Matthews v SPI Electricity Pty Ltd (Ruling No 9)
[2012] VSC 340
•13 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4788 of 2009
| CAROL ANN MATTHEWS | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Defendants |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by counterclaim |
| V | |
| UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS | Defendants by counterclaim |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2012 | |
DATE OF RULING: | 13 August 2012 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 9) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 340 | |
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EVIDENCE – Opinion based on specialised knowledge – Admissibility of evidence – Requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) - Evidence Act 2008 (Vic) ss 76, 79 and 55.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC Mr L Armstrong Ms M Szydzik | Maurice Blackburn Pty Ltd |
| For SPI Electricity Pty Ltd | Mr J Beach QC Mr D Farrands | Freehills |
| For USC | Ms E Brimer | Holman Fenwick Willan |
| For the State parties | Mr C Caleo SC Mr M Rush | Norton Rose |
HIS HONOUR:
Introduction
The parties are required, by an earlier order of the Court, to exchange the reports of their independent experts by 17 August 2012. A dispute has arisen as to the extent of the parties’ obligations to provide information or reports in relation to other witnesses (including those employed by SPI, USC or the State) who may, at trial, give opinion evidence.
Part of the difficulty here arises from characterising the exact nature of the evidence which is to be elicited from a particular witness in a vacuum. I am responsible for this as I have determined that the trial will proceed without the use of witness statements, but with the provision of appropriate information as to expert opinion as required by Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).[1]
[1] “SCR”.
The purpose of this ruling is, hopefully, to provide guidance to the parties as to the manner in which expert opinions will be dealt with both pre-trial and in the course of the trial. In addition, I have resolved a couple of subsidiary issues concerning two expert witnesses who Mrs Matthews proposes to call at the trial.
Orders made in this case to date
A number of orders have been made in relation to the provision of expert reports pursuant to r 44.03 of the SCR. In substance, the position is as follows:
· the parties have filed lists of the experts proposed to be called at the trial. Mrs Matthews also filed a list of 15 “lay witnesses who may provide opinion evidence”;
· the parties are required to file and serve expert reports by 17 August 2012; and
· the parties are required to hold meetings of the experts for the purpose of the preparation of joint reports by 5 October 2012, with the reports due to be filed on 26 October 2012.
Opinion evidence under the Evidence Act
The relevant part of s 76 of the Evidence Act 2008 (Vic) reads as follows:
The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 79 then provides the exception:
Exception-opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
For the sake of completeness, I should also mention s 55, which determines the admissibility of the evidence:
Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to-
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
. As the High Court put it in Dasreef Pty Ltd v Hawchar:[2]
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered “to prove the existence of a fact” … the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding, which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.[3]
[2](2011) 243 CLR 588 (“Dasreef”).
[3]Ibid 602 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
In Dasreef,[4] the High Court identified two criteria for opinion evidence to be admissible:
The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.[5]
[4]Ibid.
[5]Ibid.
The Court then went on to say, in relation to earlier decisions of the High Court and that of the New South Wales Court of Appeal in Makita (Aust) Pty Ltd v Sprowles:[6]
It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.[7]
and then:
A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.[8]
[6](2001) 52 NSWLR 705.
[7]Dasreef, 622 [37].
[8]Ibid [42].
In the recent decision of Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3),[9] Dixon J analysed the judgment of the majority and Heydon J in Dasreef and summarised the tests for admissibility of opinion evidence as follows:
[9][2012] VSC 99.
(a)is the opinion relevant (or of sufficient probative value);
(b)has the witness properly based 'specialised knowledge';
(c)is the opinion to be propounded 'wholly or substantially based' on specialised knowledge; and
(d)is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically:
(i)are the ‘facts’ and ‘assumptions’ on which the expert's opinion is founded disclosed;
(ii)is there evidence admitted which is capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
(iii)is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge?[10]
Order 44 of the Supreme Court Rules
[10]Ibid [98]. I have varied this part of his Honour’s reasons to reflect the use of concurrent evidence sessions at the conclusion of the factual evidence. See also ASIC v Rich (2005) 190 FLR 242, [256] (Austin J).
