New High Court judge speaks about the use of expert evidence

Justice Michelle Gordon, the newly appointed member of the High Court, this week spoke of the need for parties seeking to rely on expert evidence to make early application to the court for directions.  Her honour was speaking extra judicially at a seminar on 21 July hosted by the Victorian Bar on expert evidence in Federal Court cases.  As a former judge of the Federal Court her honour was involved in many complex cases involving expert evidence and is well qualified to talk on the topic.

Her honour’s view reflects the obligations imposed on parties in litigation in Victorian courts.  Part 4.6 of the Civil Procedure Act 2010 is directed to expert witnesses and expert evidence.  Section 65G requires a party to seek directions from the court “as soon as practicable” if they intend to adduce expert evidence or become aware that a party may adduce expert evidence at trial.  Regrettably this obligation – which is part of the parties overarching obligations under the Act – is often not complied with.

The need for expert evidence requires careful consideration by the legal team involved – solicitors and counsel – at an early stage; ideally even before proceedings are commenced.  Obtaining expert opinion is expensive.  The exercise needs to be carefully managed so that the lawyers involved discharge their obligations to the client to ensure that appropriate evidence is obtained in a timely way and through a proportionate and cost-effective process.

The modern approach to expert evidence requires the early identification of relevant issues and the early conferral of experts with a view to producing a joint report.  The courts assistance may be necessary to frame the issues and relevant questions for the experts.

We are moving towards a process where experts confer early (even to frame the questions for opinion) and are not required to produce individual reports until after they have conferred and then only on the issues on which they disagree.  Concurrent evidence (the process by which experts give their evidence together at trial; colloquially referred to as the “hot tub”) is now generally the preferred method of receiving expert evidence at trial in both federal and state courts.

This process can only work efficiently if the parties cooperate, in conjunction with the court, to agree the procedure and protocols to be followed.  It is critical that counsel be involved in this process from the outset if the mistakes made in cases such as Dura (Australia) Constructions v Hue Boutique Living (No.3) [2012] VSC 99, are to be avoided.

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