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ARTICLE · 06 JUNE 2012

Is that evidence a fact or an opinion?

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Witnesses should diligently consider the question of whether they are referring to a fact or expressing an opinion.

AustraliaReal Estate and Construction
Owain Stone
Owain Stone
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La Trobe Capital & Mortage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4

Summary

According to "the opinion rule"1, witnesses must state facts, not give opinions. They must speak only to what was directly observed or perceived by them. Experts, on the other hand, can give opinions based on their specialised knowledge2. This case considers whether the evidence given by a lay witness was opinion, statements of fact or unparticularised statements of fact. It states that there is a continuum on which facts and opinions sit and that it is difficult to identify when the former passes to the latter. So, what makes a fact a fact and an opinion an opinion? Justice Finkelstein concluded in his minority judgment that:

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