This is the author’s version of a work that was submitted/accepted for publication in the following source:
Cockburn, Tina & Madden, Bill
(2015)
Adapting to concurrent expert evidence in medical litigation.
Journal of Law and Medicine, 22(3), pp. 610-631.
This file was downloaded from: http://eprints.qut.edu.au/85026/
c Copyright 2015 Thomson Reuters
Notice: Changes introduced as a result of publishing processes such as
copy-editing and formatting may not be reflected in this document. For a
definitive version of this work, please refer to the published source:
Adapting to concurrent expert evidence in medical litigation
Concurrent expert evidence1 constitutes an alternative to the traditional method by
which expert evidence is given serially by experts for one side and then the other, in
the course of which they are examined and cross examined by the legal
representatives for each side.2 Encompassing pre-trial meetings of experts
(conclaves), joint reports by experts and culminating in concurrent evidence at trial
(‘hot tubs’),3 once the process is complete one can readily understand that the
evidentiary process may be easier for the trial judge. Indeed, judicial comment about
concurrent expert evidence4 seems almost universally favourable.5 However, for the
1
See generally Ian Freckelton and Hugh Selby, Expert Evidence: Law, Practice, Procedure and
Advocacy (Thomson Reuters, 5th ed, 2014) chapter 6.15 “Concurrent expert evidence pp 391-407. In
2006 the Judicial Commission of New South Wales and the Australasian Institute of Judicial
Administration jointly produced an excellent educational DVD resource: Judicial Commission of New
South Wales and the Australasian Institute of Judicial Administration, Concurrent Evidence: New
methods with experts(2006), http://www.judcom.nsw.gov.au/publications/educationdvds/copy_of_education-dvd viewed 23 August 2014. The topic was canvassed by Justice Stephen
Rares of the Federal Court in a paper presented at the Judicial Conference of Australia Colloquium:
Rares S, ‘Using the ‘Hot Tub’ How Concurrent Expert Evidence Aids Understanding Issues’ (paper
presented at the Judicial Conference of Australia Colloquium, 12 October 2013),
http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20131012 viewed 23
August 2014.
2
Freckelton, n 1, p 391, [6.15.01].
3
The process of joint conferences of experts and concurrent evidence was helpfully explained in John
v Henderson (No.1) [2013] NSWSC 1435 at [11] - [13] (Garling J). For a detailed discussion of the
process and procedures, see Freckelton, n 1, p 393-395, [6.15.80].
4
McClellan P, “New Method with Experts - Concurrent Evidence” (2010) 3 J Ct Innovation 259 at 264,
http://www.courts.state.ny.us/court-innovation/Winter-2010/jciMcClellan.pdf viewed 14 July 2014. See
also John v Henderson (No.1) [2013] NSWSC 1435 at [11] (Garling J): “The giving of concurrent
evidence is a form of procedure where evidence is given by all of the experts together at the same
time. It resembles a discussion in which a co-operative endeavour is engaged to identify the relevant
issues and where possible, arrive at an agreed resolution of them.”
5
McClellan, n 4 at 259. While the majority of the reviews are positive, some commentators have
raised concerns such as: issues relating to the qualification of experts; potential for expert evidence to
be “dumbed down”; potential for more assertive experts to dominate; potential for experts to be
coached; doubts about the true extent of time and cost savings; and difficulties in assessing experts’
credit. For an overview see Freckelton, n 1, p 399, [6.15.200].
1
legal practitioner and the medical expert witness, the pathway is not yet well
trodden.6
Concurrent expert evidence is most well entrenched in the civil disputes arena,
where courts are required to determine private disputes such as medical negligence
claims, usually with financial outcomes.7 Yet it is not only in the civil dispute arena
that the trend towards joint expert evidence has appeared. The NSW Coroner’s
Court has accepted concurrent evidence for some time,8 and some examples have
begun to appear in criminal trials.9
The Australian jurisdictions (and indeed the various courts within each jurisdiction)
have not all moved at the same pace, leaving some still adapting to the trend
towards concurrent evidence. Even in those jurisdictions with a now entrenched
preference for concurrent expert evidence, such as the Professional Negligence List
of the Supreme Court of New South Wales, there remains limited precedent to guide
the legal practitioner and the medical expert witness when disputes arise along the
way, as will inevitably happen in an adversarial system.
This article examines the developing body of precedent (mostly originating from New
South Wales and Victoria) which relates to the adoption of concurrent expert
evidence in the context of medical litigation. This examination seeks to shed some
light on the areas of tension with a view towards assisting legal practitioners and
medical expert witnesses to understand the expectations of the courts in this still
developing area.
6
For an expert’s perspective, see: Ross A and A Nguyen, “Murky waters: an expert’s perspective on
the effectiveness of expert conclaves and ‘hot tubs’”, KordaMentha Forensic Expert Evidence: Recent
Cases, (2014), at 112 http://www.kordamentha.com/publications viewed 5 October 2014.
7
Examples of the courts and tribunals which have adopted the use of concurrent evidence are the
NSW Land and Environment Court, the Western Australian Administrative Tribunal, the Victorian Civil
and Administrative Tribunal, the New South Wales Supreme Court and the Federal Court: see
Freckelton, n 1, p 392, [16.15.01].
8
See for example Re Robert Laudisio Curti (14 November 2012) and Re Glenn Punch (29 October
2013).
9
See for example, R v Stanyard [2012] NSWDC 78 at [31].
2
1. Concurrent expert evidence: Underlying policy and jurisdictional
framework
The underlying policy rationale for directing experts to give concurrent evidence is
the desirability of facilitating the just, quick and cheap resolution of the real issues in
the proceedings. For example, section 56 of the Civil Procedure Act 2005 (NSW)
provides:
(1) The overriding purpose of this Act and of rules of court, in their application
to civil proceedings, is to facilitate the just, quick and cheap resolution of the
real issues in the proceedings.10
(2) The court must seek to give effect to the overriding purpose when it
exercises any power given to it by this Act or by rules of court and when it
interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the
overriding purpose and, to that effect, to participate in the processes of the
court and to comply with directions and orders of the court.
(4) Each of the following persons must not, by their conduct, cause a party to
civil proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced
by the party.
(5) The court may take into account any failure to comply with subsection (3)
or (4) in exercising a discretion with respect to costs.
10
See also Uniform Civil Procedure Rules 2005 (NSW), r 31.1; and Practice Note No. SC Gen 11 at
[5]. For judicial consideration of this policy rationale see: Campton v Centenial Newstan Pty Ltd (No 1)
[2014] NSWSC 304 at [26] (Hall J); Porter v Le; Porter v Western Sydney Local Health District [2014]
NSWSC 883 at [3] (Harrison J). Similar provisions appear in procedural rules in other Australian
jurisdictions: Uniform Civil Procedure Rules 1999 (Qld), s 5; Supreme Court (General Civil Procedure)
Rules 2005 (Vic), r 1.14; Supreme Court Civil Rules 2006 (SA), s 3; Court Procedures Rules 2006
(ACT), s 21. There are no comparative provisions in Western Australia, Northern Territory, and
Tasmania.
3
(6) For the purposes of this section, a person has a "relevant interest" in civil
proceedings if the person:
(a) provides financial assistance or other assistance to any party to the
proceedings, and
(b) exercises any direct or indirect control, or any influence, over the
conduct of the proceedings or the conduct of a party in respect of the
proceedings.
Note: Examples of persons who may have a relevant interest are insurers and
persons who fund litigation.
The above statement of the overriding purpose of the procedural rule, being the just,
quick and cheap resolution of the real issues in the proceedings, does not of itself
require, nor create the framework for, concurrent expert evidence. In New South
Wales, that framework arises from the Uniform Civil Procedure Rules 2005 (NSW)
and Supreme Court Practice Notes.11 The relevant rule is Rule 31.24, which
although referring in its heading to “conferences between expert witnesses”, also
deals with joint reports and creates an evidentiary cone of silence12 in respect of the
workings of the conference between the experts, save for its outcome – the joint
report. Rule 31.24 provides:
31.24 Conference between expert witnesses
(1) The court may direct expert witnesses:
(a) to confer, either generally or in relation to specified matters, and
(b) to endeavour to reach agreement on any matters in issue, and
11
For an overview of the broad legal framework see Judicial Commission of New South Wales,
Concurrent Evidence (2014) at [5.6000],
http://www.judcom.nsw.gov.au/publications/benchbks/civil/concurrent_evidence.html viewed 14 July
2014.
12
For a discussion of ethical issues which may arise for experts out of this requirement see: For an
expert’s perspective, see: Ross A and A Nguyen, “Murky waters: an expert’s perspective on the
effectiveness of expert conclaves and ‘hot tubs’”, KordaMentha Forensic Expert Evidence: Recent
Cases, (2014), at 112-113 http://www.kordamentha.com/publications viewed 5 October 2014.
4
(c) to prepare a joint report, specifying matters agreed and matters not
agreed and reasons for any disagreement, and
(d) to base any joint report on specified facts or assumptions of fact,
and may do so at any time, whether before or after the expert witnesses have
furnished their experts’ reports.
(2) The court may direct that a conference be held:
(a) with or without the attendance of the parties affected or their legal
representatives, or
(b) with or without the attendance of the parties affected or their legal
representatives, at the option of the parties, or
(c) with or without the attendance of a facilitator (that is, a person who
is independent of the parties and who may or may not be an expert in
relation to the matters in issue).
(3) An expert witness so directed may apply to the court for further directions
to assist the expert witness in the performance of his or her functions in any
respect.
(4) Any such application must be made by sending a written request for
directions to the court, specifying the matter in relation to which directions are
sought.
(5) An expert witness who makes such an application must send a copy of the
request to the other expert witnesses and to the parties affected.
