Principal cases and materials:
The following are principal materials and cases to which I advert in this paper:
- Uniform Civil Procedure Rules 1999 (Qld) (UCPR), Ch 7, Pt 1, r 212(2); Ch 11, Pt 5.
- Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257(da Costa).
- Mount Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 (Mt Pleasant).
- Landel Pty Ltd v Insurance Australia [2021] QSC 247 (Landel).
- Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita).
- Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 241 (Sanrus).
- MR & RC Smith Pty Ltd v Wyatt (No 2) [2012] WASCA 110 (Smith).
- New Aim Pty Ltd v Leung [2022] FCA 722 (New Aim), subject to appeal on the relevant issue.
- Potter v Gympie Regional Council [2022] QSC 9 (Potter), subject to appeal but not on the relevant issue.
- John v Henderson (No. 1) [2013] NSWSC 1435 (John).
- Andrews v Kronospan Limited [2022] EWHC 479 (Andrews).
- KF v Royal Alexandra Hospital [2011] NSWSC 399 (KF).
- Matthews v SPI Electricity Pty Ltd (No. 10) [2012] VSC 379 (Matthews).
- Supreme Court Practice Direction 18 of 2018 (PD 18/2018).
- Supreme Court Practice Direction 2 of 2005 (PD 2/2005).
- Evidence Act 1977 (Qld), s 39PB (Evidence Act).
- Stewart v Fehlberg & Anor. [2008] QSC 203 (Stewart).
“Transgression can lead to severe consequences for the parties, including preclusion of entitlement to adduce evidence at trial from the expert”
Touchstones of the expert evidence assembly task:
The following are the relevant touchstones apropos of such task:
- First, eliciting and formulation of an admissible expert report is, ordinarily, a challenging and time consuming task, to be approached in an insightful and unbiased fashion in order to maximise its probative weight at trial (and beforehand in negotiation).
- Second, it is instructive for each of the soliciting lawyer and reporting expert to proceed on the footing that at trial the opposing litigant will seek to object to the report – in whole or part – as admissible, or impugn its probative weight.
- Third, upon striking the final draft of the report, the expert and lawyer respectively ought audit same to ensure it complies (to the letter) with the UCPR and other content principles, including persuasively addressing comprehensively the merits (including any shortcomings) of the contrary opinion.
- Fourth, after delivery, up to mediation and then trial, the adducing party’s lawyer ought always be looking to plug factual or opinion gaps in the reported opinion, including addressing the merits of fresh contrary opinion.
- Fifth, such lawyers undertake the same audit of the opponent’s expert reports, in particular in preparation for conclave.
- Sixth, competing experts conclaving and reporting therefrom are essential for refining disparate opinion albeit is an “expert only” space.
- Seventh, careful compliance with UCPR and Practice Direction is critical.
“Suffice it to say each side of the record should seek to identify the need for expert evidence – and if so, preferably the relevant expert – as early as possible”
Need for expert evidence:
The need for a party to adduce expert testimony turns on the matters in issue of the case, eg professional breach, machinery or system failure, causation of damage or injury, accounting assessment of damages.
Careful consideration ought be given to whether expert evidence is required to be adduced in the case of a party having regard to the issues pleaded, or likely to be pleaded. At one end of the spectrum is a motor vehicle negligence, simple contract breach or vicarious liability case – in respect of which no expert evidence as to liability (cf damages) need be adduced – while at the other end of the spectrum is flaw identification in machinery, systems or professional or other service provision, valuation of land or business undertaking loss assessment – in respect of which expert evidence inexorably will be required.
The question is whether it can be said with comfort – on either side of the record – that common experience (or judicial notice), by reference to the lay and documentary evidence adduced, will suffice to found the adjudication sought. There ought be an intense focus on the posited breach, causation and damage issues.
If in real doubt – albeit with a mind to the impost in outlays therefor if ultimately unnecessary – seek an expert report. The worst that can happen is that it is found inadmissible at trial on the basis that the issue – in truth – is one for common experience of the judge.
