The Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales & ACT & Anor [1998] FCA 480

RULING ON EVIDENCE Mr Ellicott QC, who appears with Mr Studdy for the applicant ("GDOFA"), has objected to the reception into evidence of certain passages in the affidavit of Mr Finucane. Mr Finucane is the Chief Executive Officer of the first respondent ("GD Association"). Mr MacFarlane QC, who appears with Mr Leopold for the respondents, seeks to read the disputed passages in support of the respondents' case. The applicant can be described, for present purposes, as a charitable organisation. For many years, it has conducted, inter alia, a training centre in Victoria for guide dogs for the blind, under the name of "Lady Nell Seeing Eye Dog School and Rehabilitation Centre". The first respondent can also be described as a charitable organisation. It operates primarily, but not exclusively, in New South Wales and the Australian Capital Territory. It trains guide dogs at centres in New South Wales and, to a more limited extent, in Victoria. The second respondent has been described as an "umbrella" organisation. Its membership includes State associations of which the GD Association is one. GDOFA's case, insofar as relevant, is that it has used the words "seeing eye" and "seeing eye dogs" extensively throughout Australia in its various activities, including the promotion, advertising and training of "seeing eye dogs"; the training of blind and visually impaired people with those dogs; and the provision of rehabilitation and mobility services. GDOFA claims that the words "seeing eye" have a distinctive character and meaning whereby they are or have become distinctive of GDOFA, its dogs, and services and merchandise. It says that the respondents have used these words to promote their own organisations and services, thereby attempting to take advantage of the substantial reputation built up by GDOFA. According to GDOFA, the respondents' actions constitute misleading and deceptive conduct in contravention of ss 52, 53(c) and (d) of the Trade Practices Act 1974 (Cth), as well as the tort of passing off. The respondents resist GDOFA's claim on a number of grounds. Relevantly, they say that both before and after the establishment of the Lady Nell Seeing Eye Dog School and Rehabilitation Centre, the expression "seeing eye dog" was used as a purely descriptive term for a dog trained to assist blind persons. Consequently, the expression had never become distinctive of GDOFA, its dogs or the services provided by it. At all times, it had been a generic term for a dog trained to assist blind people. Paragraphs 19 and 20 of Mr Finucane's affidavit read as follows: "19. Since I became Chief Executive Officer of the Association, I have had extensive dealings with members of the public and the media in New South Wales and the A.C.T. in relation to guide dogs. I have travelled to all states of Australia except Western Australia and the Northern Territory to represent the Association on [sic], and have had dealings with members of organisations interested in providing assistance to blind and vision impaired persons. All persons with whom I have so dealt have used the terms "seeing eye dog" and "guide dog" interchangeably and have not used such terms to distinguish between any particular organisation or its method of training guide dogs. 20. Often acquaintances of mine, who know that I am the Chief Executive Officer of the Association, will, in general conversation, ask me a question in words to the effect: 'How are the seeing eye dogs?' or 'How are the guide dogs?' or 'How are the blind dogs?'. The term 'guide dogs', 'seeing eye dogs' and 'blind dogs' are used about equally by persons speaking to me in these conversations. Recently, in a discussion with friends at my golf club, one of my friends was complaining about his family dog and another said words to the effect:- 'You should give it to Joe, he will turn it into a seeing eye dog'." It should be said that a number of the affidavits on which the respondents rely use words to the effect of the last sentence of par 19. The "formula" (if I may so describe it) is designed to advance the respondents' claim that "seeing eye dogs" is a generic term, not distinctive of GDOFA, the dogs trained by it or the services it provides. Mr Ellicott objects to the last sentence of par 19 and the whole of par 20. The provisions of the Evidence Act 1995 (Cth) ("Evidence Act") relevant to the objection are ss 55(1), 56, 76, 78 and 135: "55(1)The evidence that is relevant in a proceeding 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. ... 56(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. ... 76. Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. ... 78. The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. ... 