here - Gordon & Jackson

RECENT DEVELOPMENTS IN COMMERCIAL LAW
CHAIRED BY MICHAEL HEATON QC
SUSAN GATFORD AND SUZANNE KIRTON
EXPERT EVIDENCE
LYDIA KINDA
SECURITY FOR COSTS
HUGO DE KOCK
APPEALING A DECISION OF AN ASSOCIATE JUDGE OF THE SUPREME COURT
PAUL DUGGAN
THE PARTY - PARTY IS OVER
THE SUPREME COURT’S NEW COSTS REGIME

ABOUT THE PRESENTERS
Michael Heaton QC
Michael practices in a broad range of areas in commercial law including contract, corporations, insolvency, trade
practices, insurance, property, professional negligence, equity and building and construction.
He is a Fellow of the Chartered Institute of Arbitrators (UK), a Fellow of the Australian Centre of International
Commercial Arbitration (ACICA) and a Member of the Institute of Arbitrators and Mediators Australia (IAMA). He is on
the ACICA Panel of Arbitrators and is an IAMA Registered Grade 1 Arbitrator.
Michael is an accredited adjudicator under the Building and Construction Industry Security of Payment Act.
Michael is a nationally accredited mediator and a Victorian Bar accredited advanced mediator. He is on the ACICA
Mediation Panel, the IAMA Mediation Panel and the Panel of Franchise Mediators under the Franchise Code.
He is a member of Chancery Chambers (www.chancery.com.au) and Melbourne TEC Chambers (MTECC)
(www.mtecc.com.au). He chairs the Victorian Bar Alternative Dispute Resolution Committee. He is currently on the
organising committee for the Australia Pacific Regional Arbitration Group conference to be held in March 2014 in
Melbourne.
Paul Duggan
Paul appears mainly in the Supreme Court, the County Court and VCAT (particularly its Retail Tenancies, Domestic
Building, Real Property and Civil Claims lists) but is also available for work in the federal and interstate jurisdictions.
Paul is a nationally accredited mediator.
He has a wide commercial practice and particular experience in disputes involving Retail leases; Commercial leases;
Partnerships; Franchises (acting both for franchisors and franchisees); Professional negligence; Farming enterprises
(such as supply and share farming disputes); Building - both commercial and domestic; Insurance; Corporate and
personal insolvency; Management and agency agreements; and Partition and sale of land.
Paul's blog can be found at http://pauldugganbarrister.com.
Before coming to the Bar, Paul had two careers: a total of 4 years as a solicitor at Dunhill Madden Butler and then
Arthur Robinson & Hedderwicks; and 6 years as a journalist with publications including 'The Herald' and 'The Age'.
Paul's interests outside the law include skiing, farming, bushwalking and learning German from his four kids.
Hugo de Kock
Hugo practises predominately in commercial litigation. Recently he has acted for one of the directors of Opes Prime
Stockbroking following the company’s collapse in 2008 and is currently acting for the Department of Environment and
Primary Industries in the Kilmore East bushfire class action.
He has been a litigation lawyer for 10 years. He was a solicitor in Melbourne for a number of years, specialising in
commercial litigation, prior to joining the Bar. His expertise includes areas such as contract law, trade practices,
banking and finance, trusts, corporations (including breach of director’s duties), bankruptcy and insolvency, tort,
property and professional negligence.
Lydia Kinda
With legal expertise focussed in the areas of commercial disputes and mediation coupled with significant experience
working in non-legal roles in commercial enterprises, Lydia offers a unique mix of legal and commercial experience.
In her pre-Law career Lydia worked across a range of sectors including the Commonwealth Government, mining,
wholesale and retail, as a distribution agent as well as managing a computer software/hardware business. Lydia also
worked for a major Australian bank, and acted as Membership Secretary for a medical indemnity association while
she was studying Law.
Commencing work as a lawyer in 2001, Lydia found her breadth of pre-law commercial experience invaluable. Her
foreign language skills have been useful in international commercial disputes. Lydia’s interest in equity and trusts led
to her also developing a practice in wills and estates alongside that in commercial disputes.

Susan Gatford
Susan practices in commercial and intellectual property law. Over the past 11 years since coming to the bar she has
advised and appeared in trade marks, designs, patents, copyright, moral rights, confidential information, information
technology, plant breeders rights, licensing, trade practices, contracts, partnership, corporations and general
commercial matters. Susan is particularly valued for her ability to absorb complex scientific and factual issues and
then present them clearly and logically. She never loses sight of the big picture and the commercial imperatives.
Her work is principally in the Federal Court at both trial and appellate levels and in the Commercial Court of the
Supreme Court but also takes her to the County, Magistrates and Federal Magistrates Court and the Trade Marks
Office. She is experienced in advice work, drafting pleadings, appearing in interlocutory applications and at mediations.
She holds a science degree majoring in botany and genetics, an LLB and a Master of Laws and is an accredited
mediator. Before coming to the bar Susan worked in a commercial law firm in the CBD for 10 years, for the last 3
years of those years as a partner, managing the firm's intellectual property and information technology practice.
Suzanne Kirton
Suzanne practices in building and construction law, in both commercial and domestic matters, for owners, builders,
architects, engineers and insurers. Her strengths include being able to quickly identify, and then not lose sight of, the
crucial issues in a dispute, bearing in mind all of the practical, commercial, emotional and legal points of view.
She appears in the Supreme, County and Magistrates courts and also regularly at VCAT in the Domestic Building,
Civil Claims, Real Property, Owners Corporation and Tenancy Lists. Her building practice extends into the disciplinary
area, with regular appearances as counsel assisting the Building Practitioners Board, representing parties before the
BPB and the Building Appeals Board and defending prosecutions brought in the Magistrates Court.
Prior to joining the Bar she was a company solicitor with the Housing Guarantee Fund for five years and has a long
history with the domestic builders’ registration and warranty schemes.
She is an accredited mediator and has participated in over 400 mediations, some as advisor and some as mediator.
She is a firm believer in the benefits of ADR.
She is a member of the DBL Users Group, and Secretary of the Construction Law Section of CommBar, and also a
committee member of the BDPS.
More information
For more details on each of the presenters, including cases in which they have appeared, please follow the links
below:
http://www.gordonandjackson.com.au/barristers/view/73/michael-heaton
http://www.gordonandjackson.com.au/barristers/view/60/paul-duggan
http://www.gordonandjackson.com.au/barristers/view/90/lydia-kinda
http://www.gordonandjackson.com.au/barristers/view/56/hugo-de-kock
http://www.gordonandjackson.com.au/barristers/view/66/susan-gatford
http://www.gordonandjackson.com.au/barristers/view/93/suzanne-kirton

Expert evidence
Presented by:
Susan Gatford &
Suzanne Kirton
Commercial Practice Seminar 20 June 2013

Example Orders
• On or before _____, the parties seek to agree
upon issue(s) to be discussed at a joint session
meeting between nominated expert(s).
• Within 7 days of any joint session meeting
between nominated expert(s) the parties file a
joint expert report.
Example topics/questions
• What was known to ____ in Australia as at ___ in
relation to _________
• Is __________ clinically significant?
• To answer the questions below please have regard to
the following:
‐ the Smith affidavit
‐ the Jones report
• To answer the questions below please assume the
following:
……

Instructions to experts
• Please jointly identify and explain (giving brief
reasons) any areas of agreement
• Please jointly identify any areas of disagreement
• If areas of disagreement have been identified,
please individually explain (giving brief reasons) your
own position in relation to that area. Then, please
comment on the explanation given by the other
person(s) in relation to the areas of disagreement,
including why you disagree.
Session protocol
• The witnesses are to be provided with a list
of topics taken from the areas of disagreement
• Each witness be invited to summarise his/her
opinion on each topic, giving brief reasons, on a
topic by topic basis
• Each witness be invited to ask a question or
questions of other witnesses in relation to their
opinions on the topics, on a topic by topic basis

• Counsel for a party to cross‐examine witnesses
for the other party with all witnesses present, with
liberty to invite a response or comment from any
other witness including the first party’s witness in
relation to any matter the subject of the crossexamination,
on a topic by topic basis
• Counsel for the opposite party to be invited to
ask any questions arising out of the cross‐
examination by way of re‐examination, examination on a topic by
topic basis
• At the end of the concurrent session, the concurrent
experts be cross‐examined individually by leave on
matters not reasonably practicable to be dealt with in
the context of the identified topics

Joint Reports
Joint Reports

VCAT Practice Note 2
27. If directed by the Tribunal to do so, an expert witness
must:
(a) meet with any other expert witnesses retained in the
proceeding in a similar or related field of expertise and
attempt in good faith to narrow any points of difference
between them; and
(b) provide the Tribunal with iha joint report specifying
i
matters agreed, matters not agreed, and the reasons for
the disagreement (sometimes called a Scott Schedule).
Scott Schedules

Scott Schedule
ADVANTAGES
Judges like them
Narrows the issues in dispute
Reduces complexity
Makes it easier to consider the
evidence and write the judgment
“Psuedo experts’ become rare
Saves time
Makes the barrister’s job easier
Can rely on your own expert to
question the other side
DISADVANTAGES
✗ You are dependent on your
expert
✗ Loss of control issues
✗ The joint report overtakes tk earlier
opinions
✗ The individual reports are ignored
✗ Difficulty of scheduling meetings
✗ Judges are not uniform in their
approaches to concurrent
evidence –who is to manage the
session?
✗ Difficult to cross examine as to
credit

