KEYWORDS: SPECIAL REFEREES; ASSESSORS; EXPERT EVIDENCE

KEY TAKEAWAY

On occasion, a case may arise where a litigant wants the court to appoint an expert to determine the key technical matters in dispute, including where that party is confident of the opinion the independent expert is likely give.

Construction Engineering contains useful insights on when a court is likely to appoint a special referee, and further, when it may appoint an "assessor" to help the court understand the expert evidence before it. A special referee is less likely to be appointed where a case is technically complex, factually dense and involves mixed questions of fact and law.

Facts and claims

The plaintiff, Construction Engineering (Aust) Pty Ltd (CEA) was engaged to design and construct the upgrade of a shopping centre in Melbourne. The defendant, Adams Consulting Engineering Pty Ltd (Adams), was engaged as a structural engineer on the project. CEA claimed that Adams produced two tranches of structural engineering drawings that were defective, causing it to incur substantial cost overruns.

CEA's claims raised structural and civil engineering issues that required expert analysis.

The key procedural issue was whether expert input would best be given by a "special referee" appointed under order 50 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), or an "assessor" appointed under section 77 of the Supreme Court Act 1986 (Vic) (SCA) and section 65M of the Civil Procedure Act 2010 (Vic) (CPA).

Special referees and assessors: How are they different?

An expert appointed under the Rules has the power to decide questions put to him or her and, to that end, give an opinion on the questions.1 The expert takes the place of the parties' experts. An assessor on the other hand is appointed by the court to help it understand the evidence of the parties' experts.2 While section 65M of the CPA entitles the court to appoint an "expert", that person actually fulfils the same role as an "assessor" appointed under section 77 of the SCA.3

What if a party does not consent to a special referee?

Historically, if a party did not consent to a special referee, the Court would only appoint one in exceptional circumstances.4 However, the courts have moved away from this rigid position and the consent of one or all of the parties is not required before an appointment is made — instead, it is one of many factors to consider.5

Can you appoint more than one special referee?

Unlike in other jurisdictions, only one referee can be appointed for each reference in Victoria.6 This can render the procedure inappropriate where a case has a range of technical issues involving different disciplines, or technical and legal issues involving mixed questions of fact and law.7 This can be contrasted with the system often found in arbitrations which allows the appointment of multiple experts.8

Difficulties in determining the questions to be answered

In Victoria, the Rules do not expressly entitle the Court to refer the whole of a proceeding to a special referee. The Court must precisely define the questions for referral.9 This can cause the following difficulties:

  1. defining the questions can lead to significant and expensive controversy between the parties;
  2. in a complex proceeding, restating the issues as questions can be costly and time consuming;
  3. it might difficult to separate precise questions suitable for determination from other issues;
  4. questions might be factual in and legally mixed;
  5. additional questions might arise during trial; and
  6. there may be a need to reformulate questions throughout the trial.10

Similar issues arose in Matthews v SPI Electricity (Ruling No 19). 11 In that case, Forrest J declined to refer the matter to a special referee because:12

  1. the issue to be determined was central to the overall determination of the proceeding;
  2. the expert's reliability and credit would be in question;
  3. the trial would become fragmented;
  4. questions might be factually and legally mixed; and
  5. adopting the findings of the special referee could be problematic if the report contained an error.

Findings

Vickery J declined to appoint a special referee to assist with the first part of the proceeding — a liability hearing dealing with the defective drawings — because:

  1. there were many technical questions, questions of law and mixed questions of law and fact;
  2. the special referee's report might give rise to further questions;
  3. the appointment would not lead to the expeditious and cost effective management of the case; and
  4. any challenge to the special referee's report would occupy too much time and be unnecessarily costly.13

Instead, his Honour appointed an assessor to help the Court understand the complex expert evidence and further appointed a special referee for the second hearing dealing with issues of causation and quantum.

Tips to getting a special referee appointed

The factors set out above give useful insights to litigants seeking to have special referees and assessors appointed. A court is less likely to appoint a special referee when a matter is complex and factually dense, and deals with mixed questions of law and fact.

The key will be to show the court that the matter, even a complex one, can be reduced to a set of precise questions for determination. Rather than leaving this process until trial, it may be worth engaging a shadow expert early in the proceeding to assist with this process. While this can be expensive, the time and money spent may be worth it if the appointment of the special referee is important to the litigant's overall strategy.

http://www.austlii.edu.au/au/cases/vic/ VSC/2016/209.html

Footnotes

1 Rules, r 50.01(1) 2 At [34]; Matthews v SPI Electricity Pty Ltd (Ruling No 32) [2013] VSC 630 at [27]
3 At [15]
4 At [16]; AT and NR Taylor and Sons Pty Ltd v Brival Pty Ltd [1982] VR 762
5 At [16]–[19]; Talacko v Talacko [2009] VSC 98; Matthews v SPI Electricity (Ruling No 19) [2013] VSC 180 [20]
6 At [30]
7 At [30]
8 At [31]
9 At [23]; his Honour called into question a decision in Kilpatrick Green Pty Ltd v Leading Synthetics Pty Ltd where Nathan J decided that the whole of a proceeding could be referred to a special referee with the question to be decided defined by the Court
10 At [24]–[26]
11 [2013] VSC 180
12 [2013] VSC 180 at [23]–[27]
13 At [36]–[38

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.

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