FEDERAL COURT OF AUSTRALIA

Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385

REASONS FOR JUDGMENT

Introduction

1    On 2 April 2012, I, for the reasons set out below, dismissed the defendants’ objection, made during the course of the trial, to the giving of evidence by two witnesses, Squadron Leader Tanner and Professor Sohail Inyatullah, whom the plaintiffs sought to call as experts.

2    Rather than objecting to the admissibility of particular aspects of the witnesses’ evidence, the defendants disputed their competence to give opinion evidence on the basis that each witness lacked:

(a)    the requisite specialised knowledge; and

(b)    the requisite independence,

to be permitted to give expert evidence.

3    Section 76 of the Evidence Act 1995 (Cth) (“Evidence Act”) sets out a general rule (“the opinion rule”) excluding opinion evidence tendered to prove the existence of a fact. It states:

76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

4    Section 79 of the Evidence Act provides an exception to the opinion rule in the case of expert witnesses. It states:

79    Exception: opinions based on specialised knowledge

(1)    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.

5    In Pan Pharmaceuticals Limited (in liquidation) v Selim [2008] FCA 416 (“Pan Pharmaceuticals”), Emmett J stated at [30]:

Before opinion evidence will be admissible pursuant to s 79, two prerequisites must be satisfied as follows:

•    Specialised knowledge derived from training, study or experience must be identified.

•    The opinion sought to be relied upon must be shown to be wholly or substantially based on that specialised knowledge.

6    More recently, in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”), the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated (at [32]):

To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.

Whether evidence relevant

7    As the majority stated in Dasreef (at [31]), because the opinion rule directs attention to why the party tendering the evidence says it is relevant, it is necessary, in considering the operation of s 79(1), to identify the fact in issue which the tenderer asserts the opinion will prove, or assist in proving.

8    In the present case, the defendants allege, inter alia, that it would breach the objects of the corporate first plaintiff (“the company”) if persons who are not members of Ananda Marga in good standing maintain the status of members and/or directors of the company.

9    The defendants allege that the second and third plaintiffs and certain other persons have, inter alia, disobeyed the orders and directives of the validly constituted authority of the Ananda Marga global organisation based in India and have consequently, ipso facto, vacated or lost any office or membership status within the company.

10    The defendants contend, in that context, that Ananda Marga is a hierarchical religion in which authority vests in various office holders, committees or organs established pursuant to the founder’s writings, the orders or directives of which adherents must unquestioningly obey.

11    The plaintiffs dispute that the eligibility for membership of the company depends on a person’s status as a member of the Ananda Marga religion in good standing. Further and alternatively, they dispute that Ananda Marga is a hierarchical religion in which absolute obedience is owed to higher or supreme authorities or office holders. They further dispute that the persons and bodies recognised by the defendants are the validly appointed or validly constituted office holders or authorities within the Ananda Marga organisation, as there are at least two “rival” claimants, and the plaintiffs and the defendants recognise different “camps”.

12    The nature of the Ananda Marga religion, organisation, scripture, founder’s writings and practice, are thus relevant issues in the proceeding.

Whether specialised knowledge

Squadron Leader Tanner

13    Squadron Leader Tanner deposed that she has specialised knowledge of Ananda Marga based on her training, studies and experience.

14    Squadron Leader Tanner, an Engineering Officer and qualified military pilot, has a number of formal academic degrees, diplomas and certificates, including a Bachelor of Engineering and two Masters degrees from Australian universities. Those formal academic qualifications and profession do not relate to Ananda Marga (although Squadron Leader Tanner deposed that her longstanding service in a military organisation inspired her interest in the Ananda Marga founder’s ideas on leadership). It is, however, unnecessary that the expertise of a witness be gained in the course of his or her business or profession (see R v Silverlock [1894] 2 QB 766).

15    In relation to Squadron Leader Tanner, the defendants submitted:

3.    The witness is an engineer. No other area of specialist knowledge is identified so as to qualify her to give opinion evidence.

