Monday, 15 April 2013

Background to the case

Matthews v SPI Electricity Pty Ltd involves a class action by a group of plaintiffs who had sustained personal injury, property damage, and/or economic loss as a result of the “Black Saturday” bushfire in Victoria in February 2009.

In this decision of the Supreme Court of Victoria, Forrest J was asked to consider the composition and conduct of the expert conclaves and, specifically, whether the experts should participate in discrete sub-issue conclaves or whether the conclaves should consist of a larger group of experts. The two methods of running the conclaves proposed by the parties were described as:

  • “The Maurice Blackburn model” which proposed that the conclaves should take place within six broadly agreed topics that were to be the subject of expert evidence; and
  • “The Freehills model” which proposed a more detailed approach involving specific issue-by-issue conclaves. Under this model, the number of joint expert meetings would increase to fourteen.

The preferred model: A detailed approach to expert conclaves

Forrest J acknowledged that the approach proposed by Freehills would result in “double the number of conclaves and be challenging administratively”. However, His Honour went on to find that the Freehills model was preferable given the degree of flexibility of implementation. Further, Forrest J highlighted the following advantages of the Freehills model: 

  • His Honour reasoned that by having a conclave devoted to specific issues there would be less scope for the parties to contest the expertise of particular witnesses.
  • The Freehills model reduced the likelihood that the use of experts would become a “battle of numbers”. As an example, Forrest J noted that, under the Maurice Blackburn model, one of the proposed conclaves would provide for five witnesses engaged by the Plaintiff with only one expert engaged by the Defendant. Citing this example, his Honour held that “[t]his is exactly the type of confrontation I hoped to avoid”.
  • The provision of joint reports dealing with specific and discrete issues would better assist to refine the issues requiring expert evidence, leading to a greater prospect of providing the Court with a clearer distillation of the issues in dispute and those that were not.
  • The Court retains the scope to expand the conclaves if the experts believed this would be of assistance.

Forrest J's guidance on running expert conclaves

Having held that the more detailed approach suggested by Freehills was preferable, His Honour considered the following procedural aspects of the proposed expert conclaves. The issues addressed by his Honour included:

  • Management of the process
  • The use of a moderator
  • The use of a scribe
  • The extent to which the parties could instruct the experts
  • Balancing the number of experts engaged by the parties.

Who is responsible for managing the process?

Forrest J addressed the risk, often arising in complex proceedings requiring experts across multiple disciplines, that lawyers for both parties will fervently contest issues put to the experts. In a paragraph titled “How to stop the bickering”, His Honour observed that:

As night follows day, it is inevitable that the lawyers for [the Plaintiff] and [the Defendant] will continue to argue about questions relating to the conclaves. I fear that there is a real prospect that the arrangements could go off the rails if this is permitted to go on.

In response to this issue, Forrest J held that a court-appointed party be responsible for the management and supervision of the expert conclaves. In this instance, an Associate Justice was employed for this role.

Should there be a moderator?

Not surprisingly, this question was also contested by the parties. In response, His Honour noted that the resolution of this issue lay with the experts themselves and was not a matter for the lawyers representing the litigants. Forrest J held that, if the experts felt that they required the assistance of a moderator, then the Court appointee could also act in this capacity.

Should there be a scribe?

His Honour again noted that the resolution of this question lay with the experts, but His Honour held that if appointed, a scribe’s duty should be confined to the recording of discussions with a view to assisting the experts to prepare the joint expert reports.

Should there be an agenda or list of questions provided to the experts? 

His Honour stated that it was not necessary to provide the experts with a list of questions to be considered, but held that an agenda, agreed by the parties, should be provided to the experts. If the contents of the agenda were further disputed, Forrest J held that the matter could be resolved by the Associate Justice appointed to manage the process.

On the risk that the expert conclaves would become “death by numbers”

His Honour indicated a preference for the parties to appoint one expert for each of the topics in dispute, but noted that in some cases this may not have been practical for bona fide reasons. In stating that “[T]he expert evidence will be determined on quality not quantity”, His Honour provided the parties with an opportunity to tender further expert evidence to redress any genuine detriment from an imbalance in the number of experts participating in each conclave.

Significance of this case

This case lends support to the growing use of expert conclaves by Australian courts. It also highlights the need for litigation practitioners to consider the implications of adapting to this trend, and the strategic and practical issues highlighted by this decision.

It is interesting to note that, under the guidance given by Forrest J, the experts were given a wide scope to determine the manner in which a conclave was run. On balance, a structured approach which incorporates the views of the participants in the expert conclaves is a positive development in this nascent area of litigation in Australia. This approach reduces the risk, even after a joint expert process, of the experts being “ships in the night” who address differing questions based on differing assumptions, with views that are difficult or impossible to reconcile. It comes in an environment where we are seeing some courts more prepared to become involved in the management of experts3, including the joint setting of agreed questions and assumptions.

End notes

1. Also known as Joint Conferences of Experts
2. Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v United Services Corporation Limited (Ruling No 10) [2012] VSC 379 (4 September 2012)
3. It is interesting to contrast this with the NSW Supreme Court practice direction (SC Gen 11) which requires that:
- The parties should agree on the questions to be answered
- Questions should be framed to answer an issue, preferably capable of a yes/no answer
- That this be done at least 14 days before the conference occurs