In January 2016, the NSW District Court followed the lead of superior NSW courts and introduced the requirement of joint conferencing for expert witnesses. As a result, where multiple experts are giving evidence on the same (or substantially the same) field of expertise they must now give their evidence concurrently following a joint conference of experts.

The amended District Court rules[1] provides that, prior to giving their oral evidence, the experts should confer to reduce the issues between them and to produce a joint report setting out the areas of agreement and disagreement. Reasons for areas of disagreement must be stated by each expert.

If there is disagreement or doubt as to whether concurrent expert evidence is suitable for a particular case, directions should be sought from the Court at the earliest convenience after the disagreement or doubt arises. This order includes an application by any party that the hearing be exempt from the concurrent evidence requirement.

Supreme Court Guidance

The Supreme Court of NSW Practice Note 11 (SC Practice Note 11) provides practical guidance in relation to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provisions relating to joint conferences of expert witnesses. While this guidance only applies directly to hearings before the Supreme Court, it provides a useful explanation of the objects of such conferences. Particularly in light of the brief directions provided by the NSW District Court on joint conferences, the SC Practice Note reflects practical guidance for experts and lawyers preparing for these conferences.

Objectives & Benefits of Joint Conferences

The justification for utilising joint conferences for expert witnesses is three fold. Firstly, the conferences may see immense time and cost savings as a result of the identification and narrowing of issues of disagreement between experts prior to the hearing. This may have the incidental effect of avoiding or reducing the need for experts to attend court to give evidence.

Furthermore, as was noted by the Judicial Commission of NSW[2], the process of joint conferences enables experts to question one another directly, allowing rigorous testing amongst peers which seldom occurs during questioning by counsel. This better places the judge to determine which expert opinion should be accepted (as was the case in Halverson v Dobler [2006] NSWSC 1307 at [67]).

Lastly, joint conferences bind experts to their positions, increasing the certainty of the nature of the expert evidence which will be portrayed at the hearing.

Role of Legal Representatives 

The role of legal counsel in joint conferences is generally limited to assistance in the pre-conference stage.

Prior to the hearing, the parties should agree:

• Which experts will attend the conference (this may also be specified by the Court);
• The questions to be determined (ideally in a “yes” or “no” form); and
• The maters to be provided to the experts (for example: an agreed chronology, relevant witness statements, and copies of expert opinions that have already been exchanged)

Counsel are also responsible for arranging a mutually convenient time, place, and date for the conference (subject to Court directions regarding the conference) ideally not less than 14 days after the experts have been provided with the relevant materials. The conference may take place in person or via technology if the former is impractical.

Role of the Expert

The SC Practice Note 11 clearly sets out the role of the expert in joint conferences:

“…an expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter.”

Experts should not seek advice from their legal representatives other than for the following reasons:

• Questions relating to the legal process applicable to the case;
• Identifying relevant documents;
• Providing further materials;
• Correcting misunderstandings in relation to fact or the conference process

Legal representatives attending a joint conference pursuant to a court order must provide such advice jointly and not individually (unless authorised by all other legal representatives interested in the conference).

Joint Conferences in Action

“This process proved both highly productive and efficient and has been of great benefit to me in resolving this case. The discussion as sustained at a high level of objectivity by all participants. The fact that ultimately they disagreed on critical issues was not due to anything other than a genuine difference of opinion about the appropriate conclusion to be drawn from the known facts.”  — Halverson v Dobler [2006] NSWSC 1307 at [101]

While courts have on multiple occasions affirmed the use of expert witness conclaves, as in the above statement by McClellan CJ in the context of a medical negligence trial, there is limited judicial guidance on the operation of these conferences.  A 2012 Victorian Supreme Court case[3] does provide some direction, albeit in the Victorian context. In that case, practical issues considered by Forrest J included:

• Responsibility for managing the process: a court-appointed party to avoid “bickering” between opposing parties
• Use of a moderator and/or a scribe: to be determined by the experts
• Provision of a list of questions or an agenda to the experts: Forrest J held that it was not necessary to provide experts with a list of questions (in stark contrast with the SC Practice Note 11). However, an agenda should be provided
• Representation in the conclave: Forrest J preferred parties to each appoint one expert per disputed topic, but noted that this is not always practical in all cases.

The New South Wales Court of Appeal has also confirmed that the expert witness immunity rule extends to expert witnesses participating in joint conferences[4].

Conclusion

The introduction of joint conferencing in the District Court of NSW brings the District Court into line with the superior courts of NSW and enables the lower level of NSW courts to enjoy the cost and time saving advantages of such conferences. In the NSW Supreme Court context, expert witnesses participating in joint conferences must exercise their independent and professional judgment and should express their disagreement with other experts and advocate their views should they be unable to agree on a certain issue. Expert witnesses participating in joint conferences in the District Court should adhere to this same advice in order to provide the best outcome for all parties.

 

[1] NSW District Court Standard Orders for Hearings

[2] Civil Trials Bench Book – [5-6000]-[5-6030]

[3] Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v United Services Corporation Limited (Ruling No 10) [2012] VSC 379

[4] Young v Homes [2014] NSWCA 337