The social distancing measures put in place these past few months may have affected the work of expert witnesses as they have all Australians. In the months that have passed, and in the months to come, courts will need to consider whether changes to the circumstances of expert witness reporting and court appearances will warrant adjournment of matters affected by those changes.
Below, we summarise courts’ approaches thus far to some applications to adjourn matters to a later date, either wholly or partially, on account of the additional time lawyers claim their experts will require to produce their reports in line with social distancing measures and restrictions on freedom of movement.
Although each matter presents a unique set of circumstances and demands on the expert, the response from courts has overall indicated that judges will be unwilling to adjourn matters unless lawyers are able to demonstrate some very material and serious circumstances in which the pandemic restrictions have or will delay the work of experts.
Veolia Energy Technical Services Pty Ltd v Roads and Maritime Services [2020] NSWSC 328
In this matter, the Plaintiff (Veolia) sought leave to amend its Statement of Claim regarding expert evidence on systems used by local councils to inspect dead trees for removal. RMS submitted that the suggested amendments would require it to file further evidence in defence and its experts would require visiting and contacting individual and separate council bodies. It listed in detail the procedure and steps each expert would need to undertake as a part of their research. [29]-[30] The amendment was opposed by RMS due to this extended delay in obtaining the necessary information. [29]
The Court accepted that this additional research would take a lengthy amount of time and be subject to the uncertainty of circumstances given COVID-19, but that uncertainty was not sufficient reason to deny the plaintiff leave to amend. [35] The Court’s view was that the amendment was necessary for the plaintiff to properly put its case. [39]
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
The Respondent applied for adjournment of the matter to proceed in October rather than on 15 June because of “the need to ensure a safe system of work for practitioners and witnesses, increasing restrictions on movement and gatherings, and the realistic limits of technology”. [1]
In this matter, the Court considered the operation of section 37M of the Federal Court of Australia Act 1976 (Cth), which mandates that the court must “facilitate the just resolution of disputes to law and as quickly, and inexpensively and efficiently as possible”. [2]
The Court was mindful of not increasing the health risk to witnesses or practitioners during the pandemic but ultimately found that the trial should go ahead on the original date. The Court provided useful discussion about the technological issues raised by the Respondent as reasons for delaying the hearing.[10]-[22] It stated that virtual hot-tubbing will go ahead, specifically that although questioning expert witnesses virtually and in different time zones is not ideal, it is also not impossible to organise; there was insufficient prejudice to the litigants in examining experts virtually to warrant adjournment to a much later date.
Seven Sisters Vineyard Pty Lt v Konigs Pty Ltd [2020] VSC 161
The Defendant sought to adjourn the matter for additional time to compile accounting evidence. The Defendant also cited logistical difficulties in constructing the report due to COVID-19 restrictions. The Expert stated that she would require four weeks because of the discovery of additional documents relevant to the evidence, and because of the additional time that she would require to compile the report due to the pandemic.
That Plaintiff argued that the Defendant ought to have compiled evidence a while ago, and also that the inconvenience of dealing with the COVID-19 pandemic is common to all parties and not a reason in and of itself to justify an adjournment.
The Judge weighed up the pros and cons of adjourning, noting that the Plaintiff had not been clear in what particular way their case would be prejudiced by the adjournment, although there would be prejudice to the Plaintiff in any delay of litigation. [22]
The Judge ultimately allowed the trial date to vacate and the trial to be adjourned. The Court accepted that additional time would be required for experts to obtain all the documents needed for expert witness reports the restrictions on freedom of movement in place.
Justice Dixon accepted the impact of the pandemic as an appropriate ground for the Defendant to seek an adjournment of the trial, stating that:
“It is not, in my view, inconsistent with the overarching obligation under the Civil Procedure Act 2010 (Vic) to extend some latitude to legal practitioners, litigants and witnesses in the circumstances of the unprecedented constraints on economic activity and freedom of movement that currently are in place in response to a pandemic.” [21]
In the matter of LML Repairs Pty Limited (No 2) [2020] NSWSC 310
The Defendant sought a lengthy adjournment of the matter because its expert had yet to commence work on a solvency report, and, in addition, because of the COVID-19 pandemic (Queensland had closed its borders). The Court suggested that the Defendant was not genuine in its application and was merely using COVID-19 as a pretext for adjourning, to make up for not having sent the relevant documents for the expert to review. [6]
The Court commented that:
“The preparation of a solvency report by an expert accountant is a task which involves reviewing accounting records which I apprehend does not require a large social gathering and, likely, can be done by reviewing records made available electronically or by emailing scanned images of relevant hard copy documents”. [8]
The Court ultimately applied its leniency, with a view to conducting the matter fairly regarding the Defendant, rather than with a view to rejecting the application in order to punish its solicitor for failing to uphold the undertaking of filing expert testimony on time.