The difficulty with ‘starting high’! We referred to our first edition as editorial team in June 2022 as a “bumper issue”. A year later and Hearsay is positively bursting at the seams. The editors threw around the term ‘exo’ when trying to describe this edition – there are more than 80 articles contained within. We refuse to believe we are without sufficient language skills that we cannot think of an apt adjective but rather consider there is no other word adequate. 

Thank you to the many contributors – we would be nothing without you! – but thanks also to our readers, both members of the Queensland Bar and beyond, whose encouragement spurs us on.

This edition covers important territory. 

The Honourable Michelle May AM KC allows us a peek inside professional life after retirement from the bench. I am very grateful for her frank disclosures and the assistance they will afford current serving judges and those at the bar contemplating possible judicial appointment. 

There are two contributed articles regarding the Voice referendum – one for, one against – reflecting the Association’s position the matter is one for each of us. Both are thought-provoking and, I trust, will provide clarity where required.

The Australian legal profession lost a giant with the passing of the Honourable David Jackson AM KC. Peter Dunning KC who attended his Honour’s funeral in Sydney in his role as President of the Australian Bar Association, has written a fitting tribute as a ‘Featured Article’.  

Women barristers will find her Honour Magistrate Cathy McLennan’s speech – her Honour previously practising as a barrister – holds a mirror to some of their own prior experiences. A few of those unforgivable experiences are yet to be relegated to the annals of history but her Honour’s speech celebrates the significant progress being made.

Lister Harrison KC entertainingly talks us through the silk-related consequences of the death of Elizabeth II. Michelle James informs us of the links between the State Library of Queensland and the legal profession. Stephen Lee provides a fascinating insight into the influence of Chancellor Kent on Australian jurisprudence. The extraordinary life of Benjamin Ferencz – who played a crucial role as counsel in the post-Nuremburg trials – is highlighted in an article by Bianca Stringer.

‘10 Minutes With…Danny Gore KC’ has this busy and popular senior silk share with us his insight into a long career of practice at the bar.

‘Regional Bar’ features an in depth look at the Toowoomba and Darling Downs bar by David Jones KC. He shares with us also the rich history of law practice on the Downs, including the true origin of ‘the Roma Jury.’

I draw your attention to the raft of current material in ‘Advocacy.’ Further, there are articles on the uncertainties of litigation by Glenn Newton KC and a hypothetical trusts scenario and a detailed analysis of the same by David Marks KC.

And if you have not done so already, such is its wide circulation, I strongly commend to you, in ‘Professional Practice and Conduct,’ the speech of Victorian Supreme Court judge, the Honourable Justice O’Meara delivered to the Victorian Bar Readers’ Dinner. In so doing, you are unlikely ever to treat lightly your mental health.

On that note – encouraging you to lift your head from the brief – ‘Reviews and the Arts’ has movie, podcast and book reviews (especial thanks to S Keim KC our literary Sub-Editor), songs, poems and beautiful music from the Australian Voice Ensemble and the inimitable Tina Turner who was, obviously, simply the best and particularly dear to any NRL devotees. We round out, in ‘Inter Alia’, with musings on language, bar/bench sport (including some terrific photos) and the antics of Mintie the dog.

I thank Dianne Lyndon of the Bar Association and Deputy Editors John Meredith and Megan Brooks for their industry in producing this enormous issue.

Please forward to us, by Friday 18 August at the latest, contributions for issue 93, due for publication in mid-September 2023.

Enjoy!

Until next edition,

Richard Douglas KC
Editor

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.

Introduction

My over-arching answer to the question posed by the title of this article is the occasional unsatisfactory barrister’s response:  “That depends!” 

Formal pre-trial witness familiarisation training has long been de rigueur in the United States, and has made some inroads into the United Kingdom in the last two decades.  Such services are now available in  Australia.

In the US – where jury trials are the norm – retained attorneys or external providers set up mock court rooms, with witnesses being cross-examined by attorneys before a faux judge, and on the very evidence they are going to give at trial.  On any view – under Australian and UK ethical principles – this is impermissible “coaching”.

In contrast, what of an approach – afforded in-house or externally – whereby a witness is the subject of general familiarisation training as to court processes, including how questions commonly are asked, and little more?  So much, in general terms, it is submitted, is permissible, and probably little different from the way in which witnesses are prepared for trial conventionally in the Australian legal system.

The question is where the line is to be drawn between these two positions.  So much is addressed in this article.

In sum, in my view, barristers ought be cautious when advising on, or in condoning the drawing of that metaphorical line.  So much obtains in criminal and civil (including family) law spheres.

“There is an important difference between exploration and rehearsal.”

The Queensland Ethical Rules

The Barristers Rule 2011 (Qld), relevantly, provides:

Integrity of Evidence

68. A barrister must not:

a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

b. coach a witness by advising what answers the witness should give to questions which might be asked.

69. A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

70. A barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time:

a. about any issue which there are reasonable grounds for the barrister to believe may be contentious at a hearing, and

b. where such conferral could affect evidence to be given by any of those witnesses,

unless the barrister believes on reasonable grounds that special circumstances require such a conference.

71. A barrister will not have breached Rule 70 by conferring with, or condoning another legal practitioner conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

72. A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

a. the cross-examiner has consented beforehand to the barrister doing so; or

b. the barrister –

i. believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

ii. has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so; and  

iii. otherwise does inform the cross-examiner as soon as possible of the barrister having done so.

73. A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.

74. A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.

(emphasis added)

In my view, a proven allegation of any breach of Rules 68 and 69, in most instances, would result in a finding of professional misconduct (cf unprofessional conduct) against the offending barrister.  Moreover, if still in practice, such barrister would lose any trust of a court before whom they appear.

Character of Services Available

In an article appearing in “Proctor” – the online magazine of the Queensland Law Society – published 10 March 2021, the following helpful description of the services available was afforded by an external provider of witness familiarisation training:

Witness familiarisation is part of the process of preparing a witness who is to provide testimony in court, or in other legal and quasi-legal settings, usually under cross examination.

Witness familiarisation is an educational process which helps a witness provide their evidence most effectively. It does this by providing theoretical and practical training in the provision of evidence. It seeks to help a witness overcome the nerves, stress and pressure of cross examination, and to deal with the nuances and hurdles frequently faced by those providing evidence.

The witness familiarisation process has a particular emphasis on practical methods of witness preparation through rigorous mock cross examination sessions. These are conducted by independent practising barristers based on a hypothetical sets of facts, completely independent of the actual facts and issues in any underlying proceedings. This gives witnesses the opportunity to practise and apply the fundamental skills learnt in a simulated, but realistic, environment.

…

Witness familiarisation is available for both expert and factual witnesses, and courses are designed for such witnesses to properly account for the differences in the type of evidence to be given. Typically, a course is for one day, structured as follows:

1. Morning session – Foundations
   – Introduction to the court/trial process
   – Role of a witness
   – The giving of evidence
   – Cross examination techniques
   – Strategies to deliver evidence effectively
2. Afternoon session – Practical
   – Mock cross examination session
   – Videoed for witness, reviewed and analysed
   – Repeat.

Courses are usually undertaken at the instructing firm’s offices. Sessions are generally conducted individually for witnesses in order to ensure ethical obligations prohibiting witness collusion are strictly observed. In some limited circumstances, group sessions can be arranged, such as for sessions to professional bodies, where no attendees are witnesses in the same proceeding.

“Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination.”

Unethical witness coaching is wholly separate and distinct from witness familiarisation training.

Witness coaching is influencing a witness’s evidence – telling a witness what to say, or how to answer a question put. In other words, it is “the orchestration of the evidence given” as the court said in R v Salisbury [2005] EWCA Crim 3107.

Conversely, witness familiarisation training is conducted wholly independently of the evidence to be given and thus falls safely within the ethical boundaries demanded of practitioners. This is achieved through several crucial mechanisms:

All courses are taught by independent local barristers, who are fully aware of, and subject to, the relevant regulatory and ethical obligations.

All course materials are hypothetical, prepared completely independently of the underlying legal proceedings.

All training sessions are conducted strictly without reference to the underlying proceedings. Training organisations and the instructors do not, and cannot, know details of these proceedings.

(emphasis added)

The cost of such services is unknown to me.

UK – R v Momodou:

In R v Momodou [2005] 2 All ER 571; [2005] WLR 3442, the Court of Appeal in England and Wales considered a case in which a training provider had created practice case studies for the witnesses – in a forthcoming criminal trial – to be cross-examined on a case that – importantly – although hypothetical, had similarities with the facts of the actual case.  The witnesses were trained together and not separately.

The Court of Appeal held that this type of training crossed the boundary from mere familiarisation into coaching.  Judge LJ – later Judge CJ, and now Lord Judge – wrote for the court (at [61]-[65]):

[61] There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484, R v Arif The Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other 3454 witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.

[62] This principle does not preclude pre-trial arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.

[63] In the context of an anticipated criminal trial, if arrangements are made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed. In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation. If appropriate after obtaining police input, the Crown Prosecution Service should be invited to comment in advance on the proposals. If relevant information comes to the police, the police should inform the Crown Prosecution Service. The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations. If, having examined them, the Crown Prosecution Service suggests that the programme may be breaching the permitted limits, it should be amended. If the defence engages in the process, it would in our judgment be extremely wise for counsel’s advice to be sought, again in advance, and again with written information about the nature and extent of the training. In any event, it is in our judgment a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised by the defence using outside agencies, and it will follow that the Crown Prosecution Service will be made aware of what has happened.

[64] This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events. As already indicated, the document quoted in para 41, if used, would have been utterly flawed. If discussion of the instant criminal proceedings begins, as it almost inevitably will, it must be stopped. And advice given about precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted. Note should be made if and when any such warning is given.

[65] All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed.

(emphasis added)

“Questioning of a witness moves beyond “proofing” to impermissible “coaching” when the witness’ true recollection of events is supplanted by another version …”

UK Bar Commentary

In an article in “Counsel” – the online magazine of the Bar Council of England and Wales – published in November 2017, and written by Nicholas Goodwin KC, the following was said about amended guidelines then recently adopted:

Revised guidance

In August 2017 the Bar Council Ethics Committee published a revised guidance document on witness preparation. In practice, unheralded issues relating to witnesses are, we have found, more likely to arise in criminal or family cases. However, the document is divided into three sections – civil, crime and family – to make it more readily accessible by all practitioners facing ethical dilemmas at court.

