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					                 EXPERT EVIDENCE IN THE
                    MANAGERIAL AGE

                                      BY

             JUSTICE RONALD SACKVILLE*




     FORENSIC ACCOUNTING CONFERENCE

                    FRIDAY 14 MARCH 2008

                                  SYDNEY




* Judge, Federal Court of Australia
                                                         -1-


    INFORMING THE COURT

1          In 1703, the Court of King’s Bench, presided over by Chief Justice Holt, was
    confronted with a nice question concerning the status of a promissory note.1 A purchaser of
    wine promised to pay the vendor:

           ‘or order, the sum of one hundred pounds, on account of wine had from him’.

    The promisee, John Smith, endorsed the note to a third person. That person sued the drawer
    of the note (not John Smith, the promisee) on the basis that, according to the custom of
    merchants, the note could be treated as a bill of exchange.


2          The Court was sceptical about the plaintiff’s argument and doubtful about his
    assertion that the rejection of his claim would cause commercial inconvenience. To clarify
    the position, Holt CJ did something very sensible:2

           ‘he had desired to speak with two of the most famous merchants in London, to
           be informed of the mighty ill consequences that it was pretended would ensue
           by obstructing this course [advanced by the plaintiff]; and that they had told
           him, it was very frequent with them to make such notes, and that they looked
           upon them as bills of exchange, and that they had been used for a matter of
           thirty years, and that not only notes, but bonds for money, were transferred
           frequently, and indorsed as bills of exchange.’ (Emphasis in original.)


3          The information provided by the two famous merchants was not, however, cogent
    enough to persuade the Court that the note should be treated at law as a negotiable bill of
    exchange.3 Nonetheless, the Chief Justice evidently thought that there was nothing amiss in
    obtaining the required information simply by asking people with the necessary expertise to
    provide it to him. This form of inquiry may not have been consistent with modern notions of
    procedural fairness, but it was certainly expeditious and cheap and perhaps even reliable.


4          Two centuries later, one of the great American jurists, Judge Learned Hand, wrote a
    seminal article pointing out that, before the modern trial by jury emerged, courts or other



    ___________________________________________________________________________
    1
        Buller v Crips (1703) 6 Mod 29; 87 ER 793.
    2
        Id, at 30; 794.
    3
        Although the position was soon changed by statute: id, at 30, note (d); 794.
                                                      -2-

    decision-makers obtained the benefit of expert knowledge primarily in two ways.4 The first
    was to empanel a special jury of persons especially fitted to judge the facts, a procedure
    utilised as early as the fourteenth century in trade disputes.5 Lord Mansfield, a proponent of
    merchant juries in commercial cases in the latter part of the eighteenth century, explained
    that:6

             ‘The special jury (amongst whom there were many knowing and considerable
             merchants) … understood the questions very well, and knew more of the
             subject than any body else present’.


5            The second procedure was to seek the advice of skilled persons who could advise the
    court on matters within their field of expertise. In Buller v Crips, the promissory note case,
    advice was sought and provided informally, outside the courtroom. In even earlier times,
    courts of admiralty used assessors to sit with the court and provide answers, in private, on
    technical questions. Indeed, the admiralty courts developed a rule that expert evidence could
    not be tendered on matters within the expertise of the assessors.7


6            The third method of informing the court of technical matters is through the use of
    expert witnesses who give evidence in open court on matters within their field of expertise.
    This practice, too, has a venerable history, going back to the fourteenth century when records
    show that surgeons were summoned to give their expert opinion on such questions as whether
    wounds sustained by a victim of crime were fresh.8 As the rules of evidence became more
    formalised in the eighteenth century, it was finally established that expert evidence
    constituted an exception to the principle that witnesses cannot give opinion evidence. That
    exception to the general principle is now embodied in legislation.9


