Rush v Nationwide News Pty Limited (No 5) [2018] FCA 1622

Rush v Nationwide News Pty Limited (No 5) [2018] FCA 1622

The expert opinion evidence of Mr Schepisi and Mr Specktor was admissible because the respondents did not dispute that the s 79 preconditions were met, there was no demonstrated non-compliance with Part 23 of the Federal Court Rules 2011 (Cth), GPN-EXPT or the Code of Conduct, and their longstanding relationships with Mr Rush did not establish that they were incapable of giving impartial and objective opinions. Any perceived lack of independence or use of personal knowledge went to weight, not admissibility. The respondents also failed to show that the evidence was unfairly prejudicial or that any prejudice substantially outweighed its probative value under s 135.

Jurisdiction
Australia
Judgment Date
29 October 2018
Procedural Posture
Defamation Proceeding; Evidentiary Application Concerning Expert Opinion Evidence / During Trial, Respondents Applied to Have Expert Reports Ruled Inadmissible or Excluded Under S 135 of the Evidence Act 1995 (cth)
Outcome
Respondents' application refused; expert opinion evidence admitted.
Legal Topics
['expert Opinion Evidence' 'admissibility Under S 79 of the Evidence Act 1995 (cth)' 'exclusion Under S 135 of the Evidence Act 1995 (cth)' 'expert Witness Independence and Impartiality' 'federal Court Expert Evidence Rules and Practice Note']
['evidence' 'defamation' 'civil Procedure'] ['expert Opinion Evidence' 'admissibility Under S 79 of the Evidence Act 1995 (cth)' 'exclusion Under S 135 of the Evidence Act 1995 (cth)' 'expert Witness Independence and Impartiality' 'federal Court Expert Evidence Rules and Practice Note']

Case Brief

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Procedural Posture

Defamation Proceeding; Evidentiary Application Concerning Expert Opinion Evidence / During Trial, Respondents Applied to Have Expert Reports Ruled Inadmissible or Excluded Under S 135 of the Evidence Act 1995 (cth)

Legal Issues

  1. 1 ['Whether the opinion evidence of Mr Frederic Schepisi and Mr Frederick Specktor was inadmissible because they were allegedly not independent or impartial due to their relationships with Mr Rush.' 'Whether the expert reports failed to comply with the Federal Court Rules 2011 (Cth) because they relied on personal knowledge of Mr Rush not said to be part of an identified body of information.' 'Whether the opinion evidence should be excluded under s 135 of the Evidence Act 1995 (Cth) as unfairly prejudicial.']

Ratio Decidendi

The expert opinion evidence of Mr Schepisi and Mr Specktor was admissible because the respondents did not dispute that the s 79 preconditions were met, there was no demonstrated non-compliance with Part 23 of the Federal Court Rules 2011 (Cth), GPN-EXPT or the Code of Conduct, and their longstanding relationships with Mr Rush did not establish that they were incapable of giving impartial and objective opinions. Any perceived lack of independence or use of personal knowledge went to weight, not admissibility. The respondents also failed to show that the evidence was unfairly prejudicial or that any prejudice substantially outweighed its probative value under s 135.

Court Disposition

Respondents' application refused; expert opinion evidence admitted.

Orders

  • ["The respondents' application that the opinion evidence of Mr Frederic Schepisi and Mr Frederick Specktor be ruled inadmissible, or alternatively for an order that the evidence of Mr Schepisi and Mr Specktor be excluded pursuant to s 135 of the Evidence Act 1995 (Cth), be refused."]