FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 843 PROCEDURE – respondents' notice of motion to file report of further witness – trial substantially progressed – uncertainty concerning availability of respondents' initial expert – motion sought on basis of substitution for first expert – absence of apparent prejudice to applicant – leave given for substitution Evidence Act 1995 (Cth) ss 4, 135 AUSTRALIAN COMPETITION & CONSUMER COMMISSION v LUX PTY LTD and DENNIS PODGER W124 of 2000 RD NICHOLSON J 1 AUGUST 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W124 OF 2000 BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT AND: LUX PTY LTD FIRST RESPONDENT DENNIS PODGER SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 1 AUGUST 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondents to be given leave to file and serve an expert witness statement from Associate Professor Susan Hayes based upon her report dated 27 May 2003. 2. The matter be set down for directions on 26 August 2003 at 11.30 am. 3. Costs be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W124 OF 2000 BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT AND: LUX PTY LTD FIRST RESPONDENT DENNIS PODGER SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE: 1 AUGUST 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 On behalf of the respondents a notice of motion is brought seeking an order that they be given leave to file and serve an expert witness statement from Associate Professor Susan Hayes based upon her report dated 27 May 2003. 2 The circumstances in which the motion arises is that during the trial, for reasons beyond the control of the respondents, their expert witness Mr Wolowski became unavailable to attend and give evidence within the meaning of s 4 of the Evidence Act 1995 (Cth) ('the Act'). Whether he will continue to be in that condition, rendering him unavailable to give evidence when the trial is resumed, cannot be determined at the present. However, the motion is brought on the basis that if leave is given to substitute the statement of Professor Hayes, the report of Mr Wolowski would not be tendered and he would not be called to give evidence whether or not he was then unavailable within the understood sense. This trial is now well advanced. I therefore approach most cautiously the motion. However, in doing so I have in mind that the situation which has arisen is not a factor for which any conduct of the respondents is responsible. 3 The arguments relating to the grant of leave have focused on the requirements of s 135 of the Act. That section relates to the admission of evidence. The motion is not seeking the admission of the evidence but only leave to file and serve it. Nevertheless, without precluding any subsequent objections which might arise pursuant to s 135 on the tender of either the Wolowski report, if leave is not granted, or the Hayes report, if leave is granted, it is useful to address the issues on a preliminary basis with a view to the requirements of s 135. Those are interlocutory and preliminary views addressed only to the leave issue and are open to further argument in the full context of the trial in relation to the issue of admission. 4 Professor Hayes report comments on the report of the applicant's expert, Ms Nada Murphy, clinical psychologist, dated 19 December 2000. Ms Murphy has already been subject to extensive examination and cross-examination and I have that factor carefully in mind. Professor Hayes report is not based on any interview with Mr and Mrs Standing. However, in those respects mentioned Professor Hayes report does not differ from the approach in the report of Mr Wolowski. 5 For the respondent-applicant it is said that the Hayes report should, for the purposes of the grant of leave, be seen as having little or no probative value because of the fact that it is not based on an interview with Mr and Mrs Standing. The argument for the respondent-applicant also states that the determination of whether the second respondent should have appreciated that Mr and Mrs Standing had an intellectual disability in his dealings with them will fall to be judged firstly on the personal observations of the judge of Mr and Mrs Standing in evidence and, secondly, with the assistance of the expert evidence. It will be argued, apparently, on behalf of the applicant that the expert evidence really doesn't assist and that the judge must rely more on the former factor than the latter. Those matters await future judgment. 6 In terms of assessing the likely probative value of the Hayes report, it seems to me that it will have no less probative value, whatever that is, than the Wolowski report. It is not for me now on a leave application motion to conclude it has no probative value. It clearly potentially has probative value within the scope of the report. 7 The more important question is, adopting the tests in s 135 as a guide, whether the likely probative value is substantially outweighed by the danger of the three factors listed in s 135 of the Act. The first is that there would be unfair prejudice to the applicant. This is a most fairly raised argument given the progress of the trial and the stage which it is at. I cannot, however, see why it can't be addressed by the provision of whatever opportunity is appropriate to the applicant, who has not yet closed its case to address the evidence of the Hayes report. If, on a future consideration, it properly entitles the applicant to any measures such as calling another witness or extra time or whatever it may be, that would have to be judged on argument in the particular circumstances, but on the face of it, if there is any unfair prejudice it is unquestionable the applicant would have to be given every opportunity to address that. 8 I have in mind also that this matter has arisen, as I have said, not as a result of any conduct by the respondent. If the matters were to remain as they are and Mr Wolowski is not available to be called, there would be prejudice to the respondents who would, as a result of circumstances entirely beyond their control, be left without an expert witness. It is for later judgment to work out what significance the newly introduced expert evidence would have but there clearly would be unfair prejudice against the respondent if it could not substitute a witness who it knows it will be able to call and rely upon. 9 Whether the Hayes report would be misleading or confusing because it would be called at a time when the judge trying the matter is remote from having seen the two witnesses in relation to whom the relevant finding has to be made or about whom it has to be made, that is fairly raised. It is a feature of judgment that either due to the attenuation of trials over a long period, such as this unfortunately has become, or between the conclusion of trial and the making of judgment, judges are called upon to not let the later events cloud out the earlier events. The act of judging when it occurs, subject as it is to the right of appeal, requires a judge to address all the circumstances and indeed necessitates the judge going back to the beginning, looking at transcripts, evidence in terms of documents, and putting it all back as it were fresh from the point of judgment. That is inherent in the act of judgment writing. I believe the point is fairly raised. I do not see it as such a particular danger here as to remove from proper judicial consideration the judge's own observations of Mr and Mrs Standing when they gave evidence. There is also the question of whether there would be an undue waste of time. That is not, in my view, substantiated by the submissions. 10 I have said that the motion is brought on the basis that if leave is granted, it would be that Professor Hayes was called in total substitution for Mr Wolowski and her document will be in substitution for his document. That seems to me to have an advantage of bringing some certainty to both the applicant and the respondent as to the future progress of the trial, given the unfortunate circumstances concerning Mr Wolowski. Whatever the difficulties that are open to be addressed, the parties would know that they have a witness who will be called and what it is they had to address. 11 I have not been addressed on the question raised in the submissions for the applicant-respondents that there is sufficient time for Ms Murphy and Professor Hayes to confer, as did Mr Wolowski with Ms Murphy, and to produce a minute such as resulted from their conferral. That is a matter which I hold over for subsequent consideration should it be necessary. For all of those reasons, I consider that the difficult circumstances which have arisen are best addressed by the granting of leave which the applicant-respondents' notice of motion seeks. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 12 August 2003 Counsel for the Applicant: Mr SM Temby Solicitor for the Applicant: Phillips Fox Counsel for the Respondents: Mr AP Hershowitz Solicitor for the Respondents: Mills Oakley Lawyers Date of Hearing: 1 August 2003 Date of Judgment: 1 August 2003