(6) Unless the parties affected agree, the content of the conference between
the expert witnesses must not be referred to at any hearing.13
13
Rule 31.35 goes on to make specific provision for concurrent expert evidence and sets out various
matters which directions may relate to: see Judicial Commission of New South Wales, above n 10 at
[5.6000]. Similar procedural provisions appear in the Rules of Court in other jurisdictions: Supreme
Court (General Civil Procedure) Rules 2005 (Vic), r 44.06; Court Procedures Rules 2006 (ACT),
5
The following aspects of the Rule can be highlighted:
The conference between experts aims to produce a joint report;
The conference may be held with or without legal representatives 14 ;
Unless the parties affected15 agree, the content of the conference between
the expert witnesses must not be referred to at any hearing.16
2. Court variations and judicial preferences
Whereas Rule 31.24 is expressed in permissive language (in that it specifies what
the court may do), the language of the Supreme Court Practice Notes is more
directive, expressing the Courts’ active preference for joint expert evidence. In the
context of medical litigation, in New South Wales there are two relevant Practice
Notes at the Supreme Court level: one refers to personal injury litigation generally;17
the other to professional negligence specifically (which includes medical litigation
whether framed in negligence, breach of contract, breach of statutory duty or
otherwise).18
Practice Note SC CL 5, which applies to the Supreme Court Common Law Division –
General Case Management List, provides in clause 37 that “All expert evidence will
be given concurrently unless there is a single expert appointed or the Court grants
leave for expert evidence to be given in an alternate manner”. The same wording
appears in Practice Note No. SC CL 7 paragraph 35(c), for the Professional
Negligence List.
As previously noted, not all Australian jurisdictions have moved at the same pace
towards the practice of joint expert evidence. The same can be said within
r 1211; Supreme Court Civil Rules 2006 (SA), r 213(2); Uniform Civil Procedure Rules 1999 (Qld),
r 429B, Supreme Court Rules 2000 (Tas); r 541(1)(e)(v).
14
This issue is considered further at 3.4 below.
15
It is not entirely clear whether the “parties affected” is limited to the parties to the litigation, or also
extends to the experts themselves.
16
The “content” of the conference would include a transcript of discussions between the expert
witnesses of a conclave: Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [173].
17
Practice Note No. SC CL 5..
18
Practice Note No. SC CL 7.
6
jurisdictions, as between different courts. For example, although the relevant practice
notes of the Supreme Court of New South Wales create a default preference for joint
evidence, the provisions which apply to District Court of New South Wales matters
do not. Clause 8.7 of Practice Note DC (Civil) No 1 merely provides that if a case
requires a conference between expert witnesses or the parties seek that expert
witnesses give evidence concurrently, the parties should seek directions from the
Court at the status conference.
This lack of uniformity in approach, even within jurisdictions, is unfortunate and
seems somewhat at odds with statements of judicial preference for concurrent
evidence19 which are exemplified by the comments of McDougall JA in Caruana v
Darouti [2014] NSWCA 85, an occupier’s liability case:
“…This court has had occasion in the past to comment on the unsatisfactory
practice of tendering reports of experts, whose views are sharply in conflict,
without any attempt to resolve the conflict through processes such as
conclave and joint report, concurrent evidence sessions, or old fashioned
cross-examination…”20
Similar concerns with the traditional approach were expressed in Khalil v Taoube
[2012] NSWDC 60, a motor vehicle accident compensation case, by Levy SC DCJ:
“….There had been no pre-trial attempt to arrange for a joint expert report
concerning the opinions of the 5 consultant psychiatrists who were ultimately
called to give evidence. The parties had not considered nor sought to arrange
for the evidence of those experts to be given concurrently, despite clear
indications that such a course was justified in the interests of streamlining the
case and the parameters of the areas of disputed medical issues.”21
19
See generally Freckelton, n 1, pp 396-7, [6.15.120].
20
Caruana v Darouti [2014] NSWCA 85 at [123].
21
Khalil v Taoube [2012] NSWDC 60 at [9].
7
By contrast, the judicial experience with concurrent evidence appears generally more
positive. For example, in Halverson v Dobler [2006] NSWSC 1307,22 a medical
negligence case, after hearing concurrent evidence from medical experts, including
four cardiologists (one by satellite from the United States) and five general
practitioners, McClellan CJ at CL observed:
“This process proved both highly productive and efficient and has been of
great benefit to me in resolving this case. The discussion was sustained at a
high level of objectivity by all participants, each of whom displayed a genuine
endeavour to assist the court to resolve the problems. The fact that ultimately
they disagreed on critical issues was not due to anything other than a genuine
difference of opinion about the appropriate conclusion to be drawn from the
known facts.”23
While the adoption of the concurrent evidence process seems to have been
generally welcomed, disagreements have arisen in relation to its practical
implementation, both before trial and at trial.
3. Pre-trial joint expert conferences: aims, logistics and disputes
The aim of a pre-trial joint expert conference was summarised by Garling J in
Hudson v Howes [2010] NSWSC 1503 as follows:
“The aim of any such conference is to:
(a)
minimise the areas of disagreement between the experts about their
opinions, and maximise the areas of agreement;
22
For a personal reflection by McClellan CJ on the concurrent evidence process in that case see:
McClellan, n 4 at 265.
23
Halverson v Dobler [2006] NSWSC 1307 at [101]. For judicial comment as to the benefits of
concurrent evidence in assisting with the efficient conduct of proceedings and enabling the courts to
better understand complex issues which arose in the course of commercial litigation see: Visy
Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231 at [53] (Gray J); Rabaxy Laboratories
Limited v AstraZeneca AB [2013] FCA 368 at [39] (Middleton J). For a discussion of these cases see
Lam D, “All in together, this fine weather”, KordaMentha Forensic Expert Evidence: Recent Cases,
(2014), at 2 http://www.kordamentha.com/publications viewed 5 October 2014.
8
(b)
enable the production of a joint expert report which records the areas
of agreement and of disagreement, together with a short statement from each
expert as to their respective opinions on the issues which are not agreed; and
(c)
to enable the concurrent evidence of the experts to proceed in an
orderly and efficient manner.”24
Practice Note SC Gen 11 sets out matters as to which the parties should agree on in
preparation for any such conference. These matters are: the experts to attend; the
questions to be answered; and the materials to be placed before the experts. 25
The process of joint conferences of experts in a medical negligence context was
explained by Justice Garling in John v Henderson (No 1) [2013] NSWSC 1435 as
follows:
“The parties are expected to agree upon the issues to be considered by the
experts at a joint conference prior to the conference commencing. Such
issues according to the common practice, then become, where necessary, the
issues covered by the joint expert evidence. In effect, the list of issues
becomes an agenda which is the sequence followed in the concurrent
evidence session. As the UCPR provides, the joint conference is a forum,
without the presence of lawyers for the parties, at which the experts
consistently with the expert Code of Conduct, discuss the issues and attempt
to reach agreement on those issues where possible. If agreement is not
possible, then the joint report requires that the fact of their non-agreement be
set out and that it be accompanied by a short expression of the basis of their
non-agreement.
It is ordinarily to be expected that the process of joint conferencing will reduce
the number of issues in dispute between the parties and will have the
consequential effect of reducing the time spent by the experts in court and
accordingly, the costs to the parties. The giving of evidence jointly is a
process which is more informal than the typical adversarial process of a
24
Hudson v Howes [2010] NSWSC 1503 at [2]. This statement echoes the stated objective of joint
conferences of expert witnesses as expressed in Practice Note SC Gen 11 at [5]. See also Rowe v
AusNet Electricity Services [2014] WSC 553 at [13] (Zammit AssJ).
25
Practice Note SC Gen 11 at [6].
9
witness giving evidence. That is because inevitably, experts will comment on
answers given by fellow experts or on opinions expressed by them. As well
subject to proper control and management, experts are permitted to ask
questions of each other. Experience demonstrates that these questions are
often more incisive and of greater assistance in eliciting the real difference in
the basis of the opinions of the experts.”26
Given the nature of adversarial litigation, disputes will inevitably arise between the
parties which cannot be resolved without the Court’s assistance. For example, in a
section headed “How to stop the parties from bickering,” in Matthews v SPI
Electricity Pty Limited (No 10) [2012] VSC 379 J Forrest observed:
“As night follows day, it is inevitable that the lawyers for Mrs Matthews and
SPI will continue to argue about questions relating to the conclaves. I fear that
there is a real prospect that the arrangements could go off the rails if this is
permitted to go on.”27
To address this concern in the particular circumstances of the case before him, His
Honour appointed Associate Justice Zammit to conduct case management and
supervise and manage the conclaves.28
A review of the cases indicates that disputes which have arisen between the parties
in relation to pre-trial conferences between experts concern: the logistics of face to
face meetings; the need for secretarial support; whether a facilitator should be
appointed; the role of legal representatives; which experts should meet, and in what
groupings; and the form of questions to be put to the experts and what materials
should be given to the experts. In most cases the Courts have expressed preference
for the experts to decide between themselves on matters which could be labelled
procedural or administrative in nature, such as the format of the meetings, and
secretarial support. The Courts have had more input in relation to resolving
questions as to whether a facilitator ought to be appointed; the role of lawyers; which
26
John v Henderson (No 1) [2013] NSWSC 1435 at [11]-[12].
Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [14].
28
Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [14].
27
10
experts are present, and in what groupings; and the form of questions to be asked.
Each of these areas of tension will be considered below.
3.1 Format of meetings
In relation to the format of the meeting, Practice Note SC Gen 11 provides for
flexibility in that:
“The conference should take the form of a personal meeting. Alternatively the
participants may choose to hold the conference by teleconference, videolink
or similar means if a personal meeting is not practicable”.29
It may therefore be possible for a joint expert report to be produced without a
physical meeting at all, at least in theory. For example, the experts could each
answer the questions put to them, then exchange drafts with a view to narrowing
areas of disagreement. More commonly however, the experts meet in person30 or by
phone or video link as an alternative.31 Interstate or overseas experts may have little
choice other than to join the meeting by phone or video.32 While Practice Note SC
Gen 11 provides that “Subject to any directions given by the Court concerning the
range of dates for the convening of the conference, the parties should communicate
amongst themselves to fix a mutually convenient date, time and place for the
conference,”33 in practice, the more experts required to discuss the issues, the more
difficult it may be to find a suitable time for a face to face meeting.34 In many cases
29
Practice Note SC Gen 11 at [13]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld) SCL, Practice Direction attachment 2, [4.3].