Expert Evidence
Presenter:
Susan Gatford, Barrister

Table of Contents
Introduction ........................................................................................................................... 4
The legislation ....................................................................................................................... 5
Expert evidence - common law rules ..................................................................................... 8
Makita v Sprowles ............................................................................................................. 8
Dasreef v Hawchar .......................................................................................................... 11
Court practice notes and procedural rules ........................................................................... 15
The Victorian Supreme Court, the County Court and the Magistrates Court .................... 15
The Federal Court ........................................................................................................... 18
The Federal Magistrates Court ........................................................................................ 22
The Victorian Civil and Administrative Tribunal (VCAT) ................................................... 23
Other civil procedure obligations...................................................................................... 24
Preparing expert evidence .................................................................................................. 25
Identifying the facts in issue and finding your expert ........................................................ 25
Expert assistance is not expert evidence ......................................................................... 25
Finding your expert - where to look .................................................................................. 26
The retainer ..................................................................................................................... 27
The tension between expert evidence and CLP ............................................................... 27
Keep your expert at arms length ...................................................................................... 28
The instructions to the expert .......................................................................................... 29
Presenting expert evidence to the Court .......................................................................... 30
Conclusion .......................................................................................................................... 31
Annexures ........................................................................................................................... 31
Page 2 of 31

Page 3 of 31

Introduction
In considering expert evidence it is useful to remember what the rules of evidence are and
why they exist. They are basically procedural rules which provide a framework within which
people can settle their disputes and the law can be enforced. Disputes can be settled in a
variety of ways, including battles, drawing straws, mediation, arbitration and court
determination. I recently listened to a very entertaining after-dinner speech by an American
judge who suggested that given the current state of the US Court system (where patent
litigation is tried before juries) we should revert to a Mad Max beyond Thunderdome system
of arbitrary and rule-free determination of disputes - "bust a deal and face the wheel", "two
men enter one man leaves".
Thankfully the rules of evidence work in a slightly different forum. They are part of a system
whose ultimate aim is to place before an impartial tribunal only the facts that are relevant to
the dispute. The so-called best evidence rule is a reminder of the ideal - the tribunal, as far
as possible, should hear direct evidence of all relevant matters and nothing else, and then
make its decision. So what are the rules and how do they apply in practice?
Page 4 of 31

The legislation
Until recently Victorian practitioners had two sets of evidence rules to worry about - the
Evidence Act 1958 (Vic), which applied in state courts, and the Evidence Act 1995 (Clth),
which applied in federal courts. Since 2010, however, this has not been a problem, as
Victoria has adopted the uniform evidence law by the enactment of the Evidence Act 2008
(Vic), which mirrors the Commonwealth legislation. New South Wales adopted the uniform
evidence law in 1995, and Tasmania did so in 2001, but the other states are still operating
under various older state-specific legislation. This paper covers only the uniform evidence
law (which is referred to in this paper generically as the Evidence Act), so If you have case
where this doesn't apply check the rules of operation in your particular tribunal.
Section 56 of the Evidence Act provides:-
(1) Except as otherwise provided by this Act, evidence that is relevant in a
proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible
Section 55(1) tells you what relevance means. It says:-
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted,
could rationally affect (directly or indirectly) the assessment of the probability of the
existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence
Of course, relevance isn't the only criterion for admissibility, but it's the most basic one.
There is some evidence that even though relevant is inadmissible. Hearsay is probably the
most well-known example. There is also a general exclusion on opinion evidence in section
76 of the Evidence Act. Section 76 reads as follows.
The opinion rule
Page 5 of 31

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the
existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate
or other document given or made under regulations made under an Act other than
this Act to the extent to which the regulations provide that the certificate or other
document has evidentiary effect.
An opinion is an inference drawn from observed and communicable data (Allstate Life
Insurance Co v ANZ Banking Group Pty Ltd and Ors (No 32) (1996) 136 ALR 627 at 629 per
Lindgren J). The reason for the exclusion of opinions is pretty straight forward when you
think about it. My opinion as to what happened and your opinion as to what happened may
or may not bear any resemblance to what actually happened and people are normally in
dispute because they have a different opinion as to either what has happened or what
should have happened. Basically, there is only one person in a court room whose opinion
matters, and that is the judge's: it is for the Court to draw inferences, not for parties or
witnesses.
However, Courts have long recognised that sometimes opinions from people experienced in
a particular science or discipline are essential to help them reach a conclusion, and that
without such evidence the Court will be unable to draw appropriate inferences. If you asked
a judge to interpret the raw numbers from a toxicology report, for example, or the
engineering calculations as to the load bearing capacity of a steel beam, they are unlikely to
be able to do so. They would also generally not know whether the inferred result is
significant or not - whether it is right or wrong, normal or exceptional. They need a
toxicologist or an engineer to explain all this to them. There is therefore a special exception
for experts which is set out in section 79. Section 79 reads as follows.
If a person has specialised knowledge based on the person's training, study or
experience the opinion rule does not apply to evidence of an opinion of that person
that is wholly or substantially based on that knowledge.
The exception for experts is thus confined to opinions that he or she is able to express
because of their particular expertise. The minute an opinion strays outside that area of
expertise it is inadmissible under section 76 because it is not caught by the exception in
section 79.
Page 6 of 31

Section 80 is also important to remember when dealing with experts. Before the Evidence
Act there was a common law rule that evidence could not be given as to the ultimate issue in
the proceeding (i.e. whether the defendant was liable to the plaintiff - the issue that court has
to determine) or as to a matter of common knowledge. Section 80 allows experts to express
opinions on these things. It reads as follows.
Evidence of an opinion is not inadmissible only because it is about:-
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.
Page 7 of 31

Expert evidence - common law rules
As well as the common law rules about opinions as to the ultimate issue and matters of
common knowledge being inadmissible (which were specifically abolished by section 80)
there were some other common law rules that were not abolished by the Evidence Act, and
which were thought to continue to apply along side it. In relation to expert evidence, the most
commonly cited case on the common law position as to expert evidence is Makita (Australia)
Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
Makita v Sprowles
In Makita the question was whether expert evidence about the slipperiness of a step could
justify a finding to that effect when Ms Sprowles (and others) had used the stairs every day
without any problems for many years both before and after the one day that she slipped on
them. The evidence of an expert, Professor Morton, had been accepted by the trial judge as
both relevant and probative, and was used as a basis for a finding by him that the steps
were slippery and thus that Makita had breached its duty to Ms Sprowles. Makita appealed.
Heydon J, then on the New South Wales Court of Appeal, analysed Professor Morton's
opinion in detail and concluded that it was not rationally persuasive of the slipperiness of the
step.
Briefly, Professor Morton had conducted a number of tests on the stairs in order to measure
their slipperiness or "dynamic friction co-efficient" (ascientific term for slipperiness). He
tested a number of different types of shoes on the steps in question, and also Ms Sprowles'
shoes on a range of different surfaces. He made reference to various published standards
documents which set dynamic friction co-efficients that needed to be achieved under
prescribed test conditions. The test conditions required use of a particular shoe type. The
steps in question met those requirements in Professor Morton's tests, and yet Professor
Morton concluded that they were nevertheless slippery because they did not meet those
requirements in tests where Ms Sprowles' shoes were used. This mis-applied Professor
Morton's own evidence as to the requirements of the published standards (the standards
themselves were not attached to his report and not otherwise before the Court).
Page 8 of 31

Further, Professor Morton gave evidence that for a person wearing flat-heeled shoes of the
kind being worn by Ms Sprowles the heel of the shoe would meet the step and be the
relevant part of the shoe to measure for slipperiness. His test results showed that the heel of
Ms Sprowles' shoes met the dynamic friction co-efficient identified by him as the appropriate
comparator, although the soles did not. He then referred to his measurements generally to
conclude that the stairs were slippery, and that the defendant had breached its duty to the
plaintiff. In short, his report used lots of scientific language but once you went beyond the
conclusions (opinions) to try and examine how they were reached it was hard to work out
why he had concluded as he had. The report contained unexplained assumptions and did
not explain how it reached the conclusions that it did from the results that it reported.
Heydon J considered a long list of cases in which the admissibility of expert evidence had
been discussed and then at [85] summarised the conditions for admissibility of expert
evidence as follows:-
"In short, if evidence tendered as expert opinion evidence is to be admissible, it must
be agreed or demonstrated that there is a field of “specialised knowledge”; 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;
the opinion proffered must be “wholly or substantially based on the witness's expert
knowledge”; so far as the opinion is based on facts “observed” by the expert, they
must be identified and admissibly proved by the expert, and so far as the opinion is
based on “assumed” or “accepted” facts, they must be identified and proved in some
other way; it must be established that the facts on which the opinion is based form a
proper foundation for it; and the opinion of an expert requires demonstration or
examination of the scientific or other intellectual basis of the conclusions reached:
that is, the expert's evidence must explain how the field of “specialised knowledge” in
which the witness is expert by reason of “training, study or experience”, and on which
the opinion is “wholly or substantially based”, applies to the facts assumed or
observed so as to produce the opinion propounded. If all these matters are not made
explicit, it is not possible to be sure whether the opinion is based wholly or
substantially on the expert's specialised knowledge. If the court cannot be sure of
that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of
diminished weight. And an attempt to make the basis of the opinion explicit may
reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's
characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination
Page 9 of 31

of speculation, inference, personal and second-hand views as to the credibility of the
complainant, and a process of reasoning which went well beyond the field of
expertise”
To summarise Heydon J's requirements, they were:-
1. the opinion has to be on an area that the Court accepts is an area of specialised
knowledge;
2. the witness must demonstrate that by reason of specified training, study or
experience they are an expert in that area;
3. the opinion must be on matters within that area of expertise;
4. the expert must state, and the party calling the expert must prove, the facts on which
the expert opinion is based;
5. if any facts relevant to the opinion are assumed they must be identified and proved in
some other way; and
6. the expert must explain how the opinion expressed was reached.
While some have described these requirements as a counsel of perfection this suggestion
did not find any friends when it was put to the High Court in Ms Sprowles' special leave
application, during which the following exchange occurred.-
GLEESON CJ: I am not sure, I have to say, whether this case shows anything more
than the nasty things that can happen to an expert's report if somebody decides to
take to it.
COUNSEL FOR MS SPROWLES: But, your Honour, it is the character of the attack.
It is setting standards which we submit are too demanding when one looks at how
expert reports are created and when one looks at the fact that extra evidence can be
given to deal with shortfalls in the proof of the admissibility of reports, but if objections
are not taken by defendants, it is very unfair, in our submission, to take those points
later.
CALLINAN J: No, it is not necessarily so at all. The defendant, or the other side,
takes the chance that it lacks any probative value or it is so inherently contradictory
that he or she does not have to worry about it. It may be a risky thing to do, but the
fact that no objection is taken does not elevate the report to such a position as
requires a judge to accept it.
Page 10 of 31

