Raeburn on behalf of Gaunt v Nelson Bay RSL Memorial Club Limited [2002] NSWSC 980 | Case summary

REASONS FOR DECISION Background 1 This decision relates to an application made by the respondent at the end of the third day of the hearing of complaints made by the applicant. The respondent sought an interim order that the report of an expert psychologist, Lisa Phillips, dated 6 March 2006 which the applicant foreshadowed would be tendered at the hearing, be declared inadmissible on the basis that the psychologist, in completing her report, did not comply with the requirements of Practice Note No. 14 issued by the Administrative Decisions Tribunal on 30 August 2006. The Practice Note deals with the procedural requirements of the Tribunal for the admission of expert evidence and reports. 2 The application was made at the conclusion of the evidence before the Tribunal and a timetable was established for written submissions to be made in relation to the application by counsel for each party. Subsequently, on the application of the respondent's counsel, the original timetable was extended with the final submission received on 1 December 2006. 3 The expert report of Ms Phillips is dated 6 March 2006 and was prepared following instructions from the applicant's legal representative. The report describes the assessment processes that were conducted by Ms Phillips on 1 March 2006 which involved Ms Gaunt, the complainant in the matter, and her mother, Mrs Pamela Raeburn, who attended and assisted Ms Gaunt in her responses to the psychologist's assessment tests. The report contains the psychologist's assessment of those tests and summarises the psychological effects on Ms Gaunt arising out of the tests conducted on that day. 4 On 7 September 2006, Ms Phillips completed an affidavit in which she stated: '2. I have read the Code of Conduct for expert witnesses contained in Practice Note Number 14 of the Administrative Decisions Tribunal and Regulation 31.23 of the Uniform Civil Procedure Rules 2005 (the "Code of Conduct"), a copy of which is attached to this statement. 3. I agree to be bound by the Code of Conduct in the above proceedings.' 5 On 12 September 2006, Ms Phillips completed a second affidavit in which she added the following paragraph to the affidavit she completed on 7 September 2006: '3. I refer to the report and the code of conduct. I have reviewed the report in the light of the code of conduct and do not wish to make any changes to the report.' 6 The report of Ms Phillips and her two affidavits have not at this stage been tendered to the Tribunal but the Tribunal has had access to those documents for the purpose of determining this application. 7 Practice Note No. 14, issued by the Tribunal on 30 August 2006, is in the following terms (omitting formal parts): 'The purpose of this practice note is to outline the procedures that the Tribunal will follow in dealing with expert evidence and expert reports. The Tribunal has adopted, with necessary amendments, Schedule 7 of the Uniform Civil Procedure Rules 2005 when dealing with experts - Expert witness code of conduct Application of code 1 This code of conduct applies to any expert engaged to: (a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or (b) give opinion evidence in proceedings or proposed proceedings. General Duty to the Tribunal 2 An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert's area of expertise. 3 An expert witness's paramount duty is to the Tribunal and not to the person retaining the expert. 4 An expert witness is not an advocate for a party. The Form of Expert Reports 5 A report by an expert witness must (in the body of the report or in an annexure) specify: (a) the person's qualifications as an expert, (b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed), (c) reasons for each opinion expressed, (d) if applicable - that a particular question or issue falls outside his or her field of expertise, (e) any literature or other materials utilised in support of the opinions, and (f) any examinations, tests or other investigations on which he or she has relied, including details of the qualifications of the person who carried them out. 6 If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report. 7 If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed. 8 An expert witness who, after communicating an opinion to the party engaging him or her (or that party's legal representative), changes his or her opinion on a material matter must forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect containing such of the information referred to in subclause 1(b), (c), (d), (e) and (f) as is appropriate. 9 If an expert witness is appointed by the Tribunal, subclause (4) applies as if the Tribunal were the engaging party. Experts' Conference 10 An expert witness must abide by any direction of the Tribunal to: (a) confer with any other expert witness, (b) endeavour to reach agreement on material matters for expert opinion, and (c) provide the Tribunal with a joint report specifying matters agreed and matters not agreed and the reasons for any failure to reach agreement. 