30
See for example Re Qantas Airways Ltd (2004) ACompt 9 (Goldberg J). His Honour’s directions
specified that “There be a meeting of experts in Sydney on 15 October 2004 at 8am at a place to be
notified … the experts should arrive between 7.30am and 7.45am for the 8am start.” For a discussion
see: Freckelton, n 1, p 402, [6.15.240].
31
In Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [18] (J Forrest J). In that case
His Honour noted that while “it was preferable for the experts to meet in the flesh rather than by video
link” there were exceptions in the case of overseas experts.
32
see for example Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [18]; Halverson v
Dobler [2006] NSWSC 1307 at [101].
33
Practice Note SC Gen 11at [12]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld) SCL Practice Direction attachment 2 [4.1].
34
In Bentley v Nguyen [2014] NSWDC 231, a complex dental medical negligence action, expected to
last 5 days plus, the court transferred proceedings from Newcastle to Sydney. This was to facilitate
further case management, including concurrent expert evidence (at [7]), and presumably pre-trial
meetings with experts. In that case the parties and subject matter had no connecting factors to
11
the experts themselves may seek to overcome such practical challenges, fearing
that large group telephone conferences will be less satisfactory than face to face
meetings.
3.2
Secretarial support
As to whether secretarial or administrative assistance should be made available at
the joint expert conference, Practice Note SC Gen 11 provides that “Secretarial or
administrative assistance should be provided by the parties if so requested by the
experts”.35 No serious disagreement appears to have arisen in the reported cases
over the provision of secretarial support. In Matthews v SPI Electricity Pty Limited
(No 10) [2012] VSC 379, Forrest J described the presence of a scribe as a “good
idea” unless the experts thought it unnecessary, the decision being one for the
experts, not the lawyers.36 If a scribe was appointed, His Honour could “see no harm
whatsoever” in a research student being appointed, provided it was made clear that
the “scribe’s role is simply to record the discussions and assist in the preparations of
the joint report”.37 In the context of medical litigation, in John v Henderson (No.1)
[2013] NSWSC 1435 Justice Garling’s direction to the experts expressly
contemplated that secretarial support would be used: “A typist will be available on
the day of the conference to assist you to record your answers to these questions.”38
3.3
Facilitators
Rule 31.24 (2) (c) provides that the Court may direct that the conference be held with
or without the attendance of a facilitator – a person who is independent of the parties
and who may or may not be an expert in relation to the matters in issue. Whether a
facilitator should be appointed was expressly addressed in KF By Her Tutor RF v
Newcastle (all parties involved in the litigation either resided or worked in the Sydney metropolitan
area) and 8 of the 9 expert witnesses were located in Sydney (only 1 expert resided in Newcastle).
35
Practice Note SC Gen 11 at [22]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld) SCL Practice Direction attachment 2 [6.3]
36
Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [16]–[17]. See also Re Qantas
Airways Ltd (2004) ACompt 9 (Goldberg J). His Honour’s directions specified that “Secretarial or
administrative assistance should be provided by the parties to the meeting of experts if required.”
Discussed in Freckelton, n 1, p 402, [6.15.240].
37
Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [16].
38
John v Henderson (No.1) [2013] NSWSC 1435, Annexure A.
12
Royal Alexandra Hospital for Children known as the Children's Hospital Westmead
and Anor [2011] NSWSC 399. In that case, a meeting of some 10 experts having
already occurred, the plaintiff applied for the appointment of a facilitator for the
second meeting. There was precedent for such an order39 in Habelrih v Szirt [2004]
NSWSC 54. The defendants opposed the application, arguing: as the experts’
conference had proceeded without a facilitator, introducing a facilitator at this stage
may “deflect the process”; the task was not as complicated as the plaintiff suggested;
the introduction of a facilitator was not appropriate or necessary as the written
preamble directed to the experts sufficed; and that introducing a facilitator may slow
down the process and add significant expense for the parties.40 After considering the
submissions, Johnson J granted the plaintiff’s application to appoint a facilitator, and
made helpful observations about the purpose and role of facilitators, with a view to
addressing concerns about the adequacy of answers provided at the first joint
conference. He said:
“The discretion to direct the attendance of a facilitator at a joint expert
conference falls to be exercised in the circumstances of the particular case.
The fact that a joint expert conference has already been held, without the use
of a facilitator, operates against the introduction of a facilitator at a
reconvened conference. That said, it is necessary to have regard to the
unusual circumstances of this case in which a reconvened conference is to
take place for the purpose of providing an expanded document which
responds to the Schedule of Responses as directed by Rothman J.
As observed in my judgment of 3 May 2011, the joint experts' report contains
a large number of answers (in excess of 85) which state succinctly "No", with
at some points, short amplification. The reconvened expert conference will
involve the 10 breach of duty experts meeting, with some, of necessity,
participating by telephone. There is a precise task required of the experts at
the reconvened conference. It is not a fresh conference to proceed as if the
original conference had not taken place. Rather, the reconvened conference
is to take place for the purpose of the completion of the Schedule of
39
albeit under a repealed practice note.
40
Habelrih v Szirt [2004] NSWSC 54, at [5]–[6].
13
Responses which will result in a more detailed response to the questions
posed to the experts.
I do not accept the submission for the Defendants that a written preamble will
suffice to facilitate the production of a document at the reconvened breach of
duty experts' conference which will achieve the purpose intended for that
conference. A written preamble is appropriate, but should be utilised in
conjunction with a facilitator who seeks to make easier or help forward or
assist the progress of the reconvened meeting. This, after all, is the meaning
of the word "facilitate", a word chosen by the UCPR rulemakers for insertion in
Rule 31.24 UCPR.
The appointment of a facilitator will serve to explain to the experts the nature
of the task to be undertaken at the reconvened conference, with the facilitator
then guiding the experts through the Schedule of Responses so that the
intended purpose of the reconvened conference is achieved. It is, of course,
no part of a facilitator's function to engage in debate with the experts. Rather,
the task will be confined to the orderly working through of the Schedule of
Responses so that it is completed to the satisfaction of the conferring experts.
In the unusual circumstances of this case, I am persuaded that the
appointment of a facilitator will assist the process at the reconvened breach of
duty experts' conference. I do not accept the Plaintiff's submission that this
task calls for the appointment of a retired Judge to act as a facilitator. In my
view, an experienced barrister or solicitor would be able to fulfil this function. If
the parties cannot agree promptly on a barrister or solicitor to fulfil this task, I
will direct each party to provide a list of three names from which I will select
the facilitator to be appointed.”41
If a facilitator is appointed the level of experience required will be a question to be
determined according to the facts and circumstances of each case. For example, in
KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's
41
KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital
Westmead and Anor [2011] NSWSC 399 at [9]-[13].
14
Hospital Westmead and Anor [2011] NSWSC 399, Johnson J considered that the
circumstances did not warrant the appointment of a retired judge as facilitator, but
rather that an experienced barrister or solicitor would suffice. 42
In other cases, courts have suggested that the need for a facilitator should be
decided by the experts themselves.43
3.4 Legal representatives
Rule 31.24 (2)44 provides that the Court may direct that the conference may be held
(a) with or without the attendance of the parties affected or their legal
representatives; or (b) with or without the attendance of the parties affected or their
legal representatives, at the option of the parties. In relation to the role of legal
representatives, Practice Note No. SC Gen 11, contemplates that where legal
representatives attend a conference they may provide advice or guidance to
experts45, by: responding to any questions in relation to the legal process applicable
to the case; identifying relevant documents; providing further materials on request;
and correcting any misapprehensions of fact or any misunderstanding concerning
the conference process.46 In addition, “the legal representatives of the parties should
perform any other role the Court may direct.”47 In practice it is rare for lawyers to be
42
KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital
Westmead and Anor [2011] NSWSC 399 at 13].
43
See for example, Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 at [15] (J Forrest
J). In the event that the experts considered that a facilitator would assist, His Honour stated that
Associate Justice Zammit would be available (at [15]).
44
Similar provisions are found in the Rules in other jurisdictions: Supreme Court (General Civil
Procedure) Rules 2005 (Vic), r 44.06; Court Procedures Rules 2006 (ACT), r 1211; Supreme Court
Civil Rules 2006 (SA), r 213(2); Uniform Civil Procedure Rules 1999 (Qld), r 429B; Supreme Court
Rules 2000 (Tas), r 541(1)(e)(v).
45
Practice Note No. SC Gen 11 at [30] A similar provision appears in Queensland A similar provision
is found in Queensland: Practice Direction Number 11 of 2012 (Qld) SCL Practice Direction
attachment [8.1]
46
Practice Note No. SC Gen 11at [31]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld) SCL Practice Direction attachment [8.2]
47
Practice Note No. SC Gen 11 at [32]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld) SCL Practice Direction attachment [8.3]
15
present during the joint conference, and this has on occasion been the subject of
directions made by the Court.48
3.5 Which experts should meet and in what groupings
In relation to which experts should attend, and in what groupings, Practice Note SC
Gen 11 provides: “The experts to attend should be those specified in the Court’s
order. If none are so specified, the parties should arrange for experts to attend who
have expertise pertinent to the questions to be asked. Separate conferences may be
required between experts in different specialities in relation to different issues arising
in the case.”49
A number of disputes have arisen concerning which groups of experts should meet,
and in what groupings.50 It was necessary for the Court to give directions in relation
to these issues in the medical litigation case, Avery v Flood [2013] NSWSC 996.