The challenge entailed is exemplified in Da Costa. That was an employment case where the plaintiff suffered injury to his arm in the course of assisting a fellow employee to guide a metal bridge as it was being lowered into position by a crane. There was no expert evidence called. The plaintiff failed to prove negligence. Mason J wrote:
For the purpose of determining whether there was evidence from which lack of a safe system of work could be inferred, I shall assume that this case was adequately pleaded and particularised. No expert evidence was called to support the view that some other method of positioning the cover should have been adopted in the interests of safety. All that was suggested was that the presence of the stanchion constituted a hazard to the appellant which could have been eliminated by first positioning the cover at the appellant’s end. Whether this was a practicable and safe alternative which would have eliminated the risk inherent in the operation we do not know. We are left to speculation and conjecture. Not only was there an absence of expert evidence upon the point, there was a total absence of evidence of any kind upon the point. Neither Aslanovic nor the appellant was asked whether it would have been practicable or safer to position the cover at the upper level before positioning the lower end. In the absence of expert instruction, I should have thought that it may well have been desirable to first position and stabilise the cover at ground level.
However this may be, this is not in my opinion a case in which negligence may be inferred in the absence of expert evidence. It is not enough to show that the operation involves an element of risk; it must also appear that the risk could have been eliminated by some form of precaution or safeguard. In some cases, such as Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; an alternative system of performing the work which will avoid the risk may be clearly identified without the benefit of expert evidence, as a matter of ordinary common sense and common knowledge. But neither common knowledge nor common sense provides an answer in the present case. Accordingly, it falls within the category of which Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 is an example.
(emphasis added)
Expert evidence, however, was not required for plaintiff success in Aston v Redcliffe City Council [2006] QCA 480 at [35], [36] (need for water filled barriers); Kuhl v Zurich Financial Services Aust Ltd [2011] 243 CLR 361 at [84]-[97] (safe machine operation); Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 at [51], [52] (safe pathway by night passage).
“Expert selection is critical”
Time to identify and garner expert evidence:
Suffice it to say each side of the record should seek to identify the need for expert evidence – and if so, preferably the relevant expert – as early as possible. If there is a pre-proceeding process applicable then inexorably that will be the latest time at the very least for the claimant, but probably also the defendant.
Similarly, in a case to which a pre-proceeding process does not apply, it is customary to garner expert evidence in advance of litigation, if only to have a sound foundation upon which to make a demand for relief against a commercial opponent. For example, engineering defect, valuation or accounting evidence.
UCPR requirements:
If expert evidence is to be elicited, be mindful of UCPR Ch 11, Pt 5, as recently amended.
An application for directions in the proceeding must be filed if no expert presently exists: r 424. The “Expert Code of Conduct” must be given to the retained expert: r 429E. The report must confirm that the expert has read, and agrees to be bound by, the Code: r 429G.
The mandated requirements for the report are contained in r 429H (including the “reasons” for the opinion and “if there is a range of opinion on matters dealt with in the report – a summary of the range of opinion, and the reasons why the expert adopted a particular opinion”).
If the expert wishes to “change, in a material way, an opinion included in a report” then the expert must advise the appointing party of the same, and that party must make an application to the court for directions: r 429K.
Disclosure of an expert report is compulsory, an exception to legal professional privilege: UCPR r 212(2).
Importantly, UCPR r 429I requires disclosure of a report to be relied upon “as soon as practicable, and in any case” by the plaintiff within 90 days of close of pleadings, by the defendant within 120 days of close of pleadings and by a third party within 90 days after the close of pleadings for that party.
Technically, after those dates, leave is required to deliver further (cf updated) expert evidence.
“Prior discussions with a prospective expert are essential”
Selecting the expert:
Expert selection is critical. While a regular well-known court expert may be readily available and cooperative, sometimes they are not the right person (accountants, probably, an exception to this). Resort to the standard engineering liability experts for every case, with respect, could result not only in report inadmissibility at trial, but if admitted then being attributed little probative weight.
The touchstone is expertise in the task at hand – as opposed to being able to identify and master published literature and draw on that, to the extent it is admissible (see below), to express an opinion.
Thus, formal education in the sphere – tertiary or otherwise – is not critical, albeit often helpful.
