Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd

EX TEMPORE Judgment 1HIS HONOUR: The plaintiff takes objection to paragraphs 17-19 of the affidavit of Miss Linda Griffiths sworn 19 June 2014. Those paragraphs are: 17. I refer in paragraph 76 of my First Affidavit, in which I state: "If, in 2000-2010, Dr Wenkart sought to increase parking fees beyond the Liverpool-agreed rate plus CPI, for staff to park in the private hospital multi-storey carpark, it is likely in my opinion that the following would have happened. I would have been in a position to influence each of the following decisions. Each of the steps to which I refer would be subject to the NSWNA receiving legal advice that the steps were not permissible or were unlikely to be effective". 18. That remains my opinion. 19. It is my opinion that the industrial action which I refer to in paragraphs 75 to 88 of [my] First Affidavit ("Industrial Action") would have occurred, if there was any increase (in the period from 1998 to 2014) beyond "Liverpool-agreed rate plus CPI", no matter how small that increase was. That was because: (a) I would personally consider that industrial action would be appropriate, no matter how small the increase was above the "Liverpool-agreed rate plus CPI". That is because I would consider that any "breaching" of the standard created by the "Liverpool-agreed rate plus CPI", would be the "thin end (sic) of the wedge" and set a precedent which would promote further upward creeping of what I understood to be the ceiling price set by the Liverpool decision. Once the ceiling was breached in any respect, I considered that it would be very difficult to stop further increases. That is because I considered that ramping up parking prices is a very easy and tempting way for employers to make more money, and in the absence of a "line in the sand" it would be difficult to resist further creeping increases; (b) I would seek to guide branches and members to take the Industrial Action, if there was any increase (in the period from 1998 to 2014) beyond "Liverpool-agreed rate plus CPI", no matter how small that was; (c) I refer to paragraph 28(b) of my Second Affidavit, in which I state that I have had discussion with the majority of the Organisers in relation (sic) car parking and fees. In discussions with those Organisers with whom I have had discussions about car parking fees, to the best of my recollection all made statements (or expressed agreement with statements) to the effect that: "If anyone tries to increase parking fees beyond the Liverpool-agreed rate plus CPI, then we will guide the members and the branch to take action"; (d) As an Organiser, I have no right to make decisions on behalf of branches or members in relation to industrial action. However, approximately up to 4 times a year, there will be occasions in which I will seek to guide a branch (and its members) in relation to appropriate industrial action. I cannot recall a single occasion on which a branch (and its members) have rejected my recommendation or guidance in relation to appropriate industrial action. From 1994 to 1998, I made approximately 3 or 4 recommendations to the RPA branch which were accepted (although I cannot now recall the specific recommendations that I made). Since 1998, I have not personally made any recommendations to the RPA branch. To the best of my recollection, there have been around half a dozen occasions since 1998 when I have been aware of organisers recommending industrial action at RPA (but I cannot now recall the specific nature of those recommendations). To the best of my recollection, those recommendations were accepted by the members of the RPA branch on each occasion; (e) The present General Secretary (Brett Holmes) has said words to the effect: "We are unfortunately bound by the 1994 Industrial Commission decision. But we will make sure that only annual CPI is ever added to that price". He has said this on numerous occasions since he took office in 2003, including at an annual conference (the date of which I can't recall) and staff meetings (which are held every Tuesday, but I cannot now recall the specific dates on which he made statements to that effect.) 2Paragraphs 17-18 are objected to insofar as it is said that paragraph 76 of what is referred to as her First Affidavit was earlier ruled inadmissible. While that is correct, there is no reason why that paragraph, now included as paragraph 17 of her latest affidavit, cannot be sought to be relied upon again, if it is otherwise admissible in the context in which it is now sought to be deployed. If paragraph 19 is admissible then paragraphs 17 and 18 ought to be admitted because those three paragraphs must be read together. 3I will therefore turn to the objections to paragraph 19. The particular objections in paragraph 19 are to the second sentence of 19(c), the sixth sentence to the end of 19(d) and to all of 19(e). They are all objected to as being hearsay and unsupported by primary evidence. To understand the reference to primary evidence it is necessary for me to say something about the course of the proceedings to date in relation to Miss Griffiths' evidence. 4The first affidavit to be read from Miss Griffiths was sworn on 12 June 2014. Paragraphs 75-88 of that affidavit were objected to. I accepted that those paragraphs were not admissible in the form in which they appeared in that affidavit. My reasons for that are set out in my judgment in Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 3) [2014] NSWSC 828. In those reasons I said: 3. There was considerable discussion before me as to whether the matters about which Miss Griffiths is giving her evidence are capable of being the subject of "specialised knowledge based on the person's training, study, or experience", within the meaning of s 79(1) of the Evidence Act 1995 (NSW). 