11 An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.' Submissions in support of the Application 8 Counsel for the respondent has submitted that the preparation of the report by Ms Phillips dated 6 March 2006 does not comply with the requirements of Practice Note No. 14 which, she describes, as inclusive of the Uniform Civil Procedure Rules 2005 ('the Uniform Civil Procedure Rules') with regard to the expert code of conduct. In addition, it is submitted that the report should not be admitted as it does not comply with the case law regarding the admissibility of expert evidence. 9 The submission relating to compliance with Practice Note No. 14 quotes Rule 31.23 of the Uniform Civil Procedure Rules which are made pursuant to the Civil Procedure Act 2005 ('the Civil Procedure Act'). That Rule is in the following terms: '(1) As soon as practicable after engaging an expert as a witness, whether to give oral evidence or to provide an expert's report, the party engaging the expert must provide the expert with a copy of the code of conduct. (2) Oral evidence may not be received from an expert witness unless: a. he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it, and b. a copy of the acknowledgment has been served on all parties affected by the evidence. (3) If an expert's report does not contain an acknowledgment by the expert witness who prepared it that he or she has read the code of conduct and agrees to be bound by it: a. a service of the report by the party who engaged the expert witness is not valid service, and b. the report is not admissible in evidence. (4) This rule applies unless the court orders otherwise.' 10 The submission observes that the report of Ms Phillips contains no written acknowledgment that she had read and agreed to be bound by the code of conduct before she undertook the relevant assessment and completed her report. The submission proceeds on the basis that Ms Phillips does not cure the defective report by the matters sworn to on 7 September 2006 or 12 September 2006, as Ms Phillips was not aware of her obligations under the Practice Note at the time she conducted her assessment and made her report; that Ms Phillips was an advocate for the applicant prior to undertaking the relevant assessment and preparing the report; that the statement does not state whether the report she produced would have contained the same opinions if she had been aware of the code of conduct prior to undertaking the relevant assessments for the report and finally, that the report does not comply with the requirements of paragraph 5 of the Practice Note. 11 Mrs Raeburn gave evidence that Ms Phillips was now treating Ms Gaunt and accordingly, it is submitted this established Ms Phillips was an advocate for Ms Gaunt and was ineligible to qualify as an expert witness in terms of paragraph 4 of the Practice Note. In relation to this aspect, Ms Phillips in her report states that she was preparing her report based on instructions from the legal representatives for Ms Gaunt. There is no evidence before the Tribunal that at the time the assessment or the report was made by Ms Phillips, that she was then treating Ms Gaunt. If subsequently the expert assumed the role of a treating psychologist, the evidence of the psychologist would have to be considered in the light of that continuing relationship but as the relationship was not established at the time of the report, the Tribunal would not regard Ms Phillips as being prohibited from giving expert evidence concerning her assessment of Ms Gaunt following the meeting with her and her mother on 1 March 2006. 12 Although there is no direct evidence before the Tribunal that Ms Phillips, at the time of her assessment of Ms Gaunt on 1 March 2006 and when she wrote her report on 6 March 2006, had regard to the requirements of Practice Note No. 14 or to the requirements of Rule 31.23 of the Uniform Civil Procedure Rules when regard is had to the contents of the statements by Ms Phillips referred to earlier in this decision, counsel submitted that the defects in the report, arising from Ms Phillips' failure to take account of the requirements of Practice Note No. 14 when completing her assessment report, could not be cured by those subsequent statements. 13 In addition to the objection to the report arising out of the non-compliance with Practice Note No. 14, counsel for the respondent submitted that the report of Ms Phillips does not comply with the general requirements of the law in the preparation and submission of an expert report. Counsel refers to the presence of Ms Gaunt's mother, Mrs Pamela Raeburn, during the assessments made by Ms Phillips and that at least one assessment by Ms Phillips was 'primarily completed with Mrs Pamela Raeburn, with Ms Gaunt present to confirm information and provide additional descriptive details as required.' It is submitted that Ms Phillips' opinions were accordingly based on what Mrs Raeburn told Ms Phillips rather than on what Ms Gaunt told Ms Phillips. It is stated that this defect affects the majority of the most crucial part of the report and has the effect of denying the respondent natural justice. Support for this view is taken from the following passage of the decision of Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at paragraph 85: 'In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.' 