Albeit decided under the Uniform Evidence Act (albeit relevantly reflects the common law), in Mt Pleasant – the plaintiff was injured breaking race horses at a horse stud, while working with an assistant – the NSWCA wrote at [30]-[32]:
Mt Pleasant disputed whether the evidence quoted was substantially based on any specialised knowledge on the part of Mr Matthews. Mr Matthews’ CV indicates that since leaving school in 1988 his experience encompassed “20 years riding experience as a professional jockey”, “25 years of starting horses under saddle for the public”, “8 years of dedicated application to breeding and training endurance horses”, and 30 years as a horse trainer including “[s]tarting horses under saddle and training problem horses”. Mr Matthews has also given seminars on equine behaviour. Mt Pleasant did not dispute the accuracy of any of this. Whilst Mr Matthews’ CV suggests that his formal education ended in Year 9 of secondary school, s 79(1) refers to “specialised knowledge based on the person’s training, study or experience”. Mr Matthews’ experience was extensive and provided good reason to think that he had specialised knowledge of horse behaviour and training, along with the appropriate attributes of people involved in the breaking-in of horses.
(emphasis added)
Prior conferencing with prospective expert:
Prior discussions with a prospective expert (cf quantum medical) are essential. The risk in question is that the opinion canvassed may be adverse and another expert opinion need be elicited.
Whether or not the expert is subsequently retained, such discussions are not disclosable, so long as any note of the opinion is not written down by anyone, in which event that memorandum is disclosable. The apt course is to remember the substance and record it in an advice to the client, or to another lawyer in the legal team.
Dalton J (now Dalton JA) confirmed as much in Landel at fn [7]:
… [T]here has been a practice of orally engaging experts and receiving, at least their initial, opinions orally. Only if the expert’s initial oral opinion is favourable are documents produced. To my understanding, this is a common practice and permitted by the rules. I note that the LexisNexis annotations include, “Although the consultation draft for the UCPR contained a provision that required the recording in writing and disclosure of expert’s oral opinions, that provision was ultimately omitted from the Rules.” If, when an expert is giving such an oral opinion, a solicitor takes notes, those notes are disclosable in my opinion.
(emphasis added)
“Lawyer involvement – other than formal – must be disclosed (however awkward that may be)”
Instructing the expert:
Time, thought and effort are required for proper (written) instruction of the expert.
First – Provide the UCPR Expert Code (mandatory as above) and rr 429G, 429H (declaration and form requirements for report content
Second – Inform the expert of the Makita requirements for content when drafting of the expert report (see below), inc to list factual assumptions in report. Instruct them to annex the written instructions and Curriculum vitae to the report and attribute assistance and external sources (eg literature) informing the report content.
Third – Draft clear and concise questions within the expert’s expertise.
Fourth – List factual assumptions upon which the expert is to found their opinion (or prove by opinion if able), and provide basal evidentiary documents if apt, but NEVER brief the expert with pleadings or witness statements (or excerpts therefrom), NOR offer or permit any witness to confer with the expert (medico-legal quantum – not liability – report an obvious exception to latter). How often do you see otherwise?
Fifth – Instruct the expert all reasoning – including why the question asked (in the context of the assumptions) falls within the expertise and reasons for rejecting any identified or patent contrary opinion – need be exposed in the body of the report.
Sixth – Instruct the expert to revert to you pre-delivery of report, if in doubt as to form so as to comply with the UCPR or instructions, or apropos of their necessary expertise. Hubris and self-interest – with respect – usually will inhibit them doing so, thus emphasis required.
Makita informs the above instructions to the expert. At [85], Heydon JA stated that for expert opinion evidence to be admissible, it must meet the following criteria:
- first, it must be agreed or demonstrated that there is a field of “specialised knowledge“;
- second, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
- third, the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge“;
- fourth, so far as the opinion is based on facts “observed” by the expert, those facts must be identified and admissibly proved by the expert;
- fifth, so far as the opinion is based on “assumed” or “accepted” facts, those facts must be identified and proved in some other way;
- sixth, it must be established that the facts on which the opinion is based form a proper foundation for it; and
- seventh, the expert’s evidence must explain how the field in which the expert has expertise — as established pursuant to (a), (b) and (c) — applies to the facts assumed or observed so as to produce the opinion propounded.
The questions posed by the party’s lawyers for answer by the expert ought be expressed in an unbiased and factual way – the expert is being asked for an opinion squarely within their expertise, not become a “bush lawyer”. The possible exception being a professional negligence case involving lawyers, but even then the expert lawyer is not permitted to say what he or she would have done in the same position, but rather what the common practising solicitor or counsel would have done.
In Landel it was observed at [34] that this need be done with a focus – by briefing lawyers – on the pleaded issues:
[It is not] the role of expert witnesses to concern themselves with the legal issues in the case. It is the job of the lawyers in any case to define questions upon which they seek expert opinion. This has to be carefully done so that the expert opinion obtained is relevant to the legal issues in the case.
