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[2017] VSC 357
Supreme Court of Victoria
2017-06-20
JOHN DIXON J
Original judgment source is linked above.
1 The plaintiff, who is an Australian actress and comedian now based in the US, seeks leave to adduce expert evidence by video link from a witness resident in the US, Peter Principato. Prior to the commencement of the trial I indicated that I would not permit the plaintiff to adduce evidence in accordance with a report then filed. Since that time, the plaintiff served a further report of Mr Principato dated 4 May 2017. The defendants contended that Mr Principato's evidence is inadmissible and, further, that I should refuse leave for his evidence to be taken by video link.
2 The basis of the defendants' opposition is twofold. The defendants contended that the report does not come within s 79 of the Evidence Act 2008. If the evidence is admissible, the defendants submit that I ought to refuse to admit it because its probative value is substantially outweighed by the danger that the evidence might result in undue waste of time.
3 Mr Principato is a Los Angeles-based talent manager. He has a university qualification in communications and, after completing his university degree, worked for six years at The William Morris Agency. That agency is a large and well-known talent agency. In 1997, Mr Principato commenced his own talent agency that merged to become Principato-Young Entertainment in 2000. Mr Principato has been a talent agent for more than 20 years and his agency is said to be one of the top five entertainment and management firms in the United States with offices in Beverly Hills and New York. His report gives further details of his client list and states that his role as a talent manager is to guide careers and negotiate contracts for high-level talent in both feature films and television. Mr Principato is also a producer, having produced numerous film and television productions.
4 In summary, Mr Principato purports to express three opinions.
(a) Ms Wilson is highly likely to have received, in the next year or two after the release of Pitch Perfect 2, several offers from studios as a lead or co-lead actor.
(b) Ms Wilson would have received compensation on each film in the range of fixed compensation between USD 5 and USD 6 million, plus box office bonuses.
(c) Because of the change that he observed in the demand for Ms Wilson's services, and because he is not aware of any reason that Ms Wilson would not have received at least 2 to 3 offers per year after Pitch Perfect 2 other than the coincidence of timing, it is his opinion that the defendants' publications resulted in the decrease in Ms Wilson's acting work.
5 On this application, I am concerned solely with the issue of admissibility, not weight. If I am satisfied that the evidence is admissible, the question of its probative value is relevant to the exercise of the discretion under s 135 of the Evidence Act to exclude the evidence.
6 The first issue was whether the Mr Principato's evidence is relevant. That issue is determined by reference to s 55 of the Act, and requires an analysis of whether his report contains evidence that, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
7 In Dasreef Pty Ltd v Hawchar,[1] the plurality of the High Court identified the first issue arising when considering the admissibility of expert evidence.
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
8 The plaintiff contended that in issue in the proceeding was her claim to be entitled to damages in respect of special loss. Further, that issue involved assessing at least two factors of which Mr Principato's evidence would be probative.
(a) The roles and remuneration Ms Wilson could have expected in the period following the release of Pitch Perfect 2.
(b) The absence of any cause, other than publication of the articles by the defendants, to explain the fact that Ms Wilson was not offered any such roles in the period following the release of Pitch Perfect 2.
9 The defendants submitted that Mr Principato's evidence was not relevant because it related to a special damages claim with respect to publications in the United States of America that are not the subject of any claim in this court. The claim for damages is related to publication in Australia. The defendants intended to develop this submission in final submissions as to damages.
10 The plaintiff submitted that the evidence was relevant to her pleaded case, noting that evidence on the questions that Mr Principato addressed was adduced without objection during the course of the trial from both the plaintiff, Ms Jackson (her US agent) and Mr Sheridan (a fellow actor based in the US); that is, that the publication of these defamatory articles in Australia caused a grapevine effect in the US and that effect was a cause of her special loss.
11 I am satisfied that the grapevine point is at least arguable on the pleadings and the trial was conducted on that basis. Mr Principato's evidence is relevant to that issue and may be admissible by force of s 56 of the Evidence Act, subject to the consideration of the exclusion found in s 76 of that Act that in turn invites consideration of whether the exception to the exclusion created by s 79 is applicable.
