Subject Matter Experts

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The Status Quo

‘Subject Matter Experts’ (SMEs) are given this title within their own institutions to refer to individuals with particular expertise in subject matter areas. Often, they are called upon by either side in the litigation to provide direct material evidence of events at the centre of litigation. In many other circumstances, however, courts call on their expertise to provide very specific evidence on the practices and standards of organisations, based on the individual’s expertise in a certain area of professional practice.

In this article, we use this term to refer to the witnesses presenting evidence in the capacity of an expert witnesses and whose expertise is attributed to their connection to one of the parties to the litigation. For instance, a pilot who gives evidence on the codes and practices of pilot training and rostering of an aviation company and who has been chosen to provide an expert opinion because they are an active employee in that company. In these contexts, SMEs are engaged on the basis of their intimate knowledge of individual and idiosyncratic dealings within institutions. Whilst called by the parties as a witness, their function is implicitly like that of an expert witness; the obligation is to provide an impartial opinion on the conformity of actions or material evidence with already established standards and practices.

We consider some of the disadvantages and advantages of using SMEs below:

Cons

1) The most significant disadvantage to using SMEs lies in expert witnesses’ obligation to the courts and not to individual parties. The SME who is engaged as a kind of expert witness usually presents clear conflicts with their primary obligation to courts through their subjectivity/being subject to other contingencies related to the organisation for whom they are giving evidence. For example, SMEs may not be as forthcoming with criticism of their workplaces because of the threat of sullying their relationship with colleagues or superiors. In some cases, even whether a SME will be remunerated for their efforts in offering their opinions in court will depend on the outcome of the case. In these instances, there is a clear motive behind an expert’s decision to potentially provide biased opinion


2) The abovementioned conflict of interest is frequently cited in Australian judgments as an issue with the independence of an expert. Expert opinions affected by a loss of independence do not, in Australian courts, lead directly to the inadmissibility of expert opinions but will usually lead the court to give those opinions less weight than it otherwise would. As a result, courts are likely to subject area witness opinions to more detailed cross-examination. See, for example, Finance & Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665, in which courts admitted evidence by conflicted expert witnesses but went on to scrutinise the coherence of the opinion.

 

Pros

1) In some cases, there is no way to provide detailed evidence on the practices or norms of an organisation without seeking evidence from individuals within that organisation. Although industry guidelines standardise the practices of professionals, institutions are likely to still differ in their interpretation and implementation of standards and other practices. The fact of these differences may become important to the key issues of litigation, and indeed, it may take an individual with intimate or insider knowledge to give an accurate representation of how operations within a group run and whether those operations ran correctly.

The evidence that SMEs may be able to provide is therefore niche and valuable for protecting a party to litigation from disadvantaging generalisations about industry practices and guidelines that other parties may put forward.

2) If the SME opinions are admissible, and even persuasive when subject to cross-examination and assessment by the court (in light of its use of material evidence, cogent argumentation, and logical application of standards and industry tests), there is no reason why expert opinions of SMEs could not provide the court with such an insight into a matter that the opinions effectively influence the outcome of a case.

Examples of instances in which courts have relied on the very niche expertise of institutional SMEs abound in Fair Work and Negligence cases, some of which are listed below and follow the model of the Hutton v Sykes matter; the knowledge of protocols that company employees possess is used as a reference to judge whether protocols were followed and whether company practices are justified. The reliance on banking SMEs during the Hayne Royal Commission into banking presents another significant example of such use of SMEs.

 

Mr Brett Hutton v Sykes Australia Pty Ltd [2014] FWC 643

  • Unfair Dismissal matter contesting whether facts fell within the scope of s 387 of the Fair Work Act 2009 (Cth).
  • Mr Hutton was contracted by Sykes to work as a customer service person at St George Bank, was dismissed for aggressive behaviour in training and in the workplace, as well as failing to follow reasonable management directions, and involving himself in matters that did not relate to him despite repeated instructions not to do so.
  • Mr Hutton’s Team Manager (Mr Cavka) was called to give evidence on Mr Hutton’s performance .
  • SMEs of St George Bank in this matter, including Mr Cavka, gave detailed evidence on the behaviour of Mr Hutton and the manner in which the behaviour was received in the professional environment, verifying that certain internal processes (“such as moving matters of urgency higher up on lists, instead of waiting the usual 5-7 days to perform tasks”) were not being followed.
  • Evidence supported the view that Mr Hutton ‘was marred by significant performance issues, a failure to respond to Sykes “legitimate concerns regarding these issues, and an unreasonable refusal to follow direction as to the matter of his performance”.

Mr Michael Papathanasiou v National Australia Bank Limited T/A NAB [2019] FWC 1239

Gary Black v The Commonwealth of Australia (Department of Defence) [2011] FWA 293

Financial Services Ltd v Industry Australia Pty Limited [2014] FCAFC 92

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