Court Managed Expert Evidence in the Land Court of Queensland

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In most circumstances, parties who have asked their experts irrelevant questions run the risk of receiving expert evidence which comments on matters outside of the scope of the actual issues in dispute.

Usually, the Court decides to give far less weight to such evidence or decides that such evidence should be discounted because of its irrelevance only after the reports have been written. For the most part, the Court will decide relevance at the hearing; however, recent cases have made use of the new process of Court Managed Expert Evidence (CMEE).

Court Managed Expert Evidence Procedure:

Lawyers may access the Procedure for Court Managed Expert Evidence at the following link: https://www.courts.qld.gov.au/__data/assets/pdf_file/0006/565017/lc-pd-3of2018.pdf

Here are the most salient points of the process for CMEE:

  • The CMEE Convenor must be a designated Member or Judicial Registrar of the Court.
  • CMEE’s role is to assist the Court in the management of expert witness evidence (Part 3, para 16); however, the CMEE Convenor cannot decide any substantive matter and does not preside at hearings and appeals (Ibid, para 17).
  • The Court can rule on disputes about relevance and admissibility of evidence at the hearing or, for efficient case management, prior to the hearing (https://www.courts.qld.gov.au/__data/assets/pdf_file/0018/5550123r/Model-Directions-Version-2.2.pdf).
  • The CMEE Convenor must hold a Case Management Conference to identify the issues in dispute, if they have not already been identified (Part 4, paragraph 29). This assists in preparing a consolidated brief, which only includes the relevant issues requiring expert comment and ensures the expert is adequately briefed
  • In the case where an expert has already been briefed, the CMEE Convenor may hold a meeting with experts to decide whether experts may need further instruction, information, or time to complete their work, and also to settle any disagreements with any issues in dispute.

Reason for the existence of CMEE:

In her piece for the Australian Dispute Resolution Research Network, President of the Land Court of Queensland Fleur Kingham put forward the following justification for the introduction of CMEE processes:

The Court has the same concerns that have motivated courts and tribunals to become increasingly interventionist in the management of expert evidence. Those concerns include bias (conscious or unconscious), the complexity of the information, the incomprehensibility of technical reports, and the risk of competing expert reports passing like ships in the night.

The introduction of CMEE in the Land Court of Queensland aims to address concern for the importance and complexity of expert evidence in almost all matters heard there. CMEE convenors oversee confidential expert interactions and may address lawyers in a matter for the purpose of ensuring “meaningful communication and further instruction (without inappropriate influence)”.

Ms Kingham has highlighted the way in which the new process aims to use Case Management powers to deliver similar outcomes as in Australian Dispute Resolution: namely, to prepare for hearings by first managing and reducing preliminary disagreements. Ms Kingham has signposted that the CMEE will be evaluated by ADR academics after it has run for a few years.

An example: Mellish v Redland City Council [2020] QLC 31

In the matter of Mellish v Redland City Council [2020] QLC 31, the parties disputed the inclusion in the brief to experts of questions concerning the highest and best use of the Plaintiff’s resumed land. The CMEE Convenor referred the matter to the Court.

The Plaintiff had requested hydrology, traffic, and ecology experts “to express an opinion on alternative highest and best use(s), unconstrained by Mr Mellish’s case”.[9] The Court found that these disputed questions required opinions that went beyond merely “identifying constraints on the use and development of the property” [12] and were therefore “about uses not in issue in the proceedings”. [14]

The Court noted firstly that the model directions set out by the Land Court allow for parties to include all questions in the brief that they desire; the directions funnel the dispute over questions into issues of admissibility of expert evidence at the hearing stage. [4]

In this instance, however, the court restrained the Plaintiff from including the questions in dispute due to their lack of relevance to the key issues of the matter. Ms Kingham framed her decision with concern for unnecessary costs to both parties should the experts answer questions pertaining to issues outside of the scope of the matter. [16] On that basis, the parties were directed to exclude the questions in dispute from the brief. [17]

Takeaways

  • CMEE assists lawyers at the pre-trial stage of expert evidence.
  • CMEE does not require experts to agree on the questions in a brief. However, courts applying CMEE will curtail inclusion of questions which fall outside the scope of the issues in a matter, especially where such questions will lead to significant additional expert reporting costs for both parties.
  • The creation of CMEE pathways by the Queensland Land Courts demonstrates that courts are becoming more agile in their management of expert witness evidence. For practice areas which usually require the engagement of multiple experts, lawyers should stay alert to changes towards more interventionist approaches.

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