While agreement was reached over the composition of two conclaves concerning
specific matters relating to damages, no agreement could be reached over the
composition of the conclaves concerning breach and causation questions.51 The
parties sought the Court’s direction. The plaintiff contended that there should be one
combined conclave, involving all the expert doctors retained by either side who
provided reports on breach and causation. The defendant contended that there
should be two conclaves, one dealing with breach, and the other dealing with
causation. The defendants contended that their position was more consistent with
achieving the policy objectives of the just, quick and cost effective disposal of the
proceedings. In particular, they suggested that their proposal of having two
48
For example, in John v Henderson (No 1) [2013] NSWSC 1435 Justice Garling stated that “…the
joint conference is a forum, without the presence of lawyers for the parties…” (at [11]. See also: Re
Qantas Airways Ltd (2004) ACompt 9 (Goldberg J) in which His Honour’s directions specified that
“Legal counsel will not be present at the meeting.”; Rowe v AusNet Electricity Sevices [2014] VSC
553 at [34]” “There should not be any discussion with the experts about the proposed questions with
the legal representatives. Any questions the experts may have about the questions or documents can
be dealt with in the conclave itself.” For further discussion, see Freckelton, n 1, p 402, [6.15.240].
49
Practice Note SC Gen 11 at [7] A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld), SCL Practice Direction attachment [3.2]
50
For example, experts were grouped by reference to speciality in Campton v Centenial Newstan Pty
Ltd (No 1) [2014] NSWSC 304; and by reference to the legal issues (Breach and causation) in Avery v
Flood [2013] NSWSC 996.
51
Avery v Flood [2013] NSWSC 996 at [4].
16
conclaves would result in lower cost and lesser logistical difficulties, as compared
with the plaintiff’s proposal of a combined conclave.52 As to the weight to be given to
various considerations relevant to determining the appropriate groupings of experts,
Beech-Jones J said:
“In broad terms, I do not give this factor much weight. The competing
positions involve having one conclave, involving nine experts, and another
with two conclaves, one involving seven experts and one involving four
experts. I do not underestimate the task of getting all the experts together at
one point in time but as a comparative exercise I doubt that one is easier or
cheaper than the other.
More significantly the defendants point to the fact that if the conclave was to
extend to the discrete causation issue that I referred to, it would mean a
number of the experts would effectively be participating in a conclave on a
matter in respect of which they had expressed no opinion whatsoever. The
result of that would be that their time would be wasted or that a series of what
might be irrelevant or unqualified opinions could be expressed. I think this is a
factor deserving some weight. It is a matter that, in my view, warrants there
being two conclaves as opposed to one. …”
In relation to the issue of who should attend which conclave His Honour said:
“As a general proposition, it seems to me that, if a particular expert expresses
an opinion on a particular point, then they should generally be required to
participate in a conclave with all the other experts who address that issue.
Equally, an expert who does not in their report profess an opinion on a
particular topic or area should not be required or directed to attend a conclave
in respect of a different area. The latter course is likely to lead to one of two
results. Either the expert will have their time wasted, or they may end up
professing an opinion on a topic they are either not qualified to or, if they are,
52
Avery v Flood [2013] NSWSC 996 at [10].
17
there will be no underlying reasoning in any report extraneous to the joint
report which justifies the opinion they have given.”53
Similar issues arose in Porter v Le; Porter v Western Sydney Local Health District
[2014] NSWSC 883, a medical negligence claim against a doctor and a hospital. In
that case Harrison J was called on to give directions in relation to the following
disputes regarding the conduct of the joint conference:
“The parties in these matters are unable to agree upon the question of
whether one joint conference of experts should take place or whether there
should be a series of expert conferences. The parties have also not agreed
upon who should be permitted to attend whatever conferences are ordered or
whether they should be organised upon the basis of identified legal and
medical issues or by reference to particular medical specialties. A similar
dispute exists with respect to the issues of both breach of duty and causation.
The disputes are said not simply to be argumentative, but apparently have
potentially significant procedural and cost ramifications.”54
The plaintiff sought orders that there should be no joint conference of experts or
concurrent evidence except in relation to breach of duty. The doctor submitted there
should be joint conferences and concurrent expert evidence and opposed the serial
giving of evidence from expert after expert. The hospital submitted that there should
be three joint conferences of experts: two separate conferences regarding the
plaintiff's case against the doctor and the hospital on the question of breach of duty;
and a joint conference on the question of causation of the plaintiff's loss and
damage.
The Court agreed with the hospital's submission and made orders that there should
be three joint conferences, being a conference addressing breach of duty by each of
53
Avery v Flood [2013] NSWSC 996 at [11]-[12]. A similar approach was adopted in Rowe v AusNet
Electricity Services [2014] VSC 553 at [9] (Zammit AsJ): “The conclaves will operate more efficiently
and in the most timely manner if the experts included in a conclave have given an opinion on the
topic. It is inevitable that even if experts are given a direction not to give an opinion but in effect are to
be passive observers, they will want to contribute and their presence is likely to delay the process.”
54
Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 at [1].
18
the two defendants and a conference addressing causation.55 His Honour did not
accept that it is either practical or beneficial to arrange a multiplicity of subconferences on different issues because this could result in a manifold of competing
answers to an unwieldy set of questions.56 Further, His Honour considered that the
costs associated with the proposed exercise would be out of proportion both to the
conduct of litigation such as these cases in general, and to the particular interests of
the parties concerned.57
In particular, Justice Harrison noted that medical experts bound by the code of
conduct would wisely refrain from expressing opinions outside their relevant field of
study or acquired experience and expertise. Addressing what might be called the
challenges of "mixing" of different specialists, Harrison J said:
Any expert conforming to the code of conduct that binds him or her will be
expected confidently to refrain from embarking upon the expression of
opinions beyond the relevant field of study or acquired experience and
expertise. The fact that all experts at a joint conference are neither similarly
qualified nor similarly specialised is a fact of life in all litigation that depends
on the assessment of technical issues. I am not convinced that an
epidemiologist will fail to appreciate that he or she will be of limited value in
solving an isolated orthopaedic or neurological question. I am not convinced,
however, that his or her attendance at a conference designed to solve a
problem raising combined and connected issues in all three specialties is
problematic.58
55
Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 at [26]. A similar
approach to determining the composition of the conclaves was adopted by J Forrest J in Matthews v
SPI Electricity Pty Ltd (Ruling no 10) [2012] VSC 379. In that case His Honour considered that a
model involving conclaves devoted to specific issues was preferable even though it “would result in
double the number of conclaves and be challenging administratively” (at [6]-[12]). For a discussion of
this case see Nguyen A, “Expert conclaves – avoiding collisions of ships in the night”, KordaMentha
Forensic Expert Evidence: Recent Cases, (2014), at 119 http://www.kordamentha.com/publications
viewed 5 October 2014.
56
Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 at [27].
57
Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 at [28].
58
Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 at [29].
19
In earlier cases, where experts of varying specialty had met together, the courts
have taken a lenient approach to the expressions of opinion going a little beyond an
expert’s core area of expertise. For example, in X v Sydney Children's Hospitals
Specialty Network & Anor (No 6) [2011] NSWSC 1353, Adamson J dealt with a
report following a meeting of paediatricians, paediatric neurologists and paediatric
endocrinologists. Her Honour said:
“The three groups of expert witnesses as to breach of duty in these
proceedings are: paediatricians, paediatric neurologists and paediatric
endocrinologists. Obviously there is considerable overlap between these
areas of expertise and the boundaries between them are not clearly drawn.
Furthermore, paediatricians, in the course of their clinical practice refer and
discuss particular patients with other specialists; among them, paediatric
neurologists and paediatric endocrinologists. Although care must be taken not
to import standards applicable to a paediatric endocrinologist or a paediatric
neurologist to a general paediatrician, there is no particular reason why other
specialities might not give admissible evidence in the instant case about
matters in issue.
However, there is, in the instant case, an additional reason why I am loath to
reject the evidence of, say, a paediatrician on, for example, the effect of a
stress reaction to a seizure in a child with hyperinsulinism to raise the blood
glucose level and rectify the hypoglycaemia which caused the seizure,
although this may not fall within the paediatrician's core expertise. The reason
is that ten experts have conferred in the preparation of two joint reports, the
second of which has been admitted into evidence. The questions raised by
the joint reports span the three specialities referred to above, and yet, except
in instances where an expert may have refused to participate in the
discussion on the grounds that it fell outside his or her expertise, all of the
experts have participated in the discussion.”59
59
X v Sydney Children's Hospitals Specialty Network & Anor (No 6) [2011] NSWSC 1353 at [3]-[4].
20
While experts are bound by the Expert Witness Code of Conduct60 and therefore
ought limit their opinion to matters within their areas of expertise, expert witnesses in
Australia remain immune from civil suit in respect of what is said or done in court,
and in preparatory steps, as stated by the High Court in D’Orta Ekenaike v Victoria
Legal Aid (2005) 223 CLR 1; [2005] HCA 12:
"No action lay, or now lies, against a witness for what is said or done in court.
It does not matter whether what is done is alleged to have been done
negligently or even deliberately and maliciously with the intention that it
harmed the person who would complain of it. The witness is immune from suit
and the immunity extends to preparatory steps."61
The application of the expert witness immunity rule to expert witnesses participating
in conclaves of experts was affirmed by the New South Wales Court of Appeal in
Young v Hones [2014] NSWCA 337. The case concerned an appeal from a separate
determination that, as an issue of law, advocate’s immunity, in the case of the lawyer
respondents, or witness immunity, in the case of the engineer respondents, were
complete defences to various negligence claims.
The appeal was dismissed. In the context of the determination as to whether the out
of court work undertaken by the engineers fell within the scope of expert witness
immunity, the Court confirmed that the test to be applied is whether there was a
connection between the work performed and the conduct of the case in court.62 The
expert engineer’s retainer extended not only to advice as to the appropriate
remediation plan and participation in the expert conclave, but also the giving of
expert evidence, and as the claim arose directly out of the work undertaken in the
60
For example, in NSW the Code is contained in the Uniform Civil Procedure Rules 2005 (NSW),
schedule 7. In Hudspeth v Scholastic Cleaning and Consultancy Services Pty Limited [2014] VSC 567
Dixon J commented (at [20]), that by reason of the duties owed to the court by experts and lawyers,
the court is entitled to seek an explanation of circumstances that raise a serious question about the
breach of such duty - hence the present hearing on the court's own motion. Sanctions for
contravening obligations to the court were discussed at [254]ff.
