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.