Order 44 deals with the adducing of expert evidence at trial. The foundation provision is r 44.03. Rule 44.03(1) reads:
Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall –
(a)as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the code; and
(b)not later than 30 days before the day fixed for trial serve on each other party, a report by the expert in accordance with paragraph (2) and deliver a copy for the use of the Court.
Rule 44.03(2) requires the report to “state the opinion of the expert” and then deals with the mechanics of a report prepared for use in court. The expert is required to acknowledge that he or she has read the expert witness Code of Conduct[11] and has agreed to be bound by it. The Code (which is contained in Form 44A) notes that the expert witness “has an overriding duty to assist the court impartially on matters relevant to the area of expertise of the witness” and that the witness is “not an advocate for a party”. The Code also requires the expert to “exercise his or her independent judgment” in relation to any joint conference directed by the court for the purpose of the preparation of a joint report.
[11]“the Code”.
The rationale for r 44.03, and O 44 as a whole, is twofold. One is to ensure that each party has an adequate forewarning of the expert evidence to be led at trial. This, it is assumed, assists in pre-trial dispute resolution, as well as ensuring that trial ambushes are kept to a minimum. In recent times, expert reports provide the foundation for meetings of experts and the subsequent preparation of a joint expert report. The other basis is to ensure that expert witnesses engaged by the party for the purposes of the trial are aware of their responsibilities to the Court in preparing an independent opinion, notwithstanding the interests of the commissioning party. The aim is to eliminate, or at least reduce, the “gun for hire” approach endemic to adversarial litigation prior to the introduction of the Code.
There are two other points about O 44 which need to be made here. The first is that compliance with r 44.03(1) may be relaxed or dispensed with in an appropriate case. The second is that r 44.03 is plainly directed to experts “engaged” by a party to prepare an opinion for the purpose of the trial. Engagement for the purpose of this rule means, in my opinion, an expert commissioned by a party to provide an opinion for the purpose of the relevant piece of litigation. I shall return to this point shortly. It is now convenient to turn to the opinion evidence in this case.
Opinion evidence in this case
Each of the parties have engaged expert witnesses to give opinion evidence at the trial. I have referred to these witnesses in both rulings and orders as “independent experts”. These experts are required to file their reports in accordance with O 44 of the SCR and, in particular, to ensure the reports conform with r 44.03.
There are two other categories of opinion evidence, aside from that of the independent experts, which should now be mentioned.
One is that of witnesses not “engaged” by the party calling the witness and who will not provide an expert report in compliance with r 44.03. In the main, these witnesses have been involved in investigations into the fire and its cause and will give evidence as to factual matters surrounding the fire and the allegations made by the parties. It is also sought to lead opinion evidence from these witnesses who, for various reasons, cannot be engaged to provide an opinion. A further issue with these witnesses, as well as the third category, is whether the evidence sought to be adduced is truly an opinion within the meaning of s 79 and r 44.03.
The other is that which I have described, perhaps somewhat misleadingly in earlier orders, as an “internal witness” of the party who seeks to call that witness. By this expression I mean those witnesses employed by or contracted to one or other of the defendants and whom that defendant will seek, primarily, to adduce factual evidence, but also an opinion relevant to the trial issues. As with the second category, these witnesses have not been “engaged” to provide a report.
Areas of expertise and topics to be addressed
The parties have agreed upon particular areas of expertise on which the independent expert witnesses will give evidence. The present plan is for these witnesses to give evidence in concurrent witness sessions commencing in early June 2013, that is, at the conclusion of all the lay evidence in the trial. The areas of expertise have been identified as follows:
· Electrical engineering;
· Materials engineering;
· Lightning;
· Asset management principles;
· Analysis of vibrations and dynamics;
· Ballistic risk analysis;
· Prescribed burning;
· Fire behaviour;
· Budget process and resources allocation;
· Fire fighters; and
· Warnings.
The specific topics upon which these experts will give evidence have also, at least in a preliminary way, been identified and are as follows:
· Fire cause and fire origin;
· The cause of the conductor failure;
· Asset management practices;
· Prescribed burns – vegetation management;
· Fire suppression;
· Warnings;
· Meteorology and weather; and
· Asset inspectors – training.
