FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Emerald Ocean Pty Ltd [2002] FCA 740

EVIDENCE – expert evidence – litigation concerning efficacy of electrical muscle stimulation – reports on fat loss, cellulite and testing of devices – whether person reporting has specialised knowledge based on training, study or experience – whether opinion wholly or substantially based on that opinion

Evidence Act 1995 (Cth) s 79, 135

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

HG v R (1999) 197 CLR 414

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

AUSTRALIAN COMPETITION & CONSUMER COMMISSION v EMERALD OCEAN DISTRIBUTORS PTY LTD and SLENDERTONE HEALTH & BEAUTY PTY LTD and SEAN O’DONOGHUE and EMERALD OCEAN DISTRIBUTORS PTY LTD and SLENDERTONE HEALTH AND BEAUTY PTY LTD SEAN O'DONOGHUE and BIO-MEDICAL RESEARCH LIMITED

W118 of 2000

RD NICHOLSON J

24 JULY 2002

PERTH

THE COURT ORDERS THAT:

The objections to the admission of the reports of Mr Graeme Wright, Dr Jefferson Coombes and Dr Anthony Bakker be dismissed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Objection is taken on behalf of the cross‑respondent to the admissibility of evidence of three witnesses proposed to be called by the applicant as experts.  Before moving to consider each individual case, I want to say something generally about the law that seems to me to be attracted to a resolution of that objection.

2                     The relevant section of the Evidence Act 1995 (Cth) is s 79 which is simple in its concept but sometimes difficult to apply.  It provides:

“If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

The opinion rule is a reference to s 76, which has the effect of providing that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.  Expert opinion evidence is admissible then only pursuant to the terms of s 79, which is an exception to the blanket prohibition in s 76.  Of course expert evidence must in the first place be relevant, but relevance is not challenged here.  What is challenged is the satisfaction of the elements of s 79.

3                     When one looks at s 79, it is clear that the Court must look to see, firstly, if the expert has "specialised knowledge" and, secondly, that such knowledge was based on that person's "training, study or experience".  Thirdly, the Court must look to see whether the evidence which is given is "wholly or substantially based on that knowledge".

4                     That section is to be understood in the context of the guidelines for expert witnesses in proceedings before this Court.  Those guidelines cannot influence the interpretation of the section but they do evidence the understanding of the way in which the section applies.  It is stated in those guidelines, firstly, that an expert's written report must give details of the expert's qualifications and of the literature or other material used in making the report.  Additionally it is provided that "all assumptions made by the expert should be clearly and fully stated".  It further provides that the report should identify who carried out any tests or experiments upon which the expert relied in compiling the report and giving details of the qualifications of the persons who carried out any such test or experiment.  The expert, of course, must give reasons for the opinion expressed.

5                     The content of s 79 recently received explanation in the reasons for judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743 - 744.  I will not set the passage out here in detail.  It is sufficient that it directs attention to the elements which I have already identified as present in the section.  In addition it draws attention to what was said by Gleeson CJ in HG v R (1999) 197 CLR 414 at 428 in par 41 where he stated that if the basis of an opinion is made explicit, it may reveal that it is not based on specialised expert knowledge but rather on what Gleeson CJ described as a combination of speculation, inference, personal and second‑hand views as to the credibility of the complainant and a process of reasoning which well beyond the field of expertise.  In HG Gleeson CJ had earlier stated that the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form, namely, that the section requires that the opinion is presented in a form which makes it possible to answer the questions to which the section is directed, that is, whether the opinion is wholly or substantially based on the specialised knowledge derivative from the relevant training, study or experience.

6                     The contents of s 79 and the dicta of Heydon and of Gleeson CJ to which I have referred were recently considered by the Full Court of this court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.  In their joint judgment Weinberg and Dowsett JJ, after referring to the dicta of Heydon JA, stated that it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceeding.  More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, the evidence is received.  The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence - see par [87].

7                     The difficulties of applying the dicta of Heydon JA in the course of a trial were also adverted to by Branson J who described the dicta of Heydon JA as constituting a counsel of perfection.  She said that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined by him.  This is particularly because the admissibility of evidence is ordinarily required to be made by the trial judge during the course of the trial rather than at its conclusion.  Branson J referred to the fact that s 79 has changed the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion.  That is not in contention before me.  She also emphasised that the general discretion to refuse to admit evidence is sufficient to deal with problems that might arise in respect of an expert opinion, the basis of which is not disclosed - see s 135 of the Evidence Act 1995 (Cth).

8                     At p 16 Branson J stated that the requirement that an expert opinion be wholly or substantially based on the witness's specialised knowledge is not intended to require a trial judge to give meticulous consideration, before ruling on the admissibility of the evidence of the opinion, to whether the facts on which the opinion is based form a proper (in the sense of logically or scientifically or intellectually proper) base for the opinion.  She said:

“It is sufficient for admissibility that the trial judge is satisfied on the balance of probabilities on the evidence and other material then before the judge that the expert has drawn his or her opinion from known or assumed facts by reference wholly or substantially to his or her specialised knowledge.”