This new guidance confronts head on the ethical line drawn between, on one hand, the need to provide support to one’s client before giving evidence and, on the other, the need to ensure that their evidence remains, uninfluenced, their own. All counsel will seek to put their client at ease in advance of a case, particularly at the door of the court. Some witnesses will be vulnerable, have a learning difficulty, be victims of a crime or will be participating in proceedings in a foreign court in a foreign language. Some will be just plain nervous. There are, of course, no difficulties with seeking to reassure and inform such witnesses about their likely experience in court.

Staying the right side of the line

Conduct that falls the right side of the line is, principally, emotional support and encouragement designed to help the witness give their best evidence. The ethics become more complex when the witness seeks guidance in advance about cross-examination. The main rule governing counsel’s conduct is Rule C9.4 in the BSB Handbook: ‘you must not rehearse, practise with or coach a witness in respect of their evidence’. This is a subset of Core Duty 3 – the duty to act with honesty and integrity. Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination. The guidance is not, of course, intended to operate as a restriction on counsel exploring in conference with a client all aspects of the case in detail, including his/her response to assertions made by other parties that may well be put in cross-examination. There is an important difference between exploration and rehearsal.

There are other rules referred to in the document which, in combination, set out the framework under which these ethical decisions should be made. For example, under Rule C9.3 counsel is prohibited from encouraging a witness to give evidence which is misleading or untruthful. Under Rule C9.2(d) counsel cannot draft any statement or affidavit containing a statement of fact other than the evidence which one reasonably believes the witness would give in oral evidence.

Momodou: coaching v familiarisation

The guidance considers again the criminal case of Momodou [2005] EWCA Crim 177, in which the Court of Appeal emphasised that witness coaching is impermissible. Witness familiarisation is, however, a slightly different beast – encompassing showing a witness the layout of the court, telling them about the likely sequence of events and giving a balanced appraisal of the participants’ different responsibilities. Although there is no specific authority on these matters in civil or family proceedings, it would be wise to apply the guidance in Momodou to all litigation and to all witnesses, whether lay or expert. There are also separate sections on expert evidence in each field of law.

In Momodou, the Court of Appeal also dealt directly with witness familiarisation and expert training programmes offered by outside agencies. Where such a programme has been organised by one side or another in the litigation, the trial judge will need to be informed and all legal representatives will be under a professional duty to ensure the Court of Appeal guidance is followed. Any ‘mock’ cross-examinations should not be based on the facts of a pending or current trial where any participant is likely to be a witness. Whilst in the field of family law I have encountered counsel being asked to provide generic training to social workers who have never given evidence before, I have not seen, in the last 22 years, any training programme specific to a case. As such, Momodou will be fairly unfamiliar territory for many family practitioners and may remain so.

Civil focus: witness statements

One focus of the civil section of the document is the proper approach to the settling of witness statements with which counsel is often instructed to assist. The courts have repeatedly emphasised that statements must, as far as possible, be in the witness’ own words – see Aquarius Financial Enterprises Inc v Certain Underwriters at Lloyds [2001] 2 Lloyd’s Rep 542 – and, in turn, the Chancery, Commercial and Admiralty and Technology and Construction Court Guides.

The Chancery Guide 2016, para 19.6 notes that ‘a professional adviser may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if you are put on enquiry as to their truth’. What should counsel do if another witness’ evidence contradicts that of the witness whose statement one is drafting? First, ‘it is not for you to decide whether your client’s case is to be believed’ (see gC6 in the BSB Handbook). Second, gC7 provides that you may draw to a witness’ attention other conflicting evidence and may point out that the court might find a particular piece of evidence difficult to accept. If the witness confirms his/her own evidence is true then you will not be misleading the court if you include it. Indeed, you might well fall the wrong side of the line if you do not include it.

(emphasis added)

Australian Authority

The judicial commentary in Australia has not been extensive but, unsurprisingly, has been helpful.

The relevant authorities were collected, usefully, by the Court of Appeal of the Supreme Court of Western Australia in Majinski v Western Australia (2013) 226 A Crim R 552;  [2013] WASCA 10. Martin CJ (Buss and Mazza JJA agreeing) wrote:

(emphasis added)

The Result

I reiterate that Barristers Rules 68 and 69 proscribe a barrister proceeding to:

… advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or … coach a witness by advising what answers the witness should give to questions which might be asked.

Witness familiarisation in the form of mock trial involving the specific evidence of the dispute in question – essentially constituting witness training – inexorably entails breach of the rule by a barrister advising or acceding to such course.

If a barrister comes to know that such training has occurred – whether by another barrister or solicitor on the team, or externally – but continues to act without disclosure of same to the other party and the court, so much constitutes a contravention of Rule 68 on account of that entailing the barrister having “condoned” same.

The same outcome ensues if such training is based on evidence with distinct similarities to that dispute.

What of familiarisation training which is wholly divorced from the facts of the dispute, but involves training as to cross-examination techniques and how such techniques may be responded to by the witness? 

In respect of this great care must be taken by counsel.  If it is to ensue,  or has ensued, the barrister will need to elicit – and, indeed, be informed of in writing –  the precise metes and bounds of such training.  If refused, the barrister ought cease to act.

If such training ensues – whether or not undertaken externally from the briefing solicitor – at the least it need be so undertaken:

• one on one, not with witnesses collectively;
• under the over-arching supervision of the retained briefing solicitor;
• wholly recorded, so there is no doubt as to what has transpired (including inquiries by the witness on any issue the importance of which may not be known by the trainer who is not informed as to the underlying dispute facts);
• in addressing cross-examination techniques, be bereft of a scintilla of suggestion as to a particular answer a witness ought or may give to a generic cross-examination question.

This training content – for each witness – need be studied by counsel briefed for that party.  Such training must not transcend the various facets of proper witness preparation referred to by Justice Peter Young in the last extract above in Majinski.

Professional external service providers – including that referred to in the above Proctor article – are endeavouring, no doubt assiduously, to abide the relevant ethical touchstones.  Any innovation which may assist efficient adducing of court testimony – but, necessarily, untainted and unembroided in character – is to be commended.   In the view of the writer, however – given the risks involved for a barrister briefed – “the game is not worth the candle!”.   I summarise below my reasons.

First, I reiterate that barristers need harbour close understanding of what is entailed in the training, the barrister not being party to such training.  So much will be challenging.

Second, efficient and comprehensive preparation of a witness for trial is best undertaken, solely, by the lawyers (solicitor and barrister) engaged in the carriage of the litigation in the court or tribunal in question.  Some may characterise that view as unduly conservative, but such matters are too important to the administration of justice to be left to chance.

Third, pragmatically, if it were revealed that such formal familiarisation has ensued, so much is likely to pique a judicial response entailing (at the least) greater scrutiny of the evidence of that witness.  Perhaps, over time, such response will diminish.

Fourth, despite any permissible formal witness familiarisation training undertaken, counsel ought still engage in relevant pre-hearing preparation of the witnesses in the conventional way.  It need ensue in any event, so why not spend the time, and available litigation funds, on that endeavour.

Invariably, I request my briefing solicitor – when dealing with witnesses unfamiliar in that role, and after conferring with counsel – take each witness (separately) to the court complex for a short time so such witness can see how a trial operates, and the locations occupied in the court by the various persons who participate in a trial.  Experience dictates that settles their (initial) nerves concerning giving evidence, irrespective of their sophistication and education, by exposing them to the court environment.

I commend to the barrister reader the content of the lastmentioned extract from Majinski for the germane ethical touchstones.  Strict compliance therewith will see counsel clear of any suggestion of contravention of the “coaching” rule.

Sixty years ago Canadian singer-songwriter Buffy Sainte-Marie (born 1941) wrote the anti-war song “Universal Soldier”. It was first released, as a single, by The Highwaymen in September 1963. It was released by Sainte-Marie in 1964 and then covered, famously, in 1965, by Donovan. In a Canadian Songwriters’ Hall of Fame record, Sainte-Marie said the gravamen of the lyrics was the notion that politicians, with power over the military, are elected by the people. Thus her thesis, it would appear, was that every citizen ought take responsibility for the nation’s pursuit of war (even in countries where voting is not compulsory). The issue, of course, is more complex than that but the song figured significantly in the anti-war sentiment and movement of the 1960s and 1970s. In 1965, Jan Berry released an “answer” song presenting the opposite point of view, titled “The Universal Coward”, which railed against anti-war protesters.

For further reading see R Cohen and W Kaufman “Singing for Peace: Anti-war Songs in American History” – Routledge, 2015.

Below the reader will find, first, the lyrics, and below that a YouTube link to Donovan’s cover version.

He’s five foot-two and he’s six feet-four
He fights with missiles and with spears
He’s all of 31 and he’s only 17
Been a soldier for a thousand years.

He’s a Catholic, a Hindu, an Atheist, a Jain
A Buddhist, and a Baptist, and a Jew
And he knows he shouldn’t kill
And he knows he always will
Kill you for me, my friend, and me for you.

And he’s fighting for Canada
He’s fighting for France
He’s fighting for the U.S.A
And he’s fighting for the Russians
And he’s fighting for Japan
And he thinks we’ll put an end to war this way.

And he’s fighting for Democracy
He’s fighting for the Reds
He says it’s for the peace of all
He’s the one who must decide
Who’s to live and who’s to die
And he never sees the writing on the wall.

But without him
How would Hitler have condemned them at Dachau?
Without him Caesar would have stood alone
He’s the one who gives his body as a weapon of the war
And without him all this killing can’t go on.

He’s the Universal Soldier and he really is to blame
His orders come from far away no more
They come from here and there and you and me
And brothers, can’t you see?

This is not the way we put the end to war.

Also 60 years ago, another Canadian singer-songwriter Ian Tyson (1933-2022) penned and performed “Four Strong Winds”. He wrote it in 1962 – he claimed it was the first song he wrote and that he did so in about 20 minutes – and first performed it in 1963 with his partner Silvia Tyson, performing as the duo “Ian & Silvia” (see photo). They were part of the folk music revival of the early 1960s. In 1978 – in the album “Comes a Time” – it was covered by Neil Young, another Canadian (by birth at least). The song is a lament concerning a faltering – or probably failed – relationship. So much is highlighted in the lyrics below, some, in character, affectionate (“still I wish you’d change your mind, if I ask you one more time”, and “you could meet me if I sent you down the fare”) but others insensitive, albeit in the minds of some also resilient (“but our good times are all gone, and I’m bound for moving on ..” and “all those things that don’t change come what may”):

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

[Verse 1]
Think I’ll go out to Alberta
Weather’s good there in the fall
I got some friends that I can go to workin’ for
Still I wish you’d change your mind
If I asked you one more time
But we’ve been through that a hundred times or more

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

[Verse 2]
If I get there before the snow flies
And if things are goin’ good
You could meet me if I sent you down the fare
But by then it would be winter
There ain’t too much for you to do
And those winds sure can blow cold way out there

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

Despite its vintage, “Four Strong Winds” has become a national ballad of Canada, and is often voted there as the most popular song of all time. Ian Tyson and another celebrated Canadian singer and songwriter, Gordon Lightfoot (“If you could read my mind”, “Sundown”, “Wreck of the Edmund Fitzgerald”), performed the song at the opening ceremony of the 1988 Winter Olympics in Calgary. In 1989 Tyson was inducted into the Canadian Country Music Hall of Fame. In 1994 he was awarded the Order of Canada. He died on 29 December 2022, aged 89.

