Expert evidence: Obligations to the court

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Limited [2014] VSC 567 saw the court address concerns by the trial judge in relation to an expert’s report, as to whether the expert and the lawyers retaining that expert had discharged their paramount duty to the court: The issue was whether they had acted honestly at all times, engaged in conduct that was misleading or deceptive and or failed to disclose the existence of documents (at [5]) against the background of two different versions of a report of the expert, only one of which was provided to the court: [63].

At [20], Dixon J commented that by reason of the duties owed to the court by experts and lawyers, the court is entitled to seek an explanation of circumstances that raise a serious question about the breach of such duty – hence the present hearing on the court’s own motion.

The decision is long and factually complex. Matters of principle addressed include a discussion at [145] regarding the duties of experts (and presumably lawyers) before hearing:

…alternative dispute resolution depends..not simply on disclosure of expert evidence, but upon the diligent observance by experts of their duties to the court…not limited to reports that are used in evidence…

Findings in relation to the expert appear at [205] ff, focused on the failure of the expert to reveal the additional version of his report and non-compliance with the expert code.

Findings in relation to the solicitor include discussion at [226] regarding imputed knowledge when a barrister has been authorised to deal with a witness. At [229] the court held that the solicitor and barrister had breached section 26 of the Civil Procedure Act (Vic).

Sanctions for contravening obligations to the court were discussed at [254]ff. The matter was adjourned for consequential orders to be made at a later date.