61
D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [39]. See also R v
Skinnner (1772) Lofft 43 T 56; 98 ER 529 at 530 (Lord Mansfield); Cabassi v Villa [1940] HCA 41;
(1940) 64 CLR 130 at 140 (Starke J). For a recent consideration see Application of Michael BarMordecai [2014] NSWSC 414 at [18]-[21].
62
Young v Hones [2014] NSWCA 337 at [35] (Bathurst CJ); at [251] – [253], [280] (Ward JA). Emmett
JA agreed with Ward JA at [315].
21
experts’ conclave (which formed part of the proceedings), the trial judge’s conclusion
that the expert witness engineers were immune from civil action63 was upheld.64
Justice Ward went further, by way of obiter, in holding that regardless of whether the
expert witnesses’ retainer contemplated the giving of evidence, there was a sufficient
connection between the alleged negligent conduct and the settlement of the
proceedings to bring the conduct within the scope of witness immunity.65
However, where an expert purports to give expert evidence beyond his or her area of
competence he or she may be vulnerable to disciplinary proceedings.66 For example,
Pool v General Medical Council67 involved an appeal by Dr Pool, a psychiatrist,
against a decision of a General Medical Council Fitness to Practice Panel. 68 The
Panel had found that in giving expert evidence relating to a paramedic’s fitness to
work, Dr Pool was guilty of misconduct (by not restricting his opinion to areas within
his expert knowledge or direct experience and by giving evidence on matters outside
his professional competence) and ordered a three month suspension from practice.
It was found that Dr Pool had told his instructing solicitors that he was on the GMC’s
specialist register, but had not made it clear that his speciality was the psychiatry of
learning disability (with his clinical practice being in the care of offenders in a secure
setting), not general adult psychiatry. On appeal, although agreeing with the findings
of the Panel, including the finding of serious misconduct in acting as an expert
witness beyond his expertise69, the High Court concluded that the three month
63
The claim alleged that the expert negligently agreed at the expert conclave to inadequate
remediation work as being necessary, which caused the entry into settlement, resulting in loss to the
appellant: at [39] (Bathurst CJ)
64
Young v Hones [2014] NSWCA 337 at [40] (Bathurst CJ); [261], [271], and [274]-[275] (Ward JA) ,
Emmett JA agreed with Ward JA at [315]
65
Young v Hones [2014] NSWCA 337 at [271], [276] Emmett JA agreed with Ward JA at [315]
66
Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462. See also Nikolaidis v
Satouris [2014] NSWCA 448 at [42] (Barrett JA, Beazley P and Ward JA agreeing). Expert medical
witnesses have also been disciplined for dishonestly prepared expert reports: Dyer C “GP is
suspended for dishonesty in preparing whiplash injury report” BMJ 2014; 348: g2650: (General
practitioner suspended for six months by the Medical Practitioners Tribunal Service after he prepared
a bogus whiplash injury report for his stepdaughter’s boyfriend, only to be reported to the GMC after a
family dispute).
67
[2014] EWHC 3791. Discussed Dyer C, “Doctor who acted as witness outside his competence was
punished too severely, court rules” BMJ 2014; 349:g6852.
68
Dyer C, “Tribunal suspends doctor for acting as expert witness beyond his competence” BMJ 2014;
348: g4126.
69
Pool v General Medical Council [2014] EWHC 3791 at [33].
22
suspension was “flawed and disproportionate in the circumstances.70” Factors which
led to this conclusion were that the proceedings arose out of an isolated incident
relating to giving expert evidence beyond his clinical competence only and no
concerns were raised in relation to his clinical practice.71 The High Court ordered that
the period of suspension should be revoked and replaced by a condition that Dr Pool
should not act as an expert witness in fitness to practice proceedings for a period of
three months.72
Other complaints have been made to regulators against expert witnesses following
judicial comments. For example, in A Local Authority and S [2009] EWHC 2115
(Fam), Justice Eleanor King found that the paediatric neuropathologist medical
expert had developed a “scientific prejudice”73 in relation to shaken baby syndrome
cases. A complaint was filed by the National Policing Improvement Agency to the
English General Medical Council (GMC). The GMC then commenced disciplinary
proceedings, alleging that the expert “failed to discharge her duties as an expert in
that she failed to work within the limits of her competence, to be objective and
unbiased, and to pay due regard to the views of other experts”; that her actions as
an expert witness were “deliberately misleading, dishonest, and brought the
reputation of the medical profession into disrepute”; and that she “provided an expert
opinion evidence by way of written report and/or oral evidence outside her field of
expertise.”74 As far as the authors are aware, the case has not yet been heard at the
date of writing. The respondent expert has been reported as saying that she will be
refuting the criticisms, and that the case “demonstrates the risk to which an expert is
exposed when they express an opinion to the courts”, and that there is a “wider
public interest in experts being able to give honestly held and scientifically based
opinion which is not the conventional or mainstream view.”75
3.6
What form of questions should be put to the experts?
70
Pool v General Medical Council [2014] EWHC 3791 at [52].
Pool v General Medical Council [2014] EWHC 3791 at [46];[49]-[50].
72
Pool v General Medical Council [2014] EWHC 3791 at [52].
73
A Local Authority and S [2009] EWHC 2115 (Fam) at 285.
74
Dyer C, “Child death expert is accused of dishonesty and failing to work within competence” BMJ
2014; 349: g5669.
75
Dyer C, “Child death expert is accused of dishonesty and failing to work within competence” BMJ
2014; 349: g5669. See also Squier W “The uncomfortable interface between medicine, science and
the law” Clin Risk 2011; 17:3-5.
71
23
The issue as to what questions should be put to the joint experts gives rise to the
greatest potential for friction between the parties.76
Unlike the traditional court hearing environment, a trial judge will not be readily
available to assess each question put and objected to, in accordance with well
recognised evidentiary rules applying to experts.77 While it may be generally
considered that it is in the interests of open justice that experts provide reasons for
their conclusions, irrespective of whether they agree or disagree, to ensure that they
have not reached an answer which hides disparate assumptions or reasons,78
Practice Note SC Gen 11 only contemplates the provision of reasons where the
experts do not agree: “…the report should specify matters agreed and matters not
agreed and the reasons for non-agreement.”79
The form which the questions take will usually determine the form of the answer:
open ended, discursive style questions will generally generate more detailed
answers supported by reasons. Closed questions which contemplate a yes/no
response may not reveal the reasoning process behind the response. A preference
for open ended questions was indicated by Justice Garling in the medical negligence
case, John v Henderson (No.1) [2013] NSWSC 1435. In that case, while draft
questions had been prepared by the plaintiff and the defendant, no agreement could
be reached as to the form which the questions should take.80 When the dispute
came before Garling J, His Honour noted that the differences between the parties
focused on: a) Whether certain issues are properly matters for the Court or for the
76
Absent from the New South Rules is the power for a party to ask proportionate written questions of
another party’s expert about their report, outside of the joint expert conference, such as exists in Part
35 Rule 6 of the English Civil Procedure Rules: http://www.justice.gov.uk/courts/procedurerules/civil/rules/part35 viewed 28 September 2014..
77
See however, Matthews v SPI Electricity Pty Limited (No 10) [2012] VSC 379 in which J Forrest J
referred the supervision and management of the conclaves to Associate Justice Zammett (at [14],
indicating that in the event that the experts thought a moderator was necessary, Her Honour would be
available to assist: (at [15]).
78
See the discussion in Campton v Centennial Newstan Pty Ltd [2014] NSWSC 304 at [53]- [56], [72][86].
79
Practice Note SC Gen 11 at [25]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld), SCL Practice Direction attachment at [7.1] See also Uniform Civil
Procedure Rules 1999 (Qld), r 31.25 and paragraph 4 of the Code.
80
For a discussion of this case see Tam N, “Ask a silly question, get a silly answer”, KordaMentha
Forensic Expert Evidence: Recent Cases, (2014), at 68 http://www.kordamentha.com/publications
viewed 5 October 2014.
24
experts; b) The relevant standard which the experts are being asked to address and
the words which are being used to describe that standard; and c) The broad subject
matters upon which the experts are being asked to address their opinions.81
His Honour was of the view that the most appropriate approach was for the Court to
review the questions proposed by both parties, and with their assistance, formulate a
final list of questions to be put to the experts.82 The list was formulated by attempting
to simplify the wording so that common definitions were used which necessarily
reduced the size of each issue being posed, and by not asking closed questions but
rather, inviting the experts to consider questions phrased in a more open manner. 83
As to how the questions should be framed, His Honour was concise:
“In short, questions should be framed as simply as is possible in an openended manner and targeted to issues raised by pleadings.”84
Justice Garling provided the following general guidance in relation to the form of
questions to be put to the experts:
“In my view, for proceedings in the Professional Negligence List, it is
undesirable to frame questions as though they were interrogatories being
asked of the experts, and to frame questions in a way which invites the
experts to confine themselves to a single word answer such as "yes" or "no".
Experience suggests that obtaining agreement to questions framed in this
way is likely to be very different.
81
John v Henderson (No.1) [2013] NSWSC 1435 at [17]. The appropriate course in each case will of
course depend on its own facts and circumstances. For example, in Matthews v SPI Electricity Pty
Limited (No 10) [2012] VSC 379 J Forrest J indicated that he thought “a list of questions may not be
helpful”, although His Honour considered that the provision of an agenda “could be positively
beneficial as it will assist the experts in keeping on track.” He did note, however, that if the parties
could not agree they should seek further direction at the case conference before the Associate
Justice: at [19].
82
John v Henderson (No.1) [2013] NSWSC 1435 at [18]. This approach was also taken in Rowe v
AusNet Electricity Services [2014] VSC 553 at [16], [22].
83
John v Henderson (No.1) [2013] NSWSC 1435 at [18].