14 Counsel also referred to paragraph 68 of the decision to emphasise the importance of distinguishing the history given to and the opinion formed by the expert. 15 Counsel does not demonstrate that the facts relied on by Ms Phillips as conveyed to her by Mrs Raeburn were not accurate or otherwise were not an appropriate basis for Ms Phillips to make her assessment of the effects suffered by Ms Gaunt. As stated by his Honour Heydon JA in the passage quoted above, factors such as the distinction between obtaining information directly from the person affected or from some other source, are matters which, if the expert's report is admitted, go to the question of the weight to be given to the opinions formulated out of the information relied on by the expert. Submissions by the applicant 16 Counsel for the applicant points to the statement in Practice Note No. 14 that it adopts, with necessary amendments, Schedule 7 of the Uniform Civil Procedure Rules. The Practice Note does not incorporate Regulation 31.23 of the Uniform Civil Procedure Rules. It is submitted that Schedule 7, as adopted in Practice Note No. 14, does not require strict or any compliance with Regulation 31.23. Accordingly, Practice Note No. 14, in its application in the procedures of the Tribunal, does not operate so that a failure to observe its requirements, renders ineligible the opinion and report of the expert. 17 It is not correct, in the opinion of the Tribunal, to submit, which counsel for the applicant has, that Practice Note No. 14 does not require Ms Phillips to have been made aware of her obligations under the code of conduct prior to preparing the report. Paragraph 5 of Practice Note No. 14 states 'a report by an expert witness must (in the body of the report or in an annexure) specify: [six requirements for the expert to set out in the expert's report].' There is an obvious implication that the expert must have complied with these requirements before completing her report. For the reasons expressed earlier, it is apparent on the face of the documentation, that Ms Phillips did not comply with this requirement. 18 Counsel for the applicant refers to a number of decisions dealing with the application of sub-paragraph (4) of Rule 31.23 of the Uniform Civil Procedure Rules which allows a court a discretion to order that an expert report be admitted notwithstanding its failure to strictly observe the requirements of the code of conduct. As Practice Note No. 14 does not adopt the Uniform Civil Procedure Rules, it contains no power similar to sub-paragraph (4) of Rule 31.23 of the Uniform Civil Procedure Rules. In this context, counsel made reference to the following passages from decisions which dealt with the application of sub-paragraph (4): Commonwealth Development Bank of Australia Pty Ltd & Anor v Claude George Rene Cassegrain; Gerald Cassegrain & Co Pty Limited & Ors v Commonwealth Development Bank of Australia Pty Limited & Ors; [2002] NSWSC 980 (where Einstein J took a strict view of the application of the Rules and did not exercise the discretion to allow the report); Jermen v Shell Company of Australia Limited & Anor [2003] NSWSC 1106 (in this decision, Shaw J stated that he did not embrace the language used by Einstein J in the Commonwealth Development Bank decision, in adopting a strict compliance approach to the relevant rules); in Portal Software v Bodsworth [2005] NSWSC 1228 (Brereton J distinguished the Commonwealth Development Bank case on the basis that it was a commercial cause in which a higher degree of alertness to strict compliance with procedural requirements may be insisted upon. In this case Brereton J stated 'whether or not the witness was aware of the expert witness code of conduct when he swore his original affidavit … he has after being made aware of the code of conduct confirmed that he prepared the earlier affidavit in accordance with the obligations which the code contains.') 19 Having regard to these decisions, where the Uniform Civil Procedure Rules apply, the discretionary power in the Rules can be applied to admit an expert report where, at the time the report was made, reference was not made to the expert's awareness of the code of conduct. Whether or not the witness was aware of the code when he made his report, he may subsequently declare that he has been made aware of the code of conduct and that he prepared the earlier affidavit in accordance with its obligations. Although such circumstances are similar to the circumstances applicable to the report and subsequent statements made by Ms Phillips, she has not in any of those statements stated that she prepared her report in accordance with the obligations of Practice Note No. 14. Ms Phillips, in her later affidavit dated 12 September 2006, states 'I have reviewed the report in the light of the code of conduct and do not wish to make any changes to the report.' It is the view of the Tribunal that this latter statement falls short of confirming that her report was prepared in accordance with the obligations which the code contains. This may be a distinction only in semantics but had the report of Ms Phillips been prepared in accordance with the obligations contained in the Practice Note, Ms Phillips could well have made that statement if it was correct, rather than the more obtuse statement set out in paragraph 3 of her statement of 12 September 2006. 