Category two articles
8 It is convenient to deal first with the category two articles, ie, articles that have not been the subject of any witness evidence.
9 The applicant has not referred to any authority which supports the admission of learned articles in category two. The applicant refers to R v Patel (No 6) [2013] QSC 64, particularly at [10]-[11], where Fryberg J admitted into evidence a learned article published in a medical journal which had been the subject of cross-examination. The judgment is accordingly authority relevant to category one, but not to category two. Fryberg J referred to R v Karger [2001] SASC 64; 83 SASR 1, but that was also a case where scientific articles were admitted as having been "accepted as forming part of the body of knowledge of the relevant scientific community", which was established by a witness, and they formed the basis of the opinions of witnesses in the case. The articles were not sought to be used as evidence independent of any witness.
10 Reference was also made to QIW Retailers Ltd & Attorney-General (Cth) v Davids Holdings Pty Ltd (No 3) [1993] FCA 288; 42 FCR 255, particularly at 275, where Spender J explained his Honour's reference in the reasons for judgment to the learned articles of economists on the question of market definition in a competition case on the basis of them having been referred to in "the elaborate arguments that were presented to the court both in the course of submissions and in the course of the evidence of some of the economic experts who were called in the proceedings". Although it is not entirely clear, it seems that that was also a category one case - ie, that all of the articles had been referred to in the evidence of some of the experts.
11 That understanding is supported by Spender J's reference to PQ v Australian Red Cross Society [1992] 1 VR 19 and Concha v Murrieta (1889) 40 Ch D 543. In the former, McGarvie J at 34-35 admitted "information in authoritative scientific publications" on which an expert witness relied as a basis for a portion of their evidence as forming part of the testimony of the witness. In the latter, Cotton LJ at 550, with whom Lindley LJ agreed, and Lopes LJ at 554, held that where an expert witness on foreign law refers to passages in the Code of the relevant foreign law, the court can receive the Code itself in evidence and have regard to it to consider its proper meaning. Lopes LJ went a step further to say that the legal document to which the witness refers is to be taken as part of the testimony of the witness. (In Australia, this question in relation to proof of foreign law is now governed by ss 174-175 of the Evidence Act.)
12 In any event, in QIW Retailers there was apparently no objection taken to the admissibility of the articles or to the use to which they were put. The judgment is therefore no authority for the proposition that the category two articles are admissible.
13 In Commissioner for Government Transport v Adamcik [1961] HCA 43; 106 CLR 292 the issue before the jury had been whether the deceased's leukaemia from which he died and which was discovered 12 days after he had been injured by being knocked from the footboard of the tramcar of which he was the conductor had been caused by the accident. Dr Haines, for the plaintiff, the deceased's widow, had given evidence that he considered that it was probable that the leukaemia was the result of the accident. Two physicians, one of whom was Sir William Morrow, said that there was no connection between the accident and the leukaemia, although Sir William agreed in cross-examination that there were suggestions in medical literature that some cases of leukaemia had been the result of trauma, but he said that in his view that had been generally discarded in literature published in the preceding 20 years. Also, in an article produced to him it was said that all the cases of leukaemia that had followed trauma had been of a different variety of leukaemia to that suffered by the deceased. Windeyer J (with whom Kitto J agreed) explained as follows (at 307-308):
Statements in text-books and in articles in medical journals are not, in themselves, evidence, unless they be accepted or approved by competent witnesses in the box. The content of some medical literature was brought out in the cross-examination of Sir William Morrow, without, however, his assenting to it as correct. Ordinarily a jury could properly consider this only to test the evidence of the witness, not as itself evidence of fact. But, in this case, they could, for another purpose, legitimately have regard to what was read from books. It had been suggested to Doctor Haines in cross-examination and, no doubt, later urged upon the jury, as it was to us, that no support at all for his view was to be found anywhere in any medical writings. In answer to this suggestion, the jury could notice what was put forward as supporting his view and consider whether it did so.
14 There is nothing in that passage that supports the view that learned articles can be used independently of any witness. Indeed, use of the articles in that fashion would amount to use contrary to Wigmore's guidance - it would be equivalent to a layperson coming to court alleging a fact which they have learned only by reading a medical or a mathematical book. They cannot be heard.
15 It follows from the above authorities that learned articles that are not the subject of expert opinion do not satisfy the gateway of admissibility in s 79(1) of the Evidence Act. They are therefore excluded by s 76 and inadmissible. They are also excluded by s 59 as amounting to hearsay evidence. They do not qualify for the "business records" exception in s 69 because they are not the internal records of any business but rather the product of the business, whether that is of the profession of the author or the business of the publisher: Roach v Page (No 15) [2003] NSWSC 939 at [5]-[8]; ACCC v Air New Zealand Limited (No 5) [2012] FCA 1479; 301 ALR 352 at [11]-[15].
16 I also accept the submission on behalf of the respondents that the Court's rules and practice with regard to expert evidence amount to a code of procedural fairness; it would be procedurally unfair to the respondents to admit the articles that were not put to any expert witness or adopted by any expert witness, nor the subject of discussion in the expert conclaves, and in respect of which the respondents have had no opportunity to cross-examine the authors of the articles to test their methodology, conclusions and opinions or to adduce the evidence of their own experts in contradiction of the articles. To allow the category two articles to be tendered in those circumstances would consequently be unfairly prejudicial to the respondents within the meaning of s 135(a) of the Evidence Act and I would also exclude them on that basis.