7            In modern times, the third method of informing the court is most commonly
    employed. Courts ordinarily receive information on matters requiring specialised knowledge
    or training by way of reports and oral evidence from experts called by one or more of the
    ___________________________________________________________________________
    4
         L Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’ 15 Harv L Rev 40 (1901).
         At the time he wrote this article, Hand was a young lawyer practising in Albany, New York.
    5
         For a brief history of what the New South Wales Law Reform Commission describes as ‘Expert Juries’,
         see NSW Law Reform Commission, Expert Witnesses (Report No 109, 2005), 2.3-2.9.
    6
         Lewis v Rucker (1761) 2 Burr 1167, 1168; 97 ER 709, 770, cited by the NSW Law Reform Commission,
         note 5 above, 2.5.
    7
         NSW Law Reform Commission, note 5 above, 2.10-2.16.
    8
         Id, par 2.17.
    9
         See, for example, Evidence Act 1995 (Cth), s 79.
                                                    -3-

     parties. While there are exceptional cases in which the court appoints its own expert or is
     assisted by an expert assessor, the adversary system has given the parties responsibility for
     adducing and presenting expert opinion evidence. The role of the court is to evaluate that
     evidence and, if necessary, to choose between conflicting opinions of the experts. It is this
     system that is now under siege in the age of managerial judging.



     EXPERT EVIDENCE: FERTILE OF INCONVENIENCE

8            Interestingly enough, Learned Hand, while acknowledging the historical reasons for
     the survival of the expert witness, characterised the practice of receiving expert evidence in
     court as an ‘anomaly fertile of much practical inconvenience’.10 He saw it as an anomaly
     because the expert did not give evidence of facts, but of:

             ‘uniform physical rules, natural laws, or general principles, which the jury
             must apply to the facts.’11

     The expert, according to Hand, therefore usurps the historical role of the jury (or other fact-
     finder) to determine the facts. (Hand was concerned with a system in which juries determine
     facts, even in civil cases.)


9            At a more practical level, Hand identified serious difficulties with the use of expert
     witnesses. Given the weakness of human nature, so he argued, it is inevitable that the expert
     ‘becomes a hired champion of one side’.12 The jury is confronted with diametrically opposed
     views on issues beyond its competence to resolve. Hand saw the answer in the appointment
     of an expert or experts to advise the jury in its fact-finding function.


10           In the intervening century, Learned Hand’s misgivings have been amply borne out.
     Judges, commentators and professional associations (lawyers and non-lawyers alike), not to
     mention law reformers, have railed against the evils associated with the use of expert
     evidence in the adversary system. There is a general, if not universal, recognition that the
     court system has failed to achieve its objective of producing just results without a
     disproportionate expenditure of time and resources.

     ___________________________________________________________________________
     10
          L Hand, note 3 above, 40.
     11
          Id, 50.
     12
          Id, 53.
                                                        -4-

11           The problems presented by the use of expert evidence in litigation are well-known
     and widely documented.13 They include the following :

                     too many experts are willing to act as ‘hired guns’ and to give opinions that
                      are the product of partiality, rather than provide an objective and independent
                      assessment of the questions presented;

                     expert evidence is selected by the parties, not necessarily because it is reliable,
                      but because it is thought to advance the interests of one of the litigants;

                     the adversarial system of resolving disputes is:
                              ‘calculated to bring forward unrepresentative opinions in cases
                              where a range of opinions exist’;14

                     experts sometimes influence the way in which a case is framed, with the
                      consequential risk they become the ‘front line soldier[s]’, propounding the
                      case on behalf of the client, further detracting from their objectivity;15

                     the preparation of experts’ reports can be extremely expensive and can
                      therefore confer an advantage on well-resourced litigants over their less
                      fortunate opponents;

                     over-zealousness or excessive caution in the conduct of litigation frequently
                      lead to wasteful duplication in the preparation and tendering of experts’
                      reports;

                     the testing of expert opinion by cross-examination can be extremely lengthy
                      and thus can contribute not only to disproportionate expense, but to substantial
                      delays in resolving the proceedings;

                     reliance on expert evidence has led to the creation of a ‘large litigation
                      support industry’ among various professions, which offends ‘all principles of
                      proportionality’ and creates barriers to access to justice;16 and

     ___________________________________________________________________________
     13
          See, for example, Access to Justice (Final Report) (1996) (‘Woolf Report’), ch 13; I Freckelton, P Reddy
          and H Selby, Australian Judicial Perspectives on Expert Evidence: An Empirical Study (AIJA, 1999); H D
          Sperling, ‘Expert Evidence: The Problem of Bias and Other Things’ (2000) 4 TJR 429. P McLellan,
          ‘Expert Evidence: Ace Up Your Sleeve?’, Address to the Annual Conference of the Industrial Relations
          Commission of New South Wales, 20 October 2006.
     14
          H D Sperling, note 13 above, 430.
     15
          Id, 432.
                                                      -5-

                    even if experts give their opinions on the basis of an objective analysis of the
                     relevant material, it may be difficult for the court to resolve satisfactorily
                     conflicting opinions on complex technical questions.



