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Middleton, Justice John --- "Assessing the future: The challenge of running competition cases" (FCA) [2019] FedJSchol 13

(a) adopting the report in whole or in part;

(b) varying the report;

(c) rejecting the report;

(d) making such orders as the Court thinks fit in respect of any proceeding or question referred to the referee.

In at [35]-[62], Lee J helpfully set out the background to the use of referees as a method of ensuring that discrete issues in litigation are determined with maximum efficiency. In , Murphy J adopted the comments of Lee J, and in a different discourse of jurisprudence referred to the use of a panel of candidates for selection as referees.

Then there is the potential use of assessors to assist a judge in understanding scientific, technical or economic matters. Viscount Simon LC in Richardson v Redpath, Brown & Co Ltd [1944] AC 62 said of the role of assessors:

But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witnessaEURtms view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.

In the case of Matthews v SPI Electricity Pty Ltd (ACN 064 651 118) & Ors [2013] VSC 630, J Forrest J set out a process for the use of assessors at [27]:

The primary role of the assessors is to assist the court in understanding the evidence of the experts. Applying the CPA, combined with the principles of natural justice and the guidance from the cases I have referred to, I set out below the scope of the role of the assessors in this case:

(a) The assessorsaEURtm role is to assist the judge. The decision is that of the judge alone.

(b) The assessors will sit with me during the concurrent evidence sessions. If they wish, they may question the experts (or counsel) in this context. Such questioning however will be limited to clarification of the evidence; that is, where they consider the evidence to be ambiguous, unclear or incomplete.

(c) I may consult with the assessors while sitting if I find a point of evidence unclear and seek their immediate input as to an appropriate or useful inquiry to make.

(d) I will consult with the assessors whilst in chambers on matters raised by the experts in their oral evidence and in their individual and joint reports. This may include advice as to any questions the assessors think I should ask counsel or the experts in order to determine the questions at hand.

(e) I will seek the guidance of the assessors on technical matters upon which I lack the requisite knowledge to understand without qualified assistance. This may include aEURoelessonsaEUR on matters fundamental to, for example in this case, fracture mechanics or vibration.

(f) If the assessors raise a theory or opinion that has not previously been identified by the parties, I will discuss this with counsel.

(g) The assessors may from time to time provide me with advice on matters over which there is dispute between the experts. Such advice is not binding and the determination of a particular issue rests with the judge.

(h) I anticipate that I will consult with the experts immediately after the conclusion of the concurrent evidence session and, from time to time, while drafting the judgment. This is likely to include seeking confirmation from them that I have properly understood the meaning of the expert evidence of conclaves 1, 3 and 4. I repeat, however, that their role is confined to providing advice and ensuring that I have comprehended the evidence given. I also repeat that the decision on these issues is mine and mine alone

More recently, in Carlewie Pty Ltd v Roads and Maritime Services [2018] NSWCA 181, Basten JA made the following observations as to the use of assessors:

28. The modern case law now contains a number of considered explanations by experienced trial judges as to how they have used scientific advisors in the course of proceedings. Three elements may be noted. First, generally assessors have been encouraged to articulate reactions to particular submissions or evidence in open court, so as to allow such views to be exposed and considered. Secondly, to the extent that alternative views were expressed to the judge in chambers, these too were conveyed to the parties for their comments. Thirdly, in each case the judge appears to have been at pains not merely to reiterate that the issues for determination rested with the judge alone, but also to explain that the expert assessors, who appear to have been appointed on an ad hoc basis in each case, understood their limited role. By these means, the distinction between assistance and adjudication was maintained and, further, a reasonable degree of transparency was achieved for the purposes of what was otherwise an adversarial hearing. Although the statutory schemes for the appointment of Commissioners in the Land and Environment Court differ from the provisions in various Supreme Court Acts or rules, and in s 217 of the Patents Act 1990 (Cth), that approach could be adopted in the Land and Environment Court.

29. As already explained, the issues upon which a Commissioner may provide assistance and advice are not expressly constrained by the terms of the Land and Environment Court Act and, at least in the present case, there is no reason to imply a constraint. Nevertheless, the functional distinction between advice and assistance on the one hand, and adjudication on the other, is expressly stated and must be adhered to. Thus, there is no doubt that if the judge deferred to the opinion of the Commissioner without being persuaded that it was correct, the exercise of the jurisdiction would have miscarried. On the other hand, if the judge has formed an independent opinion with respect to each material issue, there can be no complaint that those opinions were shared by the Commissioner.

Let me say this by way of conclusion. There is no doubt that litigation in the competition and regularity area will be on the increase: in both number and complexity. The judgeaEURtms role will necessarily become more difficult and much more reliance will be placed upon the profession to fulfil their duties to the court. For my part, I will attempt to comply with Ms WaterworthaEURtms list of aEURoeeffective non-verbal behaviour for solution aEUR" focused judgesaEUR, especially active listing, relational listening and non-coercive communication.


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