More than a Morsel Pty Ltd v Dean [2003] ACTCA 9

Court of Appeal (ACT)|2003-02-19|Before: Crispin P, Wilcox JJ

1. This is an application for leave to appeal against the decision of the former Chief Justice allowing an appeal against the decision of the then Master to dismiss a motion for access to certain witness statements obtained by the solicitors for the respondent.

2. Copies of the statements had been made available to a medical practitioner, Dr Hesian, who had then provided a report, dated 7 November 2001, in which he expressed what purport to be expert opinions concerning the respondent, based apparently upon assertions contained in those statements. The report, a copy of which was duly served upon the respondent's solicitors, refers to some of the assertions but does not, of course, set out the contents of the statements in full. It should be observed that it appears from the report that Dr Hesian did not see or interview the respondent and that his opinions were based entirely upon that material.

4. On an application for leave to appeal against an interlocutory judgment it is necessary to establish not only that there is at least a triable issue which should be considered on appeal, but that substantial injustice would result if leave were refused. In support of the contention that substantial injustice would result in this case, counsel for the applicant relied upon the proposition that disclosure of the statements prior to trial would lead to the loss of certain tactical advantages that might be available if they could be withheld until the respondent had committed herself to a particular version of the events. For myself, I accept that it is possible that some prejudice could occur in that manner, but on the material before us I find it difficult to determine what weight should be given to this factor.

5. On the other hand, it seems clear that upholding a claim for privilege in these circumstances and permitting the statements to be withheld prior to the trial would be highly likely to create a situation in which the respondent's counsel would need to seek an adjournment in order to obtain further expert medical opinion on the basis of all of the material then available. That would, of course, involve needless delay and expense. The only circumstances in which one could envisage that not occurring would be if, in the end result, the report of Dr Hesian were not to be tendered or not received in evidence, or if it proved to be of negligible probative value. Having read the report of Dr Hesian I think there is a real likelihood of these circumstances, but the application with which we are concerned was not predicated on an assumption that the decision to obtain and serve the report should be regarded as a waste of time.

6. Having carefully considered the submissions made in support of the application, I must say that I am not satisfied that any substantial injustice has or will result from his Honour's decision and for that reason I would refuse the application for leave to appeal.

7. The order of the court is that the application will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

IN THE SUPREME COURT OF THE ) No. ACTCA 26 - 2002

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

I certify that the preceding paragraph numbered eight (8) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

IN THE SUPREME COURT OF THE ) No. ACTCA 26 - 2002

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

9. I also agree. I simply wish to put on the record a comment I made in argument to the effect that the course that was taken in this case by the appellant is misconceived and incorrect. It is not a proper course of conduct to provide to an expert a series of witness statements and ask the expert to trawl through them, and on the basis of what was said, to express a view.

10. The expert is entitled to express views, provided that he or she has the relevant qualifications and refers to clearly expressed assumptions of fact. It should not be left to others to sort out what items of material the expert considered and the effect, if any, upon the expert's opinion not specifically identified. This subject is dealt with at some length in a decision of the Full Court of the Federal Court in Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 344. I commend the statements and the material in this judgment to those who are considering how to use expert evidence.

11. In recent times there has developed a tendency for solicitors, more and more, to retain experts who are not really needed. That tendency is bad enough. But if the experts are then interposed, as it were, between the primary witnesses and the Court, then the situation becomes even more objectionable.

12. In my opinion, the course taken here should not have been taken. It having been taken, it is indefensible for the party that sought to rely on such a report to seek to hold to itself the material which the expert has taken into account in forming the opinions that he has.

I certify that the preceding paragraphs numbered nine (9) to twelve (12) are a true copy of the Reasons for Judgment herein of his Honour, Justice Wilcox.

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