20 It is the view of the Tribunal that the documents to which the Tribunal has made reference for the purposes of this application, namely, the report of Ms Phillips dated 6 March 2006 and the subsequent statements dated 7 September 2006 and 12 September 2006, demonstrate that at the time Ms Phillips made her assessments of Ms Gaunt on 1 March 2006 and when she completed her report dated 6 March 2006, Ms Phillips was not aware of the requirements of Practice Note No. 14 and further, when she was made aware of those requirements she was not able to confirm that her report was made in accordance with the requirements of the Practice Note. 21 On the face of the material before the Tribunal, the non-compliance relates to a failure to state in the body of the report or in an annexure, the matters required to be specified in section 5 of the Practice Note. When an examination is made of those six requirements against the contents of Ms Phillips' report, it is difficult to distinguish where any of those requirements, so far as they apply to Ms Phillips' report, are not observed. No submission was made which suggests that those requirements were not observed. Counsel for the respondent questions the reliability of assumptions made by Ms Phillips based on facts supplied by Mrs Raeburn and not directly by Ms Gaunt. As has been pointed out earlier, the Tribunal is not satisfied that such a failure justifies rejecting the report although it leaves open the question as to what weight should be attached to the quality of the opinion based on those facts. 22 The fact that Ms Phillips in making her report and her subsequent statements has not strictly complied with the requirements of Practice Note No. 14, does not in the opinion of the Tribunal, result in the ineligibility of Ms Phillips' report from admission as evidence in the proceedings. Decision of the Tribunal 23 The submissions of the parties related to the application of Practice Note No. 14, issued on 30 August 2006, to the report made by Ms Phillips, consulting psychologist, on 6 March 2006. Practice Note No. 14 dated 30 August 2006 could have no application to the report of Ms Phillips which was issued prior to that date. It is stated at the foot of Practice Note No. 14 'Original issued 17 March 2004. Re-issued with amendments 30 August 2006.' The original Practice Note issued on 17 March 2004 is Practice Note No. 14. An examination of Practice Note No. 14 shows that for the purposes of this application the subsequent amendments made by Practice Note No. 14 on 30 August 2006 have no bearing on the submissions or the decision of the Tribunal so far as the differences in the wording of the Practice Notes is concerned. 24 The Uniform Civil Procedure Rules, when they commenced, had no operation either to Practice Note No. 14 issued on 17 March 2004 or subsequently to Practice Note No. 14 issued on 30 August 2006. The Civil Procedure Act does not apply to the Tribunal (section 4(1) and Schedule 1 of the Civil Procedure Act). The issues raised in this application must be considered solely in relation to the application of Practice Note No. 14 issued 17 March 2004 and the provisions of the Administrative Decisions Tribunal Act 1997 ('the Act') under which Practice Notes operate. Regard must also be had to any common law rules applicable to the admission of expert opinion evidence. For reasons already expressed, it is the view of the Tribunal that the common law rules do not exclude the admission of the report of Ms Phillips. 25 Practice Notes issued by the Tribunal are to be distinguished from rules of the Tribunal prescribed under Part 3 of Chapter 6 of the Act. Rules of the Tribunal are defined by section 4 of the Act as rules made by the Rule Committee. Section 90 of the Act provides for the prescription of rules of the Tribunal. Division 2 of Part 3 of Chapter 6 of the Act provides for the establishment of a Rule Committee and the functions of that Committee which includes the making of rules of the Tribunal. Practice Note No. 14 is not a rule prescribed under the processes of Part 3 of Chapter 6 of the Act. Practice Notes issued by the Tribunal are not made in accordance with the processes prescribed by Part 3 of Chapter 6 of the Act. Practice Notes are not supported by specific provisions of the Act and, in the opinion of the Tribunal, do not carry the same force in terms of compliance that attach to rules of the Tribunal. 26 Practice Notes, nonetheless, are not without statutory support. That support is found in the more general provisions of the Act. Section 73 provides for procedures of the Tribunal generally. Under sub-section 1, the Tribunal may, subject to the Act and the rules of the Tribunal, determine its own procedure. 