In summary, the matters that will usually be considered at both stages of the inquiry that considers whether the exception under s 79(1) renders opinion evidence admissible may conveniently be referred to as four "rules" (one of which is in three parts), which are:
13 I have already dealt with the first rule. I am satisfied that the evidence is relevant and of sufficient probative value for the purposes of considering whether it was admissible. The defendants did not dispute that Mr Principato has properly based specialised knowledge of the film industry particularly that aspect of it concerned with the management of acting talent, which is to say that he has appropriate expertise arising from his experience to opine on such matters. Properly understood, I did not consider the defendants to be submitting otherwise. The expertise rule is satisfied. Rather, the defendants were submitting that the opinions to be propounded were not 'wholly or substantially based' on specialised knowledge and that the report failed to comply with the factual basis rules.
14 There is no doubt that an expert opinion is inadmissible unless the expert states in the report or in evidence in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert's expertise. The court does not have to be satisfied that the reasoning is correct for the opinion to be admissible but the report must identify the relevant facts and assumptions, the tendering party must be able to prove those matters and the expert must state the reasoning showing how the facts and assumptions relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge.
15 In R v Juric,[4] the Court of Appeal said:
[T]he jury must be able to evaluate the strength of [expert opinion] evidence by reference to its factual or scientific basis. Whether it can properly do so is a matter initially for the judge in determining whether that evidence is admissible. ... [T]he admissibility of [expert opinion] evidence must depend upon the judge's satisfaction that the jury can, on the basis of material put before them, properly and reasonably evaluate the differing opinions expressed and make a responsible determination as to which of them is to be preferred.
16 Approving of that statement in Dasreef,[5] Heydon J continued to explain the function of the statement of reasoning rule.
The rule protects cross-examiners by enabling them to go straight to the heart of any difference between the parties without the delay of preliminary reconnoitring. It also aids the court in a non-jury trial, because at the end of the trial it is the duty of the court to give reasons for its conclusions. And it aids jurors, because at the end of the trial they have the duty of assessing the rational force of expert evidence. If there is not some exposition of the expert's reasoning it will be impossible for the court to compose a judgment stating, and for the jurors to assemble, reasons for accepting or rejecting or qualifying the expert's conclusion.
First, the court may not be able to understand the opinion so as to decide what weight to accord it. Secondly, the court will not be able to assess whether it corresponds with the facts which the court finds at the end of the trial. Thirdly, the court will not be able to assess whether the opinion is one wholly or substantially based on the expert's knowledge. Fourthly, there would be unacceptable difficulties for the cross-examiner, who should not have to perform, in the dark, particularly in relation to lengthy and complex expert opinion evidence, the "task of teasing out in cross-examination all the circumstances that the witness had in mind." Fifthly, the cross-examining party should not be left at a disadvantage in deciding whether and how to meet the evidence. Sixthly, the respondent's construction reduces the chance of the parties getting to grips, or at least getting to grips quickly. It would thus cause trials to become slower, more complicated and more costly.
18 In substance, the defendants contentions for ruling Mr Principato's evidence to be inadmissible equated to the first, third, fourth, and fifth of those reasons.
19 First, it was submitted that Mr Principato did not set out all the facts on which his opinion was expressed and did not fully set out the intellectual basis for it, in substance suggesting that no path of reasoning was discernible. The defendants submitted that the basis for the opinion was generic and that Mr Principato failed to address specific issues, for example, why do certain actors get certain roles? What factors affect a decision to cast a particular actor in a role? What roles were available at the relevant time? Why were those roles suitable for the plaintiff? They submitted that the observation is trite that an actor in a successful film is likely to be offered further roles. They also submitted that to cross-examine the witness to challenge such generic observations, various questions would need to be asked about such matters to establish the basis for the witness's conclusions. Such cross-examination was inappropriate and only required because the witness did not comply with the statement of reasoning rule.