The first category – independent witnesses
Mrs Matthews has identified 10 expert witnesses to participate in the preparation of the joint reports and, if necessary, give concurrent evidence. SPI has identified 11 such witnesses, USC has identified seven and the State parties six. Each of the witnesses have been “engaged” for the purpose of r 44.03(2) and the reports must comply with the requirements of that rule.
In addition to providing reports pursuant to r 44.03, these witnesses will participate in the preparation of joint reports (where applicable) and give concurrent evidence at the conclusion of the lay evidence. Prior to the concurrent evidence sessions, a list of topics will be identified which will be covered by these witnesses based upon the contents of the joint report.
The second category – witnesses who will provide an expert opinion but will not file an r 44.03 statement
A number of decisions of the New South Wales Supreme Court have emphasised the desirability (indeed at times necessity) of an expert witness agreeing to abide by a Court imposed code of conduct.[12] In Investmentsource Corp Pty Ltd v Knox Street Apartments Pty Ltd,[13] McDougall J said:
In my view, the clear intention of this change in the regulatory framework is to reinforce the proposition that, as a general rule, expert evidence should not be admitted unless the expert has at the relevant time subscribed to the obligations that are now to be found in Sch 7.[14]
[12]Barak Pty Ltd v WTH Pty Ltd (2002) NSWSC 649, [5] (Barrett J); Commonwealth Development Bank of Australia Pty Ltd v Claude George Rene Cassegrain [2002] NSWSC 980, [9], [11]-[14] (Einstein J); United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870, [10] (Campbell J); Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) NSWLEC 791.
[13](2007) NSWSC 1128.
[14]Ibid, [44].
In Gemworth Financial Mortgage Insurance Pty Ltd v Hodder Rook & Associates Pty Ltd,[15] Einstein J raised the bar holding that only in “exceptional circumstances” would a court permit the tendering of an expert report absent compliance with the expert code of conduct. The New South Wales Court of Appeal held that such a test could not be read into the relevant rule and, importantly, noted that each case must be considered on its merits.[16]
[15][2010] NSWSC 1043.
[16][2011] NSWCA 279, [57]-[63].
In my opinion, in this State the general rule should be that a witness expressing an opinion should, where practicable, comply with the provisions of O 44 – and particularly the Code.
However, the rule cannot have an application to a situation in which a party seeks to lead opinion evidence from a witness in circumstances where it is either impractical or unlikely that the witness will consent to an engagement to provide a report under the terms of r 44.03. It was not the intention of r 44.03(1) that the party should be shut out from adducing that evidence because of this problem; so much is clear from the opening words of that part of the rule. Rather, the purpose behind r 44.03 is to ensure that experts engaged by the parties for the purpose of providing an “independent” opinion understand their obligation to the Court, as well as the necessity for the report to disclose the essential requirements for the opinion to be admitted as evidence.
There is a reality in litigation that needs to be understood in determining whether to exempt a witness who proposes to express an opinion from compliance with O 44 and the Code – it is this: often witnesses who have been involved in the investigation of matters the subject of a particular piece of litigation are not prepared to provide a report compliant with O 44. Many will have valid reasons (including a desire to avoid being caught up in the adversarial system) for not providing a report. In some cases, such witnesses will have been engaged by persons or organisations other than the combatants at the trial. In such cases, the potential witness will often have first hand knowledge of the evidentiary matters and in all likelihood possess a far greater contemporaneous knowledge of the surrounding circumstances under inquiry than a retained “independent” witness. Strict compliance with r 44.03 would shut such opinions out, notwithstanding that the witness has much to offer in ensuring a fair determination of the trial issues.
