Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2003] FCA 1366

FEDERAL COURT OF AUSTRALIA

Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2003] FCA 1366 EVIDENCE – admissibility of expert evidence – relevance of evidence from psychologist about human reactions Evidence Act 1995 (Cth) s 79 SEVEN NETWORK (OPERATIONS) LIMITED v MEDIA ENTERTAINMENT AND ARTS ALLIANCE AND ACTU MEMBER CONNECT PTY LTD (ACN 057 551 970) N 789 OF 2003 GYLES J 18 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 789 OF 2003

BETWEEN: SEVEN NETWORK (OPERATIONS) LIMITED

APPLICANT

AND: MEDIA ENTERTAINMENT AND ARTS ALLIANCE

FIRST RESPONDENT

ACTU MEMBER CONNECT PTY LTD (ACN 057 551 970)

SECOND RESPONDENT

JUDGE: GYLES J

DATE: 18 NOVEMBER 2003

PLACE: SYDNEY

RULING ON EVIDENCE 1 The applicant seeks to read an affidavit of Simon Andrew Moss the substantial effect of which is to annex a report by that witness said to be admissible pursuant to s 79 of the Evidence Act 1995 (Cth). He is employed by Monash University as a lecturer in the Department of Psychology. He has held that position since 1998 having previously been a research fellow with that University. His employment history shows that in addition to his academic work (which includes obtaining a Doctorate in Philosophy) he has been engaged since 2000 in commercial consulting in fields related to psychology. 2 The question about which he was asked to express an opinion is: 'What would be the psychological effect on an employee of Seven if they were telephoned in the workplace by a person identifying themselves as a representative of the union that generally represents the employees of Seven and who, among other things, asked those employees which way they proposed voting in a secret ballot on a non union collective agreement?' 3 It is alleged that the respondents were involved in a telephone poll of employees of the applicant in relation to an impending vote concerning a proposed agreement between the applicant and its employees pursuant to s 170LK of the Workplace Relations Act 1996 (Cth). It is alleged by the applicant that this was done with intent to coerce its employees to not agree to make the proposed agreement and so contravenes s 170NC of the Workplace Relations Act. 4 The commencement of the substance of the report is as follows: 'In response to the telephone call they received from a representative of MEAA, many of the employees from Channel Seven would experience a distinct sequence of emotional and cognitive reactions. Each of these reactions will be addressed in sequence. In addition, factors that amplify or inhibit these responses will also be identified.' 5 There followed a range of opinions expressed under the headings 'Initial emotional responses', 'The effect of these initial emotional responses', 'Subsequent emotions' and 'Subsequent attitudes'. Some of the opinions expressed and statements made are supported by literature which is cited. 6 Counsel for the respondents has subjected the report to considerable criticism based particularly upon the discussion of expert evidence by Heydon JA (as he then was) in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at 729-745, particularly at [85]. In considering that valuable source of guidance I must also bear in mind the remarks of members of the Full Court in Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited (2002) 55 IPR 354 per Branson J at 356-359 per Weinberg and Dowsett JJ at 377-379 about that guidance. I also bear in mind the seminal authority of Clark v Ryan (1960)] 103 CLR 486 and the recent summary of general principles by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893. 7 The evidence sought to be tendered is at a high level of generality. The assumptions of fact are so broad as to make the opinions hypothetical. The precise method of interviewing and the individual characteristics of the persons interviewed cannot be known let alone stated. The most that can be taken from the report is that some persons confronted with being interviewed by a representative of the union on the telephone might be inclined to vote in favour of the agreement contrary to his or her prior or likely position and that some of those may do so without knowing that they were so influenced. It is doubtful whether that goes beyond normal understanding and experience of human behaviour. The report does add some explanations for that phenomenon which might not be known to a person without expert knowledge of psychology. 8 The admissibility of evidence as to human reactions based upon psychology and psychiatry has occasioned much debate. One line of authority deals with criminal cases and may require special consideration because of that. (See Yildiz v The Queen (1983) 11 A Crim R 115, Murphy v The Queen (1989) 167 CLR 94, R v Watson [1987] 1 Qd R 440; (1986) 69 ALR 145, Farrell v The Queen (1998) 194 CLR 286, HG v R (1999) 197 CLR 414, R v Karger (2001) 83 SASR 1, Velevski v R (2002) 187 ALR 233.) Another line of authority stems from the decision of the High Court in Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111. The question has been agitated in intellectual property cases and associated s 52 Trade Practices Act 1974 (Cth) cases, eg, Ritz Hotel Limited v Charles of the Ritz Ltd (1988) 15 NSWLR 158 and Sydneywide v Red Bull; and Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268, [2002] ACL Rep 77 FC 701 at [16]–[19] and [33]–[36]. Slightly different contexts were discussed in R v Wright [1980] VR 593. 9 A threshold question is the relevance of the evidence to the issues in the case. The issue here is not whether the recipients of a telephone call were coerced but, rather, whether the calls were made with intent to coerce those persons. The fact that the specialised knowledge involved is not brought home to the respondents directly does not necessarily mean that it is irrelevant. Situations can be imagined where it can be taken that the specialised or scientific knowledge is such that it would be known to and taken account of by those in the relevant field. The difficulty for the applicant here is that, in my opinion, it cannot be inferred that any specialised knowledge which is involved in this evidence which goes beyond the ordinary understanding of human behaviour would be known to these respondents as would be required for it to be relevant to their intent. I am prepared to assume that the respondents have a certain expertise in political campaigning and in call centre activity. I cannot assume, however, that they employ expert psychologists in that endeavour. 10 In my opinion, for this reason, the evidence is irrelevant and so inadmissible. It is unnecessary to consider the other bases for objection. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.