Neil Young’s haunting 1978 cover – which he sings in a duet with Nicolette Larson, and which is linked below in a 2016 remastered version – is one of Young’s best performances, in an otherwise lengthy and impressive discography.

Even many of us who are avowed Republicans – like the writer – nonetheless revered Her Majesty Queen Elizabeth II for her intelligence, grace and steady hand as Head of State in Australia and other countries.  She was a strong supporter of the rule of law.

Whatever one’s political persuasion, none could gainsay that we are blessed to enjoy in Australia – among many other advantages – a democracy under which the rule of law prevails.

Such rule is embodied – in criminal and civil law spheres –  in court enforcement of statutory and common law obligations, by a state funded and independent judiciary, assisted by officers of the court (barristers and solicitors) also independent in the sense of being bound by an overarching duty to the interests of administration of justice under strictly enforced ethical rules.

In the United Kingdom, before 1701, judges held office at the Sovereign’s pleasure. There were then many examples of judges being removed from office for deciding cases in a manner not in accord with the wishes of the incumbent monarch.

Judicial independence commenced with the 1701 enactment of the Act of Settlement.  Security of judicial tenure – or, at least, the semblance of it – was thereby grounded. 

Act of Settlement Article 7, which is actually the 7th clause of the 3rd Article, relevantly, provided:

[J]udges’ commissions be made quamdiu se bene gesserint,¹ and their salaries ascertained and established but upon the address of both Houses of Parliament it may be lawful to remove them.

The outcome, however, was not plain sailing.  Judicial tenure was inchoate.  “Removals” continued.

Queen Anne, shortly after her accession in 1702, removed Sir John Turton (Court of Queen’s Bench) and Sir Henry Hatsell (Baron of the Exchequer). George I, upon his accession in 1714, removed  Lord Trevor (Chief Justice of the Court of Common Pleas), Sir Thomas Powys (Court of King’s Bench), and Sir William Bannisteer (Baron of the Exchequer) respectively. 

These ensued despite the patent of appointment of each being  quamdiu se bene gesserint (ie during good behaviour).  Each, it seems, was a victim of enmity directed towards perceived Jacobites and Tories.

Evan Haynes, in “Selection and Tenure of Judges”,² wrote of the uncertainty remaining after the Act of Settlement:

It was still assumed, however, that on the death of the king, their commissions ceased, and should be renewed or not at the pleasure of the new sovereign. In 1720 a statute was enacted providing that judges (and certain other officers) should continue in office for six months after the demise of the Crown.

Finally, in 1761, a further statute enacted provided that “commissions of the judges shall remain in full force and effect during good behaviour, notwithstanding the demise of His Majesty or any of his heirs or successors”.  The prospect of regal summary removal, thereby, was obviated.  Tenure was secured.

Thus, the perennial British monarchy – ergo “The Queen is dead, long live the King” – for the last circa 250 years at least, has championed the rule of law.

Such legal protocol was adopted in Australia.  While the tenure is no longer for life – rather, in most jurisdictions, being to age 70, short of earlier retirement – protections exist in the sphere of salary and pension guarantee.  So much underscores the independence enjoyed.

Finally, only admitted lawyers – and then, ordinarily, only if they have been so admitted for a particular duration – can be appointed as judges – by Cabinet of the Commonwealth, state or territory – and then (ordinarily) only upon recommendation and advice from an appointment panel.  This provides further checks and balances.

Likewise, barristers and solicitors are admitted by the court and can only lose their admission status upon order of the court adjudicated on the merits apropos of misconduct.

Queen Elizabeth II, in speeches given as Head of State, spoke underscoring the importance of the rule of law, and the maintenance of it by independent judges and lawyers engaged in its administration.

I will refer to two speeches only – delivered in the United Kingdom and Australia, respectively, 12 years apart³  – as they are representative. In each, the touchstone identified is that of the “inheritance” of the rule of law from the Regal Head of State.

Speaking in London on 10 October 1968 at the opening of the Queen’s Building Extension to the Royal Courts of Justice, Her Majesty said:

The judiciary is one of the oldest and most honourable branches of the service of The Crown. It is also one of the most vital because, as the yearbooks tell us, the law is the highest inheritance of the King, for both he and all his subjects are ruled by it. And if there were no law, there would be neither King, nor inheritance. That is as true today as it was five centuries ago. The attachment of our people to law is the foundation of our constitution and of our civilisation. As the independent custodians of the law, the judges bear a direct and personal burden of responsibility, which makes their office a lonely and difficult one. We are fortunate that our judges are worthy inheritors of the great traditions of their predecessors. As our world becomes more complex, so the task of doing justice between man and man, and man and the State becomes more difficult and even more important. Therefore, we must continue to be able to rely on the strong and peerless legal profession. The Bar’s independence is as much a safeguard to our liberties today as it has been in the past. I welcome the completion of the new court building. I am glad, my Lord Chancellor, [Lord Gardiner] to grant your request that it be called the Queen’s Building. I know that my judges, and all those who assist them so devotedly, will administer justice there in accordance with the finest traditions of their calling. ⁴  (emphasis added)

In a speech delivered on 26 May 1980 on the opening of the High Court Building in Canberra, Her Majesty said:

… the High Court of Australia is at the pinnacle of the judicial system in Australia. It has a special place under the Australian Constitution, serving both as a final court of appeal on matters of general law and as arbiter on constitutional issues. The court has a critical and sensitive role in the Federal compact that binds the Commonwealth of Australia, determining the law not only between citizen and citizen, and between citizen and executive Government, but also between the Governments that constitute the Commonwealth of Australia. We should remember today Chief Justice Griffith and Justices Barton and O’Connor, who constituted the High Court of Australia in 1903, and with their successors defined the role of the court, in accordance with the Constitution, and established for it a fundamental place in the national life.

I am pleased to pay tribute to the judiciary of Australia – including the judges present today and the justices of this court in particular – for the admirable way in which they discharge their onerous responsibilities. The law of the land is a priceless inheritance and it secures the liberties which, as individuals and as a nation, we prize. In times of social change and tensions in the world, great are the demands upon the courts and the challenges to them in reconciling competing interests and in accommodating traditional rules to new circumstances. The High Court of Australia has earned great, respect, both within Australia and beyond, and it is; recognised as a court of the highest eminence among the courts of the nations.⁵  (emphasis added)

The embolden portions of the above speeches are not pious platitudes. Rather they neatly encapsulate the importance of the roles performed by judges, barristers and solicitors.  Her Majesty – and her predecessors since the late eighteenth century – championed those legal tenets.

Finally, while we may now mourn Her Majesty, barristers were in regal mourning long before her demise.  Contrary to the “Queen Anne” theory, the barrister’s stuff gown was adopted as mourning dress, in 1685, by the royal court, including the bar, following the death of Charles II.  Thus, the Bar “went into mourning at the death [of Charles II] and have remained so ever since!”⁶

The Queen is dead – and we salute her memory – and long live the rule of law Her Majesty championed.

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¹  meaning ‘during good behaviour’.

²  National Conference of Judicial Councils, 1944, California.

³  I am indebted to Daniel Yazdani, of the New South Wales Bar, who identified the speeches and ALJ reference below in a paper he gave in the Summer 2022 Edition of “Bar News – the Journal of the NSW Bar Association”, for references to same.

⁴   ‘Royal Visit: Queen pays tribute to judiciary’ (Canberra Times, 27 May 1980, p 10) https://trove.nla.gov.au/newspaper/article/110959519.

⁵  ‘The Queen on Judges and the Rule of Law’ (Courts and Tribunals Judiciary, 2 June 2022) https://www.judiciary.uk/guidance-andresources/the-queen-on-judges-and-the-rule-of-law/.

⁶  ‘The Demise of the Crown’ (1936) 9 Australian Law Journal 353 at 354;  see generally, Prof JH Baker ‘History of Gowns worn at the English Bar’ (1975) 9 Costume 15.

This quarterly issue of Hearsay – Issue 91 – leads with an inspiring piece by the Honourable Patrick Keane AC KC, delivered as the keynote speech at the BAQ Annual Conference held on 3 and 4 March 2023 at The W.

The Honourable Ian Callinan AC KC writes a touching piece on his wartime remembrances as a child in Brisbane.

‘10 minutes with’ has me chatting with the Honourable Justice Philip McMurdo, who will retire from the Court of Appeal on 8 April 2023 after 20 years of distinguished judicial service.

Practical articles are provided with tips for better – and procedurally compliant – court pleadings, the adducing of video evidence from witnesses resident overseas and managing the burden of proof in tax appeals.

The ‘Regional Bar’ section – consists of an enjoyable and enlightening discussion of the Rockhampton Bar. 

‘Words from the Past’ comprises a piece ‘Conscience of Equity’, also delivered by the Honourable Patrick Keane but in 2009, the content of which is every bit as relevant today. 

I draw your attention, in particular, to the case note of the recent Supreme Court of the United Kingdom decision of Fearn involving nuisance. There are links at the foot of that article not only to the full decision text but also to the video recording of the Supreme Court hearing. We encourage all barristers, especially those newly in practice, to watch at least part of the hearing in order to experience the best of the best ply their trade in that top level UK jurisdiction.

The ‘Reviews and the Arts’ includes a review of the currently playing historical musical ‘Hamilton’, viewed through the lens of its relevance and application to mediation practice. The book reviews, as usual, are a must for reading, as are the film and (historical and poetic) song reviews.

I thank Dianne Lyndon of the Bar Association, deputy editors John Meredith and Megan Brooks, and sub-editors Stephen Keim SC and Margaret Forrest, for their industry in producing this issue. Thanks also to the barristers, judges and others who have contributed content.  

Please forward to us, by mid-May at the latest, contributions for publication for issue 92, due for publication in mid-June 2023.

Enjoy!                

Richard Douglas KC
14 March 2023

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.