4.    With no relevant field of expertise identified, she ought not be permitted to give opinion evidence.

16    Squadron Leader Tanner set out the basis of her expertise in Ananda Marga as follows:

I have practised Tantra Yoga for eight years and have formally studied Ananda Marga and the works of its founder, P.R. Sarkar, at a post-graduate equivalent level under Professor Sohail Inayatullah and Doctor Marcus Bussey, two of the largest contributors to scholarly published research material on Sarkar and Ananda Marga. I have known of and been exposed to Sarkar's ideas for some 30 years through my father DAVID JOHN TANNER and my mother. I have taught yoga, meditation and its philosophy since 2007 including workshops titled 'practical spirituality and leadership' born out of my studies under Professor Inayatullah and Doctor Bussey. I recently authored an article titled 'Becoming Sadvipras' to be included in the second edition of After Capitalism by Dada Maheshvarananda, due for release this year. I also provided editorial feedback to Dada Maheshvarananda regarding his chapter on spiritual revolutionaries regarding how Sarkar's work correlates to emerging leadership ideas in academia.

17    Thus, Squadron Leader Tanner practised Tantra Yoga (a practice important in Ananda Marga) for eight years and formally studied Ananda Marga at a post-graduate equivalent level under Professor Inyatullah and Dr Marcus Bussey (who are described as two of the most prolific contributors to scholarly published research material on the founder, P.R. Sarkar, and Ananda Marga).

18    Squadron Leader Tanner’s expert report principally consists of opinions on various views and positions taken by the founder of Ananda Marga, P.R. Sarkar, in his writings, on matters relevant to the proceeding.

19    Squadron Leader Tanner’s opinions for her conclusions about P.R. Sarkar’s views and intentions were supported by references to his writings.

20    In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, Blackburn J (at 160) stated that “there can be no precise rules” in relation to whether witnesses are sufficiently qualified to give expert evidence. His Honour added:

The court is expected to rule on the qualifications of an expert witness, relying partly on what the expert himself explains, and partly on what is assumed, though seldom expressed, namely that there exists a general framework of discourse in which it is possible for the court, the expert and all men according to their degrees of education, to understand each other. Ex hypothesi this does not extend to the interior scope of the subject which the expert professes. But it is assumed that the judge can sufficiently grasp the nature of the expert’s field of knowledge, relate it to his own general knowledge, and thus decide whether the expert has sufficient experience of a particular matter to make his evidence admissible. The process involves an exercise of personal judgment on the part of the judge, for which authority provides little help. I accept with respect what Menzies J. said in Clarke v. Ryan (1960) 103 CLR 486 at 503, that it “is very much a question of fact” but it seems to me a question of fact of a peculiar kind, not unlike the question whether a judge may take judicial notice of some matter.

21    In the present case, Professor Dawson, the defendants’ expert witness, conceded that Squadron Leader Tanner’s curriculum vitae and report revealed that she had made an intensive study of Ananda Marga (which greatly exceeded his own study of Ananda Marga) for eight years as a practitioner or member of the organisation. Professor Dawson acknowledged that someone who had made an intensive study of a religion over many years has a valuable perspective to express.

22    While the defendants contended that Squadron Leader Tanner was no more than a well read layperson, I was satisfied that her lengthy course of study with relevant authorities, and her teaching and practice in the relevant field, qualified her to give opinions on the basis of specialised knowledge. Further, the witness sufficiently demonstrated her reasoning and how her opinions were based on her specialised study and her reasoning.

23    I considered, however, that paragraph 30 of Squadron Leader Tanner’s report was inadmissible, as it was largely hearsay and was not based on any special expertise.

Professor Inyatullah

24    Professor Inyatullah has held posts in Futures Studies at academic institutions, including a number of Australian universities.

25    In relation to Professor Inyatullah, the defendants submitted:

7.    Professor Inyatullah, so far as can be determined from his report (because he does not state his area of expertise) is a political scientist and a futures expert.

8.    No relevant field of expertise is identified. There is nothing to elevate him above the status of the well-read layman.

9.    It is not possible to determine, from the Professor’s report, the scope of any relevant expertise within which he might be permitted to give opinion evidence. He is not a sociologist of religion. He appears to have no relevant academic expertise such as to entitle him to give opinion evidence.

26    Professor Inyatullah claimed specialised knowledge of Ananda Marga on the basis of training, studies and experience as follows:

I am the author/editor of 20 books, 10 Journal special issues and over 300 refereed journal articles, book chapters and magazine editorials. Of those books, four are directly on P.R. Sarkar, the founder of Ananda Marga, and 15 use Sarkar's arguments and theories - his neohumanistic conceptual framework - in the analysis. I have also presented Sarkar’s theories in four different encyclopedias: The Routledge Enyclopedia of Philosophy, the Oxford International Encyclopedia of Peace, The Unesco Encyclopedia of Life Support Systems (I was theme editor of the volume on Globalization and World Systems), and the Macmillan Encyclopedia of the Future. While I began my study of Sarkar and Ananda Marga when I was an undergraduate student in 1975 my first formal peer reviewed published article on Sarkar and Ananda Marga was in 1988 in the Journal Futures. Sarkar commented on this article, it is significant to note.