84
John v Henderson (No.1) [2013] NSWSC 1435 at [28]. See also Rowe v AusNet Electricity Services
[2014] VSC 553 at [22]: “The questions should be designed as a guide for the experts. Where
possible, the questions should be drafted at a higher, broader level. It is ultimately for the experts to
consider the issues which they consider are relevant. The questions serve as guidance, not a second
chance to put questions to the experts and particularly not to put loaded questions to the experts
which may influence the importance attributed to a particular issue or topic.”
25
In my view, this process is more akin to the delivery of joint interrogatories
than a process to which I have earlier referred which is to enable the experts
in a joint conference to express their opinions, and by mutual discussion,
determine whether the opinions on various issues are the same or can be
agreed or whether there is a fundamental difference between them leading to
their non-agreement on one or more issue.
It is not generally appropriate, in my view, to ask direct questions of the
experts which are matters of law which are appropriate for a judge.
Here, except in cases where the parties are agreed, the questions have been
framed to invite discursive answers, and answers which it is hoped will elicit
the real difference in the opinions between the experts retained by the
parties.”85
Accordingly, although Practice Note SC Gen 11 provides: “The questions to be
answered should be framed to resolve an issue or issues in the proceedings. If
possible, questions should be capable of being answered Yes or No, or (if not) by a
very brief response,”86 His Honour’s expressed preference was for questions
permitting discursive answers rather than simple yes or no answers.87
Furthermore, while it is clear from Justice Garling’s comments that it is not generally
appropriate to ask direct questions of the experts relating to matters of law (which
are for a judge), on occasion there may be some uncertainty about the application of
this general principle. For example, in John v Henderson (No.1) [2013] NSWSC
1435, an aspect of the debate “in a case with respect to the claim for breach of the
common law duty of the provision of information, advice or warnings, was whether
the opinion of the experts and common practice as that term is understood, is
85
John v Henderson (No.1) [2013] NSWSC 1435 at [19]-[22].
86
Practice Note SC Gen 11 at [9]. A similar provision is found in Queensland: Practice Direction
Number 11 of 2012 (Qld), SCL Practice Direction attachment at [3.4].
87
The merit of elucidating discursive answers has occasion been seen in the reported decisions. For
example, Yes or No style answers in part appear to have given rise to the need for a second experts’
meeting in KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's
Hospital Westmead and Anor [2011] NSWSC 399, which is considered above.
26
relevant for the experts to express an opinion on.”88 The Court’s consideration of that
issue is informative:
“Counsel for the defendant submitted by reference to the judgment of Gleeson
CJ in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, that whilst
expert opinion in this area of discourse was not determinative of the issue, it
was nevertheless relevant. It seems to me that it cannot be said, at this stage
of the management of these proceedings, that the opinion of these experts on
those questions is wholly irrelevant, and necessarily therefore, inadmissible. I
am reluctant in the absence of forming such a firm conclusion by a
determination at this early stage of the proceedings, to fundamentally affect
the final course of the proceedings.
It seems to me that the appropriate course to follow where I am not positively
persuaded that such evidence is wholly irrelevant is to permit the questions to
be asked, in the form on which I have settled, of the experts, to note that the
plaintiff objects to the evidence being admitted, and to reserve to the trial
judge the question of whether any expert evidence on those issues is or is not
admissible. Of course, what the experts say may affect that question of
admissibility.
After all, as the rules provide, if experts are in disagreement about particular
issues, then their joint report on those issues is not necessarily admissible,
however, I wish to make it plain in this judgment I am specifically reserving
that question for determination by the trial judge.89
As to the appropriate form of questions, useful guidance can be taken from the
questions drafted by Garling J, as summarised in Table 1 below. As to how the
questions should be presented to the experts, the questions should generally be
merged into one complete list of questions, rather than each party submitting their
own set of questions for another’s expert, and vice versa.90 In addition, where there
88
John v Henderson (No.1) [2013] NSWSC 1435 at [22].
89
John v Henderson (No.1) [2013] NSWSC 1435 at [25]-[27].
In Rowe v AusNet Electricity Services [2014] VSC 553 Zammit AssJ said at [16]: There is no doubt
given past experience in the management and conduct of expert conclaves that the provision of
90
27
are conflicting assumptions, experts should be asked to answer by reference to both
assumptions. In particular, if the state of knowledge has changed, the knowledge at
the relevant time should be specified as a proviso.
Table 1: Acceptable questions for experts
Failure to warn
Treatment
Causation
Professional knowledge
Departure from
On the balance of
of the existence of a
acceptable practice in the
probabilities, did the
specified risk.
recommendation of the
patient suffer (specified)
treatment.
injury as a result of the
treatment.
Professional knowledge
Departure from
On the balance of
of the chance of
acceptable practice in the
probabilities, would the
occurrence of a specified
performance of the
patient have suffered
risk, preferably in
treatment.
(specified) injury as a
percentage terms.
result of the alternate
treatment.
Professional knowledge
On the balance of
of the clinical outcome
probabilities, would the
had a specified risk
patient have suffered
manifested itself.
(specified) injury absent
any treatment.
Accepted professional
practice as to the
provision of information
about the benefits and
risks and/or advantages
and disadvantages of the
something more than a broad agenda will be positively beneficial as it will assist the experts to keep
on track. Having said that, there is equally as much danger in providing questions with sub-issues in
circumstances where the experts have already provided detailed reports.
28
subject procedure, an
alternative, a comparison
of the two procedures;
and/or
having no operative
treatment at all.
Further more specific
questions of relevance
given the facts.
As orders in respect of the holding of joint conclaves of experts are orders made in
furtherance of the Civil Procedure Act 2005 (NSW), the Court has an interest in
ensuring compliance. Accordingly, where one party seeks a variation of the orders or
excusal from compliance, or cannot reach agreement as to the wording of the
questions, the proper course is to restore the matter to the list for further directions,
rather than simply ignoring the order. A dispute as to the questions which should be
put to the expert witness conclave arose in Goldsmith v Bisset [2014] NSWSC 1272.
Orders had been made for liability experts in their respective areas of expertise to
confer and provide a report on the matters agreed and disagreed in conclave, setting
out the reasons for any disagreement. A letter raising questions for consideration
was drafted by the plaintiff’s lawyers. The defendant’s lawyers objected, asserting
that no question should be addressed to the experts that required them to make a
judgment or assessment as to whether a witness should be accepted as truthful or
their evidence was accurate. Objection was also raised on the basis that no expert
should be asked to express an opinion about any matter or fact which is the role of
the trial judge to decide. No alternate questions were proposed by the defendant’s
lawyers at that time, but further correspondence followed. The defendant’s lawyers
then asserted that it was not necessary for specific questions to be submitted to
these experts, but rather that the experts should simply be asked to meet in conclave
29
and prepare a joint report.91 A motion was filed by the plaintiff’s solicitors in order to
resolve the impasse.
After setting out the objectives of joint conferences,92 Garling J noted that “the
defendant’s attitude was contrary to the court’s order, contrary to the Practice Note
for conclaves and demonstrated a complete failure to comply with the defendant’s
obligations to the court under s 56 of the Civil Procedure Act 2005 (NSW).”93 His
Honour found that there was no proper basis for the defendant’s solicitor to expect
that the court would excuse compliance with the preparation of questions to be
placed before the experts.94 Whilst the initial proposed questions from the plaintiff’s
solicitor may have been the subject of legitimate criticism, they should have been
responded to in a way demonstrating compliance with the court’s orders, particularly
having regard to the terms of the letter in which they were contained.95 As to the role
of the expert witness, it is not the role of an expert witness to consider two accounts
and indicate which he or she prefers, as this task is for the court, not the expert.96 To
resolve the dispute, after reviewing the experts’ reports, His Honour determined the
questions which should be put to the experts, and included those questions as a
scheduled attached to his judgment.97
4. Concurrent Expert evidence: Procedural disputes at trial
In addition to disputes which have arisen at pre-trial joint conferences of experts, as
described above, procedural disputes have also arisen at the stage of the experts
giving concurrent expert evidence in the trial. The process of giving concurrent
91
Goldsmith v Bisset [2014] NSWSC 1272 at [14]; the defendant’s letter stated: ‘We do not think it is
necessary for specific questions to be submitted to these experts and we are of the opinion that they
should simply be asked to meet in conclave and permit a joint report. Such an approach is just,
cheap and quick. They are both experienced experts familiar with their obligation to the court … We
are more than happy to argue this matter before the court but, frankly, we regard it as unnecessary
and a waste of time and costs.’
92
Goldsmith v Bisset [2014] NSWSC 1272 at [18] – [21].
93
Goldsmith v Bisset [2014] NSWSC 1272 at [19], [25]-[26].
94
Goldsmith v Bisset [2014] NSWSC 1272 at [28].
95
Goldsmith v Bisset [2014] NSWSC 1272 at [29].
96
Goldsmith v Bisset [2014] NSWSC 1272 at [41].
Goldsmith v Bisset [2014] NSWSC 1272 at [43]-[44].
97
30
evidence in a medical negligence context was described by Justice Garling in John v
Henderson (No 1) [2013] NSWSC 1435 as follows:
“The giving of concurrent evidence is a form of procedure where evidence is
given by all of the experts together at the same time. It resembles a
discussion in which a co-operative endeavour is engaged to identify the
relevant issues and where possible, arrive at an agreed resolution of them. To
the extent appropriate, the joint evidence is subject to judicial control, much
like the control by a chair of a meeting, although all necessary formality is
observed. In cases involving concurrent evidence, at least where a judge sits
without a jury, there is no reason for a judge not to "intervene to control, to
clarify or to make known a provisional view" in the course of the expert's
evidence: see Botany Bay Council v Rethman Australia Environmental
Services Pty Limited [2004] NSWCA 414 per Tobias JA, (Spigelman CJ and
Santow JA agreeing) at [46].”98
In the event of disputes arising at this stage of the evidentiary process, the trial judge
is of course readily available to rule on disagreements as they rise. A review of the
decided cases indicates that disputes have arisen concerning the concurrent expert
evidence process at trial in relation to the following matters:
The order in which witnesses should give evidence;
Whether the expert witnesses should be prevented from conferring with the
parties legal advisors during the course of their evidence;
Whether a concluded joint expert report should be admitted into evidence;
and
The role of the trial judge.
