Victorian courts in Australia have traditionally been hesitant to disturb the usual process for appointing expert witnesses in proceedings. However, a recent decision from the Supreme Court of Victoria in Construction Engineering may reflect a gradual shift in how courts approach expert referees in complex technical disputes.
Historically, expert evidence in Victorian proceedings is usually provided by experts appointed by the parties themselves. Courts have rarely appointed their own experts. This approach reflects party preference. Parties generally want to vet experts in advance to ensure their opinions align with the legal and factual positions being advanced.
Although this vetting practice has been criticized in some quarters, courts have generally been reluctant to intervene in how parties select and manage their expert evidence. Despite this, there have been some notable exceptions.
- Victorian courts are showing new openness to court-appointed technical referees in complex construction disputes, signaling a shift lawyers cannot ignore.
- The Supreme Court of Victoria’s Construction Engineering decision outlines when referee appointments may streamline causation and damages issues.
- Used well, this approach can reduce cost, shorten timelines and limit competing opinions in defect claims.
- For litigators in technical matters, the ruling offers timely guidance on when to seek appointment and when courts are likely to refuse.
Growing Use of Court Appointed Experts
The Supreme Court of Victoria has shown greater willingness to appoint expert referees or assessors in large, technically complex disputes or to address specific technical questions.
For example, in the Kilmore-East Bushfire class action, His Honour Justice Forrest appointed two assessors to help analyze the most complex aspects of expert evidence. This and other approaches to managing technical evidence were later examined in four research papers commissioned by the court.
In another departure from traditional practice, His Honour Justice Vickery appointed an expert referee in Construction Engineering, which is discussed further below.
Before examining that case, it is helpful to consider why a party might request a court-appointed expert.
Why Seek a Court Appointed Expert Referee?
Requests for court-appointed expert referees tend to arise only in limited circumstances. In construction disputes, this may occur in defect claims where technical opinion is central to determining the outcome.
From a strategic perspective, a party seeking appointment may feel confident that the expert opinion will support its position. In such cases, requesting a court-appointed expert may limit reliance on opposing expert opinions that conflict with broader industry views.
Practical considerations can also influence these decisions. Proceedings using a court-appointed expert may be less expensive and faster than relying on expert witnesses retained by the parties. This approach may also reduce the use of confidential background experts whose advice can increase overall litigation costs.
When Courts Are Likely to Appoint an Expert Referee
The decision of His Honour Justice Vickery in Construction Engineering provides guidance on when courts may be more willing to appoint expert referees, particularly in technically complex matters such as those managed in specialized lists like the Technology, Engineering and Construction (TEC) list.
In that case, the expert referee was appointed at a party’s request and was limited to questions of causation and damages. Liability was addressed separately through another hearing process.
His Honour Justice Vickery indicated that appointments are less likely when:
- The case involves numerous technical questions combined with legal and mixed fact-law issues.
- The expert report could generate additional questions requiring further determination.
- Appointment would not improve efficient or cost-effective case management.
- Challenges to the expert’s report would consume significant time or resources.
- While the court declined to appoint an expert referee on liability issues in that case, opting instead for guidance from an assessor, appointments remain possible where circumstances justify them.
Circumstances That Favor Appointment
In practice, court appointment of expert referees is more likely where:
- The technical issue is narrow and can be separated from broader factual disputes.
- The question can be clearly defined and agreed upon by the parties.
- The expert’s opinion will play a central role in resolving the dispute.
What This Means Going Forward
Although court-appointed expert referees are still relatively uncommon, there appears to be a gradual shift in judicial willingness to use them in appropriate cases. This may reflect increasing caseload pressures or the complexity of modern commercial disputes, though the precise drivers remain unclear.
Regardless, parties and practitioners should carefully consider the strategic and procedural implications of these appointments, as they can significantly influence how litigation is conducted.
