Appointment of a single expert in the Supreme Court

Paragraph 2 of Supreme Court of Queensland Practice Direction 2 of 2005 provides that:¹

“In any proceeding, or intended proceeding, where expert evidence will or may be called, early consideration must be given to the requirements of the Rules, particularly as to the appointment of an expert to be the only expert witness on a particular substantial issue in the proceeding.”

This statement echoes the objects of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provisions concerning expert evidence, which include ensuring that, where practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert.²

Factors concerning when appointments may be appropriate

The UCPR recognises that not every case is appropriate for a single expert. In each case, the fundamental question (as provided for by rule 423 and the rules which describe the factors which the court may take into account when deciding to appoint a single expert) involves balancing the interests of justice, having regard to the need to ensure a fair trial and the costs and time efficiencies which can be achieved by having a single expert.

Appointing a single expert can be of benefit to the parties and the court. It can facilitate the early resolution of a dispute where that expert reaches a view on a critical issue which the parties may rely upon to settle.³ This is consistent with the UCPR permitting the appointment of single experts (either by the parties or the court) even before proceedings have been commenced, invoking a quasi-expert determination.

Having a single expert might, for example, be particularly useful in personal injury cases where medical evidence from a single expert can be instrumental in setting the limits for compensation and the parameters for a settlement conference or mediation.

It also has useful cost implications, for example, where the amount at stake is not significant, such that the appointment could permit the parties to have the benefit of expert evidence without having to go to the expense of obtaining their own experts.

Practicalities involved in appointing a single expert

Overview

A single expert may be appointed either before⁴ or after⁵ proceedings are commenced. In both instances, the expert may be appointed by agreement of the parties,⁶ or by the court on application of one of the parties.⁷ If proceedings have already been commenced, the court may also appoint an expert of its own initiative.⁸

The requirements for the appointment of a single expert whether before or after proceedings are commenced are similar and are addressed in the following paragraphs.

Joint appointments

In the case of appointment by the parties jointly, the parties must agree, in writing, upon:⁹

1. the issue in dispute between the parties which the expert can assist to resolve
2. the identity of the expert
3. when the report must be prepared and given to the parties, and
4. liability for fees and expenses payable to the expert.

There are more extensive requirements where the appointment is made jointly in the course of existing proceedings. For example, the parties must also file a copy of their written agreement as to the appointment in the court¹⁰ and must seek to agree a statement of facts upon which the expert is to base her or his report.¹¹

Court appointments

In the case of court appointments, the party applying must prepare supporting material which provides:¹²

1. a description of the nature of the dispute (for pre-proceeding appointments)
2. an explanation of why the report should be obtained immediately (for pre-proceeding appointments)
3. a statement of the issue in dispute upon which the expert evidence may assist to resolve
4. the names of at least three experts who are qualified to give evidence on the issue and who indicate their consent to an appointment (but the court can appoint an expert not on the applicant’s list)¹³, and
5. a statement of any connection known to the applicant between the named expert and a party to the proceeding.

The court has a broad discretion whether or not to make the appointment. The factors which the court may take into account (both before and during proceedings) are:¹⁴

1. the complexity of the issue
2. the impact of the appointment on costs in the proceeding
3. the likelihood of the appointment expediting or delaying the trial of the proceeding
4. the interests of justice, and
5. any other relevant consideration.

The court’s discretion is essentially unfettered.¹⁵ At the heart of the exercise of the discretion in such applications is a balancing of the interests of justice, having regard to the need to ensure a fair trial and the time and cost efficiencies associated with having a single expert.¹⁶

After the appointment

Once a single expert is appointed, the UCPR provides for procedural matters such as how the expert’s report is to be delivered to the parties (in the case of a joint appointment)¹⁷ or the court (in the case of a court appointment).¹⁸

The UCPR also provides that the single expert will be the only expert to give evidence in respect of the particular issue, unless the court otherwise orders.¹⁹ Disputes about reliance only on the single expert at trial can arise, and have arisen, after the expert has delivered her or his report and it is favourable to one side and not the other.²⁰

If the appointment is a court appointment made after proceedings were commenced, the dissatisfied party can apply to have the court appoint another expert under rule 429N(3) of the UCPR. But that requires the party first to show that:

1. The new expert’s opinion differs in a respect which is material to the outcome of the issue in question.²¹
2. The new expert knows of matters not known to the original expert which may be material to the deciding the issue on which the evidence is given.²² Or
3. There are other special circumstances.²³

For any of the appointments described in this article, the court has a general discretion to permit other expert evidence to be given on the issue.²⁴ This discretion is unfettered but must be exercised judicially and consistently with the purposes of the rules.²⁵ The following factors have been found to be relevant to the exercise of this discretion:²⁶

1. the mere existence of a different opinion would not ordinarily be sufficient
2. case management considerations including expeditious resolution of disputes
3. the need to ensure a fair trial
4. the nature of the issue the subject of the proposed new evidence
5. the sum of money at stake, and
6. delay.