The High Court refused leave to appeal, and Makita, although not without its critics, has
been the guiding judgment as to the admissibility for expert evidence for the last 10 years.
One of the interesting aspects of the judgment was the Court's acceptance of all of the
common law requirements (1-6) referred to above when only some of these appear in the
Evidence Act itself. The Court of Appeal's judgment makes only a passing reference to
section 79, and does not provide any analysis of the words of the section. In fact, section 79
says nothing about proving underlying facts or assumptions or demonstrating reasoned
analysis: it covers items 1, 2 and 3 above but items 4, 5 and 6 are simply not mentioned. But
the Court of Appeal (and counsel) did not take this point. Indeed, it was not until 2011 that
the point was argued, and this time the High Court decided that it was time to put the New
South Wales Court of Appeal (and all other Australian Courts) on the right track.
Dasreef v Hawchar
The case that they chose as the vehicle for so doing was Dasreef Pty Ltd v Hawchar [2011]
HCA 21; (2011) 277 ALR 611. Mr Hawchar worked as stonemason for Dasreef between
1999 and 2005. In 2004 he was diagnosed with scleroderma and in 2006 with silicosis. The
issue was whether his silicosis was as a result of his exposure to silica dust whilst working
for Dasreef. Mr Hawchar was successful in the New South Wales Dust Diseases Tribunal
and was awarded damages of $131,130.43. At trial there was evidence from an expert
pathologist that, based on the period of latency of his disease, Mr Hawchar's exposure to
silica had been intense and was attributable to a history of exposure to silica dust over a
period of six years beginning in 1999.
In addition, Mr Hawchar led evidence from Dr Basden, a chemical engineer and founding
member and fellow of the Clean Air Society of Australia. Dr Basden had conducted many
field and laboratory investigations into air pollution and workplace atmospheric
contamination. It was accepted that he was experienced in the measurement of respirable
dust concentrations, but no such measurements in respect of Dasreef's workplace were
either provided to him or undertaken by him. He also admitted that he had never measured
the respirable fraction of dry ground sandstone, which was the stone worked by Mr Hawchar
at Dasreef. Despite this he speculated in his report about the likely concentration levels to
which Mr Hawchar had been exposed, and those speculative comments were used by the
judge to undertake some calculations of his own which formed the basis of the following
finding.
Page 11 of 31

"Findings on expert evidence
89. Mr Hawchar, when using an angle grinder in the employment of Dasreef, was
frequently exposed to high concentrations of dust, which exceeded the maximum
time weighted average of 0.2 mg/m3 for one week mandated by the WorkSafe
Australia standard."
Both the majority judgment of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and
Bell JJ and the dissenting judgment of Heydon J found that Dr Basden's speculative
opinions as to exposure levels (or "guesstimates", as Dr Basden called them) ought not have
been admitted in to evidence, and thus that the judge's finding above was unsupported by
any admissible evidence. They were also critical of the trial judge for not making a ruling as
to the admissibility or otherwise of the evidence during the trial. The trial judge had allowed
Dr Basden to be cross-examined as on a voir dire (that is, in order to determine whether his
evidence ought be admitted) but had not then made any ruling on admissibility, instead
reserving the issue and publishing his decision as to admissibility in his final reasons.
Appellate courts have warned in the past of the need for timely evidentiary rulings by their
trial judge counterparts so this aspect of the decision is not really new, although when a
unified High Court speaks in strong terms it behoves trial judges (and those who appear
before them) to sit up and take notice.
But the more interesting part of the decision as a precedent in future cases is the application
by the majority of section 79, and the reason that the majority gave for the evidence being
inadmissible. It was common ground that the words of section 79 did not expressly refer to
the common law requirements 4, 5 and 6 above, and the argument centred in large part on
whether the section had or had not relaxed the common law requirements for admissibility of
expert evidence.
Against that background the majority said that because Dr Basden had no training, study or
experience of the actual level of sandstone particles to which Mr Hawchar was exposed his
"guesstimate" of the exposure levels was inadmissible. They expressly stated that this
finding was not an application of the common law rules 4, 5 and 6 above (proof of underlying
facts, underlying assumptions and explanation of reasoning, collectively the so-called "basis
rule"), but simply an application of the words of section 79 itself.
Page 12 of 31

This approach refines the concept of the scope of an expert's "specialised knowledge" in an
interesting way. Applying the High Court test, to make Dr Basden's "guesstimates"
admissible he would have had to have had "specialised knowledge" of the concentration
levels at Dasreef's premises. How could he have obtained such knowledge? Presumably
either by conducting measurements at Dasreef or by conducting measurements in
environments established as being sufficiently comparable to it. Thus his "specialised
knowledge" becomes, in effect, the performance of tests to determine the underlying facts
supporting his opinion.
Understandably, Mr Hawchar's lawyers submitted that this approach seeks to introduce the
"basis rule" into section 79. They pointed to the deliberate non-inclusion of that rule by the
Law Reform Commission when the uniform evidence law was proposed, and said that the
Court ought not to do now what the legislature had deliberately not done when drafting and
enacting the legislation. The Court's riposte was that it was doing no such thing, that it was
not concerned with what the common law had been, and that it was simply interpreting the
words of the section.
By contrast, Heydon J (dissenting) said that the Law Reform Commission had simply got it
wrong - that it had assumed (incorrectly) that the basis rule was not part of the common law
and that because the Evidence Act, which is not Code, had not abolished that rule it
continued to apply along side section 79 to govern admissibility. In effect, he continued to
contend for Makita v Sprowles as the appropriate test, with items 4, 5 and 6 being implied
from the common law in addition to the section 79 requirements. But the majority disagreed.
They said that you had to look at the words of section 79 and them alone: that they had
replaced the common law. It must be said, however, that they way in which they looked at
section 79 is likely to lead to the same end result as that contended for by Heydon J.
The approach adopted by the Court in Dasreef provides a process by which each opinion of
your chosen expert needs to be assessed. First, you need to identify the area on which an
opinion is required - is it an area of specialised knowledge, and how broadly or narrowly
should the relevant area of expertise be defined? Secondly, you need to ask whether your
expert is sufficiently experienced/qualified in that area to express an opinion. The breadth or
otherwise of the answer to the first question may determine the answer to the second. For
example, Dr Basden was accepted as an expert in the measurement of respirable dust
concentrations but had never measured the respirable fraction of dry ground sandstone,
which was the stone worked by Mr Hawchar at Dasreef. So you need to be very careful and,
according to the High Court, very specific, in identifying the area of expertise.
Page 13 of 31