Admissibility aside, to do otherwise, likely, will serve only to diminish the probative weight of the expert opinions expressed, or worse rendered inadmissible.
“Unless, in truth, they are affording an entirely discrete opinion – in which event a separate report ought be obtained from the holder of such an opinion – there is no objection to others being involved in the formulation of the expert report opinions, but the fact and extent of contribution need be identified”
Saliently, the expert ought be instructed to express their opinion based upon identified assumptions of fact and also upon alternative combinations of assumptions as a fallback to avoid non-proof of same eg “absent assumption(b) and (e), in my opinion …”.
In Sanrus Bond J (now Bond JA) wrote at [98], [99]:
The second relevant aspect of the Makita criteria is that the facts on which the opinion is based must be identified by the expert. As to this:
(a) This is part of what the fourth and fifth of the Makita criteria address. In R v Naidu [2008] QCA 130 at [68], Fraser JA said that ‘[i]t is unquestionably the law that expert opinion evidence is inadmissible if the opinion is not expressed upon a state of facts both identified and proved in evidence’ (emphasis added).
(b) In Dasreef Pty Ltd v Hawchar at [64] Heydon J called this the “assumption identification rule”. His Honour observed …:
There is no doubt that the assumption identification rule exists at common law. Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert — by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways. Thus Dixon J said that the assumptions of fact on which an expert opinion rested had to be “adverted to by the witness”.
(c) The previous two subparagraphs demonstrate that a failure to identify the state of facts on which the expert opinion is expressed goes to the admissibility of the evidence, not its weight.
…
(c) The important point is that insofar as a litigant seeks to prove facts on which an expert opinion is based by way of the expert’s own evidence, that proof must be done in an admissible way by that expert. If the expert witness’ own evidence of the facts is not admissible to prove them, then the most that that part of the expert’s evidence could be regarded as, is a statement of what the expert assumed to be true for the purpose of the expert formulating the expert’s opinion evidence: cf Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542 per Fraser JA at [4]. If those assumptions are not confirmed in some other way by admissible evidence in the proceeding, then the expert opinion evidence will not be admissible.
(emphasis added)
A recitation of assumptions in a report, also, conveniently, is a checklist for proof at trial by lay or other expert testimony, and cross-examination.
Request the expert to eschew – even if they strongly believe same – swearing the issue – whether as to breach, causation or damage, eg a liability expert opining ”The defendant employer acted contrary to its obligation of safety to the plaintiff worker by not providing a ladder rather than a stool as it did” is inadmissible.
The opinion is best expressed in abstract for use in ultimate adjudication (eg by reference to usual commercial or trade practice, shortcoming of machine or system in use in context of marketplace usage and availability).
There are exceptions to so swearing the issue, eg a medico-legal opinion – diagnosis or prognosis – but even then best to opine focused on what the history, examination and diagnostic testing are more consistent with or likely to yield. Other examples are valuation and – to some degree – accounting assessment.
A recent example of inaptly instructed expert assumptions – albeit in which the quality of the evidence was such that the position was retrieved for the adducing party – is Mt Pleasant at [34]-[37]:
The … challenge to the report’s admissibility is that there was no evidentiary utility in the opinions of Mr Matthews in the absence of any reasoning on his part as to what was meant by “suitable size, experience, height, stature and strength”. … There were some problematic assumptions which Mr Matthews was asked to make by [plaintiff] Mr McCormick’s solicitors. The assumptions included the following:
“Persons of suitable experience, size, height, stature and strength were working on the farm but were not registered with Racing NSW and thus the plaintiff was unable to engage their assistance.… The assistant that the plaintiff was required to use on this occasion was Mel Bolwell an apprentice jockey weighing approximately 45kg and standing approximately 155cm tall.”
The combined effect of these paragraphs is that Mr Matthews was asked to assume that Ms Bolwell was not a person of suitable experience, size, height, stature and strength. This means that to the extent that Mr Matthews gave evidence that Ms Bolwell was not appropriate for the job, that evidence would arguably not assist the Court, being a conclusion that followed from the assumptions.
