SB v State of New South Wales

[2004] VSC 513

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7694 of 2000

S.B. (by her Litigation Guardian)	Plaintiff
v
STATE OF NEW SOUTH WALES	Defendant

JUDGE:	REDLICH J.
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2003
DATE OF RULING:	16 September 2003.  Reasons delivered 14 December 2004
CASE MAY BE CITED AS:	S.B. v State of New South Wales
MEDIUM NEUTRAL CITATION:	[2004] VSC 513

RULING

Psychiatric reports – Medical practitioner overseas – Reports sought to be transferred pursuant to s 55(1) Evidence Act 1958 – Unnecessary that steps have been taken to secure the witnesses’ attendance – Loss of ability to cross-examine – Whether inexpedient to admit the evidence.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Kennan S.C. with Ms M. Bylhouwer	Clark & Toop Solicitors
For the Defendant	Mr J. Menzies Q.C. with Mr F. Saccardo	Victorian Government Solicitor

HIS HONOUR:

1. Pursuant to s 55(1)(9a) Evidence Act 1958 (hereafter “the Act”) the Plaintiff seeks to tender as evidence the opinions of Dr M Epstein contained in reports dated 19 October 2001, 17 July 2003, 3 February 2003 and 28 August 2003 respectively.

1. I have been told by Mr Kennan S.C., who appears for the Plaintiff, that Dr Epstein is presently overseas.  This is a matter which is not in dispute.  Dr Epstein is unable to be contacted and is unable to provide evidence via video link.  By some time in early August 2003, Dr Epstein had conveyed to the Plaintiff’s legal advisors, the fact that he was intending to travel overseas and that he would be unavailable to give evidence at the trial.

1. The Plaintiff relies on ss.(5)(b) of the Act which provides in substance that it is not necessary to call the maker of the statement where the maker of the statement is out of Victoria and it is not reasonably practicable to secure his attendance.

1. It has already been agreed between the parties that Dr Epstein's reports would be admitted into evidence for the limited purpose, of providing me with the histories obtained by Dr Epstein, from both the Plaintiff and from other sources.  Dr Epstein's reports were provided to other witnesses who gave evidence before me and who relied on the content of them.  In other words, Dr Epstein's reports were admitted as part of the histories relied upon by other witnesses who testified before me but the reports, tendered for this limited purpose, were not evidence of the facts contained within them.

1. The Defendant submits, pursuant to s.55(9) of the Act that I should exercise my discretion to refuse to admit any of the reports as evidence of the opinions held by Dr Epstein.

1. It is clear that s.55(1) of the Act, which refers to direct oral evidence of a fact contained within a statement, extends to facts in the form of the expression of expert opinion.[1]

   [1]Trade Practices Commissioner v TNT Management Pty Ltd (1984) 56 ALR 647.

1. It seems settled that the expressions of opinion by an expert, albeit that the expert has been consulted for the express and limited purpose of providing opinions in relation to litigation that is already under way, are not to be regarded as statements by a person "interested" within the meaning of ss.(4) of the Act.

1. The facts which have been placed before me in relation to Dr Epstein's departure indicate that no steps were taken by the Plaintiff to secure Dr Epstein's attendance to give evidence at the trial.

1. I was referred to the decision in Piermay Shipping Company SA & Anor v Chester[2] in which the Court of Appeal held that it was unnecessary for the purpose of the English Civil Evidence Act 1968 and the Rules of Court for a party to have made attempts to have a witness appear, before oral statements could be introduced into evidence pursuant to that legislation and those Rules. On a brief review of that legislation and the Rules, I doubt that much assistance can be derived from that decision. I am satisfied, having regard to the regime of the Victorian Act and s.55 of the Act in particular, that it is not necessary that the Plaintiff have taken steps to secure the attendance of a witness before s.55(1) can operate.

   [2][1978] 1 All ER 1233.

1. Dr Epstein's reports relate to the nature and cause of the Plaintiff's incapacity or disability and are relied upon, both for the purposes of an application by the Plaintiff to have an extension of time under the New South Wales Limitations Act 1969, and for the purpose of determining what injuries the Plaintiff may have sustained.

1. I have heard evidence from another psychiatrist called by the Plaintiff, Dr Kaplan, as to the matters which it was intended would be covered by Dr Epstein.  I have also been told that the Defendant intends to call a psychiatrist to give evidence in relation to the same subjects.  To what extent the opinions that will be placed before me may differ, I am presently unable to say. 

1. As a general rule no evidence is to be considered against the interests of a party unless that party has had an opportunity of testing such evidence.  Section 55 of the Act is an exception to this principle.  The cross-examination of Dr Epstein may be critical in assessing what weight is to be attached to his opinions.  Because Dr Epstein’s evidence will not be able to be evaluated or tested by ordinary means and there being an inherent subjectivity in that evidence, I would be unlikely to attach much weight to the evidence were I to admit it.

1. I have reached the conclusion that I should not accept the reports of Dr Epstein as evidence of his opinions, having regard to their importance to the litigation and to the fact that Dr Epstein's conclusions cannot be tested.  I take into account that the matters which Dr Epstein has covered in his reports have all been addressed by Dr Kaplan, who was fully cross-examined by the Defendant.  I am satisfied that no injustice will be done by refusing to admit Dr Epstein's reports.  Expressing myself in the terms of s.9 of the Act, I conclude that it appears to be inexpedient in the interests of justice that Dr Epstein's opinions should be admitted into evidence as opinions upon which I could act.