An example of this situation is to be found in a case far removed from the current litigation. In Glodale Pty Ltd & Ors v Investec Bank (Australia) Ltd,[17] a borrower sued the lender bank for not taking reasonable care in the forced sale of its properties. A central witness at the trial was a valuer engaged by the bank to provide advice as to the prospective sales. The valuer would not provide a report to the borrower’s solicitor and only attended the trial after being subpoenaed by the borrower. At trial he was called by the borrower and gave evidence as to factual matters. In addition, the borrower endeavoured to elicit his opinion as contained in a report to the bank. Counsel for the bank objected on the basis that the witness had not complied with r 44.03. The trial judge permitted the valuer’s opinion as contained in the report to be tendered and he was cross-examined by counsel for the bank.[18]
[17][2007] VSC 276; on appeal Investec Bank (Australia) Ltd v Glodale Pty Ltd & Ors (2009) 256 ALR 104.
[18]The report was also admissible as evidence of the factual material available to the Bank at the time it made its decision – but the bank relied upon non-compliance with r 44.03.
Returning to this case, Mrs Matthews has identified 15 witnesses, who gave evidence at the Victorian Bushfire Royal Commission,[19] who may fall into this category. In some instances, the witness will give evidence as to factual matters as a result of an inquiry carried out for purposes unrelated to this proceeding– for instance, a forensic expert engaged by Victoria Police or the Coroner to examine the cause of the fire in addition to giving evidence as to the observations and tests, may also be asked to express an opinion, such as the probable cause of the fire. That expert may, because of employment or contractual restrictions or personal inclination, be unwilling to provide an expert report complying with r 44.03. The Court should not, subject to what I am about to say, be deprived of the assistance of that opinion. Another example that comes to mind and relevant in this case is a person engaged by one of the defendants (say, and purely as an example, SPI or the CFA) whom Mrs Matthews wishes to call to give factual and opinion evidence. That person, understandably, will not commit to a r 44.03 report, particularly where there may be employment obligations inconsistent with those imposed by O 44 and the Code.
[19]“VBRC”.
Concluding that r 44.03 is confined in its application to an independent expert witnesses does not relieve the party calling a witness to express an opinion, not covered by r 44.03, to conform with a number of essential requirements prior to that witness being permitted to give expert evidence. Absent good reason, the other parties and the Court should be informed of:
(a) the witness’ training, study or experience;
(b) the facts, matters and assumptions upon which the opinion is based (often this may be simply the observations made by the witness at a particular event);
(c) the substance of the opinion; and
(d) the reasoning underpinning the opinion which is to be expressed.
Examples of the detail to be provided can be found in this case. Each of the 15 witnesses within this category and identified by Mrs Matthews gave evidence at the VBRC and have not provided an expert report. These witnesses may be asked by Mrs Matthews to provide an opinion in addition to giving factual evidence. A number, if not all, of the parties involved in this litigation were represented at that hearing and have already had the opportunity to hear the evidence, cross-examine the witness and to obtain copies of the transcript. In that case, assuming the details of the opinion (as set out in [31]) are contained in the transcript of evidence, then that should be sufficient to provide the other parties with the requisite information for the purpose of the trial.
In other cases where the evidence has not yet been adduced or placed into written form, it will be necessary for the party calling that witness to provide the details I have identified.
I accept that this approach will mean that not all the expert evidence emerges at the concurrent evidence session – by far the most desirable result. However, there will be the opportunity for those independent witnesses to assess and comment on those opinions – if necessary.
There are two further matters which are relevant to this category and the third category. The first is that merely because a witness has expertise does not mean that his or her evidence is opinion evidence.
This point was noted in a native title case of Gumana v Northern Territory of Australia[20] in relation to anthropological evidence:
Much of the discussion about “expert” evidence would seem to assume that it is primarily or only “opinion” evidence. However, that will depend upon the nature of the expert and the nature of the evidence. For example, where the evidence of an anthropologist is the direct consequence of significant field work over a lengthy period, it may not be evidence of opinion at all. Rather, it may be the direct evidence of the observations that the anthropologist has made. Similar evidence might be given by others who have made similar observations: see Ritz Hotel v Charles of the Ritz (No 7). This would include the claimants themselves, of course, but might also include missionaries, teachers, or those who have lived or worked with the claimants over a long period and are in a position to give useful evidence of what they have observed. Those observations, insofar as they consist of what the relevant person had observed are admissible to the extent that they are relevant.[21]
[20](2005) 141 FCR 457.
[21]Ibid 500, [156] (Selway J) (citations omitted).