The same may be said of Mr Matthews’ statement that “the plaintiff was put in an unsafe position, in my opinion, due to not having a handler of suitable size, experience, height stature and strength”. … In any case, there remains evidentiary utility in the more general opinion of Mr Matthews that “an experienced handler of suitable size, stature and strength is vital”, and that, in the event a horse is becoming stressed, “a larger, stronger, more imposing handler can use his strength and stature to subdue the animal”. … The effect of his evidence is that the larger and stronger a person, the more they are able to control a horse. Such evidence goes to a fact in issue, being what reasonable precautions ought to be taken at the weight test stage of breaking-in a horse. His evidence indicates that the bigger and stronger the assistant, the less likely one will be to lose control of the horse. He gave some reasons in support of that conclusion which were understandable – if, in some respects, odd …
(emphasis added)
In contrast, had Mr Matthews opined only that it was common practice in the equine industry – and had been for many years – to deploy men, or women, not just with task experience, but of a particular stature or height and weight (eg over 75 kg), so that the horse about to be broken would be adequately controlled to protect the mounting breaker from injury, the same would have been admissible, and probative.
Sources relied upon and assistance from others:
Consistent with the Makita principles, the expert, in exposing their reasoning, need identify any external sources relied upon to express that opinion, eg other persons informing them as to particular identified matters and the form that took; sourced literature, including the particular portion thereof relied upon (and, ordinarily, any strong competing literature), published performance guidelines.
“Draft clear and concise questions within the expert’s expertise”
Care ought be exercised by the expert to prove – if not then to identify for necessary proof – all survey, statistical and externally collated documentary evidence relied upon: Sutton v Hunter [2021] QSC 249 at [79]-[81].
If the expert relies upon any written standard of performance of a non-statutory character – the expert ought in the reasoning descend not just to the fact but also to the period, manner and breadth of acceptance of such standard in the relevant professional or technical community prior to the relevant litigated events. Failure to do so will render the opinion inadmissible, or if admissible then of minimal diminished weight.
In this regard, in Smith the WASCA wrote at [70]:
….[E]ven if there is no statutory or contractual application of an Australian Standard [or like published] prescription, it may still be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building constitutes a danger which must be guarded against by the exercise of reasonable care: see Fitzpatrick v Job [2007] WASCA 63 at [94]. Failure to follow a standard does not, without more, establish negligence: O’Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239 at 242; Jones v Bartlett (2000) 205 CLR 166 at [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 at [43]. It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 at [169].
(emphasis added)
In my experience, this requirement for admissibility is honoured more in the breach than the observance in expert reports. I challenge the reader to recall the last time they observed compliance with establishing such “acceptance” of a standard or like prescription they have identified, and moreover, if they could have done so (other than by mere hearsay) had they been prompted!
Unless, in truth, they are affording an entirely discrete opinion – in which event a separate report ought be obtained from the holder of such an opinion – there is no objection to others being involved in the formulation of the expert report opinions, but the fact and extent of contribution need be identified.
In Landel it was observed at [29]:
There is a practice, particularly in large accounting cases, where it is not possible for one accountant to do all the work necessary to prepare an expert report, whereby the partner of a firm will sign an expert report, but acknowledge that other named accountants have performed various tasks which feed into his or her ultimate conclusions. Generally, it is only necessary to cross-examine the accountant who signs the report and swears the affidavit in the proceeding. In such cases, there is no objection to all the accountants involved conferring with lawyers together and working together. They are not purporting to give independent views, but working as a team.
Comments on other experts:
While some common sense is required so as to enable one expert responding to a specific contrary opinion of another expert – or, moreover, the reasoning for that particular opinion – wholesale commentary on other opinion is precluded. In Landel Dalton J observed at [33]:
Another undesirable consequence of the unusual instructions given to Dr Connor is that his report not only gives his opinion as to the cause of the inundation of the shopping centre (which is the legitimate subject matter of expert opinion in this case), it reviews the reports given by Dr Macintosh and Mr Caddis, at times, line-by-line. In accordance with his instructions, he assumes the role of some sort of uber-expert, or perhaps engineering-judge, in explaining why he prefers Mr Caddis’ opinions to those of Dr Macintosh. This is not the role of an expert witness.
“When questions are framed for experts in advance of a conclave they should not be framed as in an interrogatory but rather in a way that invites discursive answers more likely to reveal the true reasoning of the experts”
Role of lawyer in drafting:
In Landel the court wrote at [19]-[20]:
…[W]hile lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this, I would expect that attention to have come from both the solicitors and counsel briefed in the matter.
