Insight

Call in the Referee: Court Appointed Experts in Complex Cases

Victorian courts have long been reluctant to disrupt the status quo when it comes to appointing expert referees in proceedings. But a recent decision by a Supreme Court of Victoria judge in Construction Engineering could signal a shift in the court’s attitude to appointing expert referees in complex or technical cases.

Court Experts in Complex Cases
Joseph Barbaro

Joseph Barbaro

November 22, 2016 12:00 AM

Victorian courts have long been reluctant to disrupt the status quo when it comes to appointing expert referees in proceedings. But a recent decision by a Supreme Court of Victoria judge in Construction Engineering could signal a shift in the court’s attitude to appointing expert referees in complex or technical cases.

Historically, Victorian courts usually only receive expert evidence from people appointed by the parties to proceedings, and rarely appoint their own people to give this evidence. This reluctance comes from the parties, who strongly prefer to appoint experts they have first vetted, largely to ensure that the opinions held by the experts are consistent with the cases being presented.

While this practice of vetting experts has been criticised, the courts have been largely reluctant to disrupt the status quo by intervening in the appointment process. But there are exceptions to this rule…

Court appointed experts: a shifting trend

The Supreme Court of Victoria in particular has shown an increased appetite for appointing expert referees and assessors in highly complex and large-scale disputes or to address discrete technical issues.

For example, in the recent Kilmore-East Bushfire class-action, His Honour Forrest J appointed two assessors to help him with the most complex aspects of the expert evidence. This, and other innovative methods for managing expert evidence, were the subject of four research papers commissioned by that court.

Similarly, in another noteworthy departure from the norm, his Honour Vickery J appointed an expert referee in the recent Supreme Court of Victoria case of Construction Engineering. (We will examine this particular case in more detail below).

But before we consider the issue of court-appointed expert referees further, it is worth asking why a party might request the appointment in the first place.

Why would a party want the court to appoint an expert referee?

A party is only likely to ask a court to appoint an expert referee in limited circumstances. In a construction context, it might be a classic defects case where the expert referee’s views are central to the ultimate issue in dispute.

For strategic reasons, the circumstances are likely to be where the party seeking the appointment is very confident of the opinion the court is likely to receive. When a situation such as this arises, the party making the request might be able to lock out the views of an expert that run against the industry consensus.

Other commercial factors might also be in play. For example, running a proceeding with a court appointed expert referee may be cheaper and quicker than one where the parties engage their own experts. Further, a court appointed expert referee may reduce the need for ‘shadow’ or ‘dirty’ experts providing privileged advice in the background; these experts can be expensive and drive up costs significantly.

When is a court likely to appoint an expert referee?

His Honour Vickery J’s decision in Construction Engineering provides useful guidance on when a court, particularly one that deals with complex or technical cases like those in the Technology, Engineering and Construction (TEC) list, is likely to appoint an expert referee.

In this case, the appointment of the expert referee was granted at the request of a party and was limited to issues of causation and quantum (the case had a separate hearing on liability).

According to his Honour’s decision, an appointment is less likely to occur when:

• there are a lot of technical questions, questions of law, and mixed questions of fact and law at issue;

• the expert referee’s report might give rise to further questions that must be answered;

• the appointment would not lead to the expeditious and cost effective management of the case; or

• any challenge to the expert referee’s report would occupy too much time and be unnecessarily costly.

While his Honour chose not to appoint an expert referee to opine on liability issues (and instead chose to receive guidance from an assessor), an appointment might occur in the right circumstances.

In our view, an expert referee is more likely to be appointed by the court in cases where:

• the technical question (or questions) are discrete and can be separated from the factual disputes;

• the question (or questions) can be clearly articulated and agreed by all parties; and

• the expert referee’s opinion is central to the overall proceeding.

While expert referee appointments by the court are still likely to be reasonably rare, we have seen a shift in the court’s attitude to such appointments. Whether this is driven by a strain on resources to deal with an increasing case load of complex cases, or for other reasons, is unclear.

In any event, parties and practitioners alike need to be aware of the issues that arise when such appointments are made. They have a large impact upon the way these cases are run, and the strategic issues that follow.

For more information, follow the source link below.

Related Articles

Pennsylvania’s Best Lawyers 2022


by Best Lawyers

Our Pennsylvania’s Best Lawyers 2022 digital publication features top-ranked legal talent in Pennsylvania.

Pennsylvania’s Best Lawyers 2022

Washington, D.C. In the Law


by Gregory Sirico

We explore three legal cases in Washington, D.C.

Washington, D.C. In the Law

Blurred Lines


by Andrew Kirby

Where does responsible lending end and unconscionability begin? Australian courts have come to vastly different conclusions. An overview of current case law.

Australian Courts Assess Loan Repayment

How to Identify a Medical Expert for Trial


by Rose Ríos

Things to look for and things to avoid when choosing a medical expert for trial.

What Makes a Strong Medical Expert Witness

The Defend Trade Secrets Act of 2016: A New Federal Civil Cause of Action for Trade Secret Theft


by Randal J. Brotherhood

"It represents one of the most significant events in trade secret reform in years. The DTSA amends the Economic Espionage Act, which previously limited access to federal courts for trade secret theft to criminal prosecution."

Defend Trade Secrets Act

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky