Industrial Relations Commission of New South Wales in Court Session CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 392 PROSECUTOR: Stephen Finlay McMartin PARTIES : DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady. FILE NUMBER: 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - voir dire to determine admissibility of expert witness statement - Part 36r13C and para 5(b) of Schedule K of Supreme Court Rules considered applicable - held expert witness statement complied with Schedule K subject to testing in cross examination - onus on defendants to have statement excluded under s137 Evidence Act - onus not discharged - statement admitted subject to issues arising and consideration as to weight Occupational Health and Safety Act 1983 LEGISLATION CITED : Coal Mines Regulation Act 1982 Evidence Act 1995 CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 HEARING DATES: 11/03/2003 DATE OF JUDGMENT: 11/04/2003 PROSECUTOR: Mr S Crawshaw SC Mr B Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke LEGAL REPRESENTATIVES: Mr S Rothman SC Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady Mr B Hodgkinson SC Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 4/11/2003 Matter No's IRC 3198/00 - 3249/00 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 392 1 This judgment deals with the admissibility of the statement of Mr Darrel Adam. 2 Mr Adam has been called by the prosecution as an expert witness. Because of time constraints, this judgment will perhaps be briefer than it might otherwise be. 3 Mr Adam has given evidence in a voir dire and has been cross-examined. I have already given a preliminary ruling against the admissibility of statements of Mr Mark Robinson in cross-examination in that voir dire. 4 At the commencement of the voir dire counsel for the defendants jointly challenged the admissibility of Adam's statement on two grounds: · the field of specialised knowledge that underpins Mr Adam's statements - in short, the defendants say Mr Adam has insufficient specialised knowledge to support the opinions he purports to express, particularly in the area of mine surveying. · the specialised knowledge that he relies upon to express his opinions has been obtained in part in circumstances that, overall, preclude it from being relied upon and it should be excluded in accordance with s137 of the Evidence Act. 5 In the course of the voir dire, counsel for the defendants also submitted that Mr Adam's statement does comply with the form as required by Schedule K of Part 36, Rule 13C of the Supreme Court rules, in particular para 5(b) of schedule K, that states in whole: A report by an expert witness must (in the body of the report or in the annexure) specify: (b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed). 6 At the outset I refer to a judgment given by me on 10 September last concerning the admissibility of the expert witness statement of Mr Ian Anderson. To the extent that it is necessary in this judgment, I will refer to it rather than repeat myself. 7 Mr Adam's statement can be shortly described as being broken down into a number of preliminary parts. Paragraphs [4] and [5] identify Mr Adam's awareness of the code of conduct under Schedule K of the Supreme Court Rules, his having read it and his agreement to be bound by it. In paras [6] to [14] Mr Adam outlines relevant details as to his overall qualifications, background and experience in the mining industry from 1955 to the present. That information is expanded upon in annexure DA1 to his statement. 8 By way of academic qualifications, Mr Adam has a Masters of Engineering (Honours) and a Diploma of Teaching. He has relevant coalmining qualifications, including mine surveyors qualifications, and extensive hands-on and teaching experience in the mining industry relevant to the matters before me, including mine surveying. 9 I refer to my earlier judgment already referred to in dealing with expert witness statements of Mr Anderson, particularly para [31]. In applying the concept of specialised knowledge as expressed in that paragraph and as expressed by reference to the judicial authorities referred to therein, I am satisfied that Mr Adam does have specialised knowledge and expertise in the area of mine management and mine surveying and that, on a prima facie reading of his statement, the opinions he expresses are based wholly or substantially on that expertise. I will return to that issue later. 10 I turn now to the argument raised by counsel for the defendants as to Mr Adam's statement and its compliance or otherwise with Schedule K, in particular para [5](b). 11 On the face of it, Mr Adam's statement purports to comply with Schedule K, para [5](b). That is, from para [27] onwards his statement is structured such that he identifies facts, matters and assumptions in relation to a particular subject matter followed by the opinion he then expresses in relation to the previously identified facts, matters and assumptions. 12 Counsel on behalf of the corporate defendants reminded me of the decision of Hayden JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85] and, in particular, the following passage: [85] So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it 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 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is, strictly speaking, not admissible and, so far as it is admissible, of diminished weight. 13 In many respects it was submitted that Mr Adam's statement does not meet the test as expounded in the above passage. On this issue, I refer to my earlier judgment on the admissibility of the expert witness statement of Mr Ian Anderson and, in particular, para [25] of that judgment. 14 For the moment it is not possible to come to a concluded view having regard to those matters as identified by Hayden JA in Makita to which I have been referred. That is simply because Mr Adam's opinions and the facts, matters and assumptions that he details in his statement have not been subjected to any scrutiny or testing by way of cross-examination. 15 As I indicated earlier, on an initial reading of his statement, structured as it is, Mr Adam's statement has the appearance of compliance. It may be that at the end of the day the opinions he expresses, relying on the facts, matters and assumptions that he does, cannot be identified and properly and relevantly established in a suitable evidentiary way. 16 If Mr Adam's statement is to be challenged in that way, as it has been, more has to be done by the defendants than simply assert that proposition. Mr Adam's statement must be tested in accordance with the principles expressed by Hayden JA in Makita, referred to above. That process of testing can and should be done by the evidence and cross-examination of Mr Adam that goes directly to those issues. Only then can the court come to a concluded view as to the evidentiary soundness or otherwise of Mr Adam's opinions and the weight to be attached to such opinions. 