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.
The case provides a timely reminder of two relevant principles of expert evidence:
Specifically, the Court found:
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:
The respondents made an application to rule the expert opinion evidence of Mr Schepisi and Mr Specktor as inadmissible on the basis that:
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.
The Court refused the respondents’ application that the opinion evidence be ruled inadmissible because:
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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