27 Sub-sections 2 and 3 are in the following terms: ' 73 Procedure of the Tribunal generally … (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' 28 It is also relevant to have regard to the provision of section 73(5)(b): 'The Tribunal: … (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings' 29 Pursuant to section 73(1), the Tribunal adopts Practice Notes which facilitate its procedures in a manner which leaves open the broad scope of the requirements of sub-sections 2, 3 and 5(b) and, maintain, as far as practicable, uniformity in the specific subjects covered by particular Practice Notes. Practice Note No. 14 is an example of the application of these principles. 30 The Practice Note does not contain a discretionary power to enable the Tribunal to make an order admitting an expert report which does not strictly comply with its terms. When comparison is made to the Uniform Civil Procedure Rules and the application of Schedule 7 to those Rules, courts have applied the discretionary power under those Rules to admit non-conforming expert reports. The lack of a discretionary power in Practice Note No. 14 should not, in the opinion of the Tribunal, prevent the Tribunal from admitting an expert report which does not strictly comply with its provision where having regard to the provisions of section 73 of the Act, the admission of that expert report would facilitate the determination of matters relevant to the hearing of the Tribunal. The justification for parting from the strict compliance with the Practice Note would, in a given case, depend on the degree of non-compliance, its likely impact and prejudice on the parties and, subject to the rules of natural justice, ensure that all relevant material is disclosed to the Tribunal to enable it to determine the issues in the proceedings before it. 31 The main aspect which the Tribunal can discern from the material before it, that could be prejudicial to the respondent if the opinion of Ms Phillips was admitted, is the issue raised by counsel for the respondent concerning the extent to which Ms Phillips may have relied on facts supplied by Mrs Raeburn rather than Ms Gaunt in determining the psychological effects on Ms Gaunt as reported by Ms Phillips. The non-compliance by Ms Phillips with the strict requirements of Practice Note No. 14 at the time of her assessments of Ms Gaunt and her subsequent report is not itself a matter which, on the material before the Tribunal, is prejudicial to the respondent. 32 The fact that in making some of her assessments Ms Phillips may have relied on facts supplied by Mrs Raeburn and not Ms Gaunt does not, in the opinion of the Tribunal, present such potential prejudice to the respondent that would justify the Tribunal rejecting the report in its entirety. It is not possible from material before the Tribunal at this stage to distinguish to what extent the reliance on those particular facts may have led to Ms Phillips misconstruing some of her determinations of adverse psychological effects on Ms Gaunt. On the face of Ms Phillips' report it is the view of the Tribunal that there is no prejudicial impact on the respondent flowing from Ms Phillips accepting factual statements from Mrs Raeburn. The report of Ms Phillips does not disclose any misconstruction by her of material facts on which she may have based her report. 33 It is the view of the Tribunal that the provisions of section 73 of the Act are sufficiently broad in their scope to enable the Tribunal, where it is satisfied that there is no denial of natural justice to the respondent, to admit into evidence the report of an expert where the expert at the time of carrying out her assessment tests and subsequently making her report, did not strictly comply with the requirements of Practice Note No. 14. In order to carry out its responsibilities under the Act in accordance with section 73 in particular, the Tribunal in this matter, determines that the expert report of Ms Lisa Phillips dated 6 March 2006 should be admitted as evidence in the case for the applicant. 34 The material before the Tribunal at this stage does not enable the Tribunal to make an assessment of the relevant worth and weight of the expert opinions expressed by Ms Phillips in her report nor has Ms Phillips been cross-examined in relation to her report or its background. These are matters which remain to be dealt with in the proceedings. Summary 35 For the reasons expressed, the Tribunal orders that the application by the respondent to disallow the expert report of Lisa Phillips dated 6 March 2006 be not granted. 36 In the proceedings, which is part heard, consideration will now need to be given to hearing of the remaining evidence and, as foreshadowed, the recall of one or more witnesses and to determine the appropriate steps to be taken. In this regard, the Tribunal will hold a case conference with the parties and their representatives at 11.30am on 9 February 2007 at the Tribunal's Registry in Sydney.

Raeburn on behalf of Gaunt v Nelson Bay RSL Memorial Club Limited

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