Principal cases and materials:

The following are principal materials and cases to which I advert in this paper:

• Uniform Civil Procedure Rules 1999 (Qld) (UCPR), Ch 7, Pt 1, r 212(2); Ch 11, Pt 5.
• Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257(da Costa).
• Mount Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 (Mt Pleasant).
• Landel Pty Ltd v Insurance Australia [2021] QSC 247 (Landel).
• Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705  (Makita).
• Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 241 (Sanrus).
• MR & RC Smith Pty Ltd v Wyatt (No 2) [2012] WASCA 110 (Smith).
• New Aim Pty Ltd v Leung [2022] FCA 722 (New Aim), subject to appeal on the relevant issue.
• Potter v Gympie Regional Council [2022] QSC 9 (Potter), subject to appeal but not on the relevant issue.
• John v Henderson (No. 1) [2013] NSWSC 1435 (John).
• Andrews v Kronospan Limited [2022] EWHC 479 (Andrews).
• KF v Royal Alexandra Hospital [2011] NSWSC 399 (KF).
• Matthews v SPI Electricity Pty Ltd (No. 10) [2012] VSC 379 (Matthews).
• Supreme Court Practice Direction 18 of 2018 (PD 18/2018).
• Supreme Court Practice Direction 2 of 2005 (PD 2/2005).
• Evidence Act 1977 (Qld), s 39PB (Evidence Act).
• Stewart v Fehlberg & Anor. [2008] QSC 203 (Stewart).

“Transgression can lead to severe consequences for the parties, including preclusion of entitlement to adduce evidence at trial from the expert”

Touchstones of the expert evidence assembly task:

The following are the relevant touchstones apropos of such task:

• First, eliciting and formulation of an admissible expert report is, ordinarily,  a challenging and time consuming task, to be approached in an insightful and unbiased fashion in order to maximise its probative weight at trial (and beforehand in negotiation).
• Second, it is instructive for each of the soliciting lawyer and reporting expert to proceed on the footing that at trial the opposing litigant will seek to object to the report – in whole or part – as admissible, or impugn its probative weight.
• Third, upon striking the final draft of the report, the expert and lawyer respectively ought audit same to ensure it complies (to the letter) with the UCPR and other content principles, including persuasively addressing comprehensively the merits (including any shortcomings) of the contrary opinion.
• Fourth, after delivery, up to mediation and then trial, the adducing party’s lawyer ought always be looking to plug factual or opinion gaps in the reported opinion, including addressing the merits of fresh contrary opinion.
• Fifth, such lawyers undertake the same audit of the opponent’s expert reports, in particular in preparation for conclave.
• Sixth, competing experts conclaving and reporting therefrom are essential for refining disparate opinion albeit is an “expert only” space.
• Seventh, careful compliance with UCPR and Practice Direction is critical.

“Suffice it to say each side of the record should seek to identify the need for expert evidence – and if so, preferably the relevant expert – as early as possible”

Need for expert evidence:

The need for a party to adduce expert testimony turns on the matters in issue of the case, eg professional breach, machinery or system failure, causation of damage or injury, accounting assessment of damages.

Careful consideration ought be given to whether expert evidence is required to be adduced in the case of a party having regard to the issues pleaded, or likely to be pleaded.  At one end of the spectrum is a motor vehicle negligence, simple contract breach or vicarious liability case – in respect of which no expert evidence as to liability (cf damages) need be adduced – while at the other end of the spectrum is flaw identification in machinery, systems or professional or other service provision, valuation of land or business undertaking loss assessment – in respect of which expert evidence inexorably will be required.

The question is whether it can be said with comfort – on either side of the record – that common experience (or judicial notice), by reference to the lay and documentary evidence adduced, will suffice to found the adjudication sought.  There ought be an intense focus on the posited breach, causation and damage issues.  

If in real doubt – albeit with a mind to the impost in outlays therefor if ultimately unnecessary – seek an expert report. The worst that can happen is that it is found inadmissible at trial on the basis that the issue – in truth – is one for common experience of the judge.

The challenge entailed is exemplified in Da Costa. That was an employment case where the plaintiff suffered injury to his arm in the course of assisting a fellow employee to guide a metal bridge as it was being lowered into position by a crane. There was no expert evidence called. The plaintiff failed to prove negligence. Mason J wrote:

For the purpose of determining whether there was evidence from which lack of a safe system of work could be inferred, I shall assume that this case was adequately pleaded and particularised. No expert evidence was called to support the view that some other method of positioning the cover should have been adopted in the interests of safety. All that was suggested was that the presence of the stanchion constituted a hazard to the appellant which could have been eliminated by first positioning the cover at the appellant’s end. Whether this was a practicable and safe alternative which would have eliminated the risk inherent in the operation we do not know. We are left to speculation and conjecture. Not only was there an absence of expert evidence upon the point, there was a total absence of evidence of any kind upon the point. Neither Aslanovic nor the appellant was asked whether it would have been practicable or safer to position the cover at the upper level before positioning the lower end. In the absence of expert instruction, I should have thought that it may well have been desirable to first position and stabilise the cover at ground level.

However this may be, this is not in my opinion a case in which negligence may be inferred in the absence of expert evidence. It is not enough to show that the operation involves an element of risk; it must also appear that the risk could have been eliminated by some form of precaution or safeguard. In some cases, such as Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; an alternative system of performing the work which will avoid the risk may be clearly identified without the benefit of expert evidence, as a matter of ordinary common sense and common knowledge. But neither common knowledge nor common sense provides an answer in the present case. Accordingly, it falls within the category of which Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 is an example.

(emphasis added)

Expert evidence, however, was not required for plaintiff success in Aston v Redcliffe City Council [2006] QCA 480 at [35], [36] (need for water filled barriers);  Kuhl v Zurich Financial Services Aust Ltd [2011] 243 CLR 361 at [84]-[97] (safe machine operation);  Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 at [51], [52] (safe pathway by night passage).

“Expert selection is critical”

Time to identify and garner expert evidence:

Suffice it to say each side of the record should seek to identify the need for expert evidence – and if so, preferably the relevant expert – as early as possible.  If there is a pre-proceeding process applicable then inexorably that will be the latest time at the very least for the claimant, but probably also the defendant.

Similarly, in a case to which a pre-proceeding process does not apply, it is customary to garner expert evidence in advance of litigation, if only to have a sound foundation upon which to make a demand for relief against a commercial opponent.  For example, engineering defect, valuation or accounting evidence.

UCPR requirements:

If expert evidence is to be elicited, be mindful of UCPR Ch 11, Pt 5, as recently amended. 

An application for directions in the proceeding must be filed if no expert presently exists: r 424.  The “Expert Code of Conduct” must be given to the retained expert:  r 429E.  The report must confirm that the expert has read, and agrees to be bound by, the Code: r 429G. 

The mandated requirements for the report are contained in r 429H (including the “reasons” for the opinion and “if there is a range of opinion on matters dealt with in the report – a summary of the range of opinion, and the reasons why the expert adopted a particular opinion”). 

If the expert wishes to “change, in a material way, an opinion included in a report” then the expert must advise the appointing party of the same, and that party must make an application to the court for directions:  r 429K.

Disclosure of an expert report is compulsory, an exception to legal professional privilege:  UCPR r 212(2).

Importantly, UCPR r 429I requires disclosure of a report to be relied upon “as soon as practicable, and in any case” by the plaintiff within 90 days of close of pleadings, by the defendant within 120 days of close of pleadings and by a third party within 90 days after the close of pleadings for that party.

Technically, after those dates, leave is required to deliver further (cf updated) expert evidence.

“Prior discussions with a prospective expert are essential”

Selecting the expert:

Expert selection is critical.  While a regular well-known court expert may be readily available and cooperative, sometimes they are not the right person (accountants, probably, an exception to this).  Resort to the standard engineering liability experts for every case, with respect, could result not only in report inadmissibility at trial, but if admitted then being attributed little probative weight.

The touchstone is expertise in the task at hand – as opposed to being able to identify and master published literature and draw on that, to the extent it is admissible (see below), to express an opinion. 

Thus, formal education in the sphere – tertiary or otherwise – is not critical, albeit often helpful.

Albeit decided under the Uniform Evidence Act (albeit relevantly reflects the common law), in Mt Pleasant – the plaintiff was injured breaking race horses at a horse stud, while working with an assistant – the NSWCA wrote at [30]-[32]:

Mt Pleasant disputed whether the evidence quoted was substantially based on any specialised knowledge on the part of Mr Matthews. Mr Matthews’ CV indicates that since leaving school in 1988 his experience encompassed “20 years riding experience as a professional jockey”, “25 years of starting horses under saddle for the public”, “8 years of dedicated application to breeding and training endurance horses”, and 30 years as a horse trainer including “[s]tarting horses under saddle and training problem horses”. Mr Matthews has also given seminars on equine behaviour. Mt Pleasant did not dispute the accuracy of any of this. Whilst Mr Matthews’ CV suggests that his formal education ended in Year 9 of secondary school, s 79(1) refers to “specialised knowledge based on the person’s training, study or experience”. Mr Matthews’ experience was extensive and provided good reason to think that he had specialised knowledge of horse behaviour and training, along with the appropriate attributes of people involved in the breaking-in of horses.

(emphasis added)

Prior conferencing with prospective expert:

Prior discussions with a prospective expert (cf quantum medical) are essential.  The risk in question is that the opinion canvassed may be adverse and another expert opinion need be elicited.

Whether or not the expert is subsequently retained, such discussions are not disclosable, so long as any note of the opinion is not written down by anyone, in which event that memorandum is disclosable. The apt course is to remember the substance and record it in an advice to the client, or to another lawyer in the legal team.

 Dalton J (now Dalton JA) confirmed as much in Landel at fn [7]:

… [T]here has been a practice of orally engaging experts and receiving, at least their initial, opinions orally. Only if the expert’s initial oral opinion is favourable are documents produced. To my understanding, this is a common practice and permitted by the rules. I note that the LexisNexis annotations include, “Although the consultation draft for the UCPR contained a provision that required the recording in writing and disclosure of expert’s oral opinions, that provision was ultimately omitted from the Rules.” If, when an expert is giving such an oral opinion, a solicitor takes notes, those notes are disclosable in my opinion.

(emphasis added)

“Lawyer involvement – other than formal – must be disclosed (however awkward that may be)”

Instructing the expert:

Time, thought and effort are required for proper (written) instruction of the expert.

First – Provide the UCPR Expert Code (mandatory as above) and rr 429G, 429H (declaration and form requirements for report content

Second – Inform the expert of the Makita requirements for content when drafting of the expert report (see below), inc to list factual assumptions in report. Instruct them to annex the written instructions and Curriculum vitae to the report and attribute assistance and external sources (eg literature) informing the report content.

Third – Draft clear and concise questions within the expert’s expertise.