     MANAGING LITIGATION: THE REFORM MOVEMENT

12           The identification by commentators of the problems associated with expert evidence
     has coincided with the recognition by the courts that they must accept responsibility for
     managing litigation. The co-called Woolf reforms in England and similar procedural changes
     in Australia are predicated on the assumption that if conduct of litigation is left entirely or
     largely in the hands of the parties, the consequences will inevitably include unacceptable
     delays, undue expense and the waste of substantial public and private resources. The age of
     the managerial judge has arrived, conferring on courts the duty to ensure, to the extent
     consistent with the attainment of justice, the speedy and efficient disposition of cases.17


13           Judicial reformers have tackled the problems presented by expert evidence as a key
     element in the case management revolution. A fundamental feature of the reforms has been
     the conferral of more extensive powers on courts to control the nature and form of expert
     evidence that can be given in civil proceedings. Lord Woolf identified the objective as being:

             ‘to foster an approach to expert evidence which emphasises the expert’s duty
             to help the court impartially on matters within his expertise, and encourage a
             more focused use of expert evidence by a variety of means’.18

     To this end, the court was to have complete control over the use of expert evidence. Indeed,
     no expert evidence was to be adduced at all unless it helped the court. Moreover, no more
     than one expert in any speciality was to give evidence unless ‘necessary for some real
     purpose’.


14           The Woolf reforms have been implemented in England.19                  Part 35 of the Civil
     Procedure Rules provides that it is the duty of an expert to help the court on matters within



     16
          Woolf Report, note 13 above, 137.
     17
          R Sackville, ‘From Access to Justice to Managing Justice: The Transformation of the Judicial Role’
          (2002) 12 JJA 5; R Sackville, ‘Courts in Transition: An Australian View’ [2003] NZLR 185, 197-205.
     18
          Woolf Report, note 13 above, 139.
     19
          For a brief survey, see NSW Law Reform Commission, note 5 above, pars 4.2-4.26.
                                                         -6-

     his or her expertise and that this duty overrides any instructions from the client. 20 No party is
     permitted to call an expert or put in evidence an expert’s report without the court’s
     permission.21 Expert evidence is to be given in written form only, unless the court directs
     otherwise.22 An expert may file a written request with the court seeking directions as to the
     discharge of his or her duty to the court.23 Where two or more parties wish to submit expert
     evidence on a particular issue, the court may direct that the evidence on that issue be given by
     one expert only and, if the parties cannot agree, the court may appoint the expert.24 The
     court, in any event, has power to limit the number of experts giving evidence, either generally
     or in relation to a particular issue.25 It may also direct the experts at any time to discuss their
     opinions among themselves, with a view to narrowing the issues in dispute.26


15           Implementation of reforms is one thing; effectiveness is another. It is clear, at the
     very least, however, that the Woolf reforms have brought about major changes in the use of
     expert evidence in England and Wales, especially in routine cases. The Civil Procedure
     Rules are supported by a Practice Direction, which fleshes out the general principles. There
     is also a Code of Guidance on Expert Evidence which, among other things, encourages courts
     to appoint a single joint expert in uncomplicated cases.27 An expanding body of case law
     provides further guidance to courts as to the manner in which they should exercise their
     powers. The Court of Appeal has made it clear, for example, that even in personal injury
     cases involving a substantial sum, oral evidence should be taken from experts only as a last
     resort.28


16           Reforms in Australia, while prompted by the same considerations that motivated the
     Woolf reforms, have taken a somewhat different path. No single jurisdiction has adopted the
     full panoply of Woolf reforms in one fell swoop. Change has occurred more gradually than
     in England, although some reforms predated the Woolf proposals and others, such as the