Indeed, any transgression of the above UCPR, Makita, source or acknowledgement principles behoves legal practitioner intervention.
Lawyer involvement – other than formal – must be disclosed (however awkward that may be).
The lawyers, however, can go too far, the report being rendered inadmissible – as a matter of discretion – as not being an independent report. In New Aim (pending appeal)at [71], [76]:
…It may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else, but then in my opinion, only if that fact is disclosed in the report. In this case, that fact was not only withheld but was only ascertained during the course of cross-examination of Ms Chen, which in my opinion, was grossly unsatisfactory. … What occurred, in this case, went far beyond the permissible scope of involvement of lawyers who retain an independent expert in order to give evidence in a proceeding. I reject the submission of counsel for the applicant that I should accept Ms Chen as an independent expert witness and that “the process by which her evidence was prepared is unremarkable.” For the reasons I have given, it most certainly was not. Even if in some circumstances it is proper for lawyers to draft an independent expert witness statement for consideration by the putative expert, that fact must be disclosed in the expert report… And then, all correspondence relating to the manner of preparation of the report should be disclosed and, to the extent that oral advice is conveyed to the expert, the substance should be documented and disclosed. What occurred in this case should not be repeated.
(emphasis added)
Disclosing draft reports or lawyers’ notes of opinion:
The law is crystal clear that draft expert reports are disclosable if they come into the hands of the represented party or their solicitors, and if they do not then probably if the subject of an application for non-party disclosure (it could be embarrassing if a draft report comes to hand at trial in the latter category): Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 QdR 373 [10]-[15].
Likewise, a solicitor’s or counsel’s note of a prior (see above) or post-report orally expressed opinion in conference (the lesson: take no notes!)
If a party’s team lawyer, whether counsel or solicitor, forms a considered view that disclosure must be made – irrespective of correctness of a prevailing contrary team against need for disclosure – must ensure disclosure ensues, or that lawyer must withdraw. To do otherwise would leave one’s practising certificate at risk! Inexorably good sense prevails.
It is vogue for a draft report to be viewed under an expert controlled platform – that is without control being available to lawyers at any point in time – such that the draft is never in the power, possession or control of the retaining lawyers or their client. Can be forensically difficult, however, for lawyers to explain at trial if experts asked about drafts.
Updating memoranda or supplementary report for expert opinion:
In most cases where there is some clarification of a discrete point or points or crisply expressed filling of a gap or gaps, an expert – having previously reported – signing a lawyer interview memorandum – necessarily compliant with the UCPR and Makita principles – will suffice, eg scientific or medical expert addressing particular opinion of another expert in their field, comment by an engineer or accountant upon application of a standard.
In other instances, the supplementary opinion will be of such moment, or so expansive, that a supplementary report is the proper course.
In either case, care ought be exercised as to timeous disclosure thereof because if the opinion is new or novel, then it is likely to take the opposing party by surprise, particularly if the request for trial has been signed, or moreover if trial is imminent. It may not be admitted.
Multiple reports and memoranda can also be confusing for a judge, unless, perhaps, adequately clarified and summarised in a conclave report.
In Potter, apropos of multiple reports and drafting of memoranda, Brown J wrote (at [592]):
The presentation of psychiatric evidence by both parties in the present case was unsatisfactory, with the Court being presented with eight reports or signed memoranda of telephone conversations by Dr Byth and six reports or signed file notes by Dr Jetnikoff. The necessity for the multiple reports was not readily apparent, although there appeared to be some stabilisation of Mr Potter’s condition after the earlier reports. A lengthy diary note of the telephone conference with Dr Jetnikoff which was signed by him was submitted on behalf of the defendant. The plaintiff noted the unusual circumstances of providing such a diary note. However, the plaintiff also tendered in evidence a file memorandum signed by Dr Byth. In addition, Dr Byth and Dr Jetnikoff provided separate notes of an expert conclave said to have occurred on or about 30 March 2020 with no joint report being provided. Both doctors subsequently provided further reports. While I did not doubt the independence of either Dr Byth or Dr Jetnikoff, the independence of an expert is paramount. Solicitors should exercise great caution in drafting memoranda of conferences with the experts to be signed by the expert rather than having experts themselves preparing such documents. While it was the subject of comment in the present case by the plaintiff’s Counsel as being relevant to weight, to which I had due regard, cross-examination of Dr Jetnikoff clarified that he had made considerable changes to the memoranda of the conference before signing the memoranda. I also reviewed the signed memorandum compared to Dr Jetnikoff’s earlier reports and I am satisfied that it does fairly reflect his opinion. It is not however a practice which should be encouraged.