4.1 Order of presentation of evidence
98
John v Henderson (No 1) [2013] NSWSC 1435 at [11].
31
A dispute over the order of presentation of evidence arose in Thomas v Powercor
Australia Ltd (No 7) [2011] VSC 502. In that case Forrest J made the following
observation:
“The first point to be made here is that each counsel seeks, in effect, to obtain
a forensic advantage in the presentation of the evidence. That approach, in
my view, is inconsistent with the court's task which is to reach a just result
with the assistance of impartial experts. Questions of forensic advantage play
no part in this exercise. Rather, as the Civil Procedure Act and Order 44
demonstrate, the task should be to devise a procedure that will lead to the
best way for the expert opinions to be understood by the court and provide
fairness to the parties.99
It appears that the composition of conclaves is not determinative of the composition
of the concurrent evidence at trial, which is a matter for consideration once the joint
reports are received.100
Where expert evidence is presented concurrently by a panel of experts, the presiding
judge may need to intervene to ensure that interjections and interventions are
appropriately made so as to minimise the prospect of missed dialogue or
inadequately explained opinions which may make the transcript hard to follow and
incomplete.101 For example, in Strong Wise Ltd v Esso Australia Resources Limited
(2010) 247 ALR 259 Justice Rares observed that the use of a single portable
microphone can assist in managing these issues.102
4.2 Conferring with Legal Advisors
99
Thomas v Powercor Australia Ltd (No 7) [2011] VSC 502 at [9].
Rowe v AusNet Electricity Services [2014] VSC 553 at [13] (Zammit AssJ).
100
101
For a discussion see Young N, ‘Expert Witnesses: On the Stand or in the Hot Tub – How, When
and Why? Formulating the Questions for Opinion and Cross-Examining the Experts’ (Speech
delivered at the Commercial Court Seminar, 27 October 2010) at [20],
http://www.commercialcourt.com.au/PDF/Speeches/Commercial%20Court%20CPD%20Seminar%20%20Expert%20Witnesses%20-%20Paper%20by%20Neil%20Young%20QC.pdf viewed 23 August
2014.
102
Strong Wise Ltd v Esso Australia Resources Limited (2010) 247 ALR 259 at [95].
32
The issue as to whether there should be an order made to prevent the expert
witnesses from conferring with the parties’ legal advisors during the course of their
evidence arose for judicial determination in Thomas v Powercor Australia Ltd (No 7)
[2011] VSC 502. Forrest J made the following determination:
“I had directed in the course of the concurrent evidence session of the experts
on quantum that the witnesses not confer with the parties' lawyers. I made
such an order on the basis that the expert witnesses should be able to
discuss amongst themselves the relevant issues during the course of the
session. This, I thought, may encourage agreement on issues and more
importantly, would militate against partisan encouragement or schooling of the
witnesses by the parties' legal advisors during the course of the session.”103
The quarantine issue also arose in Matthews v SPI Electricity Pty Ltd & Ors (Ruling
No 32) [2013] VSC 630, in which Forrest J made a similar order.
4.3 Admissibility of joint expert reports
In some cases disputes have arisen as to whether a concluded joint report should be
admitted into evidence. This issue was considered in "X" v Sydney Children's
Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351. In that case the
plaintiff was unsuccessful in his application to exclude a second joint report on
breach of duty from evidence. Various arguments were put, but of particular interest
was the argument arising of the joint report not providing reasons for some
conclusions.104 Counsel for the defendant argued against exclusion of a joint expert
report without transparent reasons, as summarised below:
“Mr Kirk also referred to s 56 of the Civil Procedure Act which provides that
the Court must seek to give effect to the overriding purpose of facilitating the
just, quick and cheap resolution of the real issues in dispute in the
proceedings when it interprets any provision of the Civil Procedure Act or the
Rules.
103
Thomas v Powercor Australia Ltd (No 7) [2011] VSC 502 at [15].
104
"X" v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351 at [23].
33
Mr Kirk also submitted that there were several good reasons why the rules did
not provide for reasons to be given where experts agree on the answer to a
question posed in a joint conference.
First, the reports are prepared under the time pressure of the court system
and also of the experts themselves, who can be expected to have other
professional commitments. To require reasons to be given for agreement
would not only be expensive and time-consuming but it might have the
tendency to inhibit the process, and perhaps to deter participation by experts.
Secondly, he said that the objectives of the joint conference ought be taken
into account in construing the UCPR. Practice Note SC Gen 11 provides an
inclusive list of the objectives of directions for a joint conference.105 Mr Kirk
placed particular emphasis on the penultimate objective which reads:
"... binding experts to their position on issues, thereby enhancing
certainty as to how the expert evidence will come out at the trial. (The
joint report may, if necessary, be used in cross-examination of a
participating expert called at the trial who seeks to depart from what
was agreed)."
Substantially for the reasons given in the course of Mr Kirk's submissions set
out above, I consider that UCPR 31.26(3) and (4) are not invalid in so far as
they provide that experts need not provide reasons for agreement. In any
event, to the extent to which s 79 applies, I do not consider that it excludes a
report prepared in accordance with the UCPR, notwithstanding that no
reasons for agreement are required. The joint report is authorised by the
UCPR and there is no relevant inconsistency by reference to which UCPR
31.26(3) and (4) would be rendered invalid. The common law rule can be
abrogated by statute. Even though Heydon J found that it had not been
abrogated by s 79 of the Evidence Act, I consider that it has been, to the
105
"X" v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351 at [5].
Similar guidance appears in other jurisdictions: Practice Note SC Gen 11 (NSW) at [5]; Practice
Direction Number 11 of 2012 (Qld), SCL Practice Direction attachment at [2.1].
34
limited extent described above, in respect of joint expert reports prepared in
accordance with the UCPR.”106
The analysis by Adamson J in "X" v Sydney Children's Hospitals Specialty Network
& Anor (No 5) [2011] NSWSC 1351 was applied in Campton v Centennial Newstan
Pty Ltd (No 1) [2014] NSWSC 304, a workplace accident case, in which the
defendant submitted that the conclave reports, including in particular, the joint
orthopaedic report, infringed the common law statement of the reasoning rule in
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21,107 and s 79 of the
Evidence Act 1995 (NSW).108 Hall J held that these general principles needed to be
considered by reference to the broader operation and provisions of the Civil
Procedure Act, Evidence Act and Uniform Civil Procedure Rules as considered and
analysed by Adamson J.109 The defendant’s submission was rejected. Hall J said:
In fact, Adamson J in X v Sydney Children's Hospitals Specialty Network (No
5) found there to be "considerable force" in the submission that far from it
being unfair to admit the conclave report:
"...it would be unfair to reject it, in circumstances where the Court proposed to
admit the individual reports of the experts who had participated in the joint
conferences, since on several occasions consensus had been reached in the
joint conference which would not be apparent from reading the individual
reports which preceded the joint conferences...I accept that it would be
potentially misleading to admit evidence which reflected an expert's historical
view, which had changed in the light of discussion which had been not only
authorised and agreed to by the parties, but also mandated by the Court": at
[65].
106
"X" v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351 at [31][35].
107
This rule provides that an expert’s report which did not reveal the expert’s reasoning would not be
admissible under s 79 of Evidence Act 1995 (NSW).
108
Similar legislative provisions appear in some other jurisdictions: Evidence Act 2009 (Vic), s 79;
Evidence Act 2011 (ACT), s 79.
109
Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [74]–[75] (Hall J).
35
Her Honour proceeded to consider that, with regard to whether the admission
of the report would result in an undue waste of time:
"Far from saving time, what the Plaintiff proposed would not only consume
substantially greater court time but it would also set at nought the time
consuming and expensive process in which the parties have engaged to get
to the point of the preparation and finalisation of the [report]": at [68].
On the same basis, and for the same reasons, I consider it would not at all be
unfairly prejudicial to the defendant to admit the conclave reports.
Additionally, I note that the defendant has had the benefit of cross-examining
both treating doctors, Dr Whittaker and Dr Ferch, and as well as crossexamining Dr Hopcroft and Dr Bracken and adducing further evidence from Dr
Harvey during concurrent evidence taken on 19 March 2014 and 21 March
2014.
Accordingly, this is not a case which, as the evidence presently stands, would
require the exercise of discretion to exclude the conclave reports.110
After considering the various submissions from the parties, Hall J made the following
concluding comments:
The defendant's written submissions propound propositions and arguments
that are contrary to accepted legal principles at a number of levels:
(1) The submissions proceed upon the assumption that a conclave report, like
an "expert report", is subject to the obligation to disclose underlying reasons
for agreement. It is not. Under UCPR r 31.24(1)(c) and r 31.26(2) such an
obligation has been abrogated in respect of expert reports.
(2) The submissions focus upon the conclave reports without reference to the
individual reports of the conclave participants each had earlier provided. Such
an approach is contrary to the approach this Court has adopted. The conclave
110
Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [97]-[101].
36
report is to be considered in the context of prior reports: X v Sydney Children's
Hospital Specialty Network (No 5) at [55]-[56].
(3) The submissions criticise the absence of "assumptions" and assumed
facts regarding questions 3, 4, 7 and 8. Clause 10 of Practice Note SC Gen
11 provides for the provision of "witness statements or preferably a joint
statement of the assumptions to be made by the experts ...". The orthopaedic
conclave, as noted above, was provided with the three evidentiary statements
of the plaintiff as to factual matters. (The defendant did not provide any
witness statements to the conclave.) These statements complied with clause
10 of Practice Note SC Gen 11.
(4) The submissions assume that the joint report of a conclave is an "expert's
report" and therefore must comply with the requirements for such reports.
