New South Wales District Court CITATION: Suttram Pty Limited v Michelin Australia Pty Ltd [2009] NSWDC 429 JUDGMENT DATE: 17 March 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ CATCHWORDS: CIVIL LAW - evidence - application of s 136 Evidence Act - statement of party as factual basis for opinion of expert - danger that a particular use of the evidence might be unfairly prejudicial to a party - review of authorities LEGISLATION CITED: Evidence Act 1995 s 60, s 136 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 Roach v Page (No 11) [2003] NSWSC 907 Quick v Stoland Pty Ltd (1998) 87 FCR 371 PARTIES: Suttram Pty Limited Michelin Australia Pty Ltd FILE NUMBER(S): 4530/06 COUNSEL: Mr Sharpe for Suttram Pty Ltd Mr Vincent for Michelin Australia Pty Ltd JUDGMENT 1. This judgment concerns a ruling which I am invited to make by one of the parties to limit the use to be made of particular evidence. A judge may make such an order under s 136 of the Evidence Act 1995. 2. The need for a ruling arises in circumstances where an expert has been called by the second defendant in these proceedings. His name is Mr Henry Herzog. He has expressed opinions in writing and in oral evidence before me. It is common ground that amongst the documents provided to him to assist him in expressing his opinions about questions posed to him was a statement by Mr Ross Weatherburn dated 4 May 2007. Mr Ross Weatherburn is the principal of the plaintiff in these proceedings and was the driver of a truck which was involved in an accident which is the subject of these proceedings. 3. Mr Sharpe, who appears for the plaintiff, has tendered the statement of Mr Weatherburn because it had been provided to Mr Herzog for him to consider in expressing his opinions. Mr Vincent, who appears for the second defendant, does not object to the tender and accordingly I have admitted the statement, which is now marked exhibit Y in these proceedings. It was formerly MFI 7. 4. However, Mr Vincent asks me to limit the use to be made of exhibit Y. The limitation which he seeks is that exhibit Y be limited so that it does not represent evidence of the facts which are asserted in the statement, but is merely evidence of the material taken into account by Mr Herzog to enable me to better understand Mr Herzog's evidence. Mr Sharpe opposes such an order limiting the use which can now be made of exhibit Y. 5. In arguing his case for a limiting order under s 136 of the Evidence Act, Mr Vincent relies on the provision that for such an order to be made there needs to be demonstrated a danger that a particular use of the evidence might be unfairly prejudicial to a party. He does not rely upon the provision that there is a danger that the use might be misleading or confusing. Mr Vincent's argument is that to permit exhibit Y to be evidence of the facts asserted in that exhibit would present a danger that such a use would be unfairly prejudicial to his client. 6. In arguing for such an order, Mr Vincent has referred me to a number of authorities. The most helpful, with respect, is probably the decision of Sperling J in Roach v Page (No 11) [2003] NSWSC 907. At [74], his Honour sets out his view of the considerations relevant to unfair prejudice in s 136 of the Evidence Act. One of those considerations is the fact that where "hearsay evidence is made admissible by an exception to the hearsay rule it would be wrong to exclude it or to limit its use merely because it is hearsay and therefore of inherently less reliable quality." As his Honour said, that would be to frustrate the intention of the legislature in making hearsay evidence admissible when it is the subject of a specific legislative exception. It is agreed between the parties that exhibit Y constitutes an exception to the hearsay rule, at least to the extent that it represents a basis for the opinions expressed by Mr Herzog. The difference between them is whether it can be used for any more extensive purpose. 7. The views of Sperling J about frustrating the intentions of the Act were also expressed by members of the High Court in Papakosmas v The Queen (1999) 196 CLR 297. In their joint judgment Gleeson CJ and Hayne J referred to an argument that as a general rule evidence of complaint - Papakosmas was a sexual assault criminal case - should be automatically limited by s 136 so it is not used for a hearsay purpose. Their Honours, in rejecting that submission, said at [39] that such an approach would "amount to an unacceptable attempt to constrain the legislative policy underlying the statute by a reference to common law rules, and distinctions, which the legislature has discarded." Similarly, McHugh J expressed a view to the same effect at [96]. 8. Returning to Sperling J's judgment in Roach, after referring to the impermissibility of limiting evidence merely because it is hearsay, his Honour proceeded to say that that was not "the same as saying that there is scope for the application of" s 136, amongst other provisions, "in relation to hearsay evidence which is covered by such a statutory exception, but where there is some addition factor, for example, where the maker of the representation is not to be called." In this case Mr Weatherburn was called and, as fairly acknowledged by Mr Vincent, he had an opportunity to cross-examine Mr Weatherburn, including on the contents of exhibit Y. 9. In turning his specific attention to the operation of the hearsay rule to the factual basis for the expression of an opinion, his Honour regarded the "operation of s 60 on assumption evidence which is given as the basis for an expert opinion is also a special case." As his Honour said, if facts are provided in the form of a bare statement or stated as having been provided by another person, s 60 operates to make the account evidence of the truth of the facts stated. It is that operation of s 60 which Mr Vincent seeks to avoid by my application of s 136 in this case. 10. His Honour went on to observe that the s 60 would not operate in circumstances which were different from the facts being provided to the expert in the form of a statement of facts. His Honour said that it would be different "if the expert says that certain facts are assumed for the purpose of providing an opinion." His Honour then went on to observe that a "disadvantage should not be incurred in legal proceedings by happenstance. If the facts stated are contentious, it will ordinarily be unfair that the opposite party is fixed with assumption evidence as evidence of the truth of the facts stated by reason of those facts having been stated in one form rather than the other." 