FEDERAL COURT OF AUSTRALIA

Mantra Group Pty Ltd v Tailly Pty Ltd [2010] FCA 66

THE COURT ORDERS THAT:

1.                  Paragraph 6 of the affidavit of Dennis Leslie Porter affirmed 23 November 2009 not be admitted.  

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

1                                             Mr Crowe SC for the applicants has objected to the admission into evidence of para 6 of the affidavit of Mr Dennis Leslie Porter affirmed 23 November 2009.

2                                             In that paragraph, Mr Porter states:

In my opinion, the name, Circle On Cavill has since become common knowledge recognised as a location.  As a central location within Surfers Paradise the area is regarded as a meeting place, a destination, to go to, or to go from.  And therefore “Circle On Cavill” provides a pinpoint descriptor location address.

3                                             Mr Crowe SC submits that Mr Porter is not qualified to express this opinion and he is essentially trying to give evidence of a fact in breach of s 76(1) of the Evidence Act 1995 (Cth).

4                                             Ms O’Gorman for the respondents has responded that Mr Porter is qualified to express the opinion.  She points to the paragraphs of his two affidavits where he sets out his experience as a long-term resident of the Gold Coast and his long experience as an advertising and marketing consultant, particularly his experience advertising and marketing accommodation services on the Gold Coast.

5                                             Before a person’s opinion can be admitted as evidence under s 79 of the Evidence Act 1995 (Cth), it must meet a number of criteria.  Those were expressed by Lindgren J in Harrington-Smith and Others on behalf of the Wongatha People v State of Western Australia and Others (No 2) (2003) 130 FCR 424 at [20], as follows (excluding references):

·                    that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called);

·                    that the person put forward as an expert possesses specialised knowledge in that field;

·                    that the specialised knowledge is based on the person’s training, study or experience; and

·                    that the particular opinion tendered is based on the specialised knowledge.

6                                              In the next paragraph, Lindgren J added that the expert’s evidence, whether in oral or written form, must:

·                    clearly expose the reasoning leading to the opinion arrived at; and

·                    distinguish between the assumed facts on which an opinion is based and the opinion itself.

7                                             In my view, the opinion expressed in para 6 of Mr Porter’s affidavit fails these tests in a number of respects, each of which provides a basis for rejecting its tender.  Some of these overlap.

8                                             First, Mr Porter does not clearly express in para 6 the reasoning process used by him to arrive at the opinion.  He merely states:  “In my opinion …” and then states his conclusion.  This does not provide me, as the trier of fact, with “criteria enabling evaluation of the validity of [his] conclusion”:  see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] per Heydon JA.

9                                             Secondly, even if I were to accept that Mr Porter has specialised knowledge, or experience in advertising and marketing accommodation services on the Gold Coast, because of the bald way in which his opinion has been expressed, I cannot say whether it is based on that specialised knowledge and experience.

10                                          Finally, the opinion Mr Porter has expressed relates to what the “common knowledge” is.  However, he does not state whose common knowledge he is referring to.  It could be the common knowledge of the residents of the Gold Coast, or perhaps South East Queensland.  If it is, I do not consider that Mr Porter could purport to possess specialised knowledge of that subject matter.  In particular, I do not consider long-term residency of an area the size of the Gold Coast or South East Queensland equips a person to express an opinion about the common knowledge of the population of that area.  Even if Mr Porter was only purporting to express an opinion about the common knowledge of persons involved in the advertising and marketing industries on the Gold Coast, I do not consider his experience, extensive as it may be, equips him to express such an opinion.

11                                          For these reasons, I reject the tender of para 6 of Mr Porter’s affidavit affirmed 23 November 2009.

Associate:

Dated:         11 February 2010