FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 1068 Evidence Act 1995 (Cth) ss 56, 135 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LUX PTY LIMITED and DENNIS PODGER W124 of 2000 RD NICHOLSON J 7 OCTOBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W124 OF 2000 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: LUX PTY LIMITED (ACN 054 882 852) FIRST RESPONDENT DENNIS PODGER SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 7 OCTOBER 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: The Applicant's objections to the Respondents' expert report of Associate Professor Susan Hayes made in notice of objections filed 10 September 2003 be resolved in accordance with the attached ruling. 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 AND CONSUMER COMMISSION APPLICANT AND: LUX PTY LIMITED (ACN 054 882 852) FIRST RESPONDENT DENNIS PODGER SECOND RESPONDENT JUDGE: RD NICHOLSON J DATE: 7 OCTOBER 2003 PLACE: PERTH RULING 1 This is a ruling on objections to evidence raised in submissions for the Applicant dated 10 September 2003. 2 With regard to the objections to admission of the Hayes Report on the grounds that it is drafted (a) with reference solely to the Murphy Report; and (b) on the basis that the Murphy Report is conclusive of the method of assessment adopted by Nada Murphy: (1) the general objection in reliance on s 56 of the Evidence Act 1995 (Cth) on the ground of irrelevant is dismissed; (2) the general objection in reliance on s 135 of the Act is dismissed on the ground that, in view of the forthcoming opportunity for cross-examination, there is no present basis for finding the probative value of the Hayes Report is substantially outweighed by the matters referred to in pars (a), (b) or (c) of that section. 3 With regard to the matters argued in the Applicant's submissions dated 30 July 2003 and considered in the reasons delivered on 1 August 2003, no additional bases of objection arise that do not fall within (2) above. 4 With regard to the specific objections: Par 4 Not irrelevant. Probative value not substantially outweighed by danger of unfair prejudice because cross-examination may put to Dr Hayes the effect of any evidence of Ms Murphy. Par 5 Probative value not substantially outweighed by danger of unfair prejudice because the opening words of the Murphy Report are open to argument on the purpose of the report. Not irrelevant. Par 6 Not irrelevant. Sentence: 'The WAIS-III offers updated stratified norms…in diagnosing intellectual disability' Par 6 As for par 4. Sentence: 'Murphy does not mention whether she used Australian Adaptation Record Form…would have been used during testing.' Par 6 As for par 4. Sentence: 'Murphy does not mention the date of birth…so I cannot comment…if they were older adults.' Par 7 Not irrelevant in view of Ms Murphy's general comparisons to general populace. In that context not established reference would give rise to danger of unfair prejudice substantially outweighing probative value. Par 8 As for par 4. Par 9 As for par 4. Par 10 As for par 4. Absence of an opinion by Dr Hayes open to argument and capable of clarification in evidence. Par 11 Not irrelevant. Whether within specialised knowledge capable of clarification in evidence. No basis for application of s 135(a). Par 12 Not irrelevant. No basis for application of s 135(a). Par 13 As for par 13. Par 14 As for par 11. Par 15 As for par 4. Par 16 As for par 4. Pars 17, 18 & 19 As for par 4. Par 20 As for par 13. Par 21 As for par 12. Par 22 As for par 4. Pars 23 & 24 As for par 13. Par 27 As for par 4. Par 28 As for par 5. Par 32 As for par 5. Par 35 As for par 4. Par 36 As for par 4. Par 37 As for par 4. Par 38 As for par 4. Par 40 As for par 4. Pars 44, 45, 46, 47, 49, 51 and 52 As for par 12. I certify that the preceding four (4) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice RD Nicholson J. Associate: Dated: 7 October 2003 Counsel for the Applicant: Mr JA Chaney SC & Mr SM Temby Solicitor for the Applicant: Philips Fox Counsel for the Respondent: Mr T North SC Solicitor for the Respondent: Mills & Oakley Lawyers Date of Last Written Submission: 3 October 2003 Date of Judgment: 7 October 2003