4. Miss Griffiths is, clearly, a nurses' union organiser and representative of many years experience. I am satisfied that the area of workplace relations in the case of nurses in the Sydney metropolitan area, even to the point of specifically relating to Royal Prince Alfred Hospital, and how those nurses may respond in an industrial sense to particular situations, is an area capable of being the subject of specialised knowledge. 5. It is subject matter of a kind where I would expect a person who professes specialised knowledge has obtained that knowledge through experience. A moment's thought would satisfy one that it is not readily an area where one would expect there to be training or study. Nevertheless, I am satisfied that it is an area where specialised knowledge can be obtained by experience and, on the basis of Miss Griffiths' experience as set out in her affidavit, I am satisfied she has it. 5Having found that the subject matter of Miss Griffiths' evidence was one that was capable of being the subject of specialised knowledge based on the person's training, study or experience within the meaning of s 75(1) of the Evidence Act 1995 (NSW) (the "Act") and that she was a person who had that kind of knowledge, I went on to exclude those parts of her evidence because they did not satisfy the requirements set out in the judgment of Heydon JA, as his Honour then was, in Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 704 at [85]. I gave the defendant an opportunity, if it could, to cure the deficiencies which had caused me to exclude those paragraphs in Miss Griffiths' affidavit. 6The defendant subsequently sought to rely upon an affidavit of Miss Griffiths sworn 18 June 2014 and her affidavit of 19 June 2014 which is the subject of the current objection. In my reasons in these proceedings in Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 4) [2014] NSWSC 930 I came to the view that Miss Griffiths' affidavit of 19 June 2014 satisfied the concerns which had caused me to exclude her earlier evidence. However, for the reasons which I gave, it seemed to me appropriate to afford the plaintiff a further, limited opportunity to object to Miss Griffiths' evidence, as to which I said: 8. It is entirely a matter for the defendant to form a view as to whether or not matters which are ultimately to be seen as matters of primary fact upon which Ms Griffiths has based her opinions have been properly proven. The appropriate course in these proceedings is to indicate that before the plaintiff cross-examines Ms Griffiths I will afford the plaintiff an opportunity to renew any objections that it has to her evidence insofar as it may be said primary material has not been proven. Putting this another way, it will not be acceptable at the time Ms Griffiths is called to give evidence for the defendant to seek to keep its options open in terms of proof of other matters. By the time she is called the defendant must have determined what additional evidence, if any, it proposes to adduce to support the matters relied upon by Ms Griffiths, and have given proper notice to the plaintiff of that material. 7The plaintiff has now chosen to take up that opportunity to renew specific objections. 8In reaching the conclusion in my latter judgment that Ms Griffiths' affidavit of 19 June 2014 was admissible, there was implicit in my thinking an acceptance of a proposition advanced during the course of argument on that occasion by the defendant that evidence of the kind which is now specifically challenged by the plaintiff was admissible under s 60 of the Act: 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). (3) However, this section does not apply in a criminal proceeding to evidence of an admission. 9Taking, by way of example, Ms Griffiths' evidence of discussions with other union organisers, that evidence is clearly hearsay. However, it is admissible before me for a purpose other than proof of the facts asserted in that evidence. That other purpose is to explain the basis upon which Ms Griffiths bases her ultimate opinion as to what nurses would have done in a particular situation. In those circumstances, s 60 has the effect of making that evidence admissible for all purposes. 10When the plaintiff, whose position has been advanced with skilful vigour by Mr Harding of Counsel, submits that statements such as that to which I have referred are inadmissible for want of proof of primary facts, it seems to me, with respect, that there is a confusion as to the type of fact being referred to. The plaintiff's submissions relied upon what in my respectful opinion are the undoubtedly correct dicta of Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [66] and [127] to the effect that the primary facts relied upon or assumed by an expert must be proven in order to make that expert's opinion admissible. However, those primary facts are different to facts which are part of the knowledge relied upon by the expert in reaching the conclusion which is the subject of the expert's opinion. 11To give a simple example, one can postulate a situation where an expert is called in a motor accident case to give evidence about the speed the vehicle was travelling at the point of impact. The expert will make a number of assumptions about the type of vehicle, the number of passengers, the weather conditions, the road conditions and the like. Having made those assumptions, the expert will then apply his or her expertise, including by reference to scientific matters such as textbooks, formulas from physics, studies of road conditions and the like, to reach his or her opinion as to how fast the vehicle was travelling at the point of impact. Those latter matters are also facts. However, they are different from the primary facts or assumptions which must be proven in the sense considered by Heydon J in Dasreef. 12In the motor accident example, the plaintiff must prove admissibly the facts about the accident which the expert assumed (type of vehicle, weather conditions etc). However, the law does not require the party calling the expert also to prove the other matters which he or she took into account such as, for example, physics formulas or statements in textbooks, as part of reaching his or her ultimate conclusion. It is clear that such matters, which are technically hearsay, are able to be taken into account by an expert but are not required to be strictly proven. For example, if the expert has taken into account the results of a scientific study; the plaintiff does not have to call the author of that study to prove it so that it can be relied upon by the expert. 