9                     It is necessary therefore for me to turn to each of the proposed sources of evidence and the objections in relation to them.

10                  Turning first to the position of Mr Wright, the report which it is proposed to tender states that he was instructed to supply a report detailing:  firstly, the prerequisites for and causes of fat loss; secondly, the nature of cellulite; and, thirdly, any scientifically validated treatments of techniques for reducing cellulite.  Additionally he was asked to relate his information to the claims that EMS devices can reduce body measurements and conquer or completely remove cellulite.

11                  Mr Wright's qualifications are as follows.  Academically, his qualifications are in physical education.  They are at the postgraduate, undergraduate and diploma levels.  Professionally, he has lectured in physical education and directed sport, recreation and tourism for the Commonwealth government in addition to other occupations.  He is presently the managing director of an entity known as Lifechoice which is described as running a series of medical clinics delivering medically‑based weight management programs to overweight and obese individuals.  He states in his report that he directs a multidisciplinary team of health professionals as well as conducts his own clinical load.

12                 The objection made for the cross‑respondent is essentially that while Mr Wright may be able to testify on matters relating to physical education and the effect of diet, there is nothing in his expertise which would entitle him to give evidence about electromagnetic stimulation (“EMS”) and because he cannot rule that out, his expert evidence should not be received.

13                  The first question I must answer in respect of Mr Wright is whether he has specialised knowledge based on his training, study or experience.  I am satisfied that Mr Wright has specialised knowledge in physical education and from his experience in the delivery of medically based weight management programs to overweight and obese individuals, including the conduct of a clinical load in that operation.

14                  The next question I must ask is whether his opinion is wholly or substantially based on that specialised knowledge.  As I understand it, Mr Wright's opinion is only in the most minor respect directed to the question of EMS.  His opinion addresses the nature and incidence of fatness.  It then considers prerequisites for and causes of fat loss.  It then addresses the nature of cellulite.  It turns to the scientific, validated measures for treating cellulite and it includes a summary.  In that summary reference is made to EMS.  In my view that entitles me to conclude that his proposed opinion is substantially based on his specialised knowledge.  The fact that he may have an element of that opinion relating to EMS is a matter which would open itself to cross‑examination and the weight to be attached to that evidence would fall out and be determined in the light of any evidence arising in cross‑examination as to the extent to which his expertise entitled him to express the opinion which he has on that element.

15                  For those reasons I would not allow the objection to the expert report proposed to be called from Mr Wright.

16                  I now turn to the proposed report of Dr Coombes.  Dr Coombes states in his proposed report that he was supplied with three EMS devices, being the ones at issue in these proceedings, and instructed to test the devices and comment on the truth of representations made concerning those devices.  He states that the representations were supplied by the solicitors for the applicant and included advertisements, pamphlets and quotes.  He was instructed to prepare a report that details the nature of the tests carried out and the methodology used in conducting the tests.  He was instructed to relate the conclusions of the tests to the truth or falsity of the express statements with respect to the devices.

17                  He states in his report that the aim of the tests was to determine the effect of using the EMS devices on metabolic rate.  The rationale for the tests was that the devices would decrease body fat around the area in question.  He stated his opinion in relation to what was required to decrease body fat and stated that for the EMS devices to achieve their representations it would require them to change an individual's metabolic rate (amount of energy being expended) while they were being used.  He continued by stating that to test the ability of the devices to alter metabolic rate a simple experiment was conducted.  This involved a subject being selected to maximise any effect that could occur.  The subject chosen had past experience with EMS devices and low body fat, was said to be familiar with EMS devices and the maximum settings used and which could be used.

18                  His report then proceeded to describe the methodology in relation to the application of the devices to the subject.  He classified the representations into a fourfold classification, namely, the ability to tone, trim and firm, the equivalence to conventional exercise, the use of the devices being painless and the effect on cellulite.

19                  The objections taken to this proposed report may be summarised as follows.  Firstly and quite fundamentally it is said that there is insufficient identification of the subject, not only personally, but also in relation to personal characteristics.  Related to that, it is said also that there is insufficient identification of the reasons the subject was said to exhibit certain characteristics and how the tests were in fact carried out.  Related to this, it is said that for instance in relation to the statement about why body fat is thought by Dr Coombes to decrease, it is an assumption which was not spelt out as an assumption in the way the guidelines require.  Furthermore, it is said that nowhere does he state what the representations are that were put to him by the lawyers and why they should be summated into four categories.  I emphasise that the fundamental thrust of the submissions in relation to this report is that it would seek to admit as an expert opinion the evidence of tests applied to one person only.

20                  Dr Coombes' qualifications academically include a doctor of philosophy.  That involved research among other things into skeletal muscle fatigue and also respiratory muscle biochemical adaptations to exercise.  His master's thesis included research of the effects of indicators of muscle recovery.  He holds many awards and distinctions.  He is a senior lecturer at the University of Tasmania in the Centre for Human Movement in the area of exercise physiology, kinesiology and sports nutrition. 