17 On this issue, I am of the view that the proper course would be to have Mr Adam give evidence and be cross-examined as to the basis of his opinions in accordance with the principles required to be satisfied and as expressed by Hayden JA in Makita. 18 The final and most vexing point in the arguments against the admissibility of Mr Adam's statement centres around the extent or otherwise the specialised knowledge that Mr Adam relies upon to express his opinion has been influenced in part by reference to material excluded pursuant to s60(2) of the Coal Mines Regulation Act 1982 and, as such, should be excluded in accordance with s137 of the Evidence Act 1995. 19 The background to this issue was referred to by me in a judgment I gave yesterday ruling against the admissibility of Mr Mark Robinson's statements in the voir dire proceedings now concluded. To the extent that that background is relevant here, it is repeated. 20 In the first instance, reference must be had to paras [15] to [17] of Mr Adam's statement now before me. Those paragraphs relevantly detail the background to the preparation of a report by Mr Adam for the 1997 judicial inquiry into the accident at Gretley Colliery. 21 In preparing his report and including his observations and conclusions, Mr Adam was given a number of documents and mine plans. One of the documents given to and considered by Mr Adam in the preparation of his 1997 report was a statement made by Mr Mark Robinson in February of that year. 22 In para [21] of Mr Adam's statement now before me, he affirms that he did not consider or take into account, amongst other material, Mr Robinson's statement in providing the opinions that he now does. In cross-examination on the voir dire, Mr Adam agreed that a portion of the statement now before me is a repeat of the statement he had earlier prepared in 1997. As part of that, when expressly questioned, he agreed that in expressing the opinions he now does about mine surveying, he would have had regard on 'an inclusive basis' to Mr Robinson's statement as well as a diversity of other material that he was provided with. 23 In re-examination on the voir dire, Mr Adam confirmed that, in forming the opinions that he now does for the purposes of the statement before me, the statements he had made were 'stand-alone' and were not influenced by any other statements he may have read. On this issue, his evidence was as follows: Q. What do you mean by stand-alone? A. I believe that while I considered that situation, it in no way influenced the observations that I made to that matter or those plans were not influenced by the other statements that I had read. Q. Which opinions in your statement, your current statement that is before this court, are stand-alone on the basis of what you have seen in those plans? 24 Mr Adam then went on to denote at some considerable length those paragraphs in his statement that represented his opinion on a stand-alone basis. He did so, on any view, in a considered and objective manner. 25 There is clearly an inconsistency in a first blush consideration of Mr Adam's evidence to date. That is, his sworn statement makes it clear that in the statement now before me he did not consider Mr Mark Robinson's statement. That he repeats some of his earlier opinion before the judicial inquiry in the statement now before me is the link to his consideration of Mr Mark Robinson's statement in the first instance and it is also the link relied upon by the defendants in arguing against the admissibility of Mr Adam's present statement. 26 Their argument in effect is that whilesoever that link as between Mr Robinson's protected answers and Mr Adam's statement exists, the possibility - indeed, they would say the probability - is that Mr Adam relied on those answers in part in expressing the opinions that he initially did in 1997 and which he repeats now. There is no way now, it was submitted, of discerning the extent to which Mr Adam relied upon Mr Robinson's statement. Accordingly, there is a real danger of unfair prejudice to the defendants that is outweighed by the probative value of Mr Adam's evidence such that Mr Adam's statement should be excluded under s137 of the Evidence Act. 27 I have to say I am not persuaded to that view. In the first instance, it is clear the onus is on the defendants to have Mr Adam's statement excluded under s137. I am not satisfied they have discharged that onus. Further, I do not consider Mr Adam's evidence as conflicting as first blush considerations might suggest. He says the statement now before me did not include any direct consideration of Mr Mark Robinson's statement, amongst other material. Further, he gave evidence that the opinions now expressed by him are stand-alone and exclusive of any considerations of Mr Mark Robinson's statement, amongst others. 28 Mr Adam impressed me as an honest, forthright and considered witness and I accept his assertion as to the source of his opinion now before me without equivocation. That some of the opinion he now expresses is a repeat of the opinion he gave in 1997 to the judicial inquiry is unsurprising. That he adopts it again for inclusion in the report before me is equally unsurprising. That that part that he repeats was an opinion formed after he considered Mr Robinson's statement amongst other material is not, in my view, sufficiently proximate or certain in establishing the unfair prejudice relied upon by the defendants such as to outweigh the probative value of his report. 29 In saying that, I do not consider that evidence given by Mr Adam that he 'read the material before him' or that he had 'considered all of the material' or that he had 'regard to the material' or that the opinion he expressed was based 'on the material he had been provided' as being evidence that establishes a direct and proximate link as between Mr Robinson's protected statement and the expert opinion that Mr Adam now expresses. 30 Reference to the expression 'the material' is reference to a diversity of material provided to Mr Adam of which Mr Robinson's statement is but one part. In short, at its highest, Mr Adam's statement represents his opinion uninfluenced by Mr Robinson's protected statement. That he read and considered one of Mr Robinson's statements in 1997, amongst other material, in expressing an opinion that he repeats in part in 2003 cannot, without more, be considered sufficient to discharge the onus on the defendants to have Mr Adam's statement excluded under s137 of the Evidence Act. 31 I admit Mr Adam's report subject only to issues arising and submissions as to weight. 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.