13So the Full Court of the Federal Court said in Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84 (emphasis added): 92 Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence 3rd ed, vol 2 at 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, "would be to ignore the accepted methods of professional work and to insist on finical and impossible standards". Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court. See generally Borowski at 385-387, PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35, H v Schering Chemicals [1983] 1 WLR 143 at 148-149, Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) at [8]. 93 There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said: Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose - eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion - will be admissible also as evidence of the facts stated. 94 It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski at 385-386. 95 In view of the discussion at [90] to [94] the primary judge's failure to have regard or attach weight to the anthropologists' evidence on the observance of the laws and customs in the period between sovereignty and the present on the ground that it was not relevant to the position at sovereignty or at the present time was a serious error. The other ground on which his Honour rejected the evidence, namely that the basis rule was not satisfied, is also wrong. The primary judge thereby deprived himself of the evidence in reliance on which he could have undertaken the Yorta Yorta HC exercise of determining whether, for each generation since sovereignty, acknowledgment and observance of the Noongar laws and customs have continued substantially uninterrupted. 14What is important for the purposes of producing an admissible expert's report is that the report exposes the process of reasoning and, for example, sources of information, relied upon by the expert in reaching his or her conclusion. The exposure of such matters is, as Heydon J's dicta in Dasreef and Makita make clear, an essential element going to the admissibility of an expert opinion. The articulation of those matters enables the opposing party and the Court to assess the validity of the expert's conclusion and will be taken into account by the Court when determining the weight to be given to that expert's evidence. 15Returning to the particular circumstances of Ms Griffiths' evidence, the material which is the subject of objection is the equivalent of the textbooks and other resources which the expert in the motor accident example might have considered for the purposes of reaching his or her opinion. As I have observed in my earlier judgments about Ms Griffiths' evidence, the specialised field of knowledge which I am satisfied she possesses is not the sort of knowledge that can be acquired from book learning. It was acquired from years of experience of dealing with nurses in hospitals in the metropolitan area of Sydney, including Royal Prince Alfred Hospital. In those circumstances she is entitled to and, by reason of the principles to which I have earlier referred, required to set out what those things are that she has taken into account in reaching her ultimate opinion as to what the nurses would have done in particular hypothetical circumstances that are the subject of the dispute before me. However, they are not matters which require separate, strict proof. While they may be hearsay, they are admitted to explain the reasons and basis for her opinions, and are therefore admissible, notwithstanding they are hearsay, by reason of s 60 of the Act. 16I should specifically deal with one particular argument that was put by Mr Harding, lest it be thought that I have not taken it into account. Mr Harding submitted that while Ms Griffiths may, in accordance with my earlier findings, be a person possessed of specialised knowledge about the behaviour of nurses, that did not extend to knowledge of the behaviour of organisers who would be making recommendations to the nurses. Mr Harding submitted that it was an essential part of Ms Griffiths' reasoning that she assumed organisers would in fact make a recommendation, for example, that nurses would engage in strike action. He contended that this middle step concerning the behaviour of the organisers was not something that could fall within her specialised knowledge and should have been proven by calling the organisers. I disagree. 17It is clear on the material before me that Ms Griffiths is herself an experienced union organiser of long standing. The expertise which I am satisfied she has in relation to an understanding of the behaviour of nurses necessarily involves understanding the role of organisers and how nurses would react to recommendations from organisers. To the extent that Ms Griffiths makes assumptions about the kind of recommendations which organisers might make, that is part and parcel of the specialised knowledge which she brings to bear about the behaviour of nurses. In those circumstances, she is entitled and required to set out what it is she says the kind of recommendation that organisers would have made and then to reason from that recommendation to her ultimate opinion. In other words, the view she expresses as to what recommendation organisers would have made represents a step along the way in her process of reasoning. This will be open to testing in due course in cross-examination and will itself be a matter that will have to be taken into account when the overall weight of Ms Griffiths' evidence is considered by the Court. 18For these reasons I admit the paragraphs under challenge. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2014