Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1120 | Case summary

JUDGMENT (see T2147 - admissibility - evidence going to proof of facts founding expert's opinion) 1 HIS HONOUR: Yesterday Mr Lyall was asked this question at 2123 line 5: "Q. In the periods in which you had personal contact with him before March 1995, how would you describe his mood in the way he went about the business that you had in common?" 2 Objection was taken to that question on the basis that it was directed to inadmissible evidence, evidence inadmissible because it is irrelevant. 3 The issue to which it is said to relate (T2123.20) is the plaintiff's claim that he suffered psychiatric injury as a result of the publication sued upon, and to support the opinions of experts as set out in the medical and psychological reports which for the purpose of this application have been marked MFI 1. 4 It appears from the chronology that is not disputed that upon a claim for psychiatric harm having being made, on 18 August 1998 the defendant's solicitors wrote to the plaintiff's then solicitors seeking particulars. On 20 August 1998 the plaintiff's then solicitors replied purporting to particularise that claim by the provision of medical reports. On 2 November the defendant's solicitors inquired of the plaintiff's firm whether the plaintiff was still pressing the claim, and in that regard whether the plaintiff was relying upon it as particularised in the reports that had been delivered in August of last year. 5 There apparently the matter rested until 6pm last night, 15 November, when by fax there was served on the solicitors for the defendant MFI2 which purports to be a further particularisation of the plaintiff's claim for psychiatric harm. 6 The experts' reports, upon consideration for the purpose of this exercise as contained in MFI 1, in general terms can be stated as providing opinions expressed upon what the plaintiff related as to his then present and past symptoms and, where relevant, on signs observed. None of the material in MFI 1, insofar as opinions are expressed, strikes me as expressing opinions based upon hypotheses as distinct from facts related by the plaintiff in consultation. As was stressed by Mr Stitt there was nothing in the reports that points to external sources or factual information or other corroborative material. It is, as it was said, material constituted by the opinions founded upon representations by the plaintiff as to his subjective condition. 7 The facts in issue, first, are whether or not the plaintiff has suffered a recognised psychiatric illness, and second whether any such illness was caused by the relevant publications. 8 As to the evidence of the kind sought to be led from Mr Lyall it is submitted that none is probative of either issue. I here interpose that as far as I understand it, it is not sought by the plaintiff to use the evidence as probative of the second fact in issue, causation. 9 It is thus submitted given the nature of the source material for the experts, that is from the plaintiff only, evidence of the kind sought to be led is simply irrelevant. Further, evidence of the kind sought to be led cannot be admissible under Pt 3.3 of the Evidence Act (the Opinion rule), and particularly under s 78(b). The Opinion rule in s 76 is an exclusionary rule; s 78 is the exception that relates to lay opinions. 10 The formulation of the contentious question makes it uncertain as to whether or not an opinion in fact is being sought or evidence of an observation given. In the event that evidence of the kind being allowed, that question might well have to be rephrased. In any event on the quite distinct question of s 78(b) I am not presently of the view that, subject of course to the relevance question, the kind of evidence to which the inquiry of the witness was directed does not fall within the exception. Thus the main question at this point is relevance. 11 It is argued for the defendant that it cannot be relevant on the bases asserted because the source is in the plaintiff himself. The material that was forthcoming from the plaintiff in consultation with his medical advisers, it is argued, is the relevant material and not anything of the kind Mr Lyall or indeed any other witness in his category or indeed otherwise might give. 12 For the plaintiff it was contended by reference to the decision of Justice Beaumont in the Trade Practices Commission v Arnotts Limited (No 5) (1990) 21 FCR 324 particularly at 326 and 327, that it is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence, his Honour citing Ramsey v Watson (1961) 108 CLR 642. His Honour went on to state that that does not mean that the facts so proved must correspond with complete precision to the position on which the opinion is based. 13 In the course of submissions Mr Donohoe pointed out that the cited passage from Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 in Beaumont J's judgment provides no limitation as to the source or origin of the admissible evidence that would prove the facts upon which expert medical opinion was based. No authority has been cited that compels in my view the limitation sought to be imposed by the defendant. 