By the way, for those interested in the result, Mr Hawchar nevertheless held his judgment for
$131,130.43. This was because the High Court (Heydon J again dissenting) said that the
impugned findings of the trial judge were immaterial to the result, and that the evidence of
the pathologist was sufficient to establish Dasreef's liability.
In practice the decision in Dasreef may not result in many changes in the preparation of
expert evidence (although it may result in counsel having to put any arguments as to
objections to admissibility in a different language, with the common objection of lack of
foundation being re-phrased as lack of expertise). The reason for this is that all courts now
have practice rules and directions which govern their requirements for expert evidence and
which apply in addition to the Evidence Act provisions. These practice rules and directions
continue to require the presentation and analysis of expert evidence in the manner set out in
Makita v Sprowles. Indeed, only the Federal Court has so far issued any amendments to its
Practice Guidelines following Dasreef v Hawchar, and these amendments were part of the
complete re-write of the Federal Court Rules which took effect on 1 August 2011.
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Court practice notes and procedural rules
The rules of court are in addition to the rules of admissibility, and have a different purpose.
Their aim is to:-
- require the early disclosure of expert evidence in written form between the parties;
- require disclosure to be made in such a way that clearly reveals the admissibility of
otherwise of the evidence; and
- to impress upon the expert and the parties that the principal role of an expert is to assist
the court in reaching a more reliable decision rather than to advance in a partisan way the
interests of a particular party, and that experts should provide independent reports.
The Victorian Supreme Court, the County Court and the
Magistrates Court
Order 44 of the Supreme Court Rules regulates the adducing at trial of the evidence of a
person as an expert. An expert is defined as a person who has specialised knowledge based
on the person's training, study or experience (Order 44.01).
Order 44 applies to expert evidence in any proceedings, however commenced, except:-
- any expert retained before 1 November 2003 (in which case the former regime applies);
- the evidence of a party who would, if called as a witness at the trial, be qualified to give
evidence as an expert in respect of any question in the proceeding; and
- medical reports governed by Order 33 (other than medical reports in medical negligence
proceedings which express opinions on the liability of the defendant, to which Order 44 does
apply).
Order 44.03 provides as follows:-
(1) Unless otherwise ordered, a party who intends at trial to adduce the evidence of a
person as an expert shall-
(a) as soon as practicable after the engagement of the expert and before the expert
makes a report under this Rule, provide the expert with a copy of the code; and
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(b) not later than 30 days before the day fixed for trial, serve on each other party, a
report by the expert in accordance with paragraph (2) and deliver a copy for the use
of the Court.
(2) The report shall state the opinion of the expert and shall state, specify or provide-
(a) the name and address of the expert;
(b) an acknowledgement that the expert has read the code and agrees to be
bound by it;
(c) the qualifications of the expert to prepare the report;
(d) the facts, matters and assumptions on which the opinion is based (a letter of
instructions may be annexed);
(e)(i) the reasons for;
(ii) any literature or other materials utilised in support of;
(iii) a summary of- the opinion;
(f) if applicable, that a particular question, issue or matter falls outside the expert's
field of expertise;
(g) any examinations, tests or other investigations on which the expert has relied,
identifying the person who carried them out and that person's qualifications;
(h) a declaration-
(i) that the expert has made all the enquiries which the expert believes are
desirable and appropriate; and
(ii) that no matters of significance which the expert regards as relevant have, to the
knowledge of the expert, been withheld from the Court;
(i) any qualification of an opinion expressed in the report without which the report is
or may be incomplete or inaccurate;
(j) whether an opinion expressed in the report is not a concluded opinion because of
insufficient research or insufficient data or for any other reason.
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(3) If the expert provides to a party a supplementary report, including a report
indicating that the expert has changed his or her opinion on a material matter
expressed in an earlier report-
(a) that party shall forthwith serve the supplementary report on all other parties; and
(b) in default of such service, the party and any other party having a like interest
shall not use the earlier report or the supplementary report at trial without the leave of
the Court.
(4) Any report provided by the expert pursuant to this Rule-
(a) shall be signed by the expert; and
(b) shall be accompanied by clear copies of any photographs, plans, calculations,
analyses, measurements, survey reports or other extrinsic matter to which the report
refers.
The code referred to is in Form 44A. A copy of it is annexed to this paper.
Further, the Commercial Court Practice Note 1 of 2010 provides as follows:-
Expert Evidence
13.22. The Commercial Court may give directions that:
13.22.1. expert evidence at trial follow factual evidence upon which the expert
evidence is predicated;
13.22.2. two or more experts engaged by the respective parties be sworn and
present their evidence concurrently.
13.23. Where contentious expert evidence is to be adduced, the Commercial Court
will almost invariably direct pursuant to RSC Ch I Rule 44.06 that experts confer
before trial. Typical directions appear in Schedule 8.
13.24. Where a conference of experts is directed:
13.24.1. subject to any direction of the Commercial Court, the procedure adopted at
the conference is a matter for the experts themselves, and not for the parties or their
practitioners;
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13.24.2. neither the parties nor practitioners should seek to restrict the freedom of the
experts at the conference to identify and acknowledge the matters upon which they
agree;
13.24.3. following any conference, the experts shall prepare a joint memorandum for
the Court stating:
13.24.3.1. that they have met and discussed each matter upon which they have been
directed to confer;
13.24.3.2. the matters on which they agree;
13.24.3.3. the matters on which they disagree; and
13.24.3.4. in brief summary the reasons for their disagreement.
A copy of Schedule 8 is annexed to this paper. There is also a standard valuation order in
Schedule 4 which applies in shareholder oppression proceedings, partnership disputes and
any other proceeding where the value of a business is likely to be in issue. A copy of
Schedule 4 is also annexed to this paper.
Order 44 is in the same terms in the County Court Rules, but the Magistrates Court Rules
have their own Rule 44. Again, it is in largely the same form as Order 44. It also exempts
parties who are experts. Further, it exempts any itemised quotation or assessment attached
to a complaint under Rule 5.05(2) (costs of repairs to the vehicle arising out of a motor
vehicle collision) and an arbitration of a compliant, where the complaint has been referred to
arbitration by the Court under section 102 of the Magistrates Court Act 1989 (Vic).
The Federal Court
The Federal Court adopted new rules on 1 August 2011. Part 23 of the Federal Court Rules
deals with experts reports and experts. Division 23.1 deals with Court-appointed experts and
Division 23.2 deals with parties' expert witnesses and expert reports. Various expressions
use in that division are defined in Schedule 1 to the Rules as follows:-
- an expert means a person who has specialised knowledge based on the person's training,
study or experience;
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- expert evidence means the evidence of an expert that is based wholly or substantially on
the expert's specialised knowledge; and
- expert report means a written report that contains the opinion if any expert on any
question in issue in the proceeding based wholly or substantially on that expert's specialised
knowledge, including any report in which an expert comments on the report of any other
expert.
Division 23.2 contains Rules 23.11 - 23.15, which provide as follows:-
23.11 Calling expert evidence at trial
A party may call an expert to give expert evidence at a trial only if the party has:
(a) delivered an expert report that complies with rule 23.13 to all other parties; and
(b) otherwise complied with this Division.
Note Expert and expert report are defined in the Dictionary.
23.12 Provision of guidelines to an expert
If a party intends to retain an expert to give an expert report or to give expert
evidence, the party must first give the expert any practice note dealing with
guidelines for expert witnesses in proceedings in the Court (the Practice Note).
Note A copy of any practice notes may be obtained from the District Registry or
downloaded from the Court’s website at http://www.fedcourt.gov.au.
23.13 Contents of an expert report
(1) An expert report must:
(a) be signed by the expert who prepared the report; and
(b) contain an acknowledgement at the beginning of the report that the expert has
read, understood and complied with the Practice Note; and
(c) contain particulars of the training, study or experience by which the expert has
acquired specialised knowledge; and
(d) identify the questions that the expert was asked to address; and
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(e) set out separately each of the factual findings or assumptions on which the
expert’s opinion is based; and
(f) set out separately from the factual findings or assumptions each of the expert’s
opinions; and
(g) set out the reasons for each of the expert’s opinions; and
(h) comply with the Practice Note.
(2) Any subsequent expert report of the same expert on the same question need not
contain the information in paragraphs (1) (b) and (c).
23.14 Application for expert report
A party may apply to the Court for an order that another party provide copies of that
other party’s expert report.
23.15 Evidence of experts
If 2 or more parties to a proceeding intend to call experts to give opinion evidence
about a similar question, any of those parties may apply to the Court for one or more
of the following orders:
(a) that the experts confer, either before or after writing their expert reports;
(b) that the experts produce to the Court a document identifying where the expert
opinions agree or differ;
(c) that the expert’s evidence in chief be limited to the contents of the expert’s expert
report;
(d) that all factual evidence relevant to any expert’s opinions be adduced before the
expert is called to give evidence;
(e) that on the completion of the factual evidence mentioned in paragraph (d), each
expert swear an affidavit stating:
(i) whether the expert adheres to the previously expressed opinion; or
(ii) if the expert holds a different opinion;
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(A) the opinion; and
(B) the factual evidence on which the opinion is based.
(f) that the experts give evidence one after another;
(g) that each expert be sworn at the same time and that the cross-examination and
re-examination be conducted by putting to each expert in turn each question relevant
to one subject or issue at a time, until the cross-examination or re-examination is
completed;
(h) that each expert gives an opinion about the other expert’s opinion;
(i) that the experts be cross-examined and re-examined in any particular manner or
sequence.
Note 1 For the directions a Court may make before trial about, expert reports and
expert evidence, see rule 5.04 (items 14 to 18).
Note 2 The Court may dispense with compliance with the Rules and may make
orders inconsistent with the Rules — see rules 1.34 and 1.35.
A new Practice Note CM7 was also issued on 1 August 2011. A copy of it is annexed to this
paper.
On 13 October 2011 the Law Council of Australia published a Federal Court of Australia
Case Management Handbook. This publication does not have the status of Court Rules or
Practice Notes but is, as Chief Justice Keane says in the foreword, a useful resource. It's
discussion of expert evidence is principally a plea for joint presentation of expert reports and
evidence. The handbook is available on the Law Council's website, a link to which appears
on the Federal Court's website under the "Information for practitioners" tab.
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The Federal Magistrates Court
The Federal Magistrates Court Rules 2001 deal with expert evidence in Division 15.2, which
includes Rules 15.06A - 15.08. These provide as follows.
15.06A Definition
In this Division:
expert, in relation to a question, means a person (other than a family and
child counsellor or a welfare officer) who has specialised knowledge about
matters relevant to the question based on that person’s training, study or
experience.
15.07 Duty to Court and form of expert evidence
For an expert’s duty to the Court and for the form of expert evidence, an
expert witness should be guided by the Federal Court practice direction
guidelines for expert witnesses.
Note While not intended to address all aspects of an expert’s duties, the
key points in the guidelines are:
an expert witness has a duty to assist the Court on matters relevant to
the expert’s area of expertise
an expert witness is not an advocate for a party
the overriding duty of an expert witness is to the Court and not to the
person retaining the expert
if expert witnesses confer at the direction of the Court it would be
improper for an expert to be given or to accept instructions not to reach
agreement.
15.08 Expert evidence for 2 or more parties
(1) This rule applies if 2 or more parties to a proceeding call expert witnesses
to give opinion evidence about the same, or a similar, question.
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(2) The Court may give any direction that it thinks fit in relation to:
(a)
(b)
the preparation by the expert witnesses (in conference or otherwise) of
a joint statement of how their opinions on the question agree and
differ; or
the giving by an expert witness of an oral or written statement of:
(i)
(ii)
(iii)
his or her opinion on the question; or
his or her opinion on the opinion of another expert on the question; or
whether in the light of factual evidence led at trial, he or she adheres
to, or wishes to modify, any opinion earlier given; or
(c)
(d)
the order in which the expert witnesses are to be sworn, are to give
evidence, are to be cross-examined or are to be re-examined; or
the position of witnesses in the courtroom (not necessarily in the
witness box).
Example
The Court may direct that the expert witnesses be sworn one immediately
after another, and that they give evidence after all or certain factual
evidence has been led, or after each party’s case is closed (subject only to
hearing the evidence of expert witnesses) in relation to the question.
The Victorian Civil and Administrative Tribunal (VCAT)
The Evidence Act doesn't apply in VCAT, and VCAT is not bound by the rules of evidence or
any practices or procedures applicable to courts of record, except to the extent that it adopts
those rules, practices or procedures (section 98(1)(b) of the Victorian Civil and
Administrative Tribunal Act 1998 (Vic)). However, it has, in effect adopted those rules in
relation to experts by the publication of Practice note PNVCAT 2 - Expert evidence, which
applies to any evidence given to VCAT by an expert witness. PNVCAT 2 is in largely the
same form as Order 44 discussed above. A copy of it is annexed to this paper.
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Other civil procedure obligations
In both the federal and state courts there have been relatively recent amendments to civil
procedure generally by the imposition of express statutory duties and obligations in the
conduct of proceedings. In the Federal Court these are found in sections 37M and 37N of
the Federal Court of Australia Act 1976 (Clth) . Section 37M states that the overarching
purpose of the civil practice and procedure provisions is to facilitate the just resolution of
disputes according to law and as quickly, inexpensively and efficiently as possible. Section
37N(1) imposes duties on the parties to act in a way that is consistent with the overarching
purpose, and section 37N(2) imposes duties on lawyers to take account of the duty imposed
on their client and to assist their client to comply with it. The sanction for failure to comply is
a costs penalty.
In state courts the Civil Procedure Act 2010 (Vic) imposes on parties, their lawyers and on
experts a series of overarching obligations. The specific obligations are set out in sections
16-27 of the Act. These include a duty not to mislead or deceive (section 21) which, when
coupled with an expert's required statement under the Order 44 practice note, introduces a
regime of full disclosure by experts and a duty not to mislead by silence or omission.
