The Epoch Holding Group Pty Ltd v Katz

1. The applicant seeks to rely upon two affidavits of Professor Gene M. Burd who is an American attorney at law. Those affidavits are sought to be read on this application, and they appear under tabs D10 and D11 of the court book. They are dated, respectively, 1 August 2024 (Burd 1) and 13 August 2024. Professor Burd seeks to set out the way in which the relevant law of the United States would be applied so as to facilitate the issue of subpoenas.
2. The application before me is for the court's approval to make an application for orders under s1782 of Title 28 of the United States Code. Professor Burd is not an independent expert. He is a member of the firm Pierson Ferdinand LLP, which will, if approval is granted, act on the application under s1782. Mr Lockhart SC for the respondent has made objections, both to the affidavits being read, which is a global objection to their admission, but also raises specific objections to particular portions which are the last three sentences of [44], and the whole of [46] in the affidavit dated 1 August 2024.
3. The first objection to the affidavits being read is that Professor Burd is not an independent expert and, aligned with that, that his affidavits do not comply with the rules relating to expert evidence. Reliance is placed upon the Expert Evidence Practice Note (GPN-EXPT), in particular [2.2] and [4.4].
4. In relation to the global objection, Professor Burd has not deposed that he has read the Harmonised Expert Witness Code of Conduct, which is annexure A to the Practice Note, and it is submitted by Mr Flynn SC for the applicants that he could not have done adopted that Code of Conduct because the professor is not, indeed, an independent expert, being a lawyer acting for the applicant.
5. The submission from the respondent is that the affidavit should be rejected for that lack of compliance with the expert code of evidence, and with s 79 of the Evidence Act 1995 (Cth).
6. Mr Lockhart SC points to the prejudice which he says will accrue should the affidavits be read, given that his client is entitled to rely on the processes of the court relating to expert evidence protocols.
7. In relation to the specific objections, the basis is that those paragraphs purport to give evidence of the way in which the American law would be applied in the US courts, rather than the mere content of foreign law, and reliance was placed on [17.8] of Davies M, Bell AS, Brereton PLG and Douglas M, Nygh's Conflict of Laws in Australia (10th ed, Lexis Nexis Butterworths, 2019)
8. Mr Lockhart SC submits that s 135 of the Evidence Act 1995 would indicate that the affidavits should not be read as they are matters which impose a significant prejudice upon his client. Mr Lockhart SC referred to Wood v the Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [728]-[730] to ground a submission that the opinion of a non-independent expert should carry "minimal if any weight" (at [730]).
9. In response, Mr Flynn SC submits that the decision of Griffith J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [85]-[86] demonstrates two things. Firstly, that opinion evidence of this kind is not restricted to independent experts. He pointed to the admission of evidence by Griffith J in that case of evidence of an anthropologist, who was involved with the claims the subject of that application. And secondly, that r 23.11 of the Federal Court Rules 2011 (Cth) (FC Rules), which was relied upon by Mr Lockhart SC, does not operate to exclude this evidence, given that this is an interlocutory application, rather than a trial.
10. In relation to the specific objections, I was taken to a decision of Perram J in Lavecky v Visa Inc [2017] FCA 454 at [30]-[34]. At [33], his Honour notes that:

It would need to be strikingly obvious that an application such as the present was not permitted under foreign law before this Court would consider working out the procedural law of foreign courts which are much better placed to do so.

1. In [32], his Honour said that he had received in those proceedings:

... extensive expert evidence about the intricacies of US federal procedure on the present application. I do not think that this Court should enter that fray. Beyond satisfying itself that what proposed is not obviously a waste of time, this Court should not spend any of its time on that topic.

1. Mr Flynn SC submitted that the portions objected to in [44] and [46] were the kind of evidence which one would expect a foreign lawyer to be able to give, and it would be the kind of evidence which the court would receive on an application for the relief sought.
2. In considering the question of whether the affidavit should be received into evidence, I am satisfied that they are not excluded by r 23.11 of the FC Rules, as this is an interlocutory application, and I note the definition of a trial in the dictionary. Nor am I persuaded that the mere fact that Professor Burd is not an independent expert takes these affidavits out of the realm of admissibility under s79 of the Evidence Act 1995. As noted in Mumbin at [86], I have a discretion to waive any of the rules which may apply.
3. If necessary, I would waive any requirement of compliance with the Expert Evidence Practice Note, but I do not believe that any such waiver is necessary, given that the Practice Note does not preclude this kind of evidence.
4. I will, however, reject the last three sentences in [44], commencing with "Further", and [46] of Burd 1, given that it appears to me that they are indeed expressions of opinion as to the application of the foreign law, rather than evidence as to the content of the foreign law.
5. I note that there is a question of the weight to be given to Professor Burd's evidence, and I do not exclude any further submissions by either party as to the weight to which I should give it as the application proceeds.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.