14 Reliance was also placed by the plaintiff in opposition to the fundamental submission for the defendant on passages from Wigmore's treatise on Evidence set out at page 327 of the TPC judgment: "1. Testimony in the shape of inferences or conclusions always rests on certain premises of fact. That which has been called observation, serving as the basis of relief in matters directly cognizable by the senses - as, the facts of an afffray, a conversation, a trespass, and the like - is here replaced by what may be called a consideration of the premise. If the witness has not considered or had in mind these premises, his inference or opinion is good for nothing. 2. These premises, a consideration of which is essential to the formation of the conclusion or opinion,, must somehow be supplied to the jury by testimony. The same witness may supply both premises or conclusion. The two are not necessarily connected. 3. If the latter method is chosen, and a witness is put forward to testify to the conclusion, the premises considered by him must be expressly stated, as the basis of his conclusion; otherwise, since his conclusion rests for its validity upon a consideration of the premises, if those premises are not made to accompany the conclusion, the tribunal might be accepting a conclusion for which the witness had considered premises found by the tribunal not to be true. 4. Hence, the premises must be stated hypothetically in connection with the conclusion; then, by other testim0ony, the material for determining the truth of the assumed premises may be furnished to the tribunal". 15 Mr Stitt argued the inapplicability of the analysis in Wigmore on the basis that here we are not concerned with hypotheses, (the relevant extract being concerned with hypothetical questions), but on the actual related material provided by the plaintiff of subjective matters on which the opinion was based. 16 I can only state that on the limited consideration I have been able to give to this aspect it does not strike me as a real basis for distinction, that is to isolate the hypothetical question component of the extract from Wigmore. The ultimate point is this: (a) there is a conclusion, (b) it must be shown to have been based on stated facts or hypothetical facts. It is the exposure of the basis of the opinion, of whatever nature it is, that is essential, and (c) there is the proof of those bases which must then be undertaken. The third element, is the immediate question, that is: is the evidence relevant and admissible? 17 If a plaintiff complains of symptom X which founds a conclusion Y, the conclusion is only of value if X is established. If conclusion Y is based on fact X which had been given by the plaintiff to the expert, why cannot it be proved by someone else? One reason advanced for the defendant goes to discretionary considerations to which I will come shortly. But given the cited passages in TPC v Arnotts from Paric and Ramsey v Watson, I am not persuaded that as a matter of principle in the formula which I have sought to construct, that a person other than the plaintiff cannot give evidence of fact X founding opinion Y. 18 Thus I am satisfied that evidence of the kind sought to be elicited is relevant. Z can give evidence about fact X about which the plaintiff spoke to the expert. It is not irrelevant by reason only of the plaintiff having stated fact X to the expert which fact founded conclusion Y by that expert. Whether in the end the evidence of Z proves the fact will of course always remain to be seen. 19 The second leg of the defendant's argument was that pursuant to s 135 or s 136, or both, as a matter of discretion I should exclude the evidence by reason of, shortly stated, notions of procedural fairness and reliability founded in an asserted inability to test the evidence. 20 It has to be viewed in that way as McHugh J said recently in Papakosmas v The Queen (12 August 1999, [1999] HCA 37) in paragraph 87: "Notions of reliability and procedural fairness play no part in testing the relevance of evidence for the purposes of s 55 of the Evidence Act." 21 In this context much was made of what can only be described from the perspective of the defendant as the uncertainty in that party's camp as to whether the plaintiff is to give evidence in chief. It was submitted to me that the plaintiff should be required to indicate now as to whether he proposes to give evidence in his case. The submission went on if he does intend to give evidence, then evidence of the kind sought to be elicited from Mr Lyall and other witnesses is irrelevant and creates an artificial structure. I disagree with that submission as to irrelevance and artificiality. It would still be relevant. I do not see how it being relevant it could be artificial. It may, and in this regard I presently have no idea, provide some corroborative material. 