Ultimately, while there is some debate as to whether the Civil Procedure Act and Federal
Court Act impose a more rigorous standard on experts than existed before their introduction,
they are principally important because they reinforce the practice note requirements. In
VCAT Practice Note PNVCAT 3 contains similar provisions.
Remember that the expert evidence guidelines have been imposed because courts are
aware how vulnerable they are in making decisions in specialist areas and are concerned
not to be taken for a ride. This means that if an expert is found to have been less than frank
with the court or to have made a mistake in his or her report then they are less likely to be
accepted by the court on other matters, even if they are a leading expert whose ultimate
conclusions are well reasoned, logical and completely correct.
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Preparing expert evidence
So, against the background of the common law rules, the Evidence Act and the procedural
rules that apply in the forum that you are working in, what do you do in preparing expert
evidence?
Identifying the facts in issue and finding your expert
Similarly to lay witnesses, the first step in the process is to identify what it is that you need
the expert to provide expert evidence on. Next you need to check whether the facts you seek
to establish can be proved by lay witness evidence, that is, question whether or not you
really need the expert’s evidence. If you decide that expert evidence is needed then identify
the area of expertise required. Of course, even within a recognised area of expertise there
may be areas of particular specialised knowledge. You will need to decide whether a broad
view or a more restricted view of the area will best assist your case. That decision may in
turn determine the type of expert you seek.
Expert assistance is not expert evidence
A word of warning. Don't confuse expert evidence with expert assistance. Expert assistance
in litigation might mean you or your counsel engaging and meeting with experts who are
never going to be witnesses but who have an important contribution to make in assisting the
lawyers understand the questions that they need to ask or the flaws in the other side's case.
They might include, for example, your client's accountant or someone from their factory or
laboratory who is not going to be giving evidence. They might even include an expert similar
in qualifications and experience to the expert that you engage to give evidence, who can
help educate you and maybe even help you prepare a technical primer or agreed list of
technical terms. In some cases expert assistance can avoid the need for expert evidence
altogether, or focus it on the disputed facts in issue so that the expert who is called is not left
to carry the complete burden of educating the Court and explaining his opinion.
If the issues in the case are so technically complex that you cannot brief an expert without
first understanding more about the field of endeavour in which the dispute exists then make
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sure you educate yourself first, either through discussions with your client or with someone
else who is unlikely to be called as a witness.
Finding your expert - where to look
The next step is often the most frustrating and difficult, because now you have to find a
person with expertise in the area that you have identified. Depending on how broadly or
narrowly you have delineated your field of expertise you may have very few experts to
choose from. On the other hand you may have a great many – but you still have to pick one
or two. Remember also that experts who regularly appear in certain jurisdictions will be
known to the Court, and that the Court may already have a view (accurate or otherwise) of
your chosen expert’s credibility.
There are a number of sources of possible experts, and where to look will obviously vary
depending on what sort of expert you need. If you need accounting expertise or a valuer, for
example, there are a variety of firms to chose from. In technology cases there are generally
leading research institutes, universities or government or quasi-government bodies who can
be approached. Both the University of Melbourne and the University of of New South Wales
have services to help you identify possible specialists.
Another good place to consider is trade associations, of which your client may or may not be
a member. When questioned in detail, clients themselves often know who the authorities in
their field are (but make sure they don't approach them - ask them to let you speak to them).
Others find experts from reviewing past cases in similar subject areas and by talking to other
solicitors and barristers who work in specialist areas.
During this process it is useful for the different roles of the barrister and the solicitor to be
clearly defined. It is the responsibility of the solicitor to identify and retain potential experts. It
is the responsibility of the barrister to assess the potential expert’s expertise and usefulness
in the light of the matters that need to be proved. It is not uncommon for a solicitor to identify
an entirely credible and experienced witness (perhaps one that they have worked with in a
different case) whose area of expertise does not quite match the area of expertise that you
have identified as the most relevant. If no other expert appears to be available then
compromises may be required, but any such compromises need to be made by the client
and in the knowledge that the case itself is being compromised. It is often the client who, in
these circumstances, identifies a possible expert that no-one else was aware of.
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The retainer
Once a possible expert has been identified it is important to be able to talk to them confident
that what you say will not reach the ears of the other side or their representatives. Be very
careful in initial approaches to experts and think about what you tell them. In a patent case
the mere identity of the patentee can sometimes tell an expert more than you want them to
know, particularly if they are being asked for an opinion of whether an invention is obvious.
In my experience dealing with experts is one area in which email communications can be a
hindrance, not a help. Telephone calls and meetings tell you so much more - about whether
someone is interested in assisting, about how they present themselves, about how well they
can explain things and communicate.
If, after an initial contact, you think you have found someone who is likely to be willing and
able to assist, you should send a letter retaining their services, even if you haven't yet made
a final decision. The retainer should deal with the following issues:-
1. confidentiality - of communications and documents and of the retainer itself;
2. preservation of client legal privilege (see below);
3. fees and charges (do not allow your experts to charge on a success fee basis or to
charge a higher fee if your client is successful);
4. what happens if the opinion is provided and you decide not to use it; and
5. the retention of documents provided to and generated by the expert during and at the
end of the retainer.
Remember that there is no property in a witness, and that your expert witnesses are at
liberty to talk to your opponent as well. Also, experts who you decide not to call can still be
subpoenaed by other parties. You should send retainers to anyone you engage for expert
assistance as well.
The tension between expert evidence and CLP
Client Legal Privilege (CLP) in general is a client’s right to seek and obtain legal advice in
confidence and to have the steps undertaken in preparation of a case for trial undertaken in
confidence. CLP protects confidential communications predominantly made for either of
those two purposes. So, for example, the general rule is that drafts of witness statements
and communications with witnesses and potential witnesses are protected by CLP.
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However, the witnesses’ own first drafts are not privileged, as they do not evidence any
privileged communication (ASIC v Southcorp (2003) 46 ACSR 438). The Southcorp case
has a useful summary of the principles that apply to the different categories of documents
that are likely to exist when experts are being called as witnesses and the likely status of
those documents.
Some documents are and will always remain privileged from production, some are not
privileged at all, and yet others (such as the instructions to the expert) are privileged but it is
likely that privilege will be held to have been waived if that expert’s report is relied on.
Remember also that the Court can look at all the documents in order to make a ruling as to
their status, so the Court will be able to see whatever has passed between you and your
expert even if a claim for privilege is made and upheld.
Remember also that expert witnesses typically give two types of evidence – they explain
technical matters to the Court and they express an opinion based on their expertise. The
explanation of technical matters is often not opinion evidence – it is the expert giving
evidence of fact and is (and should be) a process fully covered by CLP. The expression of
opinion by the expert witness will be based on these facts and on other facts proved by other
witnesses. These complexities make the preparation of expert evidence a task that needs to
be done early, thoroughly and thoughtfully, and with the following matters in mind.
Keep your expert at arms length
Your expert is not your property or your client’s property. If you have doubts about some
aspects of the case there is no benefit to be gained by confiding in your expert. In fact, a
sensible rule is not to tell your expert anything you would not happily have them repeat in
open Court. Don’t give them drafts of the witness statements of other witnesses. If you want
them to assume facts that other witnesses will prove then set these facts out in a separate
letter of instruction. Witness statements have a habit of changing, and it is best to avoid any
risk of your lay witnesses being attacked on otherwise privileged earlier drafts of their
statements simply because you gave those drafts to your expert.
You should deal with your experts at arms length and explain to them and to your client why
you are doing so. Explain to your client the role of the expert and the need for them to be
independent - that experts need to be impartial and be seen to be impartial if their evidence
is to be of most value to the Court. Ask your client not to talk to the expert directly or send
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them information as, apart from anything else, CLP will attach more readily to lawyer-expert
communications than to client-expert communications.
On occasion you will want to put on expert opinion evidence from a witness who is not
independent. In such cases it is clear that the Order 44 procedures in the Supreme Court
and other state courts do not apply, but the Federal Court position is less clear. In my
experience it is a good idea, whoever the expert is, to give them the relevant guidelines (pity
the expert who only becomes aware of them in cross-examination) and have them explain in
their report or affidavit the nature of their relationship with the party for whom they are filing a
statement.
In ASIC v Rich (2005) 218 ALR 764 the NSW Court of Appeal held that the fact that an
expert has been an integral part of the investigative team and had had access to material
inadmissible to the Court did not make his expert opinion evidence inadmissible. Rather, the
Court re-enforced that expert opinion evidence is admissible provided the expert’s report
discloses the facts on which that opinion is based and sets out the reasoning by which the
opinion has been reached. More broadly, the decision re-enforces the proposition that a trial
judge must properly consider the evidence before deciding to reject it, and must balance any
perceived deficiencies and departure from the Court’s Rules or guidelines with the probative
value of the evidence if it is accepted.
The instructions to the expert
The instructions to the expert should be written with the knowledge that they will be provided
to the Court and the other parties. They should
identify the parties and the dispute
attach copies of all relevant documents (checking that no privileged material is
disclosed)
state any assumptions you want the expert to make (and ensure sure you can prove
those assumptions)
ask the expert to set out their relevant experience
ask for an opinion - either generally or as a series of questions
ask the expert to identify the documents on which the opinion is based
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give guidelines as to the form of the report you want
attach the relevant code of conduct or Court Rules
The instruction can be folders of material duly tabbed, paginated and organised like a good
brief to counsel or they can be by way of a solicitor’s letter which either describes the dispute
or attaches the relevant pleadings, states the relevant assumptions, and asked for the expert
to provide their curriculum vitae and a summary of their relevant expertise and then their
written opinion on listed issues or questions. Either way, the instructions are an opportunity
to define the playing field and their significance cannot be overstated. The best experts are
of little assistance if they are not asked the right questions.
Presenting expert evidence to the Court
Most expert evidence is given, at least initially, by the production of written reports by the
expert. However, other methods are also acceptable. In Gambro Pty Ltd v Fresenius Medical
Care South East Asia Pty Ltd (2004) 61 IPR 442 evidence was given by way of a tape
recording of a discussion between the solicitor and the expert, which the judge considered
very helpful.
The production of joint reports, the requirement that both sides experts answer a series of
Court-generated questions, and the widely discussed hot tub process are also options that
you should consider (or that you may have forced upon you). In Qantas Airways Limited
(2004) ATPR 42-027, for example, the Competition Tribunal ordered a compulsory
conference (and indicated that next time it would order one in the presence of a Court
Registrar), had all of the experts in the witness box at once (the so called hot tub), and then
asked all of the experts to answer a series of written questions based on a series of
assumptions.
The rules in most jurisdictions are very flexible, and the bench is showing an increasing
desire to control how evidence is presented to it rather than letting the parties present their
evidence in the way that they consider most appropriate. Such judicial activism may be a
response to perceived shortcomings, deliberate or accidental, in the presentation of expert
evidence by the parties. Presenting your expert evidence clearly and innovatively may avoid
the need for Court intervention and allow your chosen experts to inform and educate the
Court in the manner that you or your counsel consider to be the most appropriate.
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Conclusion
Preparing and presenting expert evidence has rigorous procedural requirements which, once
learnt, are relatively easy to apply. What remains and will always remain the most difficult
task is to comprehensively analyse the particular case and identify relevant facts and
opinions: facts and opinions that, if accepted, could rationally affect (directly or indirectly) the
assessment of the probability of the existence of a fact in issue in the proceeding. Thus
preparation of expert evidence begins by sitting down and writing a list of each of the facts
that you need to prove in order to establish your claim or make good your defence. This is
essential before you approach an expert, because without it you cannot know what you
need. It is also important to re-visit this list regularly during the proceedings and particularly
during evidence preparation, as it is likely that things will need to be added to it as the case
develops. Also, stand back from your evidence once you think you have finished and
analyse it critically to see if anything has been forgotten or is not fully covered: read it as if
you are acting for the other side and see what gaps you can identify. This requires
consideration of the whole of the evidence, not just the expert evidence. Go back to your
letters of instruction and check that all of the assumptions set out in them are still correct and
have been established by admissible evidence. Check that your expert's report
demonstrates his or her expertise for each opinion that they give. If you are responding to
the other side's expert evidence check that all of the issues that they raised that you think
are important have been addressed. Finally, think about whether a joint report might be
useful and if so what issues it might cover and how it might be structured. You can then
either raise this with the other side or, of you prefer, wait for someone to raise it with you.
Annexures
1. Supreme Court Form 44A - expert witness code of conduct
2. Supreme Court Commercial Court Schedule 8 - standard joint experts order
3. Supreme Court Commercial Court Schedule 4 - standard valuation order
4. Federal Court Practice Note CM7 - expert witnesses
5. VCAT practice note PNVCAT2 - expert evidence
Page 31 of 31