In ASIC v Rich,[22] Austin J noted a number of well known examples of a witness with appropriate expertise giving factual evidence – for instance, a doctor as to his observations during a clinical examination and a valuer as to the attributes of particular properties. Notwithstanding that the witness’s expertise may be relevant to the making of the observation, it remains admissible as evidence of an observed fact.[23]
[22](2005) 190 FLR 242.
[23]Ibid, 270.
The second point that emerges from the authorities and one that may well arise in this trial is where a witness gives evidence based upon his or her own observations and/or scientific or specialised analysis. Such evidence may, when properly analysed, not amount to opinion evidence, but rather is properly characterised as a factual conclusion. In RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd,[24] Giles J described opinion evidence in the following terms:
Opinion evidence can be described as evidence of a conclusion, usually judgmental or debateable, reasoned from facts.[25]
[24](1991) 34 NSWLR 129.
[25]Ibid, 130. Described by Vickery J as a useful definition in Hodgson v Amcor Limited, Amcor Limited v Barnes (No 3) [2011] VSC 272, [46].
In The Queen v Perry (No 4),[26] Cox J said:
It is not all kinds of evidence that only an expert witness can give that may properly be described as opinion evidence. A man may need to show a particular degree of knowledge or expertise to be qualified to give evidence on a specialist subject, but it does not necessarily follow that his evidence as to how a complex piece of equipment works, for instance, or what happens when a car skids is opinion evidence.[27]
[26](1981) 28 SASR 119.
[27]Ibid, 124.
This point was also illustrated by Austin J in ASIC v Rich.[28] A scientist identifying a particular virus or strain is drawing an inference from observable facts based on his or her expertise. This is not opinion evidence. Similarly, a forensic accountant completing a complex financial calculation conducts an analytical mathematical exercise and comes to a factual conclusion.
[28](2005) 190 FLR 242, [270]-[272].
So, returning to this case, an observation by an experienced engineer that there was evidence of arcing would, in my view, amount to a proposition of fact derived from the application of specialised knowledge. On the other hand, an opinion as to the likely cause of a fire involves a judgment reasoned from the facts and therefore constitutes an opinion.
Undoubtedly, there will be cases where the distinction is difficult to make.
The end result is that a witness is entitled to give evidence about observations and conclusions based on the application of specialised knowledge which does not constitute an opinion within the meaning of s 79. But if that evidence goes further than that and is properly identified as an opinion caught by s 79, then it will be the subject of disclosure in the manner I have set out.
Finally in relation to the second category, as things stand, Mrs Matthews has filed a list of witnesses from whom opinion evidence within this category may be adduced. It is incumbent upon her lawyers to now pin their colours to the mast and identify in the detail I have suggested by 7 September 2012 (subject to any exception allowed by the Court) exactly what opinion is sought to be led from the witness - if he or she is called to give opinion evidence.
The third category – internal experts
This category covers those witnesses employed or engaged by one of the defendants and from whom it was intended to, primarily, lead evidence as to facts but also opinion evidence.
The Defendants were required to identify such witnesses by May 2012. None have done so.
The two points I made concerning the second category of witness apply to internal witnesses to be called by the Defendants.
Counsel for Mrs Matthews argued that the defendants should be obliged to disclose, in effect, the substance of the evidence of any witness that may amount to opinion evidence. This is impractical. The onus remains on the party adducing the evidence to provide the details I mentioned earlier if that witness is to give opinion evidence at trial. Otherwise, it will not be permitted. Of course, if it emerges that the evidence of a witness may be characterised as opinion evidence and that this could not have been reasonably anticipated by the party calling the witness, then this can be accommodated at the trial. It is important not to let questions of procedure become substantive rules of evidence. The purpose of providing the details of the evidence which I have set out is not to set up a straightjacket for the purpose of the trial, but to ensure that each party knows the substance of the expert opinion (and the train of reasoning) which will be adduced in the course of the trial and can meet that evidence satisfactorily.
