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Supreme Court of Victoria |
Last Updated: 4 September 2012
AT MELBOURNE
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SPI ELECTRICITY PTY LTD (ACN 064 651 118)
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Plaintiff by counterclaim
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V
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UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS
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Defendants by counterclaim
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF RULING:
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CASE MAY BE CITED AS:
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PRACTICE AND PROCEDURE - Expert witnesses – Composition of conclaves – Appointment of an Associate Justice as supervisor – Use of moderator and scribe – Use of video links between experts.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Mr T Tobin SC
Mr L Armstrong Ms M Szydzik |
Maurice Blackburn Pty Ltd
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For SPI Electricity Pty Ltd
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Mr J Beach QC
Mr P Solomon SC Mr D Farrands |
Freehills
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For USC
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Ms E Brimer
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Holman Fenwick Willan
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For the State parties
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Mr C Caleo SC
Mr M Rush Mr A Pound |
Norton Rose
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Introduction
1 This time a dispute has arisen, primarily between Mrs Matthews and SPI, as to the composition and conduct of the conclaves of expert witnesses which are due to be held in late September.
2 Essentially, the argument boils down to whether the expert witnesses will participate in discrete sub-issue conclaves or whether the conclave should consist of a larger group of experts. There are also a number of other relatively minor issues including the question of whether there should be the assistance of a moderator and a scribe during the course of the conclaves.
What model should be adopted for the conclaves?
3 It is agreed that there are six general topics which are to be the subject of expert evidence, namely:
• fire ignition;
• conductor break;
• asset management;
• prescribed burning;
• fire suppression; and
• warning.
4 The lawyers for Mrs Matthews argue that the conclaves should take place within these broad topics – the Maurice Blackburn model. Accordingly, the fire ignition conclave would comprise four experts engaged by Mrs Matthews and one engaged by SP AusNet. On the question of conductor break, there would be five engaged by Mrs Matthews, three engaged by SP AusNet and three by USC. On prescribed burning, there would be one engaged by SP AusNet and one by the State parties. On fuel management, one by SP AusNet and two by the State parties and on fire path and impact of fuel levels on the fire path, one by SP AusNet and probably one by the State parties.
5 Alternatively, the SP AusNet approach – the Freehills model – is more detailed and involves specific issue-by-issue conclaves. This model would result in roughly the following fourteen separate meetings:
(a) quantitative analysis
(b) qualitative analysis
(a) finite element modelling;
(b) field test;
(c) physical model; and
(d) research based calculations.
(a) quantitative analysis (Kilmore East fire);
(b) quantitative analysis (hypothetical fire); and
(c) qualitative analysis;
6 The Freehills model would result in double the number of conclaves and be challenging administratively. It is likely that the maximum number of experts in any conclave using the Freehills model would be four, with the majority involving two or three experts. It was strongly criticised by counsel for Mrs Matthews in their oral and written submissions. However I think it is the preferable approach, and provided a degree of flexibility is given to its implementation, it should be adopted for the following reasons.
7 First, by having a conclave devoted to specific issues there can be no question about the expertise of the particular witnesses who author the joint report. That report will ultimately form part of the evidence at trial and any issue about the expertise of the witnesses (which may arise in a mass conclave where witnesses possess differing areas of expertise) will be avoided. The Maurice Blackburn model has real potential to lead to the production of a joint report where there are issues about the capacity of the authors to express the opinion contained in the report.[1] This problem cannot be cured by a judicial direction as suggested by counsel for Mrs Matthews. The suggestion that parts of the report be signed off by only those experts with expertise in the relevant field has little, if any, attraction
8 Second, it accommodates a direction I gave earlier in the proceeding to the effect that this was not a “battle of numbers”. I reject emphatically the submission of Mrs Matthews’ counsel that this choice was one made by SPI solely on a forensic basis. My clear indication to the parties was not to engage a bevy of experts and rely upon weight of numbers to get them across the line. Under the Maurice Blackburn model, one of the conclaves would provide for five witnesses engaged by Mrs Matthews’ side and one by SPI. This is exactly the type of confrontation I hoped to avoid. One of the advantages of the Freehills model is that the potential imbalance is not as skewed as it is under the Maurice Blackburn model. I will return to the question of imbalance shortly.
9 Third, the provision of joint reports dealing with specific and discrete issues will, hopefully, help refine the issues and has a greater prospect of leading to clearer identification of the issues that are in dispute and those that are not.
