a party (s 135(1)(a));
·mislead or confuse (s 135(1)(b)); or
·cause or result in undue waste of time (s 135(1)(c)).
[13] Evidence Act, s 135.
[14] Subsection 135(d) has no application in the determinisation of this application.
23I am satisfied that the party seeking exclusion under s 135 of the Evidence Act, bears a considerable onus, as they must demonstrate that the probative value of the evidence would be “substantially” outweighed by the danger of its unfair prejudicial effect.
24In the weighing exercise required by s 135, the Court should consider the extent to which problems associated with admitting the evidence may be mitigated by actions other than exclusion, including limiting the use of the evidence or by appropriate jury directions.
25Mr Fitzpatrick submitted that the line of questioning is not relevant. Relevance is dealt with in Part 3.1 of the Evidence Act specifically, ss 55 to 58. I am satisfied that it is relevant if the evidence a witness may give may be affected by external considerations. As Mr Fitzpatrick submitted, there is no suggestion that Professor Bittar would be advantaged or disadvantaged by the outcome of the trial of this proceeding. Perhaps the point is no more than a potentiality that if Professor Bittar disclosed his connections to this law firm, the frequency with which he might be engaged for the provision of a medico legal opinion by Zaparas Lawyers may be reduced or affected because of the risk that this anticipated line of questioning may be raised in other proceedings in which he has been engaged to provide an independent opinion for one of its clients. It is only by cross-examination that such an issue or any others could be explored and considered.
26“Probative value” is defined as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[15]
[15] See Evidence Act 2008 (Vic) Dictionary pt 1 (definition of ‘probative value’).
27The requirement that the specified dangers “substantially outweigh” the probative value of evidence before that evidence might be excluded has been described as requiring that the probative value be “well outweighed” by the unfairly prejudicial effect.[16] That risk of danger must be more than one of mere possibility.[17]
[16] R v Clarke [2001] NSWCCA 494 at [163] per Heydon JA (Dowd and Bell JJ agreeing).
[17] R v Lisoff [1999] NSWCCA 364.
28“Unfair prejudice” most often arises when there is a risk that the tribunal of fact will misuse the evidence in some way and so is particularly relevant to jury trials, but not trials by judge sitting alone, where it would be unlikely for the judge to exclude evidence on the basis that she or he would misapply it.
29The question for me to determine is whether the tribunal of fact on hearing that Professor Bittar is a company officer along with two partners of the plaintiff law firm and that Bittar Holdings, a company owned by Professor Bittar is a shareholder along with those same partners, in the ownership of the properties, the principal place of business of which for corporate record requirements, is an office of the plaintiff law firm, risks misuse of that evidence by, for example, excluding the expert opinion evidence of Professor Bittar relevant to matters of injury, causation and prognosis and work capacity. Does such a risk substantially outweigh the probative value of the evidence?
30I am satisfied that the lack of disclosure of Professor Bittar’s financial interests in ownership of properties through a company which he controls together with partners of the plaintiff law firm who are family members of the principal of the law firm that engaged him to provide a medico-legal report, is a matter that Professor Bittar ought to have disclosed as a matter of transparency, and is a matter about which the defendant is entitled to cross-examine. It may be observed that the plaintiff could only have faintly complained had Professor Bittar made the disclosure of these interests and the defendant had sought to cross-examine him about it.
31In making this ruling, I have:
·Assessed the probative value of the evidence and I am satisfied it is probative to the potential impartiality and independence of the medico legal opinion expressed by Professor Bittar concerning the plaintiff’s injuries and the weight the jury may give some or all of it.
·Taken into account that all evidence which is probative is relevant, so that “if evidence is of some, slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from [the Court’s] consideration.”[18]
·Considered it is probative and, therefore, relevant that Professor Bittar should have disclosed his interests thereby enabling the finders of fact to consider if the witness has consciously or unconsciously provided a favourable opinion. I note that Ormiston J.A in FGT Custodians Pty Ltd v Fagenblat[19] distinguished the position that an expert independent witness could not be excluded from testifying because of what Wigmore called his “experiential capacity”[20] and that such a ground “must be firmly distinguished from those matters which may go to impeach the reliability of a witness’s testimony, namely those that are based on cross-examination or other evidence to show inadequate expertise or bias or interest by reason of conduct or other circumstance.”[21]
·Assessed whether there is a risk that, if admitted, the evidence might have one or more of the identified consequences identified in s 135 and I am satisfied the risk is not substantial; and
·Determined that the probative value of the evidence is not substantially outweighed by the risks identified.[22]
[18] Festa v The Queen (2001) 208 CLR 593 at 599 per Gleeson CJ.
[19] [2003] VSCA 33 (‘Fagenblat’).
[20] See Wigmore on Evidence (Chadbourn Revision) Vol.II Chapter 23 paras. 555ff.
[21] Fagenblat [2003] VSCA 33 [5] (citations omitted).
[22] See Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, [115].
32I can dispose at once with the objection under sub-paragraph 135(c) that the questions if permitted on the topic may cause or result in undue waste of time. The matters are confined and I would curtail any excessive questioning by Mr Middleton of Professor Bittar.
33I can also dispose of the objection under sub-paragraph 135(b). This jury will be instructed by me how such evidence as might come to light as a result of the further cross-examination of Professor Bittar may be used or not, as the case may be, should they reach a point in their deliberations that it is necessary for them to assess the plaintiff’s injuries as a result of a finding of negligence by the defendant.
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