In this article, Forensic Partner Brian Wood and Director Poppy Potter discuss a recent case highlighting the issues around introducing new evidence in an expert conclave.
The proceeding concerns complaints made by a junior joint venture partner ('the plaintiffs') about the conduct of the senior joint venture partner ('the defendants') in the course of exploitation of a coal deposit at Monto, Queensland.
The proceeding was set down for a 16 week trial. Over the first 48 hearing days of the trial, the experts had met in 17 facilitated joint expert conclaves and produced 17 joint expert reports.
Problems arose during the conduct of the joint expert conclaves, where some of the experts sought to present new information and analyses.
Adherence to case management orders
The first question considered was whether the course taken by the experts who sought to present new material was permitted by case management orders concerning the expert opinion evidence, the holding of joint expert conclaves and the production of joint expert reports.
The trial judge thought it clear the orders:
'... required the expert conclaves to take place by reference to the specified material in the agreed instruction document and not anything else. The questions were to be answered by the experts succinctly by reference to that material and the discussions had between them. Reasons why experts had failed to reach agreement were to be expressed shortly and, it would follow, by reference to the material which was before them at the conclave and not anything else.'
On the basis that the joint expert reports contained reference to new material, they could not be regarded as being 'in accordance with' the orders.
If the parties wished to adduce at the trial expert evidence contained in the joint expert reports, they would require leave. As an alternative, if the non-compliant material were redacted, the joint expert reports could then be received.
Arguments relating to leave
The plaintiffs suggested that the new material was capable of being characterised as setting out the reasons why their experts expressed disagreement with the criticisms which were made by the defendants' experts, and they would suffer prejudice if they were not permitted to rely on those explanations at trial. They suggested that it would be unfair to contemplate a trial in which their expert witnesses were effectively hamstrung in their capacity to respond to criticisms which had been made and that the trial judge should not contemplate the possibility that an expert might have to say in cross-examination that he had an answer to a criticism but was not permitted to present it.
The defendants opposed any grant of leave in respect of the new material from the plaintiffs' experts Mr F, Mr S, Mr?X and Mr H. Their argument in opposition was directed solely at:
- the demonstrated failure by the plaintiffs' experts to comply with the intention of the orders; and
- the fact that the prolongation of the trial would have an inevitable adverse impact on the administration of justice in the Supreme Court because of its effect on other litigants awaiting resolution of their proceedings.
Their argument was however weakened by the fact that the defendant too had needed leave in respect of their expert evidence in relation to geology.
Bearing in mind the overarching obligation to ensure that the trial is fair, the trial judge gave consideration to:
- the point the litigation had reached in the trial;
- the extent of any failure to comply with the directed timetable;
- the adequacy of the plaintiffs' explanation for its delay in presenting the real case it wanted to take to trial;
- the prejudice which would be caused to the defendants if leave was granted;
- the prejudice which would be caused to the plaintiffs if leave was refused, including whether the plaintiffs might be denied a fair opportunity to present their real case;
- the effect on other litigants awaiting resolution of their proceedings; and
- the extent to which prejudice on either side could be ameliorated by alteration to the existing timetable.
Ultimately, the parties were permitted to adduce new evidence if its reception would not significantly disrupt the existing trial plan.
Further consideration was given to Mr H's evidence as it was contemplated it would to give rise to a more serious disruption to the trial plan. If it had been the only evidence which was non-compliant with the conclave process and the only cause for disruption of the trial plan, there might have been more to be said in favour of refusing leave. But in the way the defendant's argument was presented, the ultimate question was whether the adverse impact on other litigants due to a one month extension of the already long trial outweighs the prejudice to the plaintiffs. Albeit with some reluctance, the trial judge concluded that it does not and that the balance of relevant factors favours the grant of leave in the circumstances of the case.
From the experts' perspective
One must recognise that the overriding duty of an expert is to assist the Court and the fulfilment of an expert's duty may require the expert to set out an explanation for disagreement with his or her opposite number something which has not previously been expressed.
Evidently, experts need to be familiar with case management orders (if any), especially those concerning expert opinion evidence, the holding of joint expert conclaves and the production of joint expert reports.
Should the orders set limitations on the provision of new material and the expert felt that he or she could not address a matter properly without reference to that material, he or she could make such statement. The question as to whether the expert would be permitted to refer to the new material is then a matter for the respective legal teams, and can be ruled upon having regard to relevant factors such as those contemplated in these proceedings.
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd  QSC 308 ('Sanrus No. 1')
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd  QSC 162 ('Sanrus No. 2')
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd  QSC 199 ('Sanrus No. 4')
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.