20 The defendants submitted that Mr Principato's critical opinion, that he observed no basis that might explain the alleged drop-off in the plaintiff's acting work, was an opinion that took the plaintiff's case no further than her own evidence and was accordingly of no assistance. The defendants characterised the opinion as not derived from specialist knowledge but from 'speculation, inference [and] personal and second-hand views'.[7]
21 The plaintiff's claim to a special loss is necessarily inferential. As such, it falls to be determined on the whole of the evidence in the case. Mr Principato's evidence is capable of forming part of the chain of circumstances that may complete the plaintiff's proofs. I do not accept the defendants' submission that to cross-examine the witness to challenge Mr Principato's opinions, various questions would need to be asked to identify the detail that forms the basis for his conclusions. The defendants have not sought to challenge Mr Principato's opinions with the evidence of another expert in the field. Had they done so, a cross examination covering the matters that they now contend need to be explored was likely to discharge their obligations under the Rule in Brown v Dunn. That is one possible approach to challenging Mr Principato's evidence and there are other options. In the absence of an alternate expert opinion, the question relevant to the issue of admissibility is not whether Mr Principato's opinion is sound. Rather, it is whether there is a statement showing how the facts and assumptions he has adopted relate to the opinion that he has expressed to demonstrate that the relationship arises from his specialised knowledge. What cross examination ought now be undertaken is a matter of forensic choice for the defendants.
22 I am not persuaded that the function of the statement of reasoning rule is compromised in the circumstances. It is not the court's function when the question of admissibility arises to engage in a comprehensive assessment of the reasoning. That is a matter best explored either in cross-examination or in submissions. An unsatisfactory, or truncated, statement of reasons may be sufficient to demonstrate admissibility.
23 Mr Principato's opinion of likely compensation that the plaintiff would receive for a film is in a different category to the other opinions. Irrespective of whether his opinion has merit, I am satisfied that his report clearly explains how he has reached his conclusion by the application of his expertise to the assumptions that he has made. It will be open to me to conclude that there is an adequate base in the evidence to make findings about the plaintiff's prior film history, and the remuneration that she received in respect of it.
24 Mr Principato's other opinions raise different issues, and I am satisfied that Mr Principato has adequately stated his reasons for those opinions in the context of admissibility. Essentially, Mr Principato expresses a negative opinion, that is he identifies an absence of cause for the decrease in work being offered to the plaintiff in the relevant period. He makes no positive assertion about the grapevine effect or about the possible impact on producers and casting agencies of the publications that the jury found to be defamatory. Rather, what he positively asserts is that, based on his experience in the industry, no reason was evident as to why the plaintiff would not have received at least 2 to 3 offers per year after the release of Pitch Perfect 2. Mr Principato identified his reasons, based in his experience, for suggesting that the plaintiff was likely to have received offers to act in feature films as a lead or co-lead actor. There is a sufficient, if somewhat cursory, explanation of the basis for that opinion including some reference to actual roles. I do not read Mr Principato's report to be no more than speculation.
25 If it be the case that Mr Principato's reasoning is unduly simplistic or unsound that could be exposed either by cross-examination or in submissions. For present purposes, I need say no more.
26 For these reasons, I am satisfied that the evidence of Mr Principato is, subject to the deletions that were agreed between the parties, admissible. That conclusion leads to the defendants' alternative submission that I should exercise a discretion to exclude Mr Principato's evidence under s 135 of the Evidence Act on the basis that its probative value is substantially outweighed by the risk that it might cause undue waste of time at trial.
27 The probative value of the evidence refers to the extent to which it could rationally affect the assessment of the probability of the existence of a fact in issue. I have identified two respects in which the plaintiff submits Mr Principato's opinions are relevant. The remuneration, and the possible number of roles, that the plaintiff may have been offered in the counterfactual are clearly relevant to assessment of a special loss. The plaintiff has given evidence about those matters and Mr Principato's evidence is clearly capable of rationally affecting the assessment of the probability that the plaintiff could have expected to have been offered several opportunities in feature films to play a lead or co-lead at a particular remuneration.
28 Given that the plaintiff's case is circumstantial, Mr Principato's opinion that no other explanation for the absence of offers of film work is evident in the period following the success of Pitch Perfect 2 is also capable of rationally affecting the assessment of the probability that the publication of defamatory articles in Australia, through a grapevine effect into the USA, is a cause of the absence of offers of film roles to the plaintiff in the period from June 2015.