     ___________________________________________________________________________
     20
          CPR, r 35.3 The Practice Direction to CPR, Part 35, expands on the duties of the expert.
     21
          CPR, r 35.4.
     22
          CPR, r 35.5. Subject to restrictions, a party may put written questions to an expert instructed by another
          party: r 35.6.
     23
          CPR, r 35.14.
     24
          CPR, r 35.7.
     25
          CPR, r 35.4, 35.7.
     26
          CPR, r 35.12.
     27
          Par 35.
     28
          Daniels v Walker [2000] 1 WLR 1382, 1388, per Lord Woolf MR. For a survey of the authorities, see
          NSW Law Reform Commission, note 5 above, 4.19-4.26.
                                                        -7-

     practice of experts giving concurrent evidence, were developed by Australian courts or
     tribunals.29 Changes have been introduced in three main ways: by practice directions issued
     by the courts to control the use of expert evidence and to ensure that experts understand their
     obligations to the court; rules of court establishing new procedures and guidelines for the
     reception of expert evidence; and judicial decisions refining the principles governing expert
     evidence, usually insisting on the application of more stringent criteria for the admissibility of
     such evidence. I refer here only to the first two categories of reform.


17           An example of the first approach is provided by the Federal Court’s Practice
     Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court. First issued
     in 1998, the current Practice Direction30 makes it clear that the expert has an overriding duty
     to assist the Court on matters within his or her field of expertise; that the expert is not an
     advocate for a party; and that the expert’s duty to the Court overrides that owed to the party
     using the expert’s services. The Practice Direction specifies in some detail the formal
     requirements with which the expert’s written report must comply. The requirements include
     a full and clear statement of all assumptions of fact, reasons for each opinion expressed and a
     record of the instructions given to the expert and of the documents or other materials the
     expert has been asked to consider.


18           The Practice Direction operates in conjunction with the Federal Court Rules, which
     confer a variety of powers on the Court. These include powers:

                     to appoint a court expert;31

                     to order that no more than a specified number of experts be called;32

                     to give directions as to the manner in which expert evidence is to be given,
                      where two or more parties intend to call expert evidence on a similar issue;33
                      and

                     to require evidence to be given by experts concurrently.34
     ___________________________________________________________________________
     29
          The Australian Competition Tribunal pioneered the ‘hot tub’ approach to expert economic evidence. The
          practice, better described as concurrent evidence, is now widespread in a number of Australian courts.
     30
          Issued on 6 June 2007.
     31
          FCR, O 34.
     32
          FCR, O 10 r 1(2)(d).
     33
          FCR, O 34A r 3(2).
     34
          FCR, O 34A r 3(2)(i).
                                                      -8-

     The Federal Court Rules do not, however, prevent parties calling expert evidence without the
     permission of the Court and make no provision for the appointment of a single expert (except
     as a court-appointed expert).


19           Other Australian courts have, however, gone further. The Family Court of Australia,
     for example, has followed the English approach by requiring parties who seek to rely on
     expert evidence to apply to the court for permission to do so.35 The primary objects of the
     rule are to restrict expert evidence to what is necessary to resolve significant issues in the
     case and:

             ‘to ensure that, if practicable and without compromising the interests of
             justice, expert evidence is given on an issue by a single expert witness.’36

     Unlike the Federal Court, the Family Court deals only with one kind of case, although family
     disputes can vary considerably in complexity and in the resources available to the parties.


20           In proceedings in the Supreme Court of Queensland, unless the court orders
     otherwise, a single expert, whether appointed by the parties or by the court, is to be the only
     expert to give evidence in the proceedings.37 Thus, although the parties do not require
     permission of the Court to call expert evidence, they are restricted to a single expert unless
     the court determines that the case justifies an alternative course. Moreover, the court has
     power, on its own initiative, to appoint an expert to prepare a report in a substantial issue in
     the proceedings.38


