Australia: Are your experts up to the task?

Last Updated: 20 June 2016
Article by Jason Cheung

James Maxwell Holdsworth and Heather Munro Ellison v RSCPA (VIC) Incorporated [2015] VCC 653


Jason Cheung, a Manager from our Sydney Office, considers a judgment which highlights issues in the evidence of two financial experts who assessed the loss resulting from RSCPA wrongly putting down cattle in a stud herd.

The judgment shows how issues of expertise and errors can result in expert evidence being held entirely inadmissible; and that issues of independence reduce the weight given.

In this instance, all of the issues that impacted the acceptance of the evidence could likely have been identified before the experts were engaged or issued their reports.


There was a drought in the Warrnambool region of Victoria which led to the RSCPA putting down a number of the plaintiffs' cattle in late May 2003.

As a result, the plaintiffs were left with too few breeding cattle, and they were required to sell calves to meet financial obligations. In late 2003, the drought broke which led to the recovery of the condition of the remaining cattle of the herd.

The Court found that the defendant was liable for wrongly putting down 131 cattle and the losses that resulted.

Expert issues

Four financial experts were engaged to quantify the loss suffered. Two of them were criticised in the judgment for a number of reasons, outlined below.

Mr D's expert evidence

Mr D was engaged by the defendant. He provided multiple reports estimating the loss. The Court commented on three main issues with Mr D's evidence:

  1. The appropriateness of his expertise;
  2. The number of errors in the reports, which resulted in three revised reports, and the calculation of loss more than doubling; and
  3. The appropriateness of his instructions.

Appropriate expertise

Mr D's first report was issued jointly with another partner from his firm, Mr L. Mr L was responsible for providing an opinion and commentary on variables used in calculating the loss. Mr L had expertise in large beef cattle enterprises including the purchase price of cattle, the costs of maintaining cattle, and birthing rates.

Mr D issued three supplementary reports without Mr L as a signatory. Mr D's curriculum vitae did not include any experience with large beef cattle enterprises.

The following issues in relation to Mr D's expertise were outlined during the hearing:

  1. He often referred to having had discussions with staff in the office regarding stud cattle because he was not an expert and "could not take things much further in relation to stud cattle";
  2. He often referred to other staff having spoken to unnamed stock agents concerning the costs of agistment and weaning rates. Mr D was not able to say who these agents were or whether they were commenting on data from the vicinity of the farm or the whole of New South Wales;
  3. He said that his staff developed the financial models estimating loss;
  4. He "unfairly" calculated agistment and fodder costs, so as to increase them;
  5. His opinions were based on insufficient data;
  6. He did not know the quality of the herd, the age of the cattle, their condition, their propensity to breed within the first year, how badly there were impacted by the drought, or the ability of the plaintiffs to manage a farm.

Errors in Mr D's reports

The first report, issued jointly Mr D and Mr L, calculated a loss of $194,340. Supplementary reports were then issued by Mr D as a result of errors having been identified both by Mr D himself and during cross-examination:

  1. The first supplementary report corrected "a few minor" mathematical errors relating to pre-judgment interest in the first report and increased the loss to $216,207.
  2. The second supplementary report was required because approximately 96 calves were missing from the loss calculation for 2003. Additionally, Mr D had included sales expenses in 2003 when there had been no sales. The revision affected most calculations for 2003. The loss increased to $397,240.
  3. The third supplementary report further corrected arithmetical errors. This revision increased the loss to $436,966.

After commenting on the level of expertise of Mr D (discussed above), Justice Bowman stated that "any remaining confidence which [he] had in the report of [Mr D] was further eroded by the number of errors that plagued the reports and the calculations".

Additionally, he said "The complexity resulting from his errors is such that the whole of his evidence should be rejected".

Appropriateness of instructions

A further issue in the proceedings was the quality of the cattle: whether they were commercial or stud cattle. Evidence was given by other experts regarding quality: it was established that they were of stud quality through having quality bloodlines.

Mr D's report proceeded from instructions "to deal with the animals as being commercial and not stud animals, or stock that could become stud animals". Mr D said that stud cattle (or potential stud cattle) would have a higher value than commercial cattle.

Justice Bowman said that Mr D's "assumption that this was going to be a commercial herd and not a stud one seems to ... be misplaced"; and "it seems to me to be unrealistic and contrary to evidence to assume that the stud project would not have gone ahead and to not even give mathematical consideration to losses on a possible stud cattle basis".

Mr T's expert evidence

Mr T was engaged by the plaintiffs to provide a loss estimate. The Court considered his independence to be compromised because:

  1. When a university student, Mr T had worked on a farm owned by Mr Holdsworth (one of the plaintiffs). At that time, Mr T met the other plaintiff, and became a friend of the Holdsworth family, and their accountant in 2009;
  2. Mr T was the accountant for the plaintiffs' partnership;
  3. Mr T was owed fees for accounting work;
  4. Mr T's brother had advanced to Mr Holdsworth a loan for payment of water rates; repayment had not yet occurred;
  5. Mr T originally took instructions from the plaintiffs, rather than their solicitors;
  6. Additionally, Mr T had had contact with the brother of one of the witnesses prior to contact with solicitors;
  7. Mr T initially omitted from his initial calculations the plaintiffs' artificial insemination operations, as he was not able to determine that they had been at a commercial stage. In subsequent reports, after receiving an email from the plaintiffs' solicitors, he included an 'extremely sizeable' amount regarding artificial insemination;
  8. Mr T's calculations included estimates of the worth of each artificial insemination straw without having obtained expert evidence of their value; and
  9. The plaintiffs' solicitors had advised the solicitors for the defendant that Mr T's report would not be put forward because he was the accountant for the plaintiffs, and was not independent.

Mr T's loss calculation produced an amount that far exceeded that in the other experts' reports (including the plaintiffs' other experts).

After considering all this, Justice Bowman said that Mr T "cannot be viewed as an independent expert witness. That does not mean that his evidence is to be totally ignored. However, ... the weight to be attached to his evidence seems to me to be greatly reduced".


The three shortcomings of Mr D's expert evidence highlight the need for solicitors to mitigate the risk of their expert being criticised and the evidence being undermined. This can be achieved by ensuring that experts:

  1. Have the appropriate level of expertise in the subject matter;
  2. Either prepare all of their report themselves; or are able to explain portions prepared by others under their supervision;
  3. Report all sources of information;
  4. Conduct quality assurance checks on the report to avoid the need for later revision ; and
  5. Are provided with appropriate instructions.

Mr T's lack of independence is a reminder that where an expert is perceived to have, or has an actual, conflict of interest, the weight given to his or her evidence will be significantly reduced.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.