Macquarie International Health Clinic Pty Ltd v Sydney Local Health District;
Sydney Local Health District v Macquarie Health Corporation Ltd  NSWSC 970 (18 July 2013)
In this edition of expert matters Andrew Ross, Partner and
Associate Director in our Sydney office discuss a case which reiterates that an expert has a responsibility to comply with directions or orders made by a Court, in this particular instance with regards to meeting the timetables set.
These proceedings were complex and had been on foot for a considerable period of time. This particular judgement arose due to the continued slippage in compliance with the timetable for the filing of experts' reports by the plaintiff1.
The judge made directions which had, at their heart, the intention of ensuring that experts understood that, when they accept a brief to provide expert evidence to the Court, they become personally responsible to the Court for compliance with the Court's directions in relation to when their reports must be provided. In this case, the directions included that:
- If any expert report was not filed and served in accordance with the dates specified in the orders, the relevant party was to file and serve an affidavit from that party's solicitor explaining the reasons for the non-compliance;
- If the non-compliance was caused or contributed to by the action or inaction of the expert (whether by delay or otherwise) then:
- the expert was to provide an affidavit explaining the reasons for the non-compliance and providing reasons why an order should not be made against the expert that he or she pay any costs occasioned to any party by reason of the non-compliance; and
- the expert was to attend Court in person when the matter was next heard2.
The judge accepted that experts are dependent upon the timely provision of instructions and information from the party briefing them, which the parties are obliged to provide. However, the judge made it clear that if the parties had complied with that obligation, then experts themselves bear a direct responsibility to the Court for compliance with the Court's directions as to when their report is to be ready for filing and service, and the form of the report itself3.
The duties required of experts are set out by legislation and the court guidelines of the various jurisdictions. Paragraph 3 of the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 [UCPR] (NSW) states that
"An expert witness must abide by any direction of the court".
Although other court guidelines do not have such an explicit requirement, since an expert's duty is first and foremost to the Court, an expert needs to abide by any orders or directions made by the Court.
The judge in this matter issued these orders to remind experts that they are personally responsible to the Court in complying with the Court's directions. However, making an expert personally responsible for compliance with a court's timetable implies that the expert has been consulted by the legal representative for the appointing party prior to the relevant timetable being set. In our experience, this is not always what happens in practice. Frequently, experts are appointed by the parties after the timetable has already been set. The experts are then informed of the existing timetable when they are briefed.
Just as often, when timetables are revised during proceedings, the revisions occur during directions hearings at which the experts are not present. While experts are sometimes consulted in relation to their availability to conduct an expert assignment before such hearings, those consultations rarely cover all of the exigencies which may arise during a directions hearing. Experts are therefore sometimes surprised when the outcomes of a directions hearing are communicated to them.
In addition, when experts are asked to provide an indication of how much time they may require to prepare an expert report, they can only do so based on the instructions and information provided to them at the point they are briefed. If those instructions are limited in scope or detail, the expert's ability to accurately assess the time required to complete the task will be compromised. Similarly, during the course of a matter, the scope or nature of an expert engagement frequently changes as the matters in dispute are clarified and the lay evidence is finalised and served. These changes frequently effect the time an expert requires to complete an expert report.
There are many reasons why experts may not be able to meet court timetables. These include delays in provision of information, new commitments that unexpectedly have an impact on the expert's work load and the fact that work required to complete the report itself maybe more voluminous and complex than initially anticipated.
Responsible experts would normally be expected to communicate any potential difficulties in meeting timetables to the party that has appointed them as soon as they come to the expert's attention. Perhaps in light of orders of the sort issued in this case, experts may also need to consider communicating directly with the Court and the parties on the other side in matters of timing, depending on the circumstances in which a delay occurs.
In this instance, the judge issued orders stating that, if the experts did not provide satisfactory explanations for the delays encountered, the Court would consider issuing cost orders against the experts. If orders of this nature become prevalent, other issues may arise. For example, will it become necessary for experts to discuss and make provision with their clients for the payment of such costs, including the costs of providing affidavits to the Court?
In addition, in this case the judge also issued orders stating that the experts may have to appear in Court to explain delays in the provision of expert evidence. Again, this has cost implications for the conduct of litigation. Were such a practice to develop, it would also be necessary to determine whether experts ordered to appear before the court are entitled to legal representation?
Experts (and the parties appointing them) are also reminded that the inability to meet court timetables may result in the Court refusing to grant a party leave to submit or rely on that expert's report. For example, in Camellia Properties v Wesfarmers General Insurance  NSWSC 1093 (2 August 2013) the defendants had initially instructed a Mr Z, a building consultant. After several months, Mr Z had not produced the required report despite providing assurances he would do so4 (a draft report that was produced was deemed to be useless5). The defendants then instructed a Mr R, and the judge agreed that Mr R had produced his report promptly enough6. However, as conclaves were already in progress, and the plaintiff's experts would not have had the time to sufficiently consider Mr R's report and respond to it, the Judge came to the conclusion that the defendant could not rely on Mr R's report7. The defendant was however given leave to use Mr R's report to cross-examine the experts called by the plaintiff where appropriate8.
The orders made in this case highlight the need for experts to be fully aware of their duties and personal responsibilities to the Court, including the need to, as far as practicable, meet Court timetables. It also emphasises the importance of communication - between the experts and the parties who have appointed them, as well as between the two parties and the Court. Ideally any potential issues or delays in meeting Court timetables should be communicated to all parties and the Court as soon as they are identified.
1Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd  NSWSC 970 (18 July 2013), at 1
2Ibid, at 2
3Ibid, at 3 and 4
4Camellia Properties v Wesfarmers General Insurance  NSWSC 1093 (2 August 2013), at 11 and 12
5Ibid, at 10
6Ibid, at 11
7Ibid, at 15 to 19. The judge also expressed concern that Mr R's report considered issues beyond those normally considered by a building consultant.
8Ibid, at 20
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