21           The New South Wales Uniform Civil Procedure Rules are intended ‘to ensure that the
     court has control over the giving of expert evidence’.39 The UCPR (NSW) do not prohibit a
     party from calling expert evidence without permission of the Court. However, the Rules
     require a party intending to adduce expert evidence, or to whom it becomes apparent that
     another party may adduce expert evidence, to seek directions from the Court promptly.
     ___________________________________________________________________________
     35
          Family Law Rules 2004 (Cth) (‘FLR’), r 15.51. For an overview, see NSW Law Reform Commission, note
          5 above, pars 4.52-4.68.
     36
          FLR, r 15.42.
     37
          Uniform Civil Procedure Rules 1999 (Qld) (‘UCPRQ’), rr 429H(6), 429N(2).
     38
          UCPRQ, r 429G(3).
     39
          Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR (NSW’)) r 31.17. The UCPR (NSW) now incorporate
          recommendations made by the NSW Law Reform Commission. However, the UCPR (NSW) do not
          implement the recommendation that a party to civil proceedings not be permitted to adduce expert
          evidence without the court’s permission: NSW Law Reform Commission, note 5, above, 6.7-6.11.
                                                         -9-

     Expert evidence is not to be adduced until the Court has given directions and is to be given
     only in accordance with the directions.40 The Court has broad powers in relation to expert
     evidence, including a power to appoint its own expert to inquire into and report on an issue in
     the proceedings. The Court may direct, among other things, that expert evidence not be
     adduced on specific issues; that the parties instruct a single expert in relation to a particular
     issue; that the experts confer prior to giving evidence with a view to preparing a joint report;
     and that they give evidence concurrently.41


     THE IMPACT OF REFORMS

     Routine Litigation

22           It is difficult to measure the impact of court-initiated reforms of the principles and
     practices relating to expert evidence, at least without elaborate and carefully designed
     empirical studies. Perhaps not surprisingly, in Australia there appear to have been no detailed
     empirical research attempting to assess the costs and benefits both to litigants and the court
     system of the reforms effected variously by practice directions, rules of court and judicial
     decisions.42 It is not possible, therefore, to be dogmatic about the success of measures
     designed to curtail, if not eliminate, the generally acknowledged problems with expert
     evidence such as bias, duplication of reports and testimony, excessive costs, and delays and
     selectivity in the presentation of expert opinions.


23           Nonetheless, it is plausible to suggest that the reforms are likely to be effective in
     curtailing the excesses associated with the use of expert evidence in what might be described
     (without condescension) as routine or standard cases. It should be feasible for courts to
     impose and monitor stringent requirements, such as directing a single expert to report on
     particular issues or making orders limiting the scope and nature of expert evidence, in
     particular categories of standard cases. These include personal injury litigation, building and
     construction disputes, family law proceedings and medical negligence claims.                         Judges
     regularly hearing cases of a similar nature should rapidly become sufficiently familiar with
     ___________________________________________________________________________
     40
          UCPR (NSW), r 31.19(3).
     41
          UCPR (NSW), r 31.20, 31.35.
     42
          The Administrative Appeals Tribunal has undertaken ‘An Evaluation of the Use of Concurrent Evidence in
          the Administrative Appeals Tribunal’ (November 2005). The evaluation was based largely on a survey of
          members of the Tribunal and found a high degree of satisfaction among members with the use of
          concurrent evidence. See, too, I Freckelton, P Reddy and H Selby, note 13 above; Australian Magistrates’
          Perspectives On Expert Evidence: A Comparative Study (AIJA, 2001).
                                                      - 10 -

     recurring issues to utilise their newly acquired powers confidently and vigorously. Thus,
     even though the changes effected in Australian jurisdictions have generally not been as
     sweeping as the Woolf reforms, they should have a very marked impact on the conduct of
     routine categories of litigation.


     Large-Scale Litigation

24           The more formidable and intractable challenge for courts is created by mega-litigation
     and other large-scale litigation. I have used the term ‘mega-litigation’ to describe:

             ‘civil litigation, usually involving multiple and separately represented parties
             that consumes many months of court time and generates vast quantities of
             documentation in paper or electronic form’.43

     Mega-litigation is not the only form of large-scale litigation, but it starkly presents the
     difficulties confronting the courts.