However, the submission overlooks that the "statement of reasoning rule" has
been excluded by UCPR 31.24(1)(c) and 31.26(2), as these rules contemplate
that the experts are not required to give reasons where there is
agreement…”111
While the defendant’s submission that the expert’s report was inadmissible failed,
Hall J did find that a transcript of the discussions between the expert witnesses in the
conclave must not be referred to in accordance with the rule.112 Hall J said:
“The "content" of the conference, as referred to in r 31.24(6), would include a
transcript of discussions between the expert witnesses of a conclave.
Uniform Civil Procedure Rule 31.24(6) evidences a specific intention to
ensure that experts who participate in a conclave should be able to freely
discuss matters within their area of specialty in a way which does not deter or
impair free and open exchanges by the experts of their opinions, with the
objective of finding, wherever possible, common ground, and expressing
agreement upon matters that are relevant to the issues in the proceedings.
111
Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [163].
112
Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [171] – [176].
37
It has been noted that the emphatic terms in which UCPR r 31.24(6) is
expressed, namely, that "the content of the conference...must not be
referred to", supports this construction.
The phrase "must not be referred to" in r 31.24(6) is a broad expression and is
not limited to tendering a transcript of a conclave. It would extend to
precluding anyone during a hearing of proceedings from making reference to
the content of the transcript and from otherwise utilising the transcript as
evidentiary material.”113
Where directions regarding expert reports and joint conclaves are not complied with,
objection may be taken to the admissibility of an expert’s report, in whole or except
insofar as it relates to certain matters. For example, in Dailhou v Kelly [2014]
NSWSC 1213, an objection was taken to an expert’s report, following noncompliance with the Court’s directions, in particular a requirement to participate in a
joint conclave, except in so far as it opined on the plaintiff’s life expectancy. The
objection was taken because the expert opined in his report on matters outside his
remit relating to life expectancy, expressing views on matters including those
pertaining to causation, injury suffered, prognosis, and requirements for care. The
objection was on the basis that the expert did not participate in the joint conclave of
experts which was attended by specialist orthopaedic surgeons retained by other
parties.114
Despite a suggestion that the evidence should be accepted in its entirety as the
expert had examined the plaintiff and expressed an opinion, Adamson J held:
“… it would, in my view, not be consistent with the principles of case
management and efficient conduct of the proceedings which are provided for
in the Civil Procedure Act 2005 (NSW ) to allow his report to be relied upon on
all issues. Directions made by the Court for the orderly and efficient conduct
113
Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 at [173]-[176]. For a discussion
see Viniarsky A, “Conclaves of shadow: disclosure of reasons and the veil over conclave meetings”,
KordaMentha Forensic Expert Evidence: Recent Cases, (2014), at 42
http://www.kordamentha.com/publications viewed 5 October 2014.
114
Dailhou v Kelly [2014] NSWSC 1213 at [4].
38
of proceedings ought not be ridden over roughshod by parties who serve
reports of experts who have not participated in the joint conclave process.”115
Accordingly, the report was allowed in relation to opinions on life expectancy, but not
other matters. However, for practical reasons (as matters may have been in the body
of the report which were germane to the opinion on life expectancy), the report was
admitted in its entirety, though its use limited to the issue of life expectancy.116
4.4 The role of the trial judge
Cautious views have been expressed as to the appropriate role of the trial judge in
the concurrent expert process. In Botany Bay Council v Rethmann Australia
Environmental Services Pty Ltd [2004] NSWCA 414, Tobias JA117 held that
interventions from the judge are permissible to the extent that their purpose is to
clarify the experts’ evidence, rather than to cross-examine the witnesses or
challenge their evidence.118 This view was also taken by Garling J in John v
Henderson (No 1) [2013] NSWSC 1435, in which His Honour commented that in
cases involving concurrent evidence, at least where a judge sits without a jury, there
is no reason for a judge not to "intervene to control, to clarify or to make known a
provisional view" in the course of the expert's evidence.119
4. Conclusion
It is clear that the process of concurrent expert evidence has great potential to
advance the policy objective of the just, quick and cheap resolution of the real issues
in the proceedings before a Court. As observed by McClellan CJ in CL in BGP
Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399:
115
116
117
Dailhou v Kelly [2014] NSWSC 1213 at [5].
Dailhou v Kelly [2014] NSWSC 1213 at [6].
Spigelman CJ and Santow JA agreeing at [1] and [2] respectively.
118
Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414 at
[39] citing Galea v Galea (1990) 19 NSWLR 263 at 281, with respect to the guideless relevant to
determining whether there has been excessive intervention by a trial judge; see also [46].
119
In support of that assertion His Honour cited Botany Bay Council v Rethman Australia
Environmental Services Pty Limited [2004] NSWCA 414 (Tobias JA), (Spigelman CJ and Santow JA
agreeing) at [46].
39
“Both Commissioner Watts and I found this to be an efficient and effective
method to receive expert evidence. It enabled ready identification of
fundamental issues and it ensured that court time was devoted to
understanding those issues and providing the court with the material
necessary to resolve the. Apart from enhancing the quality of the court’s
decision, it ensured that a number of days of hearing time were saved.”120
Further, the efficient and effective management of expert evidence has an important
role to play in enabling the parties to engage meaningfully in alternate dispute
resolution. For example, following the exchange of joint reports and/or the joint
conference of experts it may become apparent that one party’s case on a critical
point will succeed or fail, because the experts are able to understand, through
professional exchanges, what each has said and on what assumptions.121 The less
adversarial manner in which evidence is gathered under the concurrent evidence
process may also result in evidence which is more frank and reasonable, which may
also give rise to more concessions and points of agreement.122 That effective
management of expert evidence plays an important role as a pathway to the parties
engaging in meaningful alternative dispute resolution was recently the subject of
comment by Dixon J in Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 2) [2014]
VSC 98:
“For effective alternative dispute resolution, the parties must be able to form a
proper appreciation of their reward or risk profile in the proceeding and that
requires a limited understanding of the evidence that will be adduced at the
trial …”123
“… the exchange of experts’ reports is a significant milestone, not just in the
preparation path for trial but also in the preparation path for alternative dispute
resolution. In a perfect world of unlimited resources, it might be desirable for
120
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [121] –[122].
121
For a discussion see: Rares, above n 1 at [42].
122
New South Wales Law Reform Commission, Expert Evidence (2005) LRC 109 at [6.56],
http://www.parliament.nsw.gov.au/prod/la/latabdoc.nsf/0/f0f0a44f52cea86eca2570820039fd5e/$FILE/
r109.pdf viewed 23 August 2014.
123
Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 2) [2014] VSC 98 at [13].
40
the parties to also have the benefit of joint reports following the expert
conclave in alternative dispute resolution. I am satisfied that a mediation,
properly conducted, can substantially advance negotiations on the basis of
exchanged expert reports. It is the former, rather than the latter milestone –
exchange of expert reports - that defines this intersection between the critical
paths of alternative dispute resolution and trial preparation The directions
provide for alternative dispute resolution to be conducted in the same time
frame as that for expert conclaves and joint reports but to not conclude until
after joint reports are available. I envisage that preparation of the expert
evidence is likely to be a significant topic and remaining case management
conferences as there is much to be regulated.”124
Despite these advantages, some commentators have expressed concerns that
fairness and integrity in the trial process might be compromised by widespread
adoption and implementation of the concurrent expert evidence process.125 Most
commonly expressed reasons include fears that: experts will simplify their analysis of
complex evidence to enable lawyers and judges to understand and to meet time
constraints; and dominant experts will overshadow others such that not all opinions
will be fully heard and taken into account.126 However, as considered above, while
experts may be immune from civil suit in respect of what is said or done in court,
they are bound by experts’ codes of conduct and remain exposed to disciplinary
proceedings in the event of transgressions. In any event, it does not appear that
these concerns have been borne out in practice. For example, The New South
Wales Law Reform Commission has reported that the implementation of the
concurrent evidence process in the NSW Land and Environment Court has met with:
"… overwhelming support from experts and their professional organisations.
They find that, not being confined to answering questions put by the
advocates, they are better able to communicate their opinions to the Court.
124
Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 2) [2014] VSC 98 at [37].
125
For example, unless experts are required to give reasons for their conclusions, the interests of
open and transparent justice may be compromised.
126
See for example, Ergas H , "Reflections on Expert Evidence" (2006–2007) Summer Bar News 39
at 42-43; The Davies G, "Recent Australian Development: A Response to Peter Heerey" (2004) 23
Civil Justice Quarterly 388 at 398-399, discussed Rares, above n 1 at [39]-[43].
41
They believe there is less risk that their opinions will be distorted by the
advocates’ skills. It is also significantly more efficient in time." 127
Given that the concurrent expert evidence is a relatively new procedural innovation,
as demonstrated by this article, disputes will inevitably arise in relation to the
practical implementation of the process, both before and at trial. Accordingly,
Freckelton has suggested that “…the utility of the procedure will remain dependant
upon the skills and articulateness of experts, the adoption of focused and fair
procedures by trial judges, and the constructive involvement of well-briefed
counsel.128 In particular, the trial judge will need to take a pro-active role in managing
the concurrent evidence process, taking into account the particular circumstances of
the case, guided by the developing body of precedent which has been considered in
this article, so as to allay criticisms of taking an idiosyncratic approach,129 and to
enable all parties to proceed with increased certainty and confidence.130 In this way,
an appropriate balance may be struck so as to quickly and cheaply elicit relevant
expert evidence so it remains coherent and complete, while ensuring that all parties
have a fair and reasonable opportunity to present their case and test the evidence of
the opposing witnesses.131
127
New South Wales Law Reform Commission, n 107 at [6.51].
128
Freckelton, n 1, p 407, [16.15.280].
129
See the discussion of this issue by Young, above n 80 at [4]. See also Rares, above n 1 at [45][46].
130
For a recent example of the effective use of the case management process to clearly define the
concurrent evidence process see: Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 2) [2014] VSC
98 (Dixon J).
131
Discussed, Young, above n 80 at [26].
42