(emphasis added)
With respect to her Honour, drafting of such memoranda – in my view – is better done by solicitors (and/or counsel) than the expert – if only to have it done promptly, and dare I say accurately in the case of a busy expert.
The lesson from Potter, however, is not to overdo it; resort to a request for supplementary report – albeit preceded by a conference to ground the additional opinion to be expressed – if other than a discrete issue or issues falls to be addressed.
“UCPR 427 provides that the Court can direct that the number of experts who may be called to give evidence on a particular issue or for a particular area of expertise is limited. PD2/2005 suggests that only one expert in each area of expertise should be called by a party.”
Expert conclaves:
Reporting experts in the same field of expertise will be directed by the court to conclave and report thereon.
In John at [11] Garling J wrote:
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.
Also in John at [22], Garling J noted that when questions are framed for experts in advance of a conclave they should not be framed as in an interrogatory but rather in a way that invites discursive answers more likely to reveal the true reasoning of the experts.
Appointment of a conclave facilitator may be apt in some instances. In KF, Johnson J observed:
The appointment of a [conclave] 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.
A facilitator may be needed where there are a large number of issues, a significant number of alternative answers to questions, a large number of experts or where there is a history of inadequacy in or management of production of a joint report that satisfies its objectives. Appointment of a facilitator may also mitigate against the risk of one expert being dominated by another.
“Bickering” between the parties’ legal representatives caused Forrest J in Matthews to appoint an Associate Justice to “manage” the conclaves between the experts.
Cases arise where there are multiple experts on multiple issues, with not all of them having expertise on all of the issues. Usually there are separate conclaves but sometimes a single conclave may be directed with the experts directed to only participate in answers that are within their own area of expertise. See also Avery v. Flood [2013] NSWSC 996 and Porter v. Le [2014] NSWSC 883.
These are the essential rules in the conclave space:
- First, the expert can and should be instructed in writing the general structure, method, process, purpose, role, but that lawyers do not participate in the conclave, or (ordinarily) communicate with the conclaving experts once embarked upon or before them finalising the conclave report.
- Second:
- the expert ought not be coached by the lawyers;
- engineer and clarify fee agreements with sufficient precision and certainty as to cover contingencies.
Transgression of the first matter above can lead to severe consequences for the parties, including preclusion of entitlement to adduce evidence at trial from the expert. In Andrews, despite the expert having been engaged by a party for three years, and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had liaised closely with the briefing solicitor concerning the content of the draft conclave report – ordered preclusion (at [34]):
I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.
(emphasis added)
While communication with the expert during the conclave or after the conclave but before report is precluded, exceptionally it may become necessary for a legitimate purpose. For example, the conclaving expert may request a document or clarification of a factual assumption. If this arises this ought be addressed on notice to all parties (even if not initially).
The conclave report, too, need comply with the UCPR and Makita principles. The conclaving experts ought be so instructed by the parties. The parties collectively may need to intervene subsequently to ensure such report harbours such compliance: Andrews at [18].
It is not just the disagreement of the experts on an issue in such report that should result in a statement of reasons for their disagreement. Where the experts agree on something they should also set out their reasoning. Were it otherwise, a court will be bereft of the reasoning necessary to enable such issue opinion to be accepted or rejected at trial.
Conclaving experts often will afford concurrent evidence at trial.
Preparation for trial:
PD18/2018 requires the parties to resolve or narrow issues in dispute and to ensure that the costs of preparation for trial and trial are minimised. One of the methods used to do so is to develop a “reliable trial plan and ensure that expert witnesses in the same field give their evidence concurrently or consecutively, if possible”.
UCPR 427 provides that the Court can direct that the number of experts who may be called to give evidence on a particular issue or for a particular area of expertise is limited. PD2/2005 suggests that only one expert in each area of expertise should be called by a party.
A Trial Plan must be prepared as part of the PD18/2018 case management. The Trial Plan should include exchange of objections to expert evidence at least one month before trial, time allocated for argument in relation to the objections and at least 48 hours for the trial judge to rule on the objections before expert witnesses give evidence. If the trial is not long enough for that to occur, it may be that argument relating to admissibility of evidence should be conducted before the trial: UCPR 367.
