Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd (No 3) [2014] NSWSC 828

Supreme Court New South Wales

Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd (No 3) [2014] NSWSC 828 Hearing dates: 18 June 2014 Decision date: 18 June 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Parts of expert evidence rejected Catchwords: EVIDENCE - Expert opinion - Evidence of likely reaction of union members Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) [2003] NSWSC 160; (2003) 25 NSWCCR 291 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Category: Procedural and other rulings Parties: Plaintiff: Macquarie International Health Clinic Pty Ltd Defendant: Sydney Local Health District Representation: Counsel: Mr R. Dubler SC and Mr A. Harding (Plaintiff) Defendant: Mr G. Burton SC, Mr H. Stowe and Mr G. Antipas (Defendant) Solicitors: Plaintiff: S Moran & Co Defendant: Bolzan & Dimitri File Number(s): 2000/34949 and 2010/90340 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: The Court has before it an affidavit of Linda Griffiths, who is a Lead Organiser in the New South Wales Nurses and Midwives Association. The affidavit was sworn on 12 June 2014. Paragraphs 75 to 88 of her affidavit set out evidence predicated upon a hypothetical circumstance relating to a proposal to increase car parking fees at a public hospital in the Sydney metropolitan area that could affect union members. Miss Griffiths goes on then to give her views as to what would have occurred in the context of Royal Prince Alfred Hospital (including the possibility that the private hospital the subject of these proceedings was also under construction) if that occurred in terms of industrial action and the like. 2Objection has been taken to those paragraphs on the basis that they constitute inadmissible opinion. The view to which I have come after listening to the full and careful arguments put by Senior Counsel for both parties is that, in their present form, those paragraphs ought not be admitted. However, it is necessary for me to make clear why I have reached that view. 3There was considerable discussion before me as to whether the matters about which Miss Griffiths is giving her evidence are capable of being the subject of "specialised knowledge based on the person's training, study, or experience", within the meaning of s 79(1) of the Evidence Act 1995 (NSW). 4Miss Griffiths is, clearly, a nurses' union organiser and representative of many years experience. I am satisfied that the area of workplace relations in the case of nurses in the Sydney metropolitan area, even to the point of specifically relating to Royal Prince Alfred Hospital, and how those nurses may respond in an industrial sense to particular situations, is an area capable of being the subject of specialised knowledge. 5It is subject matter of a kind where I would expect a person who professes specialised knowledge has obtained that knowledge through experience. A moment's thought would satisfy one that it is not readily an area where one would expect there to be training or study. Nevertheless, I am satisfied that it is an area where specialised knowledge can be obtained by experience and, on the basis of Miss Griffiths' experience as set out in her affidavit, I am satisfied she has it. 6So it will be clear that the difficulty I have with these paragraphs of her affidavit is not at the liminal stage of the subject matter which she treats not being capable of being an area of specialised knowledge based on experience. 7However, when that conclusion is given practical effect for the purposes of these proceedings, it must then be acknowledged that, as an expert, the well-known requirements set out in the judgment of Heydon JA (as his Honour then was) in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 704 at [85], need to be observed. 8In the course of argument, I made the observation that there may be a temptation to elevate Heydon JA's exposition of what is required to make an expert's report admissible to the status of a statutory formula. I certainly do not propose to treat it in that way and I do not consider that Heydon JA was intending to do so. His Honour was, rather, seeking to make explicit the practical working out of some foundational principles that govern the admissibility of expert evidence. I take those foundational principles to be the need for an expert to make clear what facts he or she is relying upon and to expose the process of reasoning depending upon those facts which lead to whatever expert conclusions the expert makes in his or her report. 9Observance of those two foundational principles serves two important purposes. 10First, they enable the expert's opinion to be fairly tested in cross-examination. A party is entitled to test expert evidence that its opponent wishes to adduce and that testing is facilitated, both in terms of its effectiveness and efficiency, where the process of reasoning is clearly set out. 11Second, it enables the Court to come to a view as to the weight which should be accorded to an expert's opinion by being able to identify clearly the quality of the reasoning that has led to the expert's conclusions. 