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The Pre–Conditions to Admissibility Under Section 79 of the Evidence Act

by Francis Tiernan

Francis Tiernan SC (2012) 146 Australian Construction Law News 14.

Section 76 of the Evidence Act sets out the exclusionary rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (“the opinion rule”). Expert opinion is an exception to the opinion rule. Section 79(1) of the Evidence Act provides that:-

“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”.

The law as to the pre-conditions to admissibility of expert evidence under s79 was laid down by the majority in Dasreef Pty Ltd v. Hawchar. In doing so the Judges made reference ([36] and [37]) to two important decisions where admissibility of expert evidence under s79 was also considered, namely HG v. R and Makita (Australia) Pty Ltd v. Sprowles. In Dasreef Heydon J. took a different view as to the pre-conditions to admissibility under s79. He held that the requirements to be satisfied were more extensive than stated by the majority. Whilst he made no reference to his decision in Makita, his judgment was to the same effect.

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