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Expert Evidence in the Supreme Court of Victoria

by Donald Charrett

Dr Donald Charrett (2012) V24 No8 ACLB 118

The following case notes by Dr Donald Charrett refer to three rulings made by J Forrest J in a case arising out of the disastrous bushfires in Victoria in 2009. In this large and complex case there were a number of experts giving evidence on a number of different issues. Each of these three reports relate to rulings made by J Forrest J on aspects of the expert evidence process.

Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporation Limited (Ruling No 4) [2011] VSC 613

The ruling made by J Forrest J in this report included the common questions formulated by His Honour (the answers to which will form part of the judgment pursuant to s 33Z of the Supreme Court Act 1986(Vic)) that had been settled by agreement in the course of a case management conference.

The ruling also detailed the steps involved in the production and exchange of independent expert evidence, and the subsequent experts’ conferences. Forrest J considered that it was appropriate for the complete expert evidence process to be completed prior to mediation, including expert conclaves. This would promote the just, efficient, timely and cost-effective resolution of the real issues in dispute, in accordance with the objectives of the Civil Procedure Act 2010 (Vic). By identifying the real issues in dispute in the proceeding as early as possible the prospects of success of the mediation would be enhanced.

Matthews v SPI Electricity Pty Ltd & Ors; SPI Electricity Pty Ltd v Utility Services Corporation Limited (Ruling No 9) [2012] VSC 340

In this report J Forrest J distinguished between three types of opinion evidence:

1. Opinion evidence given by “independent experts” “engaged” by a party to the proceeding who calls the witness;

2. Opinion evidence given by a witness not “engaged” by the party calling the witness; and

3. Opinion evidence given by an “internal witness” of the party calling the witness.

His Honour noted the general rule in Victoria that a witness expressing an opinion should comply with O 44, but the rule did not apply 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. O 44 was directed to independent experts “engaged” by a party to prepare an opinion for the purpose of the trial, where engagement means an expert commissioned by a party to provide an opinion for the purpose of the relevant piece of litigation.

Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v United Services Corporation Limited (Ruling No 10) [2012] VSC 379

This report contains the rulings made by J Forrest J in relation to the composition and conduct of the conclaves of expert witnesses. His Honour had to decide between two different proposals:

· Conclaves within four broad topics, in which there may be a larger number of experts for one party than the other, each with expertise in some aspects of the topics; or

· Specific issue-by-issue conclaves, requiring roughly fourteen separate meetings, each with a smaller number of experts all with expertise in the conclave issue.

Forrest J noted that, although the second model would require more conclaves and be challenging administratively, it was preferable for the a number of reasons. Further information can be downloaded: Download


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