Fourth – List factual assumptions upon which the expert is to found their opinion (or prove by opinion if able), and provide basal evidentiary documents if apt, but NEVER brief the expert with pleadings or witness statements (or excerpts therefrom), NOR offer or permit any witness to confer with the expert (medico-legal quantum – not liability – report an obvious exception to latter). How often do you see otherwise?

Fifth – Instruct the expert all reasoning – including why the question asked (in the context of the assumptions) falls within the expertise and reasons for rejecting any identified or patent contrary opinion – need be exposed in the body of the report.

Sixth – Instruct the expert to revert to you pre-delivery of report, if in doubt as to form so as to comply with the UCPR or instructions, or apropos of their necessary expertise.  Hubris and self-interest – with respect – usually will inhibit them doing so, thus emphasis required.

Makita informs the above instructions to the expert.  At [85], Heydon JA stated that for expert opinion evidence to be admissible, it must meet the following criteria:

• first, it must be agreed or demonstrated that there is a field of “specialised knowledge“;
• second, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; 
• third, the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge“; 
• fourth, so far as the opinion is based on facts “observed” by the expert, those facts must be identified and admissibly proved by the expert;
• fifth, so far as the opinion is based on “assumed” or “accepted” facts, those facts must be identified and proved in some other way;
• sixth, it must be established that the facts on which the opinion is based form a proper foundation for it; and
• seventh, the expert’s evidence must explain how the field in which the expert has expertise — as established pursuant to (a), (b) and (c) — applies to the facts assumed or observed so as to produce the opinion propounded.

The questions posed by the party’s lawyers for answer by the expert ought be expressed in an unbiased and factual way – the expert is being asked for an opinion squarely within their expertise, not become a “bush lawyer”.  The possible exception being a professional negligence case involving lawyers, but even then the expert lawyer is not permitted to say what he or she would have done in the same position, but rather what the common practising solicitor or counsel would have done. 

In Landel it was observed at [34] that this need be done with a focus – by briefing lawyers – on the pleaded issues:

[It is not] the role of expert witnesses to concern themselves with the legal issues in the case. It is the job of the lawyers in any case to define questions upon which they seek expert opinion. This has to be carefully done so that the expert opinion obtained is relevant to the legal issues in the case.

Admissibility aside, to do otherwise, likely, will serve only to diminish the probative weight of the expert opinions expressed, or worse rendered inadmissible.

“Unless, in truth, they are affording an entirely discrete opinion – in which event a separate report ought be obtained from the holder of such an opinion – there is no objection to others being involved in the formulation of the expert report opinions, but the fact and extent of contribution need be identified”

Saliently, the expert ought be instructed to express their opinion based upon identified assumptions of fact and also upon alternative combinations of assumptions as a fallback to avoid non-proof of same eg “absent assumption(b) and (e), in my opinion …”.

In Sanrus Bond J (now Bond JA) wrote at [98], [99]:

The second relevant aspect of the Makita criteria is that the facts on which the opinion is based must be identified by the expert. As to this:

(a) This is part of what the fourth and fifth of the Makita criteria address. In R v Naidu [2008] QCA 130 at [68], Fraser JA said that ‘[i]t is unquestionably the law that expert opinion evidence is inadmissible if the opinion is not expressed upon a state of facts both identified and proved in evidence’ (emphasis added).

(b) In Dasreef Pty Ltd v Hawchar at [64] Heydon J called this the “assumption identification rule”. His Honour observed …:

There is no doubt that the assumption identification rule exists at common law. Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert — by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways. Thus Dixon J said that the assumptions of fact on which an expert opinion rested had to be “adverted to by the witness”.

(c)  The previous two subparagraphs demonstrate that a failure to identify the state of facts on which the expert opinion is expressed goes to the admissibility of the evidence, not its weight.

…

(c)  The important point is that insofar as a litigant seeks to prove facts on which an expert opinion is based by way of the expert’s own evidence, that proof must be done in an admissible way by that expert. If the expert witness’ own evidence of the facts is not admissible to prove them, then the most that that part of the expert’s evidence could be regarded as, is a statement of what the expert assumed to be true for the purpose of the expert formulating the expert’s opinion evidence:  cf Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542 per Fraser JA at [4]. If those assumptions are not confirmed in some other way by admissible evidence in the proceeding, then the expert opinion evidence will not be admissible.

(emphasis added)

A recitation of assumptions in a report, also, conveniently, is a checklist for proof at trial by lay or other expert testimony, and cross-examination.

Request the expert to eschew – even if they strongly believe same – swearing the issue – whether as to breach, causation or damage, eg a liability expert opining ”The defendant employer acted contrary to its obligation of safety to the plaintiff worker by not providing a ladder rather than a stool as it did” is inadmissible.

The opinion is best expressed in abstract for use in ultimate adjudication (eg by reference to usual commercial or trade practice, shortcoming of machine or system in use in context of marketplace usage and availability).

There are exceptions to so swearing the issue, eg a medico-legal opinion – diagnosis or prognosis – but even then best to opine focused on what the history, examination and diagnostic testing are more consistent with or likely to yield.  Other examples are valuation and – to some degree – accounting assessment.

A recent example of inaptly instructed expert assumptions – albeit in which the quality of the evidence was such that the position was retrieved for the adducing party – is Mt Pleasant at [34]-[37]:

The … challenge to the report’s admissibility is that there was no evidentiary utility in the opinions of Mr Matthews in the absence of any reasoning on his part as to what was meant by “suitable size, experience, height, stature and strength”. … There were some problematic assumptions which Mr Matthews was asked to make by [plaintiff] Mr McCormick’s solicitors. The assumptions included the following:

“Persons of suitable experience, size, height, stature and strength were working on the farm but were not registered with Racing NSW and thus the plaintiff was unable to engage their assistance.… The assistant that the plaintiff was required to use on this occasion was Mel Bolwell an apprentice jockey weighing approximately 45kg and standing approximately 155cm tall.”

The combined effect of these paragraphs is that Mr Matthews was asked to assume that Ms Bolwell was not a person of suitable experience, size, height, stature and strength. This means that to the extent that Mr Matthews gave evidence that Ms Bolwell was not appropriate for the job, that evidence would arguably not assist the Court, being a conclusion that followed from the assumptions.

The same may be said of Mr Matthews’ statement that “the plaintiff was put in an unsafe position, in my opinion, due to not having a handler of suitable size, experience, height stature and strength”. … In any case, there remains evidentiary utility in the more general opinion of Mr Matthews that “an experienced handler of suitable size, stature and strength is vital”, and that, in the event a horse is becoming stressed, “a larger, stronger, more imposing handler can use his strength and stature to subdue the animal”. … The effect of his evidence is that the larger and stronger a person, the more they are able to control a horse. Such evidence goes to a fact in issue, being what reasonable precautions ought to be taken at the weight test stage of breaking-in a horse. His evidence indicates that the bigger and stronger the assistant, the less likely one will be to lose control of the horse. He gave some reasons in support of that conclusion which were understandable – if, in some respects, odd …

(emphasis added)

In contrast, had Mr Matthews opined only that it was common practice in the equine industry – and had been for many years – to deploy men, or women, not just with task experience, but of a particular stature or height and weight  (eg over 75 kg), so that the horse about to be broken would be adequately controlled to protect the mounting breaker from injury, the same would have been admissible, and probative.

Sources relied upon and assistance from others:

Consistent with the Makita principles, the expert, in exposing their reasoning, need identify any external sources relied upon to express that opinion, eg other persons informing them as to particular identified matters and the form that took; sourced literature, including the particular portion thereof relied upon (and, ordinarily, any strong competing literature), published performance guidelines. 

“Draft clear and concise questions within the expert’s expertise”

Care ought be exercised by the expert to prove – if not then to identify for necessary proof – all survey, statistical and externally collated documentary evidence relied upon:  Sutton v Hunter [2021] QSC 249 at [79]-[81].

If the expert relies upon any written standard of performance of a non-statutory character – the expert ought in the reasoning descend not just to the fact but also to the period, manner and breadth of acceptance of such standard in the relevant professional or technical community prior to the relevant litigated events.  Failure to do so will render the opinion inadmissible, or if admissible then of minimal diminished weight.

In this regard, in Smith the WASCA wrote at [70]:

….[E]ven if there is no statutory or contractual application of an Australian Standard [or like published] prescription, it may still be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building constitutes a danger which must be guarded against by the exercise of reasonable care: see Fitzpatrick v Job [2007] WASCA 63 at [94]. Failure to follow a standard does not, without more, establish negligence: O’Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239 at 242; Jones v Bartlett (2000) 205 CLR 166 at [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 at [43]. It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 at [169].

(emphasis added)

In my experience, this requirement for admissibility is honoured more in the breach than the observance in expert reports. I challenge the reader to recall the last time they observed compliance with establishing such “acceptance” of a standard or like prescription they have identified, and moreover, if they could have done so (other than by mere hearsay) had they been prompted!

Unless, in truth, they are affording an entirely discrete opinion – in which event a separate report ought be obtained from the holder of such an opinion – there is no objection to others being involved in the formulation of the expert report opinions, but the fact and extent of contribution need be identified.

 In Landel it was observed at [29]:

There is a practice, particularly in large accounting cases, where it is not possible for one accountant to do all the work necessary to prepare an expert report, whereby the partner of a firm will sign an expert report, but acknowledge that other named accountants have performed various tasks which feed into his or her ultimate conclusions. Generally, it is only necessary to cross-examine the accountant who signs the report and swears the affidavit in the proceeding. In such cases, there is no objection to all the accountants involved conferring with lawyers together and working together. They are not purporting to give independent views, but working as a team.

Comments on other experts:

While some common sense is required so as to enable one expert responding to a specific contrary opinion of another expert – or, moreover, the reasoning for that particular opinion – wholesale commentary on other opinion is precluded.  In Landel Dalton J observed at [33]:

Another undesirable consequence of the unusual instructions given to Dr Connor is that his report not only gives his opinion as to the cause of the inundation of the shopping centre (which is the legitimate subject matter of expert opinion in this case), it reviews the reports given by Dr Macintosh and Mr Caddis, at times, line-by-line. In accordance with his instructions, he assumes the role of some sort of uber-expert, or perhaps engineering-judge, in explaining why he prefers Mr Caddis’ opinions to those of Dr Macintosh. This is not the role of an expert witness.

“When questions are framed for experts in advance of a conclave they should not be framed as in an interrogatory but rather in a way that invites discursive answers more likely to reveal the true reasoning of the experts”

Role of lawyer in drafting:

In Landel the court wrote at [19]-[20]:

…[W]hile lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this, I would expect that attention to have come from both the solicitors and counsel briefed in the matter.