A single expert may be inappropriate where:²⁷

1. the topic of the evidence is complex
2. the amount at stake is significant. or
3. there is a genuine difference of opinion between experts, such that there is a real risk that the appointment of a single expert will lead to an abdication of the judicial function in favour of the expert.²⁸

An example of a case where having a single expert was found to be inappropriate is the decision of Davis J in Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296 (Menegazzo). In that case, the parties had consented to the appointment of single experts to value large cattle properties and the cattle depastured on them. One party was dissatisfied with the reports provided by those experts and applied for leave to lead further evidence which valued the properties and cattle significantly higher than the single experts.

Davis J granted leave to rely on the further evidence because the interests of justice favoured that outcome on the facts of that case having regard to the amount in dispute, the importance of the issue to resolving the proceeding, the difference of opinion between the experts, and concerns about the reports of the single experts.²⁹

As Menegazzo demonstrates, and consistent with the objects of these rules, whilst having a single expert can give rise to cost and time efficiencies, if the interests of justice favour permitting additional experts, because, for example, a party will be deprived of a fair trial, the court will depart from the default rule.³⁰

Conclusion

It follows that the appointment of a single expert either by the parties or the court and whether before or after proceedings have been commenced can be a useful tool to facilitate the efficient and cost-effective resolution of disputes and is something which the UCPR and the practice direction require parties to consider. However, such appointments will not always be appropriate.

Parties should therefore, when considering the appropriateness of appointing a single expert, have regard to the interests of justice and, particularly the need to ensure a fair trial.

Alexander Psaltis is a Brisbane barrister.

Footnote:
¹ This article is concerned with the appointment of single experts in the Supreme Court of Queensland. The provisions of Chapter 11, Part 5 of the UCPR concerning the appointment of single experts do not apply in the District Court or Magistrates Courts of Queensland: see rules 429E and 429Q. The Federal Court of Australia has its own rules for the appointment of single experts in rule 5.04 and Chapter 2, Part 23 of the Federal Court Rules 2011 (Cth) which should be consulted for a proceeding in that court.
² Rule 423(b) of the UCPR provides that “if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court”.
³ This was identified as an important rationale for appointing single experts by Sir Thomas Bingham MR (as he then was) in Abbey National Mortgages plc v Key Surveyors Nationwide [1996] 3 All ER 184 at 191.
⁴ Chapter 11, Part 5, Division 4.
⁵ Chapter 11, Part 5, Division 3.
⁶ Rule 429R (pre-proceeding) and rule 429G(1) and 429H (during proceeding).
⁷ Rule 429S (pre-proceeding) and rule 429G(2) and 429I (during proceeding).
⁸ Rules 429G(3) and 429J.
⁹ Rule 429R(1) (pre-proceeding) and rule 429H(1)(a) (during proceeding).
¹⁰ Rule 429H(2).
¹¹ Rule 429H(3)-(4). If the parties cannot agree, they may be permitted to deliver their own statement of facts to the expert, or the court may give directions as to the content of the statement.
¹² Rule 429S(4) (pre-proceeding) and rule 429I(2) (during proceeding).
¹³ Rule 429S(6) (pre-proceeding) and rule 429I(4) (during proceeding).
¹⁴ Rule 429S(7) (pre-proceeding) and rule 429K(1) (during proceeding).
¹⁵ However, where appointment is sought pre-proceeding, the court must also be satisfied that the appointment may help to resolve an issue in dispute between the parties: rule 429S(1) and (5).
¹⁶ So much is apparent from the factors in rules 429K and 429S and the object of the provisions as outlined in rule 423.
¹⁷ Rule 429H(5) (during proceeding). There is no equivalent in rule 429R.
¹⁸ Rule 429S(8) (pre-proceeding) and rule 429L (during proceeding). Rules 429M, 429O, 429P and 429S also permit the court to make directions concerning the provision of a report by a court-appointed expert.
¹⁹ Rule 429R(6) and rule 429S(11) (pre-proceeding) and rule 429H(6) and rule 429N(2) (during proceeding).
²⁰ In addition to Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296, see D v S [2009] QSC 446, Conias Hotels Pty Ltd v Murphy [2012] QSC 297, Atkinson v Habermann (No.2) [2016] QSC 294 and Fricke v WH Frier Building Contractors Pty Ltd [2019] QSC 6.
²¹ Rule 429N(3)(a)(i).
²² Rule 429N(3)(a)(ii).
²³ Rule 429N(3)(b).
²⁴ This discretion is apparent from the proviso “unless the court otherwise orders” in each of rules 429H(6), 429N(2), 429R(6) and 429S(11).
²⁵ Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296 at [58] (Davis J).
²⁶ Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296 at [64].
²⁷ See the discussion in Malek et al, Phipson on Evidence (18^th Ed, Sweet & Maxwell, 2013) at [33-47] and [33-69].
²⁸ For an analysis of this shortcoming see Downes G, ‘The use of Expert Witnesses in Court and International Arbitration Processes’ (16^th Inter-Pacific Bar Association Conference, 3 May 2006, Sydney).
²⁹ Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296 at [67]-[79] (Davis J).
³⁰ Menegazzo v PricewaterhouseCoopers (A Firm) [2019] QSC 296 at [67]-[79].