King v Jetstar Airways Pty Ltd

REASONS FOR RULING 1 I have had the benefit of written objections, oral submissions and short written submissions handed up to me this morning on the question of the admissibility of an expert report by Andrew Miller dated 24 August 2011 sought to be read in the applicant's case. 2 There was an original report by Mr Miller dated 14 June 2011. Objections were notified by the respondent on 23 June 2011 and minor changes were subsequently made which are marked-up in the report with which I am presently dealing. 3 In determining this question I follow and apply the decision of the High Court in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 ("Dasreef"). That decision considered primarily s 79 of the Evidence Act 1995 (NSW), which is in the same terms as s 79 of the Evidence Act 1995 (Cth) ("the Act") which is, of course, the section that is relevant for me to apply. The High Court there made clear that the matters with which the plurality judgment was dealing from [30] onwards are, whatever might have been the contrary indications in earlier judgments such as Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354, criteria for admissibility. 4 The questions to be addressed are: what precisely is the relevance of the material; to what fact in issue does it go; and what is the putative expert's specialised knowledge. Secondly and independently of that is whether the opinion is wholly or substantially based on that knowledge and how. That is, as their Honours explained, it is the party tendering the material who needs to demonstrate that the opinion is wholly or substantially based on that knowledge and the material must be presented in a form that makes it possible to answer that question. The opinion must explain how the field of specialised knowledge applies to the facts. 5 As I have said, these are criteria for admissibility and must be satisfied. 6 I do not regard it as determinative by any means that Mr Miller has not worked at Jetstar itself. Indeed, I did not understand that to be at the forefront of the respondent's submissions. No doubt, in the same vein, Mr Miller has some specialised knowledge of the airline industry. I also accept that there are questions of judgment and degree involved. 7 But in my opinion the criteria for admissibility have not been satisfied by this report. The proposed opinion does not explain or articulate what is the field of specialised knowledge or how it applies to the facts. Further, the proposed opinion does not identify what the facts are with any or sufficient precision. 8 Alternatively, and there is some overlap between what I have just said and what follows, there is no identification of the factual basis of the conclusions or of the reasoning process by which the facts (not identified) or assumptions (not identified) inform the conclusion. The identification, such as it is, is no more than global. Perhaps one of the reasons for and indications of the global nature of the report is that the author does not in terms provide answers to the specific questions he was asked. 9 The second group of matters to which I have referred are relevant to my discretion, which I exercise, to exclude the material under s 135(c) of the Act. That is, if the material has any probative value there is a danger that the evidence might result in undue waste of time. Not only does the form of the document lead to the prospect of undue waste of time, there is also unfairness in the opposing party being put in a position of having to explore in cross-examination material at this level of generality. 10 I should also note that the global nature of the report means that it bears some similarities to the rejected expert evidence in Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, a decision of the Full Court of this Court, which is referred to in the judgment of Heydon J in Dasreef. 11 I will take the report into account as a submission if it is relevant to any question I have to decide. I leave open that possibility or that possible use, notwithstanding the generality of the material. 12 For these reasons I reject the tender of the report of Mr Miller. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.