Indeed, any transgression of the above UCPR, Makita, source or acknowledgement principles behoves legal practitioner intervention. 

Lawyer involvement – other than formal – must be disclosed (however awkward that may be).

The lawyers, however, can go too far, the report being rendered inadmissible – as a matter of discretion – as not being an independent report.  In New Aim (pending appeal)at [71], [76]:

…It may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else, but then in my opinion, only if that fact is disclosed in the report. In this case, that fact was not only withheld but was only ascertained during the course of cross-examination of Ms Chen, which in my opinion, was grossly unsatisfactory. … What occurred, in this case, went far beyond the permissible scope of involvement of lawyers who retain an independent expert in order to give evidence in a proceeding. I reject the submission of counsel for the applicant that I should accept Ms Chen as an independent expert witness and that “the process by which her evidence was prepared is unremarkable.” For the reasons I have given, it most certainly was not. Even if in some circumstances it is proper for lawyers to draft an independent expert witness statement for consideration by the putative expert, that fact must be disclosed in the expert report… And then, all correspondence relating to the manner of preparation of the report should be disclosed and, to the extent that oral advice is conveyed to the expert, the substance should be documented and disclosed. What occurred in this case should not be repeated.

(emphasis added)

Disclosing draft reports or lawyers’ notes of opinion:

The law is crystal clear that draft expert reports are disclosable if they come into the hands of the represented party or their solicitors, and if they do not then probably if the subject of an application for non-party disclosure (it could be embarrassing if a draft report comes to hand at trial in the latter category):  Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 QdR 373 [10]-[15].

Likewise, a solicitor’s or counsel’s note of a prior (see above) or post-report orally expressed opinion in conference (the lesson: take no notes!)

If a party’s team lawyer, whether counsel or solicitor, forms a considered view that disclosure must be made – irrespective of correctness of a prevailing contrary team against need for disclosure –  must ensure disclosure ensues, or that lawyer must withdraw.  To do otherwise would leave one’s practising certificate at risk! Inexorably good sense prevails. 

It is vogue for a draft report to be viewed under an expert controlled platform – that is without control being available to lawyers at any point in time – such that the draft is never in the power, possession or control of the retaining lawyers or their client.  Can be forensically difficult, however, for lawyers to explain at trial if experts asked about drafts.

Updating memoranda or supplementary report for expert opinion:

In most cases where there is some clarification of a discrete point or points or crisply expressed filling of a gap or gaps, an expert – having previously reported – signing a lawyer interview memorandum – necessarily compliant with the UCPR and Makita principles – will suffice, eg scientific or medical expert addressing particular opinion of another expert in their field, comment by an engineer or accountant upon application of a standard.

In other instances, the supplementary opinion will be of such moment, or so expansive, that a supplementary report is the proper course.

In either case, care ought be exercised as to timeous disclosure thereof because if the opinion is new or novel, then it is likely to take the opposing party by surprise, particularly if the request for trial has been signed, or moreover if trial is imminent. It may not be admitted.

Multiple reports and memoranda can also be confusing for a judge, unless, perhaps, adequately clarified and summarised in a conclave report.

In Potter, apropos of multiple reports and drafting of memoranda, Brown J wrote (at [592]):

The presentation of psychiatric evidence by both parties in the present case was unsatisfactory, with the Court being presented with eight reports or signed memoranda of telephone conversations by Dr Byth and six reports or signed file notes by Dr Jetnikoff. The necessity for the multiple reports was not readily apparent, although there appeared to be some stabilisation of Mr Potter’s condition after the earlier reports. A lengthy diary note of the telephone conference with Dr Jetnikoff which was signed by him was submitted on behalf of the defendant. The plaintiff noted the unusual circumstances of providing such a diary note. However, the plaintiff also tendered in evidence a file memorandum signed by Dr Byth. In addition, Dr Byth and Dr Jetnikoff provided separate notes of an expert conclave said to have occurred on or about 30 March 2020 with no joint report being provided. Both doctors subsequently provided further reports. While I did not doubt the independence of either Dr Byth or Dr Jetnikoff, the independence of an expert is paramount. Solicitors should exercise great caution in drafting memoranda of conferences with the experts to be signed by the expert rather than having experts themselves preparing such documents. While it was the subject of comment in the present case by the plaintiff’s Counsel as being relevant to weight, to which I had due regard, cross-examination of Dr Jetnikoff clarified that he had made considerable changes to the memoranda of the conference before signing the memoranda. I also reviewed the signed memorandum compared to Dr Jetnikoff’s earlier reports and I am satisfied that it does fairly reflect his opinion. It is not however a practice which should be encouraged.

(emphasis added)

With respect to her Honour, drafting of such memoranda – in my view – is better done by solicitors (and/or counsel) than the expert – if only to have it done promptly, and dare I say accurately in the case of a busy expert.

The lesson from Potter, however, is not to overdo it; resort to a request for supplementary report – albeit preceded by a conference to ground the additional opinion to be expressed – if other than a discrete issue or issues falls to be addressed.

“UCPR 427 provides that the Court can direct that the number of experts who may be called to give evidence on a particular issue or for a particular area of expertise is limited. PD2/2005 suggests that only one expert in each area of expertise should be called by a party.”

Expert conclaves:

Reporting experts in the same field of expertise will be directed by the court to conclave and report thereon.

In John at [11] Garling J wrote:

The parties are expected to agree upon the issues to be considered by the experts at a joint conference prior to the conference commencing. Such issues according to the common practice, then become, where necessary, the issues covered by the joint expert evidence. In effect, the list of issues becomes an agenda which is the sequence followed in the concurrent evidence session. As the UCPR provides, the joint conference is a forum, without the presence of lawyers for the parties, at which the experts consistently with the expert Code of Conduct, discuss the issues and attempt to reach agreement on those issues where possible. If agreement is not possible, then the joint report requires that the fact of their non-agreement be set out and that it be accompanied by a short expression of the basis of their non-agreement.

Also in John at [22], Garling J noted that when questions are framed for experts in advance of a conclave they should not be framed as in an interrogatory but rather in a way that invites discursive answers more likely to reveal the true reasoning of the experts.

Appointment of a conclave facilitator may be apt in some instances.  In KF, Johnson J observed:

The appointment of a [conclave] facilitator will serve to explain to the experts the nature of the task to be undertaken at the reconvened conference, with the facilitator then guiding the experts through the Schedule of Responses so that the intended purpose of the reconvened conference is achieved. It is, of course, no part of a facilitator’s function to engage in debate with the experts. Rather, the task will be confined to the orderly working through of the Schedule of Responses so that it is completed to the satisfaction of the conferring experts.

A facilitator may be needed where there are a large number of issues, a significant number of alternative answers to questions, a large number of experts or where there is a history of inadequacy in or management of production of a joint report that satisfies its objectives.  Appointment of a facilitator may also mitigate against the risk of one expert being dominated by another.

“Bickering” between the parties’ legal representatives caused Forrest J in Matthews to appoint an Associate Justice to “manage” the conclaves between the experts.

Cases arise where there are multiple experts on multiple issues, with not all of them having expertise on all of the issues.  Usually there are separate conclaves but sometimes a single conclave may be directed with the experts directed to only participate in answers that are within their own area of expertise. See also Avery v. Flood [2013] NSWSC 996 and Porter v. Le [2014] NSWSC 883.

These are the essential rules in the conclave space:

• First, the expert can and should be instructed in writing the general structure, method, process, purpose, role, but that lawyers do not participate in the conclave, or (ordinarily) communicate with the conclaving experts once embarked upon or before them finalising the conclave report.
• Second:
  • the expert ought not be coached by the lawyers;
  • engineer and clarify fee agreements with sufficient precision and certainty as to cover contingencies.

Transgression of the first matter above can lead to severe consequences for the parties, including preclusion of entitlement to adduce evidence at trial from the expert. In Andrews, despite the expert having been engaged by a party for three years, and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had liaised closely with the briefing solicitor concerning the content of the draft conclave report – ordered preclusion (at [34]):

I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.

(emphasis added)

While communication with the expert during the conclave or after the conclave but before report is precluded, exceptionally it may become necessary for a legitimate purpose.  For example, the conclaving expert may request a document or clarification of a factual assumption. If this arises this ought be addressed on notice to all parties (even if not initially).

The conclave report, too, need comply with the UCPR and Makita principles. The conclaving experts ought be so instructed by the parties. The parties collectively may need to intervene subsequently to ensure such report harbours such compliance: Andrews at [18].

It is not just the disagreement of the experts on an issue in such report that should result in a statement of reasons for their disagreement.  Where the experts agree on something they should also set out their reasoning. Were it otherwise, a court will be bereft of the reasoning necessary to enable such issue opinion to be accepted or rejected at trial.

Conclaving experts often will afford concurrent evidence at trial.

Preparation for trial:

PD18/2018 requires the parties to resolve or narrow issues in dispute and to ensure that the costs of preparation for trial and trial are minimised. One of the methods used to do so is to develop a “reliable trial plan and ensure that expert witnesses in the same field give their evidence concurrently or consecutively, if possible”.

UCPR 427 provides that the Court can direct that the number of experts who may be called to give evidence on a particular issue or for a particular area of expertise is limited. PD2/2005 suggests that only one expert in each area of expertise should be called by a party.

A Trial Plan must be prepared as part of the PD18/2018 case management. The Trial Plan should include exchange of objections to expert evidence at least one month before trial, time allocated for argument in relation to the objections and at least 48 hours for the trial judge to rule on the objections before expert witnesses give evidence. If the trial is not long enough for that to occur, it may be that argument relating to admissibility of evidence should be conducted before the trial:  UCPR 367.

Once rulings are made, amendments to the reports to reflect the ruling should be made before the reports are tendered as evidence.

“The law is crystal clear that draft expert reports are disclosable if they come into the hands of the represented party or their solicitors”

In Stewart, McMeekin J. concluded that there ought “ordinarily to be only one expert in any given field” called by each party, and that evidence of multiple experts of the same expertise being called by the one party should only be allowed if the justice of the case so requires.

In balancing the discretionary factors, His Honour took into account work undertaken by various experts and the costs involved in the preparation of those reports, the taking up of time and resources of the Court in hearing and deciding between multiple experts and the interests of justice by permitting multiple experts to call evidence.

Care must be taken in pre-trial orders to ensure that the allocation of an expert to an area of “expertise” does not preclude that expert from giving evidence on a topic that is contained within their expert’s report that may be broad enough to be otherwise admissible.

UCPR 429G provides that the expert may give evidence-in-chief in the proceeding only by a report. The expert may give oral evidence-in-chief in the proceeding only if the Court gives leave: UCPR 429G(5).