I have also presented Sarkar's work in over 20 countries in hundreds of workshops, courses and keynote lectures over a thirty year span. My work on Sarkar and Ananda Marga has been translated in many languages including Hindi, Russian, Farsi, Thai, Arabic, Italian, Spanish, Catalan and Japanese. I received my doctorate from the University in Hawaii in 1990. My doctoral dissertation was an analysis of P.R. Sarkar and titled, Understanding P.R. Sarkar: Epistemic boundaries, critical commentaries and comparative analysis. In 2012 March, I received an honorary doctorate from the University Sains Malaysia, Penang.

27    While Professor Inyatullah’s academic posts did not relate to Ananda Marga, given his authorship or editorship of, inter alia, four books directly on P.R. Sarkar, and 15 books which used his theories, his contribution of pieces on P.R. Sarkar’s theories in four encyclopedias, his international presentations of numerous lectures, workshops and courses on P.R. Sarkar, and his doctoral dissertation from the University of Hawaii on P.R. Sarkar, I was satisfied that Professor Inyatullah was qualified to give expert evidence on the writings, theories, ideals and organisational structures advocated by P.R. Sarkar and the religion or movement he founded.

28    Professor Dawson conceded in cross-examination that Professor Inyatullah’s curriculum vitae indicated that his study of, and publications on Ananda Marga significantly exceeded those of Professor Dawson. Professor Dawson also acknowledged that Professor Inyatullah was “undoubtedly very well informed and knowledgeable about the philosophy and doctrinal positions or religious positions, spiritual positions of P.R. Sarkar of the founder of Ananda Marga”.

29    I considered that, on the grounds to which they depose, the relevant witnesses are qualified by training, study or experience to give opinion evidence in relation to Ananda Marga and its doctrines, teachings, foundational writings and practice.

Whether disqualified by want of independence

30    Both Squadron Leader Tanner and Professor Inyatullah deposed that they had read and complied with the Federal Court Practice Note CM7 “Expert Witnesses in Proceedings in the Federal Court of Australia” which states, inter alia:

The guidelines are not intended to address all aspects of an expert witness’s duties, but are intended to facilitate the admission of opinion evidence, and to assist experts to understand in general terms what the Court expects of them. Additionally, it is hoped that the guidelines will assist individual expert witnesses to avoid the criticism that is sometimes made (whether rightly or wrongly) that expert witnesses lack objectivity, or have coloured their evidence in favour of the party calling them.

1.    General Duty to the Court

1.1    An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.

1.2    An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.

1.3    An expert witness’s paramount duty is to the Court and not to the person retaining the expert.

31    The defendants submitted that the witnesses were disqualified by a lack of independence. The defendants relied, in that context, on Heydon JA’s statement in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at 739, where, inter alia, his Honour endorsed the list of duties and responsibilities of expert witnesses in civil cases set out by Cresswell J in the Ikarian Reefer case (National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rp 68 at 81-2), including, inter alia, that:

2.    An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise… An expert witness in the High Court should never assume the role of an advocate.

32    The defendants submitted that Squadron Leader Tanner’s evidence was not independent, and hence inadmissible as expert evidence because she was:

(a)    a devotee of Ananda Marga;

(b)    a daughter of David Tanner, another witness for the plaintiffs; and

(c)    partisan in this dispute.

33    The defendants submitted that Professor Inyatullah’s evidence was not independent, and hence inadmissible as expert evidence because he was:

(a)    the author of a number of books published by the Ananda Marga printing house;

(b)    apparently a devotee;

(c)    clearly opposed to the current central administration; and

(d)    tendentious in his report.

(The defendants, in that context, referred, inter alia, to Professor Inyatullah’s assertion that Professor Dawson selected few sources, all of which tended to focus on negative perceptions of new religions or Ananda Marga, and to his criticism of Professor Dawson’s “pedestrian” level of research).