The evidence of Dr Hastings and Mr Better
Dr Nick Hastings is an engineer who will be called by Mrs Matthews to give an expert opinion on SPI’s asset management policies and procedures. Her counsel and solicitors contend that because of tardiness or non-compliance by SPI with its discovery obligations, Dr Hastings cannot complete his report.
It was accepted that Dr Hastings was instructed a considerable time ago and has been provided with a large amount of material (presumably much of which came from the ongoing discovery in the case). The complaint made is that until discovery is completed in toto, he will not be in a position to provide a report. It emerged in discussion that the fears about Dr Hastings being unable to complete his report are confined to his lawyers. He has not been asked by the lawyers as to whether he can complete the report on the basis of the material provided so far. No affidavit has been filed to substsantiate the complaint which is unsubstantiated and can be put to one side. The reality is that the independent expert witnesses in this case have been provided with a wealth of material both from the VBRC documents and those documents provided in the course of compliance with discovery orders. It may (and I emphasise may) be that there is further information to be provided in the course of further applications for discovery to the Associate Justice, as well as part of the continuing discovery obligations upon the parties. Be that as it may, the position is that there should be no impediment to the provision of a report by 17 August 2012. Rule 44.03(2)(i) and (j) permits the author of the report to qualify the opinion and to state “whether an opinion expressed in the report is not a concluded opinion, whether there was insufficient research or insufficient data, or for any other reason”. Of course, in making that statement, the expert would take into account the obligations imposed by the Code. No doubt Dr Hastings will consider these matters prior to delivering his report on 17 August 2012.
The position of Mr Harry Better is a little different. He is a mechanical engineer employed by HRL Technologies.
Mr Better and HRL Technologies were initially engaged in February 2009 by Victoria Police on behalf of the Coroner to prepare a report concerning aspects of SPI’s electrical equipment. Mr Better subsequently prepared a report and gave evidence at the VBRC of his opinion concerning the equipment.
My understanding of the position is that Mr Better has continued to carry out examinations of particular pieces of equipment held by the Coroner.
On 1 February 2012, the solicitors for SPI objected to Mrs Matthews’ solicitors communicating with Mr Better – as I understand the position, the objection was based upon Mr Better’s access to privileged material provided to the VBRC.
It is not entirely clear from the correspondence, but it seems that the original objection (based on access to privileged material) was, by April, not persisted with.
In a letter of 2 May 2012 in response to a specific request by SPI’s solicitors concerning HRL Technologies, Mrs Matthews’ solicitors stated as follows:
No representative of HRL has been engaged to assist the plaintiff in the current proceeding.
In the plaintiff’s list of proposed experts filed on 30 May 2012, there was no mention of Mr Better. However, he is nominated in the list of “Plaintiff’s lay witnesses who may provide opinion evidence” filed on 21 June 2012. In a letter of 20 June 2012, Mrs Matthews’ solicitors said as follows to SPI’s solicitors:
We do intend to call Harry Better to give evidence.
As you are aware HRL conducted the initial failure investigation and have had the opportunity to examine the assets in their original state. We therefore believe that it will be necessary to call Mr Better in this proceeding. As no other party has expressed the intention of calling him, we will be doing so.
We have not retained Mr Better as an expert and for that reason have not proposed any questions for him.
Mrs Matthews’ lawyers conferred with Mr Better during July and it was confirmed that it is now proposed to call him at trial.
Conferring with Mr Better does not mean that he has been engaged by Mrs Matthews to provide an independent expert report. At the moment, Mr Better falls squarely within the second category of witnesses that I identified. I presume that he will give evidence as to his observations and tests and then express an opinion. Provided the opinion that is sought to be adduced complies with the requirements I have set out, his evidence at trial will be admissible (assuming it complies with the other requirements). In Mr Better’s case this will, in all probability, mean the furnishing of further details, given the testing that has been carried out over the past months.
Further steps
The order that all independent expert reports be exchanged on 17 August 2012 remains in force.
It is also important that a deadline be set as to the delivery of details of opinion evidence falling into the second category - none having been identified within the third category. Mrs Mathews will have an opportunity to consider this ruling and determine what, if any, opinion evidence in the second category is to be relied upon at trial. As I mentioned earlier I propose to order that such details be provided by 7 September 2012.
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