Subject to any Rules of Court, an expert witness is to give evidence to the Court by audio-visual link or audio link: Evidence Act, s 39PB.

The Court may, on its own initiative, or upon the application of a party to the proceeding, direct that the person is to give oral evidence to the Court other than by audio-visual link or audio link if the Court is satisfied it is in the interests of justice to give the direction: Evidence Act, s 39PB(3).

If the expert is to give evidence by video-link, a comprehensive brief of documents needs to be provided to the expert either in an electronic or hard copy. Where the documents are numerous, the parties should agree on a bundle that will be provided to the expert for the purpose of giving evidence remotely.

Postscript:

On 6 December 2022 Chief Justice Bowskill of the Supreme Court issued the following draft Practice Direction concerning expert evidence to be adduced in causes conducted on the Court’s Commercial List:

1. Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) applies to all proceedings on the Commercial List.

Preparation of expert evidence

2. When a proceeding is placed on the Commercial List, the parties are expected to give early consideration to whether expert evidence is to be called in the proceeding. In a usual case, the parties will be expected to address the need for expert evidence at the first review.
3. The retainer of any expert always remains subject to the objects of rule 5 of the UCPR. The parties are not to retain an expert whose availability to prepare and complete a report is likely to cause undue delay to the efficient conduct and resolution of the proceeding.
4. Where contentious expert evidence is to be adduced in a proceeding, the questions to be answered by the expert are, as far as possible, to be those specified by the Court or agreed by the parties. Questions for an expert should be framed with a view to assisting the resolution of a real issue or real issues in the proceeding.
5. The parties should consider whether it is cost effective and expeditious to prepare a joint statement of assumptions to be made by the experts including any competing assumptions to be made in the alternative.
6. The unnecessary duplication of effort in preparing chronologies and other materials briefed to experts is to be avoided with the intent that experts in the same field are briefed with the same or similar materials.

Expert conferences

7. Where contentious expert evidence is to be adduced, the Court will usually direct the experts to confer before trial and may direct the experts to confer before they have completed their respective reports. It is important that experts are instructed that the code of conduct (as defined by r 425 UCPR) applies with full force and effect to the conference and the preparation of the joint report.
8. Following any conference, the experts are to prepare a joint report for the Court (at all times mindful of their obligations under the Code of Conduct) stating:
   (a) the matters upon which they were directed to confer;
   (b) that they have met and discussed each matter upon which they have been directed to confer;
   (c) the matters on which they agree;
   (d) the matters on which they disagree; and
   (e) a concise statement of the reasons for any disagreement.
9. In a case where the experts have experienced difficulty in preparing the joint report, a commercial list judge may direct that the preparation of the joint report be facilitated by the Resolution Registrar or another suitably qualified person.

Expert evidence during a hearing

10. A commercial list judge may give directions to the effect that: (a) expert evidence at trial will follow the factual evidence upon which the expert evidence is predicated; (b) two or more experts present their evidence concurrently and may, if permitted by the judge, question each other in relation to their evidence.

(emphasis added)

Conclusion:

The task of eliciting, managing and adducing expert evidence is one replete with challenges and complexities. 

Careful attention should be given to each of the above matters.

Welcome to issue 90, a milestone for Hearsay.

This is a year-end “bumper issue”.  Included is a new section, “Words from the past”. This will address historical papers written by preeminent authors in the Australian legal profession, albeit with a Queensland bias. The first iteration comprises a thought-provoking paper from the Hon Walter Sofronoff KC, “The province of an independent legal profession”, written in 2015.

A feature article in this issue 90 is a moving family tribute by Queensland barrister Madeline Brennan KC to her father, the late Honorable Sir Francis Gerard Brennan AC KBE GBS.  It is a fitting tribute to a leading Australian jurist by a loving family member.

The feature articles include a High Court farewell by the Association President to the retiring Hon Justice Patrick Keane AC along with his Honour’s response, and a piece by the Hon Justice Glenn Martin AM, canvassing the history of the introduction in Queensland – in 1922, 100 years ago – of the statutory age for retirement of judges.

The “Pride in Law” Annual Address delivered by the Hon Justice Susan Brown is included, as is a paper by the Hon Margaret McMurdo AC positing consideration of a new offence of “coercive control” in reform of the law concerning domestic and family violence. The Hon Justice Michelle Gordon AC of the High Court has also kindly permitted reproduction of her paper concerning s.79 of the Family Law Act.

In “Advocacy”, Judge Cash KC and Judge Porter KC of the District Court afford illuminating discussion on the appellate jurisdiction of the District Court, and admissibility of evidence on information and belief, respectively.  In “Professional conduct and practice”, Judge Rackemann, harbouring over 20 years’ experience on the bench, descends to all manner of conduct of counsel which can serve to infuriate a judge.

Anthony Morris KC provides a timely and interesting analysis of the legal issues pertaining to the war in Ukraine.  Our thoughts are with, and prayers extended to, the Ukrainian people.

“10 minutes with …” has the editor interviewing senior silk Kathryn McMillan KC. “In the Regions” focuses on the Sunshine Coast Bar, with Toby Nielsen taking the helm for counsel in that burgeoning locale.

Plenty of book and podcast reviews, and other advocacy and general interest items, cap off the issue.

Thank you to Kelsey Rissman, Kasey Rowland and Dianne Lyndon of the Association for their invaluable assistance this year in producing this quarterly magazine. Thanks also to the deputy editors John Meredith and Megan Brooks, and the sub-editors Stephen Keim SC and Margaret Forrest, for their tireless effort in assembling the 2022 issues. Thanks also to the barristers, judges and others who furnished material for publication.

Please forward to us, by the start of February at the latest, your contributions for publication for issue 91, due for publication in early March 2023.

From the Hearsay team, all the best for Christmas and the New Year. Enjoy!

Richard Douglas KC

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Editor’s note:

Issue 89 included a paper from Dr Norman Katter on “Artist’s impression” and Misleading or Deceptive Conduct, that discussed the Federal Court decision in Ripani v Century Legend Pty Ltd [2022] FCA 242.

On 30 November 2022, the FCAFC handed down its decision on the appeal from that case in Century Legend Pty Ltd v Ripani [2022] FCAFC 191.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0191

This decision allowed the appeal and ordered a new trial on restricted issues.

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.

General principles

In All Class Insurance Brokers Pty Ltd [in Liq] v Chubb Insurance Australia Ltd,[1] Allsop CJ wrote in respect of the well settled principles:

[40]  Where the applicant is a corporation, the Court is empowered to order security for costs pursuant to s 1335 of the Corporations Act if “it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant”. Once this threshold is met, the Court will turn to the matters relevant to the exercise of its discretion to order security for costs: Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65;  98 ACSR 301.

“If the evidence does not permit a conclusion of stultification that does not make the impecunosity of the party and the difficulties in providing security (such as they are proved) irrelevant”

[41]  Section 56 of the Federal Court of Australia Act does not expressly impose any threshold to be met before the Court considers the various discretionary matters. However, the applicant’s inability to pay the costs of the respondent remains an important consideration in the exercise of the Court’s discretion.

[42]  The Court’s discretion to require the provision of security for costs is broad and the factors informing the exercise of that discretion cannot be stated exhaustively. The only limitation is that the discretion be exercised judicially: Bell Wholesale Co Ltd v Gates Export Corporation [1984] FCAFC 29; 2 FCR 1 at 3 . The matter which lies at the heart of the discretion is one of fairness, both in terms of whether security should be granted, and if so, in what amount: Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 at 21 [92]. The Court aims to achieve a “balance between ensuring that adequate and fair protection is provided to the defendants, and avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings”: Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 470 (Giles J).

[43]  The Court’s discretion should be exercised having regard to all of the circumstances of the case (see Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; 193 CLR 502 at 513 [26] (Kirby J)). There are a number of well-established factors relevant to the Court’s exercise. These include (see KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; 56 FCR 189 at 197 –198 per Beazley J): whether the application for security for costs has been brought promptly; the strength and bona fides of the applicant’s case; whether the applicant’s impecuniosity was caused by the respondent’s conduct subject of the claim; whether the respondent’s application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate; and whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security.

[44]  An additional factor to add to this list is whether there are aspects of public interest which weigh in the balance against the making of an order (see Equity Access Ltd v Westpac Banking Corporation [1989] FCA 520; ATPR 40–972 at 50,635 per Hill J).

Stultification

An issue which occasionally arises is that of “stultification”; that is, the inevitable non-satisfaction of the ordered security would serve to preclude the pursuit of what is a prima facie good cause of action.  While that may seem a self-evident consequence, the issue is one of substance.

“… the circumstance of there being a complete identity between the corporate plaintiff and the individual plaintiff so that all plaintiffs are suing in relation to one and the same defendant and all plaintiffs must succeed or fail together.”

In Madgwick v Kelly,[2] Allsop CJ and Middleton J wrote:

[81] The respondents submitted that the characteristics of the group were relevant to the question of stultification. The onus of establishing that the making of an order would stultify the suit rests on the party resisting security: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 at   4; 52 ALR 176 at 179 (Bell Wholesale); Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383; 25 ACLC 1707; [2007] NSWCA 344; Green at [45] and [82]. That proposition is, to a degree, uncontroversial. A failure to prove stultification does not mean, however, that security must be provided. Indeed, as Hodgson JA (sitting alone as referrals judge) said in Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [26] (Dae Boong), if the evidence does not permit a conclusion of stultification that does not make the impecunosity of the party and the difficulties in providing security (such as they are proved) irrelevant. As Hodgson JA said, if those who stand to benefit from the proceedings are reasonably unwilling, even though possibly able, to provide security, that may be a factor to be taken into account.

[82]  These considerations are especially apt to consider in a class action for the kinds of reasons referred to by the primary judge. The group members may or may not be willing to disclose their assets. They have no obligation to do so. The group members may be largely unidentified. The kinds of considerations to which the primary judge referred may not be sufficient to ground a defensible finding on likely stultification (to which question, we will come), but they are not irrelevant to the overall exercise of discretion. The generality of the discretion in s 56 should not be lost sight of. In Dae Boong, (although in the context of an application for security for costs pursuant to s 1335(1) of the Corporations Act) Hodgson JA went to the heart of the discussion in terms particularly apt for adoption in group proceedings when he said at [27]:

Ultimately it seems to me the question to be determined by the court is whether it is fair that the person being sued by the company should be in the position of having to incur substantial costs, in this case perhaps tens of thousands of dollars of costs, and being at risk of liability for the company’s costs, and yet have no real chance of recovering costs even if the action is unsuccessful, when there are persons who would benefit from the proceedings, who face no risk of liability for costs themselves and are either unwilling or unable to provide security.

