- Joined
- Feb 14, 2023
Courts can and do all the time, fren
The expert ruling in question was in the Tickle v Giggle case in Australia, about the troon trying to get into a women’s only app. It was heard in the Federal Court, so the Evidence Act 1995 governed who could give evidence.
As a very general rule, witnesses can’t offer their opinion - it’s just the facts ma’am. The relevant provisions of the Evidence Act are sections 76 and 79. The first excludes opinions in certain circumstances. Generally, you can’t offer an opinion to prove the existence of a fact. There are exceptions; the key one here is in section 79:
Think about a building with defects. You as the owner want to prove the builder was negligent. You might think the builder was negligent, but as they say in the classics, that’s just like your opinion, man. You need an engineer or other building professional to give their professional opinion on what went wrong. Your opinion is only admissible that you are pissed off, which is not a fact in issue. It does not prove that you are right to be pissed off. The expert’s opinion however goes to proving a fact in issue: was this building constructed to the standard of a reasonable builder?
Now go back to the case. The facts were not in issue: the app had excluded the troon. The question in the case was the legality of that exclusion, which involved complex legal questions of the interaction between the Sex Discrimination Act and the Constitution, and statutory interpretation. Whether the definition of ”woman” used by the Parliament when passing or amending the Sex Discrimination Act was a sensible one was literally not something the judge could determine, because it was not an issue. The issue was whether Parliament had the constitutional power to adopt that definition and pass legislation using it. Whatever else one might say about Dr Joyce, she is an Irish mathematician turned journalist and utterly unqualified to give evidence as an expert on that. Check paragraph 138 for the discussion.
As a very general rule, witnesses can’t offer their opinion - it’s just the facts ma’am. The relevant provisions of the Evidence Act are sections 76 and 79. The first excludes opinions in certain circumstances. Generally, you can’t offer an opinion to prove the existence of a fact. There are exceptions; the key one here is in section 79:
Think about a building with defects. You as the owner want to prove the builder was negligent. You might think the builder was negligent, but as they say in the classics, that’s just like your opinion, man. You need an engineer or other building professional to give their professional opinion on what went wrong. Your opinion is only admissible that you are pissed off, which is not a fact in issue. It does not prove that you are right to be pissed off. The expert’s opinion however goes to proving a fact in issue: was this building constructed to the standard of a reasonable builder?
Now go back to the case. The facts were not in issue: the app had excluded the troon. The question in the case was the legality of that exclusion, which involved complex legal questions of the interaction between the Sex Discrimination Act and the Constitution, and statutory interpretation. Whether the definition of ”woman” used by the Parliament when passing or amending the Sex Discrimination Act was a sensible one was literally not something the judge could determine, because it was not an issue. The issue was whether Parliament had the constitutional power to adopt that definition and pass legislation using it. Whatever else one might say about Dr Joyce, she is an Irish mathematician turned journalist and utterly unqualified to give evidence as an expert on that. Check paragraph 138 for the discussion.
76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Note: Specific exceptions to the opinion rule are as follows:
- summaries of voluminous or complex documents (subsection 50(3));
- evidence relevant otherwise than as opinion evidence (section 77);
- lay opinion (section 7
;
- expert opinion (section 79);
- admissions (section 81);
- exceptions to the rule excluding evidence of judgments and convictions
(subsection 92(3));
- character of and expert opinion about accused persons (sections 110 and
111). Other provisions of this Act, or of other laws, may operate as further
exceptions.
Examples:
(1) P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P's neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.
(2) P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Note: Specific exceptions to the opinion rule are as follows:
- summaries of voluminous or complex documents (subsection 50(3));
- evidence relevant otherwise than as opinion evidence (section 77);
- lay opinion (section 7
;- expert opinion (section 79);
- admissions (section 81);
- exceptions to the rule excluding evidence of judgments and convictions
(subsection 92(3));
- character of and expert opinion about accused persons (sections 110 and
111). Other provisions of this Act, or of other laws, may operate as further
exceptions.
Examples:
(1) P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P's neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.
(2) P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.
She should retrain as an electrician.