34    The plaintiffs disputed that s 79 of the Evidence Act imposed any requirement of independence for the admission of expert opinion evidence. Thus, the witnesses’ evidence could not be excluded because they were devotees, a blood relation of another witness or “tendentious”.

Discussion

35    In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert’s evidence, but rather, the significant risk that it will fail to persuade.

36    In FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 (“FGT Custodians”), the Victorian Court of Appeal considered whether any legislation, relevant authorities, historical rules of evidence, court rules or protocols disqualified a witness from testifying as an expert witness by reason of bias or perceived bias.

37    In FGT Custodians, the appellant contended that a valuer (the brother-in-law of a party, whose sister allegedly stood to gain if that party succeeded in the litigation) was precluded from giving expert evidence. The appellant relied on Lord Wilberforce’s dictum in Whitehouse v Jordan [1981] 1 WLR 246 at 256-257 that:

it [is] necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation,

and like authorities.

38    Ormiston JA (with whom Chernov and Eames JJA agreed), in a scholarly exposition, stated (at [4]-[5]) that, properly analysed, given that the evidence was undoubtedly relevant, the sole issue was whether the witness was competent to give the expert evidence. His Honour cited Gleeson CJ’s statement in Festa v The Queen (2001) 208 CLR 593 at 599 that:

If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from [the Court’s] consideration.

39    His Honour recognised that, as the objection was to the witness’s expert evidence as a whole, it went to competence, rather than admissibility of particular aspects. The two questions relevant to the witness’s competence were:

(a)    whether he was qualified by training or experience to give expert evidence; and

(b)    whether, because he was in breach of some other rule relating to the giving of this kind of evidence, he should be treated as disqualified from giving it.

40    Ormiston JA (at [5]) “firmly distinguished” the above matters from:

those matters which may go to impeach the reliability of a witness’s testimony, namely those that are based on cross-examination or other evidence to show inadequate expertise or bias or interest by reason of conduct or other circumstances.

41    Ormiston JA stated that expert evidence was not and had never been excluded, or expert witnesses disqualified, by reason of an interest in the nature of perceived bias. His Honour concluded that in the case before him, the witness did not lack capacity due to his interest in the outcome, or apprehended bias, although as a matter of common sense, it was desirable that an expert witness be seen to be independent (at [29] to [30]).

42    His Honour observed that even the limited historical exclusions of spouses and persons with a direct legal interest in the outcome of litigation (as distinct from mere prejudice or bias arising from relationships, friendship or other motives) were much criticised by the beginning of the nineteenth century, and thereafter progressively abolished.

43    Ormiston JA reiterated at [12]:

I know of no principle stated as a principle of the common law which would exclude as incompetent the evidence of a person otherwise qualified to give expert testimony but who is said to be affected by interest or bias.

44    Ormiston JA observed that the concern frequently expressed about a lack of independence in expert witnesses had been addressed by devising court rules and protocols imposing obligations of independence. His Honour stated (at [15]) that such protocols, generally speaking, should not be treated as stating principles of the laws of evidence, but as admonitions to those who give expert evidence if they (and their clients) wish it be acted on.

45    Ormiston JA’s analysis, in my opinion, applies with equal force to s 79 of the Evidence Act and the Federal Court Practice Note. It was adopted by Weinberg J in SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500 at [32] to [37]. Thus, a lack (or perceived lack) of independence, or an interest in the outcome of litigation, including through a family relationship with, or even the status of, a party does not render any witness, including an expert (except, perhaps, as Ormiston JA observed, a court appointed expert) incompetent, and thereby exclude that person from giving evidence.

46    Protocols or judicial statements requiring independence in expert witnesses thus do not constitute a precondition of competence, but rather, a preferred practice.

47    A lack of objectivity combined with other circumstances may, in some cases, justify exclusion of an expert witness’s evidence pursuant to s 135 of the Evidence Act.

48    In Pan Pharmaceuticals, the plaintiff company’s liquidators filed voluminous expert reports out of time. The defendant sought to exclude the report of one expert witness under ss 79 and 135 of the Evidence Act on, inter alia, the ground that he lacked objectivity, as he had a long involvement with the liquidators, including advising the liquidators’ solicitors on matters relevant to the claim, suggesting questions for further investigation and helping to draft the original statement of claim and responses to requests for particulars (at [154]). The witness’s drafts were the subject of a claim for privilege, so the extent of his involvement could not be fully tested, yet he had relied on earlier drafts to prepare the expert report the liquidators sought to tender (at [154]). As the witness declined to reveal the substance of his numerous prior communications with the liquidators in helping to formulate their case against the respondent, Emmett J stated that “[i]t is well nigh impossible to test his credibility or reliability in circumstances where his role in the formulation of the case against [the defendant] is substantially unknown” (at [155]).