[83]  Thus, it was not wrong for the primary judge to take into account the subject of unwillingness of people to contribute as a relevant factor. This has support in a number of cases: BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 at 344–345; Ariss v Express Interiors Pty Ltd (in liq) [1996] 2 VR 507 at 515; and Jeffcott Holdings Ltd v Paior (1997) 15 ACLC 28 at 32. Of course, unwillingness in itself is not determinative, and the question of the reasonableness of any unwillingness to contribute must be considered in determining what is fair in all the circumstances. In the context of the applications for security for costs brought in these related class actions, the reasonableness of requiring people to contribute (and to what extent) was an important factor to consider in the context of Pt IVA.

The issue of onus of proof of stultification burdening plaintiff or defendant is the subject of a reserved appeal from the decision of Markovic J in St Mary’s Hog’s Pty Ltd v HBCA Pty Ltd.[3]

Corporate and natural person plaintiffs

What of the case where the plaintiffs – or appellants – consist of both a natural person and a corporation?

The recent decision of Leeming JA in Hung v Aquamore Credit Equity Pty Ltd[4] involved an application for security made in the New South Wales Court of Appeal by an appeal respondent against the natural person and corporate appellants.  It will be remembered that security is rarely awarded against a natural person.  In this regard,  in St Mary’s, Markovic J pithily summarised the relevant law (at [135]):

There is a disinclination to order an individual applicant to provide security, at least, in the absence of a factor in addition to impecuniosity: see Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32]. At [33] of Knight Lindgren J identified the types of additional factors, in addition to impecuniosity, which had persuaded courts to make an order for security against natural persons. They were: where the individual is resident outside Australia; bringing a claim to a significant extent for the benefit of others; failure to show that an order would stultify a proceeding and that the sum ordered was not oppressive; and lack of prospects of success and large costs involved to defendants.

Refusing security, Leeming JA, with reference to authority, predicated a further  exception, precluding an award of security where there was a natural person plaintiff in addition to a corporate plaintiff, but solely in:[5]

… the circumstance of there being a complete identity between the corporate plaintiff and the individual plaintiff so that all plaintiffs are suing in relation to one and the same defendant and all plaintiffs must succeed or fail together. Brereton J said that in those circumstances “security will not ordinarily be ordered against only one of them”.[6]

So much reflects the Queensland jurisprudence.  In Whitelaw v Hookey,[7] Morrison JA collected and applied that jurisprudence in a case where the appellants were a natural person and an associated corporation:

[18]  Senior Counsel for the appellants submitted that there was almost a complete overlap between the issues to be agitated on the part of Mr Hookey, and those on behalf of KAHI. Thus it was contended that this was a case where any costs order would be made against Mr Hookey in any event, and since he was a primary protagonist and not simply standing behind the corporate appellant, this was not an appropriate case for security for costs.

[19]  The principles applicable on this issue appear in Molony v ACN 009 697 367 Pty Ltd (in Liq) [2003] QCA 120 at [22]-[25] and [29] by reference to the judgment of Connolly J in Harpur v Ariadne Australia Ltd [1984] 2 QdR 523 at 531-2. Harpur v Ariadne established that if there were two parties, one corporate and one who litigated in person and was a person of substantial means, it was inappropriate to order security for costs against the corporate defendant even though, looked at in isolation, such an order could be justified against them. However, that was only applicable if each of the appellants was liable to the whole of the costs. In other words, it was applicable where there was a complete overlap between the interests of the two parties. As was said by White J (as her Honour then was) in Molony: “Where there is more than one plaintiff there must be a coincidence of interest”: at [29]

[20]  This is not a case where there is a coincidence of interest. By reference to the originating application one is able to identify various forms of relief which are sought only by Mr Hookey, and not by KAHI. Those issues are substantial, consisting of a declaration that Mr Whitelaw holds half of his shares in the second defendant on constructive trust for Hookey, and consequential orders compelling their transfer. Further, paragraph 4H(b) claims the payment of $1,000,000 to Mr Hookey.

(emphasis added)

“If contrary to what I have already decided this were a case for security for costs, I would, in the exercise of my discretion, order none. That is because, irrespective of the reason such a wildly exaggerated estimate was deposed to, it is quite wrong for such estimates to be propounded in this Court.”

Excessive security quantum demands

In Hung, Leeming JA also raised an issue concerning the estimate of costs sworn to by the respondents for a two-day appeal, namely no less than $434,461. Somewhat ominously, Lemming JA wrote:[8]

Something needs to be said about the estimate of costs…I have already mentioned that counsel did not seek to defend a substantial amount of the costs to which the solicitor for the respondents … deposed.

Leeming JA noted the estimate was made at an early stage of the appeal when it was not clear as to whether the appeal would be one or two days and was “prepared at a time when there were uncertainties, including the possibility of an amendment to the notice of appeal”.[9]  His Honour, however, observed  “…many of the estimates of costs bear no relationship with the realities of defending an appeal”.[10]

His Honour wrote:

[23]  I do not seek to be exhaustive in identifying the items which Mr Hogan — Doran SC, once they were pointed out to him, very properly accepted should not be included in the total. The result was that he accepted that more than a quarter of a million dollars of estimated costs contained in Mr Seelenmeyer’s affidavit could not be justified. The concession was, self-evidently, properly made; it is absurd to think that the respondents to a one or even a two day appeal could properly incur costs of $434,461 or anything like that amount.

[24]  The reason for what was concededly a very substantially overinflated amount of the respondents’ costs being included in this application for security for costs — something which was pointed out pithily by the appellants’ written submissions — is not known to me. One possibility is that the deponent was incompetent or completely unfamiliar with the ordinary course of litigation in the Court of Appeal. Another possibility is that those costs or something like them will in fact be incurred, in which case there would be what could only be described as massive overcharging of the client. A third possibility is that the affidavit has been prepared with a view to very substantially inflating the likely costs, in order to obtain either by compromise or by Court order a much greater award of security than that to which the respondents would otherwise be entitled.

[25]  I do not know and I express no view as to whether any of those possibilities be the case. There may be other possibilities for the inflated estimates, although I made it plain during the hearing, including by giving what turned out to be a significant adjournment to permit anything that could be said in relation to those estimates being put to me. No attempt was made to produce any further evidence or explanation, save for what was said from the bar table to which I have already referred. But whatever be the reason, the fact is that the estimates are grossly inflated, far beyond the realm of what might be reasonably arguable as an estimate of the costs of an appeal.

[26]  I mention all of those things for this reason. If contrary to what I have already decided this were a case for security for costs, I would, in the exercise of my discretion, order none. That is because, irrespective of the reason such a wildly exaggerated estimate was deposed to, it is quite wrong for such estimates to be propounded in this Court. The respondents seek a discretionary order, but rely on an obviously untenable evidentiary basis for an essential element of the order they seek. As much was pointed out to them in advance of the hearing. No attempt was made to attend to the self-evident deficiencies in the evidence. A less unrealistic amount of security might be $50,000 or $70,000, as was pointed out in the appellants’ submissions, but why should even that amount be ordered when the moving party has so grossly inflated its estimate of its own costs?

[27]  The real issues in dispute are raised on the notice of appeal and the respondents’ cross-appeal from the declaration that their interest rate of some 79% per annum is an unenforceable penalty. The costs of the appeal are well removed from the real issues. The provision of security for those costs is still further removed. It is difficult to see how what has occurred on this motion could accord with the overriding purpose and the obligations to which both the respondents and their lawyers are subject in s 56 of the Civil Procedure Act. Estimates such as the grossly inflated estimates on which the respondents relied are also apt to produce disputes which cannot be resolved; hence the two hours we have spent this morning dealing with this application.

[28]  Such complaints are not new. They were explained more concisely than I have managed to achieve by Young JA in Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100 at [11] –[16] more than a decade ago. So far as I can see the situation has not improved subsequently; to the contrary.

[29]  For those reasons I dismiss the notice of motion filed 6 May 2022.

…

[31]  … The order of the Court is notice of motion filed 6 May 2022 dismissed with costs. Despite what I just said and the tone of it, I could not have dealt with the motion today but for the assistance I’ve received from those at the bar table and those instructing them. I’m grateful for that.

(emphasis added)

Hung is a timely reminder for counsel for an applicant, once briefed, to give timeous and reasonable consideration to evidentiary content and sufficiency – whether estimates of costs for security, or otherwise – before such an application is filed, or if briefed after filing then, if necessary, seek an adjournment to effect  evidentiary “repair”.  If that proves abortive, independent candour with the court must ensue as to such content (as occurred on the part of counsel in Hung).

The price of ignoring these steps may be not just lack of success in garnering the security relief together with an order for costs against the applicant, but also a possible stain on counsel’s professional reputation as an advocate.

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Editor’s note:

On 26 September 2022, the Full Court of the Federal Court – in a decision going by the name Goodwin v HBCA Pty Ltd – dismissed an appeal from the decision in St Mary’s Hog’s Pty Ltd v HBCA Pty Ltd [2022] FCA 52,referred to in the above article.  The issue is further discussed in an item in Hearsay Issue 91.

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[1] [2020] FCA 840

[2] (2013) 212 FCR 1

[3] [2022] FCA 52

[4] [2022] NSWCA 123 (4 July 2022).

[5] Including Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 at [27] – [28].

[6] Ibid at [16].

[7] [2020] QCA 145.

[8] At [21].

[9] Ibid.

[10] At [22].

Welcome to Issue 89 of Hearsay.

This issue carries a lead article by John Meredith of the Queensland Bar, and Hearsay deputy editor, concerning the threat to the Bar arising from cybercrime and the need for barristers to implement security to diminish the threat’s impact upon them. Preventative measures are discussed. References are made to such matters as “threat actors” and “smishing” – not as much fun as they sound.

Once the stress of cybercrime has been absorbed, the article by psychiatrist Dr Curt Gray on ‘The Art of Sleeping Well’ can then be read at your leisure.

The important elevation of Justice Lincoln Crowley is also showcased. Chief Justice Bowskill affords treatment to the difficult task of sentencing adults.

’10 minutes’ with… Justice David Boddice’ presents an insightful picture of productive life on the bench after a long career at the Bar.

Justice Peter Applegarth provides a stimulating article on the career of the recently retired US Supreme Court Justice Stephen Breyer.

The ‘Regional Bar’ section this month focuses on the vibrant Townsville Bar. The ‘Advocacy’ section provides analysis of topical current issues in that sphere.

Other excellent articles, commentary, podcasts and book reviews and poetry – by an anonymous but plainly talented Bar member – round off the Issue.

Enjoy!

Richard Douglas QC, Editor

I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). Deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.