'No doubt the Evidence Act operates to widen the circumstances in which expert testimony may be proffered. With both the common knowledge rule and the ultimate issue rule abolished, there would seem to be but two relevant obstacles to the admission of evidence going to the meaning of words as used in a statute. These would be (assuming the evidence is properly to be characterised as within the opinion rule enunciated by s 76), whether the testimony is relevant to the issue to be determined, that is to say the meaning of the particular word in the statute, and whether the witness does have specialised knowledge based on training, study or experience to support the opinion he or she is to give.
Generally the only special experience which a witness could have to give evidence as to the ordinary English meaning of a word would be linguistic study. Experience in a trade or industry in which the word is used would not suffice as appropriate expertise. The witness would still be no more qualified than any other person to give the evidence. Thus whether or not it would now be permissible for an expert linguist to give evidence as to the meaning of an ordinary English word, a question I have no need to decide here, the relaxation of the rules relating to expert evidence as contained in the Evidence Act do not have the consequence of making evidence of non-linguists admissible.
However, the Evidence Act does not represent a code of the law of evidence. Particularly, it would not preclude the admissibility of evidence of usage where that evidence was relevant to an issue in the case. But nor would it permit evidence of usage to be given if that evidence were precluded by the common law of evidence. Thus I do not see the conclusion to which I have come as in any way affected by the Evidence Act.'
31 Two observations should be made about the significance of Hill J's reasoning for this case. First, Ms Moore's evidence is expressed as an expert opinion as a matter of linguistics. She does not purport to give evidence of actual usage. The admissibility of her evidence must be determined by reference to the law of opinion evidence. Secondly, her expertise in linguistics has not been challenged. Therefore on Hill J's analysis the only question for me to decide is whether her evidence is relevant.
32 The meaning of s 80 of the Evidence Act 1995 (NSW), which is identical with the Commonwealth provision, was considered by Levine J in O'Brien v Gillespie (1996) 41 NSWLR 549. In a professional negligence case, a solicitor swore an affidavit as to the practice of solicitors, which Levine J regarded as going to the issue for determination. He treated the evidence as opinion evidence, purportedly given by an expert, and referred to Hill J's analysis in the Pepsi Seven-up case. He observed that the restrictive interpretation referred to by Hill J was attractive. He disagreed with the view expressed by Miles CJ in an unreported decision in the Supreme Court of the Australian Capital Territory ( Walton v Corporate Venture Pty Ltd , 6 June 1996), to the effect that 'the old rule that an expert may not express an opinion on the ultimate issue that a court has to decide, died long ago and was buried by s 80 of the Evidence Act 1995.'
33 Levine J. concluded (at 557):
'The view to which I ultimately come is that the proposed testimony of this witness is on the essential matters of fact and law to be decided by the application of legal standards upon the evidence of the actual transactions which the court will hear and thus does no more than intrude upon the exercise of the essential judicial function.'
34 There may be room for debate whether his Honour's conclusions go beyond merely a restrictive interpretation of s 80. Some of his other remarks suggest that he regarded the particular evidence before him as irrelevant, as well as evidence to be excluded in the exercise of his discretion under s 135.
35 I respectfully agree with Hill J that, since s 80 has abolished the ultimate issue rule, the general position is that evidence going to an ultimate issue, which is tendered as expert opinion evidence, is admissible unless it is not relevant, or the witness does not have specialised expertise to support his or her opinion. As Levine J's judgment makes clear, evidence which is otherwise admissible may be rejected on discretionary grounds under s 135. However, there seems to be an exception to the general proposition where the evidence relates to the meaning of words.
36 In my opinion the common law rule that evidence cannot be given as to the meaning of an ordinary English word in a statute or document is not just an application of the rule that expert evidence may not be given of an ultimate fact in issue. It is a special and particular rule. To the extent I would respectfully disagree with Hill J's analysis. Perhaps the rule cannot be justified by the proposition that the judge is presumed to know the English language, for the reasons given by Hill J. But there may be another justification not dependent upon the proposition that the meaning of the word is an ultimate fact in issue. The justification may have to do with the special of responsibility of judges in interpreting the written word, which requires them to balance considerations relating to the context of particular words in a statute or document, the circumstances surrounding the making of the instrument, and admissible evidence about the intention of the authors. Whatever the justification may be, the rule is firmly established. As Jordan CJ said in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137, 'the question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence...'.
37 Jordan CJ's formulation of the rule acknowledges that although expert evidence is inadmissible, the court may have regard to dictionaries and other books. As Hill J noted, the basis for this is unclear, and it might seem irrational that the written opinion of the expert lexicographer, expressed in the dictionary, is regularly referred to, but an affidavit by the lexicographer is generally inadmissible. It seems to me that the best explanation for the common judicial practice of referring to dictionary definitions, even when they are not cited by counsel, is that the dictionary is regarded as an established aid to be used in the judge's work, akin to the law reports rather than an item of evidence: cf Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 121 CLR 659; Incorporated Council of Law Reporting for England and Wales v A-G [1972] Ch 73.
38 My conclusion, therefore, is that a lexicographer's evidence about the ordinary meaning of a word used in a statute or document is generally inadmissible. However, though I have not discovered any direct authority for the proposition, it seems to me that there must be an exception to permit evidence to be given that the ordinary meaning of a word has changed since the last publication of the dictionary meaning. No traditionally published dictionary can keep up with changes to modern language, especially where new technology (such as the Internet and modern telephony) touches everyday lives. In an area where the court most needs assistance in giving a contemporary meaning to language, it must be permissible for it to receive expert evidence of a changed or new meaning.
39 To the extent, therefore, that Ms Moore's evidence purports to relate to the ordinary meaning of the word 'plus', it is inadmissible unless it is taken to assert that the meaning of those words has changed. The first of the three paragraphs set out above does not make that claim and is inadmissible. The second paragraph could be taken to make that claim, since it asserts that the word has acquired a secondary meaning out of its use in, for example, software names. I note that Ms Moore's sources for her opinion include the Internet, a citations database and 'Ozcorp', which she describes as the Macquarie Dictionary corpus of Australian English. I am entitled to infer that these sources are dynamic. On balance, I regard the second paragraph as admissible as evidence of a change to the meaning of the word 'plus'.
40 The third paragraph is in a different category. Having stated her opinion as to the meanings of the word 'plus', Ms Moore purports to apply the secondary meaning to the plaintiff's use of the business name 'Pharmacy Plus Tumut', and then to draw a conclusion as to whether the use of the business name implies a claim to superiority of the kind to which the Regulation refers. Section 80 prevents this evidence from being rejected solely on the ground that it goes to the ultimate issue in the case. But Ms Moore's expertise as a lexicographer does not specially qualify her to express a conclusion about the lawfulness of the plaintiff's conduct, and in that sense the evidence in the third paragraph is not relevant to the issue which I must determine. In my opinion the third paragraph is inadmissible. I do not see any distinction between the first and second sentences of the paragraph.
41 I should add that if the third paragraph were otherwise admissible, I would reject it under s 135. While it is helpful to identify a secondary meaning of the word 'plus', having regard to the evolution of language since the last publication of the Macquarie Dictionary, it is not helpful to the court, and potentially embarrassing to the plaintiff, for the witness to express an opinion as to the application of the Regulation to the plaintiff's conduct, especially where the opinion is only that the use of the business name 'could imply' that the business offers a better range of goods and services and 'could be said to imply' a claim of superiority. If that evidence were admitted, it would be of no significant probative value.