135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time." The expression "probative value", used in s 135, is defined in the Dictionary to the Evidence Act as follows: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." The basis of objection to the last sentence of par 19 is that Mr Finucane is attempting to state a conclusion on an issue that is before the Court. Moreover, Mr Ellicott submits that the sentence is objectionable in form because Mr Finucane does not give particular instances of the use of the expression, nor does he explain the context in which the expression was used. Rather, he attempts to express a view as to the effect of many conversations, none of which is recounted. Mr Ellicott further submits that, in any event, the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party and thus should be excluded pursuant to s 135 of the Evidence Act. Mr Ellicott makes similar submissions, although perhaps with less force, in relation to par 20. Mr MacFarlane relies on s 78 of the Evidence Act to support the last sentence of par 19. He contends that Mr Finucane is expressing an opinion based on what he saw about an event and that evidence of the opinion is necessary to obtain an adequate account or understanding of his perception of the event. Mr MacFarlane identifies the "event" as the conversations to which Mr Finucane was a party and which provided the basis for his opinion. The Australian Law Reform Commission gave this explanation for the proposal which lead to the enactment of s 78 (Law Reform Commission, Evidence (Report No 26, 1985) pars 739-740): "739. Exception - Lay Opinion Evidence. At present lay opinion evidence is conventionally said to be inadmissible unless it fits within an apparently anomalous miscellany of 'exceptions'. The main factors that these share are that they can be said to be shorthand expressions of fact based on the witness' perceptions and that it has been seen by the courts as convenient to allow the expression of opinion in their case rather than to insist upon a lengthy, and possibly not particularly helpful, recitation of facts. The ultimate criterion for admission of opinion evidence should be whether it will assist the trier of fact in understanding the testimony, or determining a fact in issue. To be of the requisite assistance, the lay opinion evidence must be based on the witness' personal perception of a matter or event. Against the admission of such evidence must be balanced time and cost factors, the danger of the evidence misleading or confusing the tribunal of fact and the possibility of it being more prejudicial than probative. Thus, it is proposed to admit lay opinion testimony where it is based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions. 740. The proposal, therefore, revives the original rationale based on the distinction between opinion based on the witness' perception and mere uninformed speculation. Consideration was given to including the express requirement that the opinion be rationally based. Arguably, however, this is the way the clause would be interpreted. If it is not, the second requirement - that it be necessary to obtain an adequate account of the witness' perception of the relevant event - should provide sufficient protection. It has been suggested to the Commission that the Canadian Task Force provision be followed - that the test be that the giving of evidence of opinion 'be helpful either to the eyewitness in giving a clear statement or to the trier of fact in determining an issue'. It is thought, though, that the standard of 'helpfulness' is too low. It is important that witnesses give evidence as closely connected to their original perception as is possible to minimise inaccuracy and encourage honesty. In addition, the term 'helpful' sets such a low threshold and is so flexible that it would be impossible for appellate courts to exercise any real control over the exercise of the power." (Footnotes omitted.) This passage suggests that s 78 should not be given a narrow meaning, founded as it is on the distinction between opinion based on the witness's perception and "mere uninformed speculation". The few authorities on the scope of the section are consistent with this view, although they have not been slow to invoke the exclusionary rules or powers contained in the Evidence Act. The following propositions appear to have been adopted in relation to s 78: 1. Section 78 is concerned only with the non-application of the opinion rule. If evidence cannot be characterised as opinion evidence, neither s 76 nor s 78 of the Act applies: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 32) (1996) 64 FCR 73 (FCA/Lindgren J), at 75; Hughes Aircraft Systems International v Air Services Australia (No 3) [1998] ATPR 41-612 (FCA/Finn J), at 40,712 - 40,713 (a case in which the exclusionary power in s 135 of the Act was exercised). 2. Section 78 substantially alters the common law, by permitting lay opinion to be given by a person whose opinion is based on what the person saw, heard or otherwise perceived about a matter or event. While lay opinion evidence was admissible in certain classes of cases under the common law (see Cross on Evidence (5th Aust ed 1996), par 29090), s 78 expands the scope for such evidence: R v Panetta, 2 October 1997, unreported (NSW CCA), at 4, per Hunt CJ at CL. 3. As foreshadowed by the Law Reform Commission, s 78 should be construed as requiring a rational basis for the opinion before it becomes admissible: R v Panetta, at 5. Such a requirement is imposed through ss 55 and 56 of the Evidence Act. 4. Section 78 permits the opinion to be admitted without there being evidence of the primary facts upon which the opinion is based, although the absence of such evidence may affect the weight to be given to the opinion: R v Harvey, 11 December 1996, unreported (NSW CCA), at 5, per Beazley J (another case in which the evidence was excluded on the ground that its probative value was outweighed by its prejudicial effect). The language of s 78 gives rise to some questions that have not yet been explored in the cases. One is whether conversations in which a witness participated, and in respect of which he or she gives a general opinion, can constitute "matters" or "events", for the purposes of s 78. It is perhaps arguable