Once rulings are made, amendments to the reports to reflect the ruling should be made before the reports are tendered as evidence.
“The law is crystal clear that draft expert reports are disclosable if they come into the hands of the represented party or their solicitors”
In Stewart, McMeekin J. concluded that there ought “ordinarily to be only one expert in any given field” called by each party, and that evidence of multiple experts of the same expertise being called by the one party should only be allowed if the justice of the case so requires.
In balancing the discretionary factors, His Honour took into account work undertaken by various experts and the costs involved in the preparation of those reports, the taking up of time and resources of the Court in hearing and deciding between multiple experts and the interests of justice by permitting multiple experts to call evidence.
Care must be taken in pre-trial orders to ensure that the allocation of an expert to an area of “expertise” does not preclude that expert from giving evidence on a topic that is contained within their expert’s report that may be broad enough to be otherwise admissible.
UCPR 429G provides that the expert may give evidence-in-chief in the proceeding only by a report. The expert may give oral evidence-in-chief in the proceeding only if the Court gives leave: UCPR 429G(5).
Subject to any Rules of Court, an expert witness is to give evidence to the Court by audio-visual link or audio link: Evidence Act, s 39PB.
The Court may, on its own initiative, or upon the application of a party to the proceeding, direct that the person is to give oral evidence to the Court other than by audio-visual link or audio link if the Court is satisfied it is in the interests of justice to give the direction: Evidence Act, s 39PB(3).
If the expert is to give evidence by video-link, a comprehensive brief of documents needs to be provided to the expert either in an electronic or hard copy. Where the documents are numerous, the parties should agree on a bundle that will be provided to the expert for the purpose of giving evidence remotely.
Postscript:
On 6 December 2022 Chief Justice Bowskill of the Supreme Court issued the following draft Practice Direction concerning expert evidence to be adduced in causes conducted on the Court’s Commercial List:
- Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) applies to all proceedings on the Commercial List.
Preparation of expert evidence
- When a proceeding is placed on the Commercial List, the parties are expected to give early consideration to whether expert evidence is to be called in the proceeding. In a usual case, the parties will be expected to address the need for expert evidence at the first review.
- The retainer of any expert always remains subject to the objects of rule 5 of the UCPR. The parties are not to retain an expert whose availability to prepare and complete a report is likely to cause undue delay to the efficient conduct and resolution of the proceeding.
- Where contentious expert evidence is to be adduced in a proceeding, the questions to be answered by the expert are, as far as possible, to be those specified by the Court or agreed by the parties. Questions for an expert should be framed with a view to assisting the resolution of a real issue or real issues in the proceeding.
- The parties should consider whether it is cost effective and expeditious to prepare a joint statement of assumptions to be made by the experts including any competing assumptions to be made in the alternative.
- The unnecessary duplication of effort in preparing chronologies and other materials briefed to experts is to be avoided with the intent that experts in the same field are briefed with the same or similar materials.
Expert conferences
- Where contentious expert evidence is to be adduced, the Court will usually direct the experts to confer before trial and may direct the experts to confer before they have completed their respective reports. It is important that experts are instructed that the code of conduct (as defined by r 425 UCPR) applies with full force and effect to the conference and the preparation of the joint report.
- Following any conference, the experts are to prepare a joint report for the Court (at all times mindful of their obligations under the Code of Conduct) stating:(a) the matters upon which they were directed to confer;(b) that they have met and discussed each matter upon which they have been directed to confer;(c) the matters on which they agree;(d) the matters on which they disagree; and(e) a concise statement of the reasons for any disagreement.
- In a case where the experts have experienced difficulty in preparing the joint report, a commercial list judge may direct that the preparation of the joint report be facilitated by the Resolution Registrar or another suitably qualified person.
Expert evidence during a hearing
- A commercial list judge may give directions to the effect that: (a) expert evidence at trial will follow the factual evidence upon which the expert evidence is predicated; (b) two or more experts present their evidence concurrently and may, if permitted by the judge, question each other in relation to their evidence.
(emphasis added)
Conclusion:
The task of eliciting, managing and adducing expert evidence is one replete with challenges and complexities.
Careful attention should be given to each of the above matters.
