Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd  FCA 944 (31 August 2012) and Alstom Ltd v Yokogawa Australia Pty Ltd & Anor (No 7)  SASC 49 (2 April 2012)
In this edition of Expert Matters we review two cases which involved expert evidence being provided by employees of parties to the litigation, with different outcomes.
When giving evidence, it is important that an expert remains independent and free from bias. This is set out in professional standards (such as APES 215, which applies to accountants) and in court expert witness codes of conduct. For example, the Expert Witness Code of Conduct in Victoria1 requires that an expert, among other things:
- has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness
- is not an advocate for a party.
So what should a judge do when the only (or best) expert evidence available is from those involved in the litigation themselves?
Background to the cases
Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd2
This proceeding resulted from an appeal against the grant of a patent for bulk material containers developed for use in the mining industry. Bradken ('the Appellant') claimed that the patent was invalid as it lacked novelty and an inventive step. Further, it stated that the patent was public knowledge before the earliest date of the application. Bradken's expert argued that the steps taken for the patented device were logical steps that anyone within the industry would know and be able to have arrived at. In response, Lynx sought to rely on the expert evidence of Dr Mazur, who was a director of Lynx and also one of the named inventors in respect of the Patent Application, making him 'best placed' to provide the expert evidence. Whilst the Appellant agreed that Dr Mazur had the relevant expertise, it contended that:
The Appellant also argued that Dr Mazur could not be impartial, as he had already formed the view that the patent application was valid. The judge took into account the fact that Dr Mazur was not entirely independent, however he stated:
Alstom Ltd v Yokogawa Australia Pty Ltd3
A dispute arose regarding a long term contract for refurbishment of the Playford Power Station turbines between Alstom and Flinders Power Partnership (FPP). The long term contract contained time and performance constraints for Alstom with damages payable where Alstom failed to meet set milestones. There were delays and performance issues in delivery of the contract that resulted in $20.5 million in damages being paid by Alstom to FPP. Alstom commenced proceedings to recover this amount from Yokogawa, which had been subcontracted to provide electrical work for the power station, alleging most of its delay in achieving the milestones was attributable to Yokogawa.
A number of the expert witnesses were employees of the parties, and issues arose regarding the evidence provided by one of those, a Mr Hodge who was called by Alstom. Mr Hodge was a very experienced boiler combustion engineer who had worked for Alstom since 2001. Although his role was as Senior Power Plant Specialist of the Playford project, the Judge did not disqualify his evidence, saying:
In determining whether Mr Hodge's expert opinion could be considered, the Judge looked to the obligations of an expert witness and the extent to which Mr Hodge's intentions and actions conflicted with these, stating:
Specifically of Mr Hodge's behaviour he stated:
On this basis, the Judge concluded that the expert evidence of Mr Hodge was unable to be taken into account stating:
The Judge therefore determined that Mr Hodge's expert opinion could only be accepted to the extent that it coincided with the opinion of Yokogawa's expert.
It is apparent from the above examples that the weight to be placed on the evidence of a 'non-independent' expert witness will be determined on a case by case basis. Whilst being an employee of a party does not necessarily preclude one from being an expert, if the expert/employee is unable to retain the required professional independence and comply with the relevant Code of Conduct, their expert evidence may not be accepted or given weight by the Court. It will be up to the judge, based on the applicable facts of the case, to make an appropriate call as to the weight to be given to their evidence and whether they have remained sufficiently independent and unbiased.
1Form 44A, Expert Witness Code of Conduct,
Supreme Court of Victoria and County Court of Victoria
2Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd  FCA 944 (31 August 2012)
3Alstom Ltd v Yokogawa Australia Pty Ltd & Anor (No 7)  SASC 49 (2 April 2012)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.