49    Emmett J concluded that (at [157]):

The prior involvement of Dr Clark in the preparation of the Liquidators’ case against [the defendant] is not necessarily fatal to the admissibility of the Clark Report. However, in the light of Dr Clark’s lack of independence and the insistence on professional privilege on the part of the Liquidators, it would be unfair to [the defendant] for Dr Clark’s evidence to be before the Court. It cannot be properly tested. It should be afforded so little weight that its exclusion would not prejudice the Liquidators’ case.

50    In Pan Pharmaceuticals, Emmett J described the report of another expert witness as a “series of answers to the highly specific and leading questions posed by the solicitors” for the party who sought to call the witness (at [107]), which took months to prepare and “was based on assumptions that took the Liquidators’ legal team years to generate” (at [108]). The report was based only on the experience of the witness, rather than his particular education.

51    His Honour considered that, having regard to the argumentative and leading nature of the questions posed for the opinion, the relevant report was of such equivocal weight that any inconvenience or detriment from its rejection outweighed the inconvenience and unfairness involved to the opponent in preparing to answer it. His Honour therefore held that to the extent to which the report was admissible, it should be rejected under s 135 of the Evidence Act (at [127]).

52    In the present case, the defendants did not rely on s 135 of the Evidence Act and the circumstances were not comparable to those in Pan Pharmaceuticals. Generally speaking, however, lack of objectivity or deviation from the obligation of independence, whether exposed by cross-examination or other evidence, merely goes to impeach the credibility or reliability of the expert evidence in question.

53    The defendants submitted that some aspects of Professor Inyatullah’s report were partisan and argumentative, contrary to the stricture that an expert witness should not act as an advocate. In Pan Pharmaceuticals, Emmett J stated (at [29]):

[I]t is not permissible for [an expert] witness to take over the role of advocate, although a witness having expertise in a particular discipline may have a legitimate role of advocacy in that the evidence given by the witness may include arguments as to the conclusions that can be drawn, and perhaps should be drawn, from the facts that the witness is asked to assume.

54    Nevertheless, as the plaintiffs submitted, expert witnesses are entitled to disagree with other experts, to criticise their assumptions, weaknesses or lacunae in their research and to expose defects in their reasoning. Robust dissent from or criticism of the assumptions, quality and extent of research and reasoning of other experts is a frequent and sometimes necessary feature of expert testimony. Opinion evidence which is merely argumentative or lacks any evident basis in the expertise of the witness, may, however, be the subject of discrete objection, or accorded reduced or no weight.

conclusion

55    I concluded that, in the present case, the relevant witnesses were qualified to give opinion evidence by reason of specialised knowledge, based on their training, study and experience, and that a lack of independence, partiality or an interest in the outcome would not, if established, preclude them from doing so.

Associate:

Dated:    18 April 2012

SCHEDULE TO PARTIES

ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 897)

First Plaintiff/First Cross-Defendant

DEVENDHRAN VADIVELOO PILLAY

Second Plaintiff/Second Cross-Defendant

PRABANJAMURTHI PILLAI

Third Plaintiff/Third Cross-Defendant

SUNIL KUMAR SINGH TOMAR

First Defendant/First Cross-Claimant

CLAUDIA ALISTER

Second Defendant/Second Cross-Claimant

RICHARD PFEIFFER

Third Defendant/Third Cross-Claimant

TIWARI DAYASHANKAR

Fourth Defendant/ Fourth Cross-Claimant

PAUL ALISTER

Fifth Defendant/Fifth Cross-Claimant

DIETER DAMBIEC

Sixth Defendant/Sixth Cross-Claimant

JAKE KARLYLE

Seventh Defendant/Seventh Cross-Claimant

LUKE DEACON

Eighth Defendant/Eighth Cross-Claimant

MIRAI DEACON

Ninth Defendant/Ninth Cross-Claimant

MICHAEL TOWSEY

Tenth Defendant/Tenth Cross-Claimant

DHARANENDRAN PARTHY

Eleventh Defendant/Eleventh Cross-Claimant