29 It is possible that Mr Principato's evidence may contribute significantly in those assessments or it may have minimal impact, but it is not appropriate to evaluate the extent to which that evidence may assist the plaintiff until the conclusion of final submissions.
30 The comparative assessment for the purpose of the discretion is to determine whether the evidence might cause or result in undue waste of time. The trial time involved in taking this evidence is estimated at an hour. Even if that estimate be considered unduly optimistic, an estimate of two hours is a modest expenditure of time in the context of a trial that has occupied, excluding non-sitting time, approximately 17 days. The trial has exceeded the upper limit of the estimate by two days. It was not submitted that Mr Principato's evidence is likely to add complexity to the issue of damages without assisting in the resolution of that issue. Neither was it submitted that Mr Principato's evidence might result in needless duplication of evidence or the need to re-call other witnesses. As I earlier observed, the probative value of his evidence may be increased by the circumstantial nature of the plaintiff's case, a proposition that weakens the argument for discretionary exclusion.
31 Further, the jury has returned its verdict and this evidence is only relevant to the assessment of damages, a task that is reserved for the judge. I am able to exercise management over the proceeding to minimise undue waste of time as necessary and appropriate. I would also add, returning to the earlier issue, that any prejudice to the defendants during the course of Mr Principato's evidence will in all likelihood be manageable through strategies available to trial judges to ensure the fair conduct of trials.
32 Balancing these considerations, I have not been persuaded that the possibility that Mr Principato's evidence might cause or result in undue waste of time is significant and, more particularly, that the danger of that consequence substantially outweighs the probative value of the evidence. In fact, in my view, the probative value of the evidence, once assessed, might substantially outweigh the danger that it might result in undue waste of time.
33 The defendants opposed the plaintiff's application for leave for Mr Principato to give his evidence via video link. In Rebel Wilson v Bauer Media (Ruling No 3),[8] I gave my reasons for permitting the evidence of another of the plaintiff's witnesses to be given by video link. I need not repeat what I said in that ruling about the applicable principles.
34 The plaintiff's solicitor has deposed that Mr Principato, who lives in Los Angeles, has an extremely busy schedule working out of Los Angeles and New York. In his work as a talent agent, he is required to attend many company meetings and also to attend meetings, events and client production meetings with clients and other parties. In his role as a film and television producer, Mr Principato has a number of projects currently in pre-production, production, and post-production that require his presence on schedules that are fixed weeks or months in advance. As such, it is not realistic for him to reschedule his commitments to attend in Australia over the next 2 - 3 months. In addition, Mr Principato currently has a house under construction and is required to attend regularly on-site.
35 Mr Principato has stated that he will not be able to come to Australia to give evidence and unless permitted to give his evidence by video link will not be available to the plaintiff as a witness in the proceeding.
36 The defendants contended that there was evidence that Mr Principato was not the author of his report, which on its face appears to have been drafted by the plaintiff's solicitors and adopted by the witness. That said, the defendants did not submit that counsel would be hampered in cross-examination. All I understood the defendants to be putting, was a submission directed to credit that could readily and easily be explored in cross-examination and pursued in final submissions if appropriate. The issue raised is one commonly dealt with by the court when witness statements are employed. It is not an issue that persuades me that it is appropriate in the circumstances to rule that the plaintiff not be permitted to adduce Mr Principato's evidence via video-link.
[1] [2011] HCA 21; (2011) 243 CLR 588, 602 [31] (citation omitted).
[2] Dura (Australia Constructions Pty Ltd v Hue Boutique Living Pty Ltd No. 3 [2012] VSC 99.
[3] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. See also the summary list of considerations identified by Austin J in ASIC v Rich [2005] NSWSC 149; (2005) 190 FLR 242, [256].
[4] (2002) 4 VR 411, 426 [18].
[7] A phrase borrowed from HG v R [1999] HCA 2; (1999) 197 CLR 414, 427 [41].
Wilson
Bauer Media
(2011) 243 CLR 588
(2005) 190 FLR 242
(2002) 4 VR 411
(1999) 197 CLR 414