21                  I must first ask whether the witness has specialised knowledge based on his training, study or experience.  It seems to me clear that Dr Coombes possesses a specialised knowledge of that nature derivative from his training and from his study and experience.

22                  The significant question here, however, it is whether the opinion which is proposed to tender is wholly or substantially based on that specialised knowledge. 

23                  The opinion which Dr Coombes gives in addition to recounting the nature of the experiment in relation to the subject is in relation to each of the categories of representation.  In my view, when each of those is examined he is utilising his specialised knowledge to express that opinion.  In his case, as I have said, he has particular training and experience in relation to muscle adaptations and muscle fatigue.  In my view the opinions which he has expressed are ones which satisfy the requirements of s 79.

24                  In relation to the important element of the objection in particular that the subject is not identified adequately in the ways I previously referred to, I regard the fact that Dr Coombes would be available for cross‑examination as a complete protection to the cross‑respondent against any unfairness in that respect.  Cross‑examination can open up all the matters relating to the subject and indeed to the methodology of the application of the test to him or her.  In the event that the test is shown to be ill-founded or if, as a result of it being applied only to one subject, it is too narrow to found general conclusions, that will become apparent as a matter of weight and the cross-respondent will doubtless be able to rely on that in submissions.  I therefore do not perceive any unfairness in that course being followed.

25                  As to whether Dr Coombes adequately identified the representations, I feel that his proposed report has to be understood in the context of this whole case.  He has classified the representations into the four categories which arguably accord with the nature of the pleadings and that also is a matter which could be clarified beyond any doubt in cross‑examination.

26                  If there is any remaining doubt as to whether the expertise of Dr Coombes would entitle him to deal with changes to metabolic rate from these particular devices, although I hold the view that it falls substantially within his specialised knowledge, that also is a matter which the cross‑respondent would be protected about in the opportunity for cross‑examination.

27                  I turn finally to the proposed report of Dr Bakker.  Dr Bakker states that he was instructed to comment on five representations, and he sets them out, they being representations which appear in the documentation in the pleadings.  He stated that the aims of the study that he was to undertake were:  firstly, to qualitatively examine the ability of two Slendertone EMS devices, namely, the Gymbody 8 and the Toptone 12, to trigger muscle contractions in male and female subjects; secondly, to investigate whether use of the devices in the manner specified in the instructions provided with the devices increased the heart rate in the test subjects.  He proceeds to describe the rationale of the study, the methods followed in it.  He then sets out the results in relation to three subjects, two male and one female.  He gives in relation to those subjects issues of identification of characteristics and sets out the result in relation to heart rates.  He then follows with his conclusions in relation to contractions and in relation to the effect on heart rate.  He then turns to the significance of the results with regard to claims made by Slendertone.

28                  In relation to this report, the same principal objection is made as in relation to Dr Coombes, namely, that the foundation of three chosen subjects is a too narrow foundation to entitle this to be accepted as a proper foundation for expert evidence.  Additionally, attention is directed to aspects of the methodology involving the attachment of electrodes and other related matters, and also to findings in the course of the study.

29                  Dr Bakker is a lecturer at the Department of Physiology at the University of Western Australia.  He qualified with a PhD from the School of Zoology of La Trobe University in December 1993.  His thesis related to skeletal muscle of rats and mice.  His research and professional experience has been carried out at The University of Western Australia since 1998 and, prior to that, at the University of New South Wales and the University of Texas.

30                  He has held awards and fellowships and received research funding.  Among his research techniques he lists the measurement of in vitro skeletal muscle contractile function; skeletal muscle electrophysiology (intracellular micro‑electrode recording techniques, voltage clamp on isolated fibres) and other related matters.

31                  As with Dr Coombes there is little difficulty in concluding that Dr Bakker does have specialised knowledge based on his training, study and experience.

32                  The important question to be answered and raised by the objection for the cross-respondent is whether his proposed expert opinion is wholly or substantially based on that specialised knowledge.  In my opinion, given the nature of the research techniques which fall within his expertise and to which I have referred and the nature of his expertise generally, it is the case that his proposed opinion is substantially based, if not wholly based, on that specialised knowledge.

33                  As with Dr Coombes the objections to matters involving the methodology and other matters which I have previously identified are properly the subject of cross‑examination.  Exposed in cross‑examination, they have every opportunity of affecting the weight to be accorded to the report.  Likewise the fact that the report is founded on a test of three subjects opens itself to similar cross‑examination and subsequent argument if appropriate.  I therefore see no unfairness in the admission of this expert report as an expert report pursuant to the requirements of s 79.  For those reasons I also reject the objection to the report of both Dr Coombes and of Dr Bakker on the grounds that they do not qualify as expert reports under s 79.

Associate:

Dated:              31 July 2002