Security for Costs
Presented by:
Lydia Kinda
Commercial Practice Seminar 20 June 2013

SECURITY FOR COSTS
Application for Security for Costs
1. The Court’s power to make an Order for Security for costs is set out in
Rule 62 of the Supreme Court General Civil Procedure Rules 2005, in
particular Order 62.02(1), as well as in its inherent jurisdiction 1 .
62.02 When security for costs may be ordered
“(1) Where –
…
(b) the plaintiff is a corporation or (not being a plaintiff who sues in a
representative capacity) sues, not for the plaintiff’s own benefit, but for
the benefit of some other person, and there is reason to believe that the
plaintiff has insufficient assets in Victoria to pay the costs of the
defendant if ordered to do so;
(f) under any act the Court may require security for costs –
the Court may, on the application of a defendant, order that the plaintiff give
security for the costs of the defendant of the proceeding and that the proceeding
as against that defendant be stayed until the security is given.”
2. Section 1335 of the Corporations Act 2001 provides:
(1) Where a corporation is plaintiff in any action or other legal
proceeding, the court having jurisdiction in the matter may, 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 if
successful in his, her or its defence, require sufficient security to be
given for those costs and stay all proceedings until the security is
given.”
3. The Court may order Security for Costs against a plaintiff in situations
where:
a. The plaintiff is ordinarily resident out of Victoria;
b. The plaintiff is a corporation and there is reason to believe the
plaintiff has insufficient assets in Victoria to pay the costs of the
defendant if ordered to do so; 2
c. A proceeding by the plaintiff in another court for the same claim
is pending;
1 Lines v Tana Pty Ltd [1987] VR 641.
2 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 at 381.
1

d. Subject to paragraph (2) the address of the plaintiff is not stated
or is not stated correctly in the plaintiff’s originating process;
e. The plaintiff has changed his, her or its address after the
commencement of the proceeding in order to avoid the
consequences of the proceeding;
f. Under any Act where the Court may require security for costs.
4. Once one of these is satisfied there are several threshold questions to be
addressed in any application for security for costs, namely:
a. Plaintiff’s prospects of success.
b. Defendant’s prospects of success
c. Whether the plaintiff’s claim is bona fide.
d. Admissions on the pleadings and payments in.
e. Application not being made oppressively.
f. Any nexus between the plaintiff’s impecuniosity and the defendant’s
conduct. 3
g. Whether making such an Order will stultify the litigation 4 .
h. Public policy considerations.
i. Role and resources of those behind the litigation 5
j. Whether special relationship between plaintiff and defendant;
k. Whether litigant is a plaintiff or just defending against ‘self-help”.
5. The evidential burden for a “credible testimony” is on the applicant 6 , the
defendant to the proceeding. In situations where the plaintiff has a strongly
arguable case and/or there is a counterclaim by the defendant on foot which
goes beyond mere defensive pleadings, such application will face difficulties 7 .
Factors regarding the exercise of the Court’s discretion
Whether the claim is bona fide
3 Livingspring at 22.
4 Bell Wholesale Co Pty Ltd v Gates Export corporation (No.2) (1984) 2 FCR 1.
5 Where the Plaintiff is a $2 company but may have “cashed up” Directors, or a Guarantee from a parent
company. In some cases the Courts have referred to Creditors who may support the Plaintiff’s case.
6 Right Home Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd (1986) ATPR 40 –
641 at 47,200.
7 See Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289.
2

6. In a recent decision of Derham, AsJ in Colmax Glass Pty Ltd v Polytrade Pty
Ltd [2013] VSC 3, His Honour helpfully outlined the court’s view:
a. “As a general rule, where a claim is prima facie regular on its face
and discloses a cause of action, in the absence of evidence to the
contrary, the court should proceed on the basis that the claim is
bona fide with reasonable prospects of success 8 ;
b. Assessing the plaintiff’s prospects of success is not really a
practicable test in any case of reasonable complexity: Interwest Ltd v
Tricontinental Corp Ltd; 9 Although it will ordinarily not be practicable
to reach a clear view about the merits of the plaintiff’s claim.. that is
not to say the merits are always irrelevant (unless totally lacking) or
that the bona fides of the claim may be disregarded: Epping Plaza
Fresh Fruit & vegetables Pty Ltd v Bevendale Pty Ltd; 10
c. The court is not obliged to consider at length the merits of the claim,
and to do so would ordinarily be a waste of resources: Impex Pty Ltd
v Crowner Products Ltd (1994) 13 ACSR 440 (QSC).
Application being made oppressively
7. This defence can be raised in situations where the parties are continuing to
trade. This was the case in Colmax and the fact weighed in the plaintiff’s
favour in the Court’s balancing exercise, although it was not sufficient, of itself
to avoid an order for security.
Plaintiff’s impecuniosity caused by defendant:
8. Whether the plaintiff’s lack of funds has been caused or contributed to by the
conduct of the defendant in relation to the transaction the subject of the claim:
Sir Lindsay Parkinson & Co Ltd v Triplan Ltd. 11
8 See Bryan E Fencott and Assoc Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; KP Cable Investments Pty Ltd v
Meltglow Pty Ltd (1995) 56 FCR 189; 13 ACLC 437 at 439;
9 (1991) 5 ACSR 621; 9 ACLC 1218 (VSC)
10 [1999] 2 VR 191 at 199: [1999] VSCA 43
11 [1973] QB 609; [1973]2 All ER 273, per Lord Denning MR.
3

