Expert conclave: Dispute over questions

Goldsmith v Bisset [2014] NSWSC 1272 is a decision of Garling J published today, on the topic of disputed questions for an expert witness conclave.

Orders had been made for liability experts in their respective areas of expertise to confer and provide a report on the matters agreed and disagreed, setting out the reasons for their disagreement. A letter was drafted by the lawyers for the plaintiff, which the lawyers for the defendant objected to asserting that no question should be addressed to the experts that requires them to make a judgment or assessment as to whether a witness should be accepted as truthful or their evidence as accurate. Nor should they be asked to express an opinion about any matter or fact which is particularly the function of the trial judge to decide.

No alternate questions were proposed by the defendant’s lawyers at that time, but further correspondence followed. The defendant’s lawyers then asserted that it was not necessary for specific questions to be submitted to these experts – they should simply be asked to meet in conclave and prepare a joint report.

A motion was filed in order to resolve the impasse.

The court relevantly said:

  • The defendant’s attitude was contrary to the Court’s order, contrary to the Practice Notice and demonstrated a complete failure to comply with his obligations to the Court under s 56 of the Civil Procedure Act: [26].
  • There  was no proper basis for the solicitor for the defendant to expect that the Court would excuse compliance with the preparation of questions to be placed before the experts: [28].
  • The initial set of questions proposed by the plaintiff may have been the subject of legitimate criticism but, particularly having regard to the terms of the letter in which they were contained, ought to have been responded to, and in a way which demonstrated compliance by the solicitor for the defendant with the Court’s orders: [29].

At [41] the court said that It is not possible, speaking generally, for an expert witness to consider two accounts and indicate which he or she prefers. That is a confusion of the expert’s role with the role of the Court: Questions in a suitable form for consideration by the experts were annexed to the reasons for judgment.

One Reply to “Expert conclave: Dispute over questions”

Comments are closed.