25           One of the characteristics of mega-litigation is that it almost invariably involves
     elaborate expert evidence, the reception of which frequently plays a substantial and, indeed,
     disproportionate part in the proceedings. The evidence may relate to complex technical or
     scientific issues, for example, in intellectual property cases or product liability claims. Mega-
     litigation can also give rise to disputed economic issues, such as the definition of markets in
     competition cases. The relief sought by the plaintiff or applicant, particularly large damages
     claims, frequently generates detailed and sophisticated (or apparently sophisticated) reports
     from accountants or financial or industry experts.


26           Mega-litigation and other forms of large-scale litigation are on the increase.44 There
     are many reasons for this phenomenon.               They include the greater sophistication and
     complexity of commercial transactions; ever more exquisite technological advances that can
     be understood only by specialists; the sheer size of multi-national or even local corporations
     whose disputes involve very high stakes indeed; the uncertainties created by the search for
     ‘individualised justice’; and procedural innovations, such as class actions, that are designed to
     improve access to justice but often generate large-scale litigation.

     ___________________________________________________________________________
     43
          Seven Network Ltd v News Ltd [2007] FCA 1062 (‘C7 Case’), [1].
     44
          R Sackville, ‘Mega-Litigation: Towards a New Approach’ (Annual Conference of the Supreme Court of
          New South Wales, 17-19 August 2007), [7]-[12].
                                                         - 11 -

27           The challenges facing the courts in managing mega-litigation (or other large-scale
     litigation) are very much more formidable than those presented by standard litigation. While
     the widespread acceptance of the principle of judicial self-governance and the related concept
     of case management have transformed the judicial role,45 they have not ensured that courts
     exercise effective control over mega-litigation. In particular, they have not ensured that the
     problems presented by extensive reliance on expert evidence have been satisfactorily
     addressed.


28           This is not because the need for judicial supervision of mega-litigation, including the
     parties’ reliance on expert evidence, is any less than in relation to routine litigation. On the
     contrary, the evils identified by Learned Hand and subsequent commentators are just as
     apparent in large scale litigation, if not more so, than in less complex disputes. Indeed, the
     problems have been exacerbated by several readily apparent trends in large-scale litigation.


29           First, legal practitioners often assume that if apparently reputable experts can be
     found who are prepared to express an opinion that seems to advance the client’s interests, it is
     imperative to adduce evidence to that effect. Whether the forensic decision is made on the
     basis of considered belief that the material is probative of the issues in dispute, or simply
     because of a fear that some litigious stone that may remain unturned, enthusiasm for expert
     evidence of dubious worth seems to be endemic to modern litigation. On occasions, lawyers
     may even defer to experts in devising a litigious strategy, not always with a beneficial
     outcome.46 Nor is it uncommon for detailed (and presumably expensive) ‘expert’ reports to
     be prepared on behalf of a party, yet for that party’s tender of the reports to be rejected on the
     ground that the author has not demonstrated that his or her opinions are based on relevant
     specialised knowledge.47


30           Secondly, there is a tendency in large-scale litigation for each well-resourced party to
     support its case by relying on reports from two or more experts covering much the same
     ground. In multi-party litigation, each party may insist on tendering its own expert report
     even though they seem to have a substantially common interest in the proceedings, at least on
     ___________________________________________________________________________
     45
          R Sackville, ‘From Access to Justice to Managing Justice: The Transformation of the Judicial Role’ , note
          17 above.
     46
          See Jango v Northern Territory (2006) 152 FCR 150, 241-242, [322]-[326].
     47
          See, for example, Seven Network Ltd v News Ltd (No 14) [2006] FCA 500; Seven Network Ltd v News Ltd
          (No 15) [2006] FCA 515.
                                                    - 12 -

     the relevant issues. In the C7 Case, for example, the various parties tendered substantial
     reports (sometimes more than one) from five experts on market definition issues.48 Despite
     concerns expressed from the bench as to the apparent duplication involved, parties insisted
     that they would be prejudiced if they were not permitted to follow their chosen course.


31           Thirdly, the over-reliance on expert evidence often produces a very large – sometimes
     staggering – number of individual objections to the admissibility of portions of reports. In
     the Wongatha native title litigation, for example, 1426 individual objections were made in
     relation to 30 separate expert reports.49 A judge faced with the need to give rulings on this
     volume of objections must develop strategies to render the task manageable. Even so, rulings
     on admissibility may occupy significant amounts of court time.


