Subpoena of employee rather than employing body corporate

Dicta of Mason J (as he then was) in Rochfort v TPC [1982] HCA 66; (1982) 153 CLR 134 is that in some cases it may be appropriate to subpoena an employee directly rather than the employer (as would be the usual practice), having regard to ‘the efficient administration of justice’.

Recognition of these interests of the employer suggests that in general it is he, not his employee, who should be required to produce the documents. Of course, the protection of the employer’s interests must give way to the public interest in the efficient administration of justice in case of collision between the two. So if it is impracticable to serve a subpoena on the employer, e.g., by reason of absence overseas, incapacity or his whereabouts, being unknown, the court will insist on production of the documents by his employee or agent who holds them. In these circumstances the prompt dispatch of court business must prevail over the protection of the employer’s interests. (at p145)

Discovery amendments to CPA

The Justice Legislation Amendment (Discovery, Disclosure and  Other Matters) Act 2014 amends the Civil Procedure Act 2010 (Vic).

The highlights:

  • Sections 50 and 50A: introduce a device called a ‘statement of issues’ which the Court may use to inform pre-trial and trial management.  This would seem to be a statutory extension of the Court’s existing case management powers.
  • Section 55A allows the parties to exchange all documents in their possession or control without waiving privilege, including in electronic format.
  • Section 55B allows the Court to direct a party file an ‘affidavit of document management’.  Section 55C gives the Court the power to compel the deponent to an oral examination.

The most significant change with the potential to deliver real benefits is the last one, although whether its use will be embraced is another matter.

Reliability of ‘scientific’ evidence

From SAI Global Litigation Newsfeed 30/05/14:

Upcoming High Court Decisions to Determine Limits on Questionable Scientific Evidence

The Australian reports that the High Court will be ruling on the use of questionable scientific evidence in courtrooms in two upcoming cases.

In Honeysett v The Queen, the Court will reportedly consider “whether ‘face mapping’ or ‘body mapping’ from CCTV footage constitutes ‘specialised knowledge’ within the meaning of the Evidence Act 1995 (NSW)”. University of NSW legal professor Gary Edmond reportedly questioned the validity of body mapping as an identification technique, particularly in relation to “low-quality CCTV images where the person’s wearing a disguise”. Professor Edmond reportedly noted that research on unfamiliar face-matching has shown that those with experience performed no better than ordinary people, and opined that the NSW courts need to include a requirement for reliability in specialised knowledge.

In Fitzgerald v The Queen, the Court will reportedly consider the strength of DNA matches as scientific evidence. Reportedly, Charles Sturt University professor Jane Goodman-Delahunty expressed concern that jurors may be “blinded by science”, stating that juries do not tend to show the same degree of caution in relation to DNA evidence as they do in regards to other circumstantial evidence. Professor Goodman-Delahunty reportedly said that even strong scientific evidence of a DNA match is not proof that the accused was at a crime scene, while DNA consultant Brian McDonald opined that courts should not use DNA to convict someone with a total lack of corroborating evidence.

This could have significant implications for the practice of manufacturing ‘scientific’ evidence and presenting it as unchallengeable.  While the criminal cases appear to be in a slightly different context, there should be significant concerns about the increasing practice of commissioning ‘junk science’ to muddy the waters over the pleaded case and defence.


Browne v Dunn and pleadings, witness statements, etc

Browne v Dunn does not necessarily require puttage of a proposition if that proposition is already clear to the opponent through pleadings, witness statements, etc.  The rule in Browne v Dunn is frequently misunderstood as requiring puttage even if the proposition is clear to the opposing party in such a way.

See eg Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, discussed at  See also Odgers, [1.2.4440].

Importantly, Browne v Dunn is not a steadfast rule the violation of which necessarily leads to sanctions.  Rather, its violation goes to the weight of the competing propositions.


‘Possible’ v ‘probable’

Dahl v Grice appears to be the most recent (c 1974) Victorian authority for the proposition that if expert evidence as to a particular fact is ‘possible’, then the tribunal of fact can (arguably should) take into account any lay evidence and inferences to elevate ‘possible’ to ‘probable’.

The proposition is hardly novel.

Application of the authority would mean that where there are conflicting expert theories, other non-expert evidence may result in the determination of one of those theories as the most probable.

Judicial notice

Under the uniform Evidence Acts, judicial notice of facts is governed by s 144.

Subsection 144(4) provides an apparently mandatory procedural mechanism which the judge must use.

See also Halsbury’s, Cross for distinction between adjudicative facts and legislative facts.

See Odgers for examples of where judicial notice has been taken of facts.  These published examples appear to be extremely limited.  For example, no case seems to have gone as far as taking notice of Ohm’s Law even though that is irrefutable ‘basic physics’.  But not taking judicial notice of such a fact and instead insisting on expert evidence would be contrary to the very policy underpinning judicial notice (wasting Court time).

The practical implication is that expert evidence led should explain Ohm’s Law.  However, the scope of the contest is not always foreseeable: the opponent may take surprise issue in closing submissions on a related point (thus not strictly contravening Browne v Dunn) the response to which may require articulation of Ohm’s Law.  Thus resort to a submission regarding judicial notice may be necessary.