9. The plaintiff carries the burden to persuade the court as to whether the
defendant was the cause of the plaintiff’s financial difficulties. 12 The plaintiff
needs to provide the Court with evidence, on affidavit from the plaintiff not just
the solicitor acting, in support of its assertion.
10. There must be a solid foundation for that conclusion: Right Home
Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd 13 .
Also, the plaintiff carries the onus of satisfying the court on the basis of
admissible evidence. 14 Demonstrating that the defendant is a large debtor of
the corporation will assist in providing a foundation for a claim by the plaintiff
that the defendant is the cause of its “parlous financial position”. 15
Impecuniosity of the Plaintiff
11. In order to be successful in its application the defendant needs to provide
proof of the plaintiff’s impecuniosity which the plaintiff is unable to refute
12. In respect of 62.02(1)(a) above, where the plaintiff’s registered office and
principal place of business are outside Victoria there is a rebuttable
presumption that the plaintiff is “ordinarily resident outside Victoria” 16 .
13. The Court will also take into account the likelihood that the plaintiff may seek
to divest itself of “valuable assets” merely to thwart a Costs order 17 especially
if its assets are portable. 18 This point is probably more relevant to individual
plaintiffs rather than corporations.
14. However, the cases show that it is not necessary for a plaintiff to have its
assets located within Victoria provided it has assets sufficient to meet any
liability for costs 19 , on which a judgment for costs may be levied upon
registration of the judgment in the jurisdiction in accordance with the Service
12 BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857 (WASC);
13 (1986) ATPR 40 – 641 (FCA).
14 Ninian v St George Bank Ltd [2012] FCA 905 ; at [48].
15 Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311.
16 Re Little Olympian Each Ways Ltd [1994] 4 All ER 561.
17 Apollinaris Co. & Trade Marks [1891] 1 Ch1, Halsbury LC.
18 Ellenberg v Wengott (1896) 17 LR NSW Eq 22.
19 Re Percy and Kelly Nickel, Cobalt and Chrome Iron Mining Co (1876) 2 Ch D 531;45 LJ Ch 526 and Vlasons Shipping
Inc v Neuchatel Swiss General Insurance (VSC, Ashley J, No 5708/93, 7 September 1993, unreported.
4

and Execution of Process Act 1992 (Cth) Nord v Truitt (1987) AIPC 90-457
(VSC).
15. Further, the cases show that it is not the practice to require a plaintiff,
ordinarily resident out of Victoria but with assets within Australia, to provide
security for costs. 20
16. In defending a Security for Costs application a plaintiff must provide the best
evidence of his ability to meet any Costs Order made against him. In the case
of a corporation, up to date financial accounts, preferably audited, exhibited to
an affidavit from a responsible officer of the corporation, which demonstrate
this are vital. Without strong evidence it is impossible to resist an order for
security.
17. In cases where the plaintiff’s claim against the Defendant is merely
“defensive” 21 against “self-help” measures taken by the defendant may find its
application for security for costs reduced to a sum which relates to those
grounds which cannot be characterised as defensive 22 where there is a
counter claim on foot and offensive on a different front 23 .
Time to apply for security
18. Any application for security for costs must be made promptly once the
defendant has knowledge of facts that would justify the making of an order
for security. 24 In Colmax Glass Pty Ltd v Polytrade Pty Ltd His Honour found
a delay of some 3 months after the close of pleadings weighed against
making the order. Although the order was made, the quantum ordered was
reduced to costs anticipated from the date of application for security.
19. If an applicant is dilatory and unable to give a reasonable explanation for the
delay it is likely security will be refused. 25 In Caruso Australia Pty Ltd v
Porter (Aust) Pty Ltd (1984) 2 ACLC 286, security was ordered despite
20 Logue v Hansen Technologies Ltd (2003) FCA 83 at para 55 where the Plaintiff’s connections with Australia were
considered “tenuous”.
21 Lake v Haseltine (1885) 55 LLJQB 205 and Visco v Minter[1969] 2 All ER 714 at 717.
22 Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621; and MLW Technology Pty Ltd v May [2003] VSC 24
23 Saint-Gobain RF pty ltd v MAAX SPA Corp Pty Ltd [2004] VSC 335 at [38] per Habersberger J.
24 Buckley v Bennell Designs & Construction Pty Ltd (19740 ACLR 301 at 309.
25 Jennings Limited (in liq) v Cole [1934] NZLR 55.
5

delay as the application was brought soon after the defendant first came to
appreciate the true extent of the plaintiff’s financial difficulties. Where the
plaintiff has incurred substantial costs and the defendant has stood by, the
delay factor will probably be decisive in resolving the application. In PG
Gabel Pty Ltd v Katherine Enterprises Pty Ltd (1977) 2 ACLR 400, there
were numerous interlocutory applications and where the defendant had
known of the plaintiff’s pecuniary state from the outset. To adopt any other
course would be grossly unfair to the plaintiff.
Amount of Security for Costs
20. Where there is a counterclaim, this must be “merely defensive” not raise new
issues.
21. In the event the Court exercises its discretion to make an Order for Security
for Costs against a plaintiff, the plaintiff can argue the quantum of the costs
and that it should not be a complete indemnity for the defendant. 26
Security Order may stultify the litigation
22. The court will also give consideration as to whether ordering costs against
the plaintiff may stultify the litigation 27 however “it is the poverty of the
company that attracts the power” even where the plaintiff has a strongly
arguable case.
23 But, the possibility or probability that a corporate plaintiff will be deterred
from pursuing its claim by an order for security is not, without more, a
sufficient reason for not ordering security. 28
Same facts in Claim and counterclaim
24. The Court also needs to consider in exercising its discretion to order security
for costs:
26 Saint-Gobain RF Pty ltd v MAAX SPA Corp Pty Ltd [2004] VSC 335 at [38] per Habersberger J.
27 Epping Plaza Fresh Fruit & Vegetables Pty ltd v Bevendale pty Ltd [1999] 2 VR 191 at 195.
28 Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534 at 539.
6

“(H) Whether substantially the same facts are likely to be canvassed in
determining the action and the cross-action. The court would be slow to
allow a situation where the action is stayed because of the inability to
provide security but the cross-action covering substantially the same factual
areas proceeds.” 29
25. This ruling has been applied in a number of cases including:
Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 at [52-
56]
Industrial Conveying (Aust) Pty Ld v SKM Recycling Pty Ltd (No 2) [2012]
VSC 588 at [136-139] and [144].
However, Sydmar has been distinguished or not followed in:
(i) Stratplan Consulting Pty Ltd v Leong [2004] VSC 436 at [22] where
Balmford J found there was no evidence that the proceeding would be
stultified by an order for security.
(ii) Premier Capital (China) Ltd v Sandhurst Trustees Ltd & Ors [2011]
VSC 572 at [9-10] Mukhtar AsJ rejected the plaintiff’s submission on
this point stating that the Courts do recognise that it is unfair to stay a
claim because of the plaintiff’s inability to provide security but to allow
the cross action covering the same facts to proceed. However in that
case the Court did not conclude that the defendants were the real
plaintiffs and ordered security.
(iii) MLW Technology Pty Ltd v May [2003] VSC 24 at [24-25] Byrne J
stated that counter claims were not defensive of the claims but were
properly to be seen as “counter offensive” on a different front;
(iv) Mark Sensing Shanghai Paper Products Co Ltd v Baldock [2010]
VSC 124 at [12-16] Mukhtar AsJ concluded that it could not be said
that substantially the same facts were likely to be canvassed in
determining the claim and counterclaim;
Quantum of Security for Costs
29 Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289 at 300, Smart J.
7

26. An interesting aspect of applications for security for costs is that in the
majority of cases, where costs are awarded they are rarely the quantum
applied for by the defendant. In Colmax 30 His Honour Derham AsJ, noted
Mukhtar AsJ’s comments in Mark-Sensing Shanghai Paper Products Co Ltd
v Baldock that Courts undertake a “conventional” reduction. In Colmax the
amount claimed was reduced to cover the period of costs ordered to
commence from the date of the application for security up to and including
the first day of trial. This amount was then further discounted by 1/3. The
application had estimated costs between $150,000 - $245,000. The Court
took the lower figure of $150,000, reduced it to $75,000 then reduced it
again by 1/3 to $50,000. As a rule of thumb, somewhere between 1/3 and
¼ of the costs claimed are ordered. I have included a table of some cases
to demonstrate this:
CASE
AMOUNT
SOUGHT
AMOUNT
ORDERED
Interwest Ltd v Tricontinental Corp Ltd
(1991) 5 ACSR 621, Ormiston J.
Logue v Hansen Technologies Ltd [2003]
FCA 81 Weinberg J
MLW Technology Pty Ltd v May; May v
MLW Technology Pty Ltd [2003] VSC 24
$1,039M $50,000
$311,762.50 $100,000.
$87,450 $44,000
Byrne J
Saint-Gobain RF pty ltd v MAAX SPA
Corp Pty Ltd [2004] VSC 335
Habersberger J
$734,013.57
or $110,000
$35,000
Mt Holden Estates Pty Ltd v Lanigan
Baldwin Pty Ltd [2005] VCAT 1442
$65,000 $48,000
(2/3’s)
Senior Member D Cremean
Mt Holden already owed Lanigan some
$400,000 in costs orders.
30 Ibid at 15
8

Mark-Sensing Shanghai Paper Products
Co Ltd v Baldock [2010] VSC 124,
Mukhtar AsJ
$75,000 $60,000
Colmax Glass Pty Ltd v Polytrade Pty Ltd
[2013] VSC 311
$150,000
($75,000
from date of
application
$50,000
27. One area that I haven’t traversed in any detail is the situation of class actions
where the plaintiffs are individuals. However, the recent judgment in
Madgwick v Kelly [2013] FCAFC 61 (14 June 2013), a decision of the Full
Federal Court consisting of Allsop CJ, Jessup and Middleton JJ, dealt with this
question. The case was an appeal against the decision of the primary judge
not to order security in a multi-party class action. Their Honours upheld the
appeal and remitted the case back to the primary judge for assessment of
security against the applicants where the applicants were individuals who the
primary judge assessed as “relevantly impecunious” in that they didn’t have
the assets to meet an adverse costs order for approximately $7.4 - $9.2
million. 31 In view of the growing proliferation of class actions, the quantum
assessed as payable by these individuals may impact this area of litigation.
Lydia Kinda
Douglas Menzies Chambers
20 June 2013
31 Para 10 refers.
9