     TOWARDS MORE STRINGENT CONTROLS

32           It might be thought that the courts are well-placed to curb the excesses associated with
     the over reliance on expert evidence in mega-litigation. The powers conferred on courts to
     limit expert evidence, for example, would seem to be ample to prevent unnecessary
     duplication or wasteful expenditure on reports of dubious value.               In fact, it can be
     surprisingly difficult for the courts to exercise their powers effectively. The parties to mega-
     litigation are not only extremely well-resourced, but are not necessarily disposed to co-
     operate with each other or the court to ensure that the expenditure of time, money and effort
     is proportionate to what is at stake in the proceedings.


33           The fundamental difficulty facing a court in seeking to exercise stringent control over
     the use of expert evidence in mega-litigation is the information deficit. Even in a system of
     case management, in which the trial judge manages the litigation from commencement until
     trial, the most diligent judge cannot know in advance of the hearing anything like as much
     about a party’s case as that party’s legal representatives. The judge may have serious doubts,
     for example, about the utility of expert evidence the parties intend to adduce, but if a ruling
     preventing the parties from relying on the evidence they consider important may be thought
     to imperil a fair trial. Bearing in mind that a trial judge is bound not to compromise his or her

     ___________________________________________________________________________
     48
          C7 Case, [22]-[23], [1758]-[1759].
     49
          Harrington-Smith v Western Australia (No 7) [2003] FCA 893. In Jango v Northern Territory (No 2)
          [2004] FCA 1004, the respondents made 1100 separate objections to two anthropological reports.
                                                   - 13 -

     independence and impartiality, a considerable degree of caution is usually required before
     overriding the parties’ own assessment of the evidence needed to support their respective
     contentions.


34          If the procedural reforms relating to expert evidence are to have their intended effect
     in relation to mega-litigation and other large-scale civil proceedings, the judiciary will have
     to be prepared to adopt even more rigorous and interventionist pre-trial case management
     strategies. To minimise the likelihood of successful challenges to the exercise of powers by
     trial judges, judges require explicit statutory authority to curtail and regulate the use of expert
     evidence in mega-litigation, even over the express opposition of one or more of the parties.
     The powers should be exercised so as to ensure that the projected costs, not merely in terms
     of direct expense but in court time and delay in finalising the proceedings, are proportionate
     to the relief sought. The powers should also be designed to avoid the courts and the judicial
     system being subjected to undue burdens, to the detriment of the general body of litigants.


35          This proposal implies that the traditional role of the judge in adversary litigation will
     require further modification. Effective control over the use of expert evidence in large-scale
     litigation is likely to involve the managing judge expressing views about the apparent
     strength, cogency or utility of the evidence a party proposes to adduce. A decision not to
     permit a party to pursue its preferred course in the litigation may have, or be said to have,
     important consequences for the presentation of that party’s case. Greater leeway may have to
     be granted to the judge to allow him or her to exercise the court’s powers without
     transgressing the borders of permissible pre-judgment of the merits of a case. Appellate
     courts will need to be supportive of the procedural decisions taken by trial judges in relation
     to expert evidence if the reforms are to be effective in limiting the burdens placed on the
     court system by large-scale litigation.


     CONCLUSION

36          Case management is an integral element of the responsibilities of the judiciary in
     modern times. It is no coincidence that the managerial age has brought about sweeping
     changes in the role and functions of expert witnesses. One of the forces driving the judicial
     embrace of case management has been concern at the evils associated with the uncontrolled
     use of expert evidence in civil proceedings. As the comments of Judge Learned Hand
                                                 - 14 -

     demonstrate, there is nothing new about this concern. What is new is the willingness and
     ability to address the problem


37           It is incumbent on anyone who holds himself or herself out as willing to give evidence
     as an expert, or who is asked to prepare expert reports in connection with litigation, to
     understand the changes that have taken place.        This implies, of course, familiarity and
     compliance with the duties of experts spelled out in legislation, rules of court and practice
     directions. But it also implies an understanding of why the changes have come about and
     what the courts and those concerned with judicial administration are trying to achieve. Only
     then will experts be able to discharge the more onerous functions legitimately expected of
     them.

				
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