Mei Ying Su v Australian Fisheries Management Authority [2008] FCA 915

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE: REEVES J

DATE: 22 MAY 2008

PLACE: DARWIN

REASONS FOR JUDGMENT 1 In making this ruling, I am particularly mindful of the observations that the High Court made in its decision of Aktiebolaget Hassle v Alphapharm (2002) 212 CLR 411 at [77], to the effect that trial judges should, so far as possible, make rulings on evidentiary matters rather than allow the parties to proceed to addresses without knowing what the final state of the evidence is. 2 Mr Macliver seeks to adduce in evidence an affidavit by a Mr Brenton Matthew Gray, which includes a statement to this effect: 'In my opinion the warmth of the main engine, when I touched it during my inspection, as set out in paragraph 7 of my earlier affidavit, is consistent with these assumed facts.' 3 Paragraph 7 of the earlier affidavit says: 'I then examined Mitra 2139's main engine. It is a six-cylinder diesel engine and I observed that the two forward cylinders had two rocker arms and four rocker arm guides removed. Upon closer visual inspection of the two forward cylinders I found the valve springs to be serviceable. I could not see any visual external damage on the main engine, and the engine was warm to touch.' 4 Before expressing that opinion in the former affidavit, Mr Gray says, and I quote from paragraph 10: 'For the purposes of this affidavit I have been asked to assume that Mitra 2139 was travelling at full speed of between eight to nine knots from about 1730 hours to 2330 hours, after which it travelled at an average speed of 1.8 knots until 0007 hours and thereafter at speeds varying between point 1 and point 9 knots until 0430 hours local time. In my opinion …'. 5 Mr Gray sets out in his subsequent affidavit dated 22 May his qualifications and experience for expressing the opinion that I have referred to in paragraph 10. In summary, it involves approximately four and a half years' experience as a marine technician working on Royal Australian Navy vessels in the north of Australia, including vessels with four different types of engines varying from four to 12 cylinders. He also deposes to having had experience working with engines and observing them cooling down after having been shut down. He claims to have acquired a feel for the engines and to be able to estimate what period of time an engine would take to sufficiently cool down to allow technicians such as he to work on them. 6 I have two concerns about this evidence, and in particular the opinion that Mr Gray has expressed. My first concern is that he has not deposed to having participated in a course of special study or experience to give him the expertise in the field that he relies upon to express the opinion. Rather, he based it upon practical experience with the operation of engines and in particular his observations of them cooling down after being operated. That practical experience is said to have occurred over four and a half years. From that he claims to be able to tell by touch, that is, by touching the engine and feeling the heat by touch, how long the engine has been running. 7 In my view this evidence is somewhat akin to the evidence of accident reconstruction experts that has been fairly roundly criticised by, among others, Callinan J. In Fox v Percy (2003) 214 CLR 118 at paragraph 149, Callinan J said about such evidence, that is, the evidence of accident reconstruction experts, that it is: 'Also open to question whether variables in relation to surfaces, weather, tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for as to provide any sound basis for the expression of an opinion of any value to a court.' 8 However, even if Mr Gray is sufficiently qualified by practical experience to express the opinion he has, I have a second and more fundamental concern, and that is that he does not, in my view, disclose the reasoning process he has used to reach the opinion he has expressed. He has certainly set out a set of facts which he has been asked to assume, so this case is not a case which involves the basis rule which was mentioned during submissions. Rather, I believe, it is a case which falls within the third leg mentioned by Justice Heydon in Makita v Sprowles (2001) 52 NSWLR 705; [2007] NSWCA 305. At paragraph 85 his Honour set out the first two legs, including the requirement for a field of specialised knowledge, and the requirement for the expert to state the facts upon which the opinion is based. His Honour went on to say: 'And the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached, that is, the expert's evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded.' 9 Later, at paragraph 86, his Honour referred to the decision of the Full Court of this Court in Ocean Marine Mutual Insurance Association (Europe OV) v Jetopay Pty Ltd [2000] FCA 1463 at paragraphs 21 to 23, and in paragraph 23 of that quote, their Honours say: 'The further requirement that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge. Similarly, opinion evidence given orally should be shown, by exposure of the reasoning process, to be based on relevant specialised knowledge.' 10 In my view, Mr Gray has failed to do that in either of the affidavits that he has sworn. I do not know what reasoning process he used to come to the conclusion that the warmth of the engine when he touched it was consistent with certain assumed facts. For example, I do not know whether he took into account the size of the engine, although he mentions that in earlier paragraphs; more importantly, the construction of the engine, that is, whether it is steel or aluminium or of some other substance, facts which he doesn't mention in the earlier paragraphs; whether it was significant that the engine was being operated during the day or night; whether in referring to the assumed fact of the engine having operated at full speed, he was assuming that the engine was operating at 1800 revolutions per minute or how many revolutions per minute the engine was operating at; whether he assumed that the engine was operating at all while the vessel was travelling at speeds varying between point nine and point four knots; and whether he took into account any additional cooling processes such as the engine being cooled by a water pump after it was shut down. 11 I do not know what reasoning process Mr Gray used to reach the opinion such that I can link the opinion with any field of specialised knowledge, even if he had one. For these reasons, I reject the tender of the opinion contained in the final sentence of paragraph 13 of the affidavit of Mr Gray sworn on 22 May 2008. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.