22 It was then submitted if the plaintiff does not give evidence in his case then the evidence is not admissible. This cannot be so. If it is relevant and admissible it will go in subject however to discretionary considerations. 23 It was said that the view can be held that there is a desire in the plaintiff's camp to obtain a forensic advantage of not telling the Court whether he proposes to give evidence, and the Court should not lend itself to such a device, because that would be offensive to the administration of justice. 24 The first observation to be made is this: I paraphrase the words of Karminski J in Briscoe v Briscoe (1968) P 501 at 504: 25 What is the concern here in this defamation action is the duty of the Court and the duty of counsel respectively to decide what evidence is called and what order it is called. Speaking for the moment entirely for myself I had always thought that the duty of deciding what witnesses should be called and in what order they should be called is solely a matter for counsel. It is a grave responsibility and it rests on counsel and on counsel alone, no doubt taking into account advice given and instructions received. The observations of Karminski J were adopted in Bond v Australian Broadcasting Tribunal (1988) 1 FCR 494 at 514. 26 Second, the approach of the plaintiff was openly dealt with in this litigation in the submissions leading to and the judgment upon them delivered by me on 26 October 1999 in [1999] NSWSC:1061 (DLJT: 48) on the structure of the trial. So far as the Court is concerned in regard to what it knows about this aspect, it has been hitherto openly ventilated. 27 Next, tactical manoeuvring to get someone in or keep someone out of the witness box is a legitimate forensic play in the adversary system but as such it is not my concern. What is here of concern is the discretion, and I will focus on s 135 as it seems to be the most pertinent, whether or not to exclude it. 28 The nub of the submission is involved, as I have indicated, with notions of the rules of natural justice or procedural fairness as they are now more commonly described. The evidence, it is said, cannot be tested. It is said to be a case dependent entirely on what the plaintiff says, that is as recorded in the experts' reports. The evidence of Mr Lyall can be tested but the issue to which I have ruled it to be relevant, it is submitted, cannot through Mr Lyall be tested. 29 A short if not entirely satisfactory response might be that six minutes into Mr Lyall's evidence, the first witness in this extraordinary case, might be a moment that could be described as a bit previous. However, by reason of the plaintiff being the source, if he gives no evidence it is submitted then the defendant will have been placed in the position of not being entitled to a fair opportunity to correct or contradict any relevant material prejudicial to it, a phrase from the judgment of Gibb CJ in Kioa v West (1985) 159 CLR 550 at 569, (an appeal to the High Court from the then regime of administrative decision making and judicial review thereof in the context of migration law). 30 Particular reference was made in support of the defendant's contention to the judgment of Wilcox J in Australian Postal Commission v Hayes (1989) 87 ALR 283 at 289. The two passages from 289 to 290 on which reliance was particularly placed are: "Counsel argued that the testing of opposing relevant material by cross examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence was led has the right to present evidence in reply. Moreover, although counsel accept there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination so the witness' evidence cannot be properly tested, procedural fairness has been denied. In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability - the actions which he or she can, and cannot, perform - before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed or uncontradicted." 31 It is to be noted that both the decision of the High Court and the decision of Wilcox J were pre-Evidence Act decisions. 32 What is important in my view to note about what Wilcox J said in Australian Postal Commission v Hayes is that His Honour was concerned with a Direction in fact given by the first respondent Mr Hayes who was the lay presiding officer of the relevant tribunal. His Honour was not directly concerned with the admissibility of evidence. His Honour was clearly concerned with the then traditional notions of procedural fairness. 33 The second observation to be made relates to that part of the passage cited on which reliance, it struck me, was being particularly placed for the defendant, namely: "One way of testing the credit of such a claimant is to ask questions which require the claimant to commit himself " (emphasis added). 34 As a general proposition of course that cannot really be argued but it must be considered in the context with which His Honour was dealing. An application had been made before the relevant tribunal by counsel for the claimant, (the second respondent, before His Honour), that in her evidence in chief she be shown certain film. The presiding officer directed that that be so. The effect of his direction, which clearly affected procedure, was one to which the conclusion could well apply that it was an intervention that cut across notions of procedural fairness by affecting the way the cross-examination of that respondent was to be conducted. 