when new material is introduced during an expert conclave

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.

Background

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:

1. the demonstrated failure by the plaintiffs’ experts to
   comply with the intention of the orders; and




2. 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.

Decision

Bearing in mind the overarching obligation to ensure that the
trial is fair, the trial judge gave consideration to:

1. the point the litigation had reached in the trial;




2. the extent of any failure to comply with the directed
   timetable;




3. the adequacy of the plaintiffs’ explanation for its delay
   in presenting the real case it wanted to take to trial;




4. the prejudice which would be caused to the defendants if leave
   was granted;




5. 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;




6. the effect on other litigants awaiting resolution of their
   proceedings; and




7. 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.

References

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2018] QSC 308
(‘Sanrus No. 1’)

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 162
(‘Sanrus No. 2’)

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] 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.