10 Fourth, there will be scope to expand the conclaves if the experts think it of assistance – and it is legally permissible. I propose to have a judicial officer available to the parties, and more importantly, the experts in the weeks prior to the conclaves. I am not prepared to accept the affidavit of Mr Rory Walsh of Maurice Blackburn, filed without leave on the day following the hearing. SPI have not had an opportunity to respond to this affidavit. Equally as significant, most of its contents are hearsay on issues upon which a judicial officer would prefer a firsthand account from the expert.
11 Fifth, the provision of joint reports using the Freehills model does not determine the composition of the concurrent evidence sessions at trial. Once the reports are considered it may be appropriate to hold a concurrent evidence session involving experts from more than one conclave. This can be determined once the joint reports are received.
12 Finally, the submissions of Mrs Matthews misunderstand, I suggest, the role of the expert and that of the Court. This is not a trial by expert. It is for the Court to determine the issues having regard to all the evidence whatever the source. If the expert evidence, or for that matter the evidence generally, emerges in a piecemeal fashion then that is a problem Courts regularly meet and resolve.
13 The Freehills model will be adopted, but the parties will be free to discuss the exact composition of a conclave with the Associate Justice (whose role I will elaborate upon in a moment), although for my part I see no reason to depart from the suggested participants as contained in the Freehills model with a couple of alterations. For instance, the State parties wish Mr Charles Meredith to participate in the prescribed burning conclave and for Dr Marsden-Smedley to participate in the fire path conclave. This seems appropriate. I do not think it is necessary to have the meteorologist, Dr Mills present at this conclave as his report will be available.
14 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. I have determined to refer the supervision and management of the conclaves to Associate Justice Zammit. Her Honour will conduct a case conference on 17 September 2012 and be available to assist with the conduct of the conclaves in the ensuing weeks.
15 Not surprisingly, Mrs Matthews and SPI could not agree on this. I think with the reduction in numbers at the conclaves there is less of a need for a moderator, but the reality is that this is not a decision for the lawyers or for me. It is the experts who should be asked whether they think a moderator would assist in the conduct of a conclave. If they do, then the Associate Justice will be available. Her Honour will discuss this issue at the case conference.
16 This is a good idea which was opposed by SPI. Unless the experts think that it is unnecessary they should be provided with administrative assistance for their discussions and for the preparation of the report. I also see no harm whatsoever in the scribe being a research student provided it is made clear that the scribe’s role is simply to record the discussions and assist in the preparations of the joint report. If the parties continue to argue about this it can be resolved by the Associate Justice.
17 As I mentioned earlier, I think this question should be answered by the experts, not the lawyers – if they want a scribe, they should have one.
Manner of participation in the conclaves
18 I think it was agreed by all that it was preferable for the experts to meet in the flesh rather than by video link. Having stated this general proposition, there are at least two exceptions. The two fire suppression experts, Mr McMullan and Mr Mangan reside in the United States of America. They should determine the best way to conduct their conference (it may be by either video link or in person) and prepare their report without visiting Melbourne, notwithstanding its attractions, in the spring. Then there is Dr D’Alessandro, who resides in Tasmania, and Dr Uman who resides in Florida. Both doctors will give expert evidence on the role of lightning as a cause of the damage to the conductor. They too should be able to determine the best way to conduct their conference.
Should there be an agenda or list of questions?
19 SPI objected to a list of questions being provided to the experts. They contended that the experts were perfectly capable of sorting out what the issues were, particularly in light of the questions posed by the parties which are reflective of the issues at the trial.
20 Whilst I think a list of questions may not be helpful, Mrs Matthews’ alternative suggestion of the provision of an agenda is worthwhile. SPI and the other parties ultimately agreed that this could do no harm. Indeed I think it could be positively beneficial as it will assist the experts in keeping on track. The parties should meet and discuss the agenda for each of the conclaves as soon as practicable. Assuming they cannot agree, this can be the subject of further discussion, if necessary, at the case conference before the Associate Justice.
21 I had indicated at an earlier case conference that there should be one expert per topic chosen by the parties rather than taking a “death by numbers” approach. I remain firmly of that view. It has, however, become apparent that on some issues (and on occasion for legitimate reasons) there are more experts put forward by Mrs Matthews than by SPI. If SPI genuinely feels disadvantaged by this I would permit it to file an additional expert report in an area in which it was outnumbered. From my perusal of the material there may only be one or two issues upon which this is likely to occur. I repeat what I said earlier: the expert evidence will be determined on quality not quantity. I will not make any specific order about this issue – it can be canvassed with the Associate Justice.
22 I propose to make the following orders:
(2) That the case conference be attended by no more than three legal practitioners on behalf of each party, including the senior solicitor responsible for the management of the case on behalf of the relevant party.
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2012/379.html