Expert conclaves: Utility & timing

In Bailey v Illawarra Shoalhaven Local Area Health District [2015] NSWSC 842, the court was called upon to deal with some pre-hearing issues including issues in relation to conclaves.

The court dispensed with the breach of duty conclave, noting that the defendant had made a partial admission of duty and in any event had not served an expert opinion on breach of duty: [15].

The plaintiff’s application that the causation conclave be deferred until part way through the hearing was refused (see [20]), the court noting that:

Finally the plaintiff asks for an order postponing the causation conclave until Monday in the second week of the hearing. I am disinclined to accede to this course. Whereas the conclave may theoretically be assisted by the evidence at the trial, that benefit is largely illusory if disputed questions of fact remain. It is not in my view fair to impose upon a trial judge the obligation to determine the facts hurriedly, particularly when all of the final issues in dispute may not have emerged in the time frame that is contemplated. The status of the defendant’s lately served statements may also have a bearing on those factual issues in a way that cannot presently be anticipated. More significantly, and on one view fundamentally, the proposal for a postponed conclave rather inverts the received wisdom for convening conclaves, which is to assist the Court in its deliberations rather than the other way round.

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