11. Mr Sharpe referred me to a judgment of Lindgren J in the Federal Court of Australia. The case was Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893, a judgment delivered on 20 August 2003. Lindgren J also referred to the distinction in how factual material might be presented to an expert. In making a similar comment to Sperling J his Honour said as follows at [38]: " It is, however, odd that the tendering party should be in a better position because the anthropologist's report is in the 'informant A told me facts, X, Y and Z' rather than (in my opinion, the orthodox and preferable model) 'I assume, as the basis of my opinion, facts X, Y and Z'. " His Honour observed that had the tendering party chosen the former method of supplying information supplied to the expert - in preference to the statement of assumptions - for the purpose of proving the asserted facts by hearsay, then his Honour would have made an order under s 136 of the Evidence Act 1995 of the Commonwealth, limiting that use. His Honour was not so satisfied in that case. Once again, however, the issue is addressed judicially of the consequence that a lot may turn on the form in which the factual material is presented to the expert. 12. That very same issue was referred to by Branson J, a member of the Full Federal Court, in Quick v Stoland Pty Ltd (1998) 87 FCR 371. Her Honour said over 377-378 the following: "It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption. If s 60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory. In cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 of the Act by exercising the power vested in it by s 136 of the Act." Another member of the court, Finkelstein J, said at 382 the following: "In many cases the extraordinary effect of s 60 would be unfair to the party against whom the evidence is tendered. For example, where the hearsay involves single 'facts' that are in conflict or 'facts' that are unreliable it is quite unsatisfactory for those single 'facts' to be proved by the operation of s 60. One way in which this problem can be overcome is by an order under s 136 limiting the use to be made of that evidence. In the case of evidence given by an expert, he or she can be required to express his opinion in answer to a hypothetical question leaving it to the party calling the expert to prove the facts upon which the opinion is based." 13. In resisting Mr Vincent's application for me to limit the use to be made of the evidence, Mr Sharpe refers me to Harrington-Smith v Western Australia. He refers me to the approach taken by Lindgren J in resolving that case. His Honour said at [39] that the way in which the discretions provided for, amongst other provisions by s 136 of the Evidence Act, are to be exercised "depends on all the circumstances of the particular case." Lindgren J was faced, in the circumstances of the case before his Honour, with a huge amount of experts' opinions. His Honour was asked to deal with 1,426 objections to those opinions. The opinions had been expressed by some fifteen authors and the material comprised about thirty-five volumes. His Honour commenced his judgment by referring to the issues involved in resolving the objections as "a difficult question of case management, or, more particularly, trial management." His Honour referred to a case which presented other difficulties in trial management, namely Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548. 14. In that case Cooper J had declined to make a limiting order under s 136 of the Evidence Act regarding the use to be made of an anthropologist's evidence of representations made to him. In his reasons Cooper J said that if the evidence was to be relied upon as facts - the facts contained in the representations - the applicants "would have to recall the makers of the representations (a development which no party in the present proceeding would embrace)" or give notices under the Evidence Act and seek to have the hearsay admitted. His Honour went on to observe that the hearsay evidence was only some evidence of the asserted facts and gave no added weight to the evidence. It would remain open, his Honour observed, for the respondents in that case to contend that little weight, or none, should be given to the evidence. 15. In referring to that authority Lindgren J approached his case in the same way, an approach which Mr Sharpe encouraged me to take. At [39] Lindgren J said: "I have referred earlier to the practical exigencies touching the giving of rulings on the objections in the present case. Like Cooper J, I propose not to make orders under any of those provisions, at least at this stage. No party would welcome a return to the Goldfields region for the purpose of affording the indigenous informants an opportunity of testifying about the things of which they told an anthropologist, and of affording counsel the opportunity of cross-examining them on that testimony. In my opinion, that burden can, with justice, be avoided by my taking the course which Cooper J took in Lardil, of taking into account the hearsay nature of the evidence as going to its weight as evidence of the facts intended to be asserted by the representations." 16. I have decided to make an order under s 136 limiting the use of the evidence in the way which Mr Vincent has sought. My reasons for making that order are these. First, like Sperling, Branson and Finkelstein JJ it seems to me that it would be unfair on the second defendant in these proceedings for it to be fixed with the contents of exhibit Y as assertions of facts simply because of the form in which that information was presented to Mr Herzog. As Sperling J observed, "such a disadvantage to a party should not be incurred in legal proceedings by happenstance." 17. The second reason is that the facts which are the subject of the assertions in exhibit Y in this case are contentious. In his written submissions, Mr Vincent's position is very clear that I should not accept the account given by Mr Weatherburn in his evidence before me. Mr Weatherburn, Mr Vincent argues, has given a number of accounts over the years and Mr Vincent argues there are variations in those accounts which should cause me to resist finding that he is a reliable witness. This is a case of the kind where Branson J observed "there is a genuine dispute as to the relevant facts." Her Honour said that it might be expected that a court would ordinarily limit the operation of s 60 by the use of s 136 of the Act. As Finkelstein J observed, "the facts asserted in this case are facts in conflict and it is unsatisfactory for such facts to be proved by the operation of s 60." 18. The third reason is that I do not regard admitting the document and regarding the question as one of how much weight I put on the document as a satisfactory course. Clearly in both Lardil and Harrington-Smith the exigencies of those cases, including significant case management issues, were significant factors influencing the discretion of their Honours to resist using s 136 of the Evidence Act. I regard those cases, because of those exceptional circumstances, as not being a good guide for the exercise of my discretion in this case. 19. For those reasons I regard the use of exhibit Y for anything beyond evidence of the facts upon which the expert Henry Herzog expressed his opinion as being unfairly prejudicial to the second defendant and, under s 136 of the Evidence Act, I limit the use to be made of exhibit Y to evidence of the facts upon which those opinions were expressed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.