35 Nothing in what His Honour says approaches, let alone warrants, my taking the step which was implicit in Mr Stitt's submission that the plaintiff should be required to indicate now as to whether he proposes to give evidence in his case, with a view no doubt to the plaintiff if he gives evidence "committing" himself, once he is in the witness box, in the sense used by Wilcox J. 36 For me to give such a direction requiring such an indication, in the light of the observations I made earlier, could be characterised as cutting across rules of procedural fairness and natural justice to the same extent as the presiding officer in the tribunal in Hayes' case. 37 I accept the submissions for the plaintiff in respect of s 60 of the Evidence Act based upon what Hunt CJ at CL said in Welsh (1996) 90 A Crim R 364 at 367 to the effect that it provides a mechanism as to admissibility and proof otherwise not available prior to that legislation's enactment. It must be not overlooked that in this trial there is no jury and evidence admitted will be subject to close scrutiny, weight, submission and judgment. 38 The evidence is admitted because it is relevant. Evidence admitted because of its relevance is one thing. Evidence relevant but urged to be excluded on the bases of procedural fairness flowing to unfair prejudice in the discretionary sense is another. Care in my opinion must be taken. Evidence of the kind sought to be led can be characterised as prejudicial in the sense, presumably, that it will be adverse, in the sense that it is capable of supporting a component of the plaintiff's case against the defendant. To use notions of procedural fairness to exclude relevant evidence because to admit it would amount to "unfair prejudice" or create "unfair prejudice" because it cannot be "tested", is a very sweeping proposition given the operation of the Evidence Act since 1995 and the non-jury structure of the present trial. 39 I refer to two passages in the judgment of McHugh J in Papakosmas in paragraphs 93 and 97. His Honour said in the former: "Some recent decisions suggest that the term 'unfair prejudice' may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as a result of admitting evidence under the provisions of the Act. In Gordon v Pike Beaumont J used his discretion under s 135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s 63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In Commonwealth v McLean the New South Wales Court of Appeal used s 135(a) to exclude hearsay evidence otherwise admitted by the exception contained in s 64 on the basis that the defendants were prevented by other evidentiary ruling from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the judicial meaning of 'prejudice' in the context of rejecting evidence for discretionary reasons." 40 In paragraph 97 his Honour said: "Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility." 41 In the end it may very well be that the plaintiff chooses not to give evidence. Such other evidence as has been given, if any, will simply end up being of no value. It will not be accepted, so Mr Stitt submits. He may well be right. I am however at this time not persuaded of any unfair prejudice to the defendant by the admission of the evidence of the kind referred to on the issues as identified. However, for the reasons I have earlier stated I will reject the question asked. I will admit the evidence of the kind to which these reasons refer and will permit Mr Donohoe to rephrase his question.

Addendum (see T2148.5) 42 As I mentioned earlier in my reasons, I was invited to exercise a discretion under both sections 135 and 136. As I mentioned earlier in my reasons, it seemed to me that section 135 was the more relevant section of the Evidence Act. In fairness to Mr Stitt I should indicate and make clear that I am persuaded not to exercise my discretion under section 135 either in terms of subsection (a) or subsection (c), the latter being concerned with undue waste of time. I cannot be persuaded of that in the light of my findings of relevance and rejections of submissions as to artificially and the like. 43 Section 136 provided for a discretion to limit the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. 44 The reason that I made no specific ruling at the time I gave the first part of my reasons to dispose of this application was that I could recall, and I am fairly convinced it is the case, no submissions from either side as to the nature of any such limitations that would be imposed under section 136. In the absence of such submissions I cannot conclude that there is any basis for the limitation of the use of such evidence. ***********

Marsden v Amalgamated Television Services Pty Limited

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