12Again, during the course of argument I made the observation, to which I adhere in these reasons, that a literal or ritualistic attempt to follow the various steps set out by Heydon JA will not of itself be sufficient and, depending upon the field of expertise, may not, in fact, be able to be done with the lapidary clarity of the steps which his Honour sets out. 13That must be particularly the case where one is dealing with specialised knowledge that has been gained through experience. I respectfully agree with the observation made by Shaw J in Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) [2003] NSWSC 160, where his Honour admitted expert evidence concerning the likely conduct of escaped prisoners. 25 Although mere experience without appropriate academic qualifications may be insufficient in a technical or scientific field, it seems to me that in areas of practicality and, here, in analysis of the propensity of human behaviour a person suitably experienced can express a view in the light of that experience which would be admissible in a court and of assistance to the court in determining relevant issues. 14To adopt his Honour's term, the evidence that Miss Griffiths has been called to give can fairly be described as relating to "an area of practicality" involving, as it did in Godfrey, "analysis of the propensity of human behaviour". 15In such an area, the precise or rote adherence to the criteria set out by Heydon JA is likely to be particularly difficult. 16Having acknowledged that difficulty, that is not to say that evidence of the kind which Miss Griffiths has been called to give does not have to comply with what I have referred to above as the foundational principles. 17Mr Burton of Senior Counsel, appearing for the defendant, has sought to demonstrate, in a careful and rigorous way, that by cross-referencing other parts of Miss Griffiths' affidavit and a further affidavit which she has sworn by way of explication on 18 June 2014, the various statements made by Miss Griffiths in paragraph 75 to 88 can be supported as having foundation as to fact and reasoning in other parts of her affidavit. That exercise, whilst undertaken for good reason, also demonstrates what I perceive to be the vice in the affidavit in its current form. 18Without suggesting that Mr Burton's submissions were in any way inaccurate or incomplete, the difficulty remains that the Court and the plaintiff have to pick their way amongst various pieces of evidence that, in the affidavit as currently expressed, are not necessarily or obviously connected. That means that it is neither easy for the plaintiff to test nor for the Court to come to a view as to the weight which should be accorded to the opinions which Miss Griffiths wishes to express. 19In reaching this conclusion I am not to be taken as inviting a mere scissors and paste exercise with the material that has been advanced from Miss Griffiths thus far. No doubt such an exercise will go some way to curing the difficulty which I have identified. However, even if further evidence is to be adduced from Miss Griffiths (an opportunity which, subject to hearing from Mr Dubler of Senior Counsel for the plaintiff, I propose to afford to the defendant) whatever is sought to be adduced from her in the future will need to demonstrate a genuine consideration of the issues and expose a process of reasoning in a way that satisfies the Court that it is bona fide and considered rather than merely mechanical. 20Quite apart from the way in which the material is currently organised, there is another reason why at this stage I am not disposed to receive those paragraphs. Mr Dubler SC submitted that it would be necessary for the Court to make an order granting leave for this material to be relied upon because it does not attach or make reference to Miss Griffiths having been made aware of and having prepared her report in accordance with the Expert Code of Conduct. There is force in that submission. 21In expressing this view I am not to be taken as having reached any conclusion that Miss Griffiths' opinions are not genuinely held or are the product of an unthinking or partisan bias. Nevertheless, because of her role as a union organiser, in circumstances where, to put it loosely, there is a history between Dr Wenkart and the Nurses' Union of which I am aware only in the most general terms, for the Court to obtain the most benefit from her evidence it is necessary for the Court to be satisfied that Miss Griffiths has approached her evidence in the way contemplated by the Expert Code of Conduct. 22It may well be, if that Code has not already been drawn to her attention, that when it is, she will come to the same views and express them in exactly the same way. On the other hand, she may not. However, the important point will be that in approaching her evidence the Court will at least have the prima facie assurance that her expertise is being deployed in the way the rules require, namely by a person who understands that their primary duty is to assist the Court and not the party who has called them. 23For these reasons I will not admit paragraphs 75 to 88 of Miss Griffiths' affidavit and I will invite the parties to address as to how we should proceed. 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. Decision last updated: 19 June 2014