Can you be impartial if you are not independent?

“…an actual or perceived lack of independence, impartiality or objectivity of an expert witness goes to weight, not admissibility.”

We look at key lessons from Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622

The Federal Court of Australia recently dismissed an application by the respondents, which challenged the admissibility of expert opinion on the basis of a lack of independence.

What are the key takeaways?

The case provides a timely reminder of two relevant principles of expert evidence:

  • an expert can be impartial without being independent;
  • a lack of impartiality affects the weight given to an exert's report, but not its admissibility.

Specifically, the Court found:

  • an actual or or perceived lack of independence, impartiality or objectivity due to commercial arrangements, connections or otherwise, goes to the weight of the expert evidence, not its admissibility. They are not grounds for the exclusion of expert opinion evidence;
  • a statement in an expert’s report to the effect that the expert has read and understood the Court’s Practice Note concerning expert evidence (GPN-EXPT) and agrees to comply with it, is sufficient for the purpose of complying with Rule 23.13(1)(h) of the Federal Court Rules 2011 (Cth);
  • there is a clear difference between actively advocating for the cause of a party and having an association, friendship or close relationship with the party calling the expert to give evidence.

Background 

Mr Geoffrey Rush sued Nationwide News and Mr Jonathan Moran for defamation in respect of a billboard promoting a story which appeared in the Telegraph and a series of articles written by Mr Moran which were published in the Telegraph.

Counsel for Mr Rush called two witnesses to give evidence about Mr Rush’s reputation and other issues relevant to the financial loss suffered by Mr Rush as a result of the alleged defamatory publications:

  • Mr Schepisi is an acquaintance of Mr Rush, he has known him for 12 years socially and professionally and they had spent a lot of time together;
  • Mr Specktor is Mr Rush’s agent and has represented him for over 20 years.

The respondents made an application to rule the expert opinion evidence of Mr Schepisi and Mr Specktor as inadmissible on the basis that:

  • the experts were not independent because they both knew Mr Rush well and had a close relationship with him;
  • the experts obtained information relevant to the formation of their opinions in the course of their personal relationship with Mr Rush.

The respondents further applied for an order to exclude the evidence under s 135 of the Evidence Act 1995 (Cth) because it was unfairly prejudicial.

Judgment

The Court refused the respondents’ application that the opinion evidence be ruled inadmissible because:

  • the concepts of objectivity and independence are not pre-conditions to the admissibility of evidence. “In other words, an actual or perceived lack of independence, impartiality or objectivity of an expert witness goes to weight, not admissibility.”;
  • both experts stated that they had read and understood GPN-EXPT and agreed to be bound by it. There was nothing in either expert’s report to suggest they would act as advocates for Mr Rush and present opinions that were not impartial or objective;
  • the admissibility of expert evidence is governed by the Evidence Act. There is nothing in s 79 of the Evidence Act imposing a condition that an expert witness be independent.

Wigney J noted the decision by the respondents not to cross-examine either expert about their ability to give impartial and objective opinions despite their relationships with Mr Rush.

In the event that Mr Schepisi or Mr Specktor were shown to lack objectivity or impartiality, the Court formed the view that there would little, or no weight given to their opinions.

In relation to the argument by the respondents that the experts’ evidence was based on their personal knowledge of Mr Rush, the court held that both experts had set out in their respective expert reports “how they [had] used information gleaned from their personal knowledge of Mr Rush in forming their opinions.”

The Court’s reasoning emphasises the importance of an expert identifying the basis upon which an opinion is set out.

His Honour further dismissed the respondents’ application for an order that the evidence be excluded under s 135 of the Evidence Act because it is unfairly prejudicial, as the respondents failed to expressly identify how or why the evidence was unfairly prejudicial. 

Read the full judgment here.

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