that conversations to which the witness was a party cannot of themselves be characterised as matters or events. A second question concerns the meaning and operation of s 78(b). In order for s 78 to apply, evidence of the opinion must be necessary to obtain an adequate account or understanding of the person's perception of the matter or event. Yet it is difficult to describe a person's opinion, for example, of a vehicle's speed or another person's age, as necessary to obtain an adequate account or understanding of the first person's perception of the relevant matter or event. (Both of these examples are given by Odgers, Uniform Evidence Law (2nd ed 1997), 130, to illustrate the likely operation of s 78.) Rather, the opinion would seem to be formed by reason of his or her perception of the relevant matter or event. I do not think it is necessary to explore these issues in the present case. In my opinion, even if the last sentence of par 19 to be regarded as is an opinion expressed by Mr Finucane, within the meaning of s 78, I should exercise the discretion conferred by s 135(a) of the Evidence Act to refuse to admit the evidence. Evidence in the form of the last sentence of par 19 is, in my view, of slight probative value. I accept that s 78 does not seem to require an expression of opinion to be supported by a recitation of the primary facts on which it is based. But in the absence of some attempt, as best as the witness can manage, to recount the nature and context of the conversations to which he was a party, it is difficult to give much weight to the opinion as to the effect of the conversations. This is especially the case where the opinion is expressed in language that reflects one of the critical issues in the case and is adopted (with minor modifications) by other deponents whose affidavits are to be read by the respondents. I appreciate that s 80 of the Evidence Act has abolished the "ultimate issue" rule, but that does not prevent the form in which an opinion is expressed being taken into account for the purposes of the exercise of the discretionary power conferred by s 135. Section 135(a) requires the probative value of the profound evidence to be "substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party". In my opinion, the probative value of the preferred evidence is substantially outweighed by the danger referred to in s 135(a). A statement couched in the form of the last sentence of par 19 is intended to go to the heart of the issues to be decided in this case, yet provides no basis for the witness's characterisation of the effect of the conversations. I accept, of course, that Mr Finucane cannot be expected to recall in detail each of the many conversations to which he refers. But he should be able to provide sufficient examples of the conversations to give content to his opinion and to afford the applicant a full and fair opportunity to test that opinion in cross-examination. I have not overlooked the fact that this is not a jury trial, and that Mr Finucane will be cross-examined on behalf of the applicant. In my view, however, the absence of any details of the content and context of any of the conversations that formed Mr Finucane's opinion expressed in the way it is, creates a danger that the evidence of his opinion would be unfairly prejudicial to the applicant. Cross-examination would have to take place without Mr Finucane or other witnesses giving similar evidence providing the evidentiary basis for their expression of opinion. Whatever might be the situation in other cases, in this case the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to the applicant. I have assumed thus far that the last sentence in par 19 contains the expression of an opinion. The Evidence Act does not define the word "opinion". As Lindgren J observed in Allstates v ANZ (No 32), at 75, in the general law of evidence "opinion" has been defined as "an inference from observed and communicable data": Wigmore on Evidence (1978 ed) vol 7, s 1917. It would seem that this concept has been incorporated into the Evidence Act. As the Law Reform Commission acknowledged, the distinction between evidence of fact and evidence of opinion is often artificial, albeit one that is unavoidable: ALRC 26, vol 1, par 738. Although it is difficult to apply the distinction to the present case, I would not characterise the last sentence of par 19 as an expression of opinion. It is not expressed as such. More particularly, the sentence purports to record the manner in which persons have used the terms "seeing eye dog" and "guide dog". Although the sentence records these matters in a "rolled-up form", in my view it is an assertion of fact rather than opinion. If this is correct, I think that the evidence should be rejected both on grounds of form and in the exercise of the discretion conferred by s 135(a) of the Evidence Act. It follows from what I have said that the last sentence of par 19 should be rejected. I would be prepared to entertain an application by the respondents for leave to adduce supplementary evidence from Mr Finucane and other deponents who have used similar language in their affidavits. Paragraph 20 of Mr Finucane's evidence should be admitted. I do not think it suffers from the same defects as the last sentence of par 19. It records the substance of particular conversations (even though some are not precisely identified) and does not purport to characterise their effect in terms of the issues in the present case. The evidence is relevant to the facts in issue in the proceedings.