Appealing a Decision of an Associate
Judge of the Supreme Court
Presented by:
Hugo de Kock
Commercial Practice Seminar 20 June 2013

The process for appealing the decision of an Associate Judge of
the Supreme Court
Introduction
1. The new procedure for appealing the decision of an Associate Judge to a
Judge of the Trial Division of the Supreme Court (the Court) commenced on
1 January 2013. The changes to the rules were introduced by the Supreme
Court (Associate Judges Appeals Amendment) Rules 2012. The procedure is
largely modeled on Order 64 of the Supreme Court (General Civil Procedure)
Rules 2005 (the Rules). It is set out in rules 77.06 and 77.07 and Practice
Note 4 of 2012 (the Practice Note).
The Nature of the Appeal
2. Rule 77.06 states:
Subject to section 17A of the Supreme Court Act 1986 and to Rule 16.5
of Chapter V of the Rules, an appeal from any judgment or order of an
Associate Judge made under any Chapter of the Rules lies to the Trial
Division constituted by a Judge of the Court, except in any case where an
appeal lies to the Court of Appeal.
3. The rule does not state the nature of the appeal that is contemplated. The
writer has not find any case that has interpreted the substance of the new
rules or determined the nature of the appeal. 1 Some guidance, in this
regard, can be found in the Practice Note which states that under the new
rules appeals from Associate Judges to a Judge of the Trial Division are to
be by way of re-hearing rather than by re-hearing de novo.
4. The Courts have recognised that the fundamental difference between an
appeal by way of re-hearing and one by way of re-hearing de novo is that:
1 The new rules were referred to in Castel Electronics Pty Ltd v TCL Airconditioner
(Zhongshan) Co Ltd [2013] VSC 92 (7 March 2013) at [26], but were not discussed or
analysed in the judgment.

2
4.1. A re-hearing is an appeal where the powers of the appellate body are
exercisable only where the appellant can demonstrate that the order
which is the subject of the appeal is the result of some legal, factual or
discretionary error; and
4.2. A re-hearing de novo is an appeal where the powers of the appellate
body may be exercised regardless of identification of error in the
decision appealed, and involve a full re-hearing of the matter giving
rise to the appeal. 2
5. If an appeal is in the nature of a re-hearing, the Court hearing the appeal
will try the case again on the evidence at first instance, together with
additional evidence the Court thinks fit to receive. The appeal is decided in
light of the circumstances that exist at the time of hearing the appeal and it
will take into account any changes in the law effected after the hearing at
first instance. 3
6. It is well established that an appeal from the Trial Division of the Supreme
Court of Victoria constituted by a Judge to the Court of Appeal, is in the
nature of a re-hearing 4 . Given the statement in the Practice Note referred
to above, it would appear that the nature of an appeal pursuant to rule
77.06 falls in the same category. This conclusion is consistent with the fact
that pursuant to rule 77.06.9 the Judge hearing the appeal has the power to
receive further evidence and the requirement that an appellant has to serve
and file a notice of appeal, that must, from the outset, identify error in the
decision being appealed.
Notice of Appeal
7. The appeal is commenced by serving a notice of appeal within 14 days of
the judgment or order by the Associate Judge, or if leave to appeal is
2 Galofaro v Metropolitan Fire and Emergency Services Appeals Comm [2005] VSC 356 at
[50]. See also Allesch v Maunz (2000) 173 ALR 648 at [23].
3 See Coal and Allied Operations Pty Ltd v AIRC (2000) 174 ALR 585 at [11]-[14].
4 See Simonovski v Bendigo Bank Ltd [2005] VSCA 125 at [66] and Williams at
[I.64.01.160].

3
necessary, within 14 days of leave being granted. 5 If an appeal is brought
from an ex parte application, the notice of appeal must be filed within 14
days of the judgment or order being made.
8. A copy of the notice of appeal must be filed within 7 days after being
served. The filed copy of the notice must be accompanied by a list, signed
by or on behalf of the appellant, of the persons upon whom the notice has
been served and the dates of such service.
9. A Judge or an Associate Judge may extend the time to serve or file the
notice of appeal.
10. The notice of appeal must state:
10.1. Whether the whole or part only, and if as to part, which part, of the
judgment or order of the Associate Judge is the subject of the appeal.
10.2. Specifically and concisely the grounds of appeal and the judgment or
order sought in place of that from which the appeal is brought.
10.3. The name of each party or person upon whom it is proposed to serve
the notice of appeal.
11. A notice of appeal may be amended by leave of a Judge of the Court.
Appeal Book and Submissions
12. Practice Note 4 of 2012 requires that the appellant file and serve an appeal
book within 7 days of filing the notice of appeal. The appeal book must
contain copies of the following documents in the following order:
12.1. notice of appeal;
12.2. the order appealed from;
12.3. the process before the Associate Judge (summons);
12.4. any written submissions before the Associate Judge;
5 Leave to appeal from a Judge of the Trial Division is necessary if appealing a judgment or
order of an Associate Judge made by consent or an order of costs; see Supreme Court
Act 1986, s 17A(2).

4
12.5. all evidence before the Associate Judge on the initial hearing;
12.6. a transcript of the hearing before the Associate Judge;
12.7. the reasons for decision of the Associate Judge.
13. The appeal book should be paginated in the bottom right hand corner. If
the transcript or reasons for decision are not available by the time the
appeal book has to be filed, they must be added to the appeal book as soon
as possible after they become available.
14. The appellant’s submissions must be filed and served no later than 5 days
before the date listed for hearing and the respondent’s submissions must
be filed and served no later than 2 days before the date listed for hearing.
Obtaining a transcript of the hearing before the Associate Judge
15. Hearings before Associate Judges are recorded. To obtain a copy of the
transcript an appellant needs to order it from Victorian Transcript Service
Pty Ltd 6 . A request should include the words ‘transcript request’ in the
header and include the following details:
15.1. proceeding number;
15.2. the names of the parties and the names of the barristers/solicitors
who appeared for each side;
15.3. the hearing date and the approximate start and finish times; and
15.4. the number of the court room (e.g AsJ Court 2).
Obtaining a hearing date
16. Appeals in proceedings that are within a specialist list will normally be
heard by a Judge assigned to that list. In such cases, upon filing the notice
of appeal an appellant should contact the Commercial Court Registrar to
obtain a hearing date. If the matter is in specialist list outside of the
Commercial Court, the Registrar may refer the matter to the associate to
6 Victorian Transcript Service Pty Ltd may be contacted by email at
james.creighton@merrillcorp.com or jemma.heywood@merrillcorp.com or by fax at
9642 5185.

5
the Judge in charge of this list, who will notify the parties of the hearing
date.
17. Appeals in proceedings that are not within a specialist list will be listed for
hearing before the Judge in the Practice Court, provided that the appeal is
not likely to exceed 2 hours. Upon filing the notice of appeal the appellant
should follow the procedure outlined in Practice Note 1 of 2009, for
obtaining a hearing date. In short, that process entails:
17.1. Complete an Application Request Form which can be downloaded
from the Supreme Court website.
17.2. The following information should be provided:
Details of the requesting party:
o Lawyer’s Name
o Firm
o Who the lawyer represents
Details of the proceeding:
o Court file number
o Parties details
Application Details:
o The type of application
o The estimated hearing time
o If not ex parte, the other parties’ estimated hearing time if
known
o The rule under which the application is brought
o Three suitable hearing dates and times, in order of
preference
17.3. Email or fax the completed Application Request Form to the Practice
Court Coordination who will book the application and notify the
parties.
18. In all cases, the appellant must provide an estimate of the time required to
hear the appeal and a list of preferred hearing dates. According to the
Practice Note an appeal will generally be listed two and half to three weeks
from the date of filling.

6
Powers of Judge hearing the appeal
19. The powers of the Judge hearing the appeal are set out in rule 77.06.9. On
appeal a Judge shall have all the powers of the Court constituted by the
Associate Judge. This includes the power to:
19.1. draw inferences of fact;
19.2. give any judgment and make any order which ought to have been
given or made; and
19.3. make any further or other order as the case may require.
20. Rule 77.06.9(3) provides that the Judge shall have the power to receive
further evidence whether by oral examination in court, affidavit, or by
deposition taken before an examiner. This differs from the previous rule
which provided that a party could not rely upon any affidavit or oral
evidence not used or given before the Associate Judge, except by special
leave of the Judge.
21. Under the old rules, it was necessary to prevent a party relying on new
evidence, except by special leave, in order to prevent a party using the
hearing before the Associated Judge as a dry run and, depending on the
result, appealing and, on appeal, filling additional affidavits to bolster its
case in light of the arguments presented to the Associate Judge and the
Associate Judge’s reason for decision. Pursuant to the new rules an appeal
is by way of a re-hearing and it is necessary for the appellant to show error
in the decision of the Associate Judge. Under the circumstances, there is
less likelihood of abuse.
22. Neither rule 77.06 nor the Practice Note sets out the test Courts should
apply in order to decide whether to allow further evidence to be adduce on
appeal from a judgment or order of an Associate Judge. Generally, a Court
hearing an appeal will only grant leave to introduce fresh evidence if it can
be shown that:

7
22.1. by the exercise of reasonable diligence such evidence could not have
been discovered in time to be used in the original trial;
22.2. it is reasonably clear that if the evidence had been available at the
trial, and had been adduced, an opposite result would have been
produced; and
22.3. the evidence proposed to be adduced is reasonably credible. 7
23. However, that principle may be applied less strictly in the case of an appeal
in an interlocutory matter where the issues may not be as well defined as
after a trial. In DA Christie Pty Ltd v Baker 8 , the Court of Appeal held that, in
appeals from interlocutory applications, a court of appeal has a much wider
discretion to receive further evidence. In such cases the affected party has
not had the benefit of a trial and the opportunity this affords to investigate,
and have a determination upon, the facts and the law. 9 Many of the matters
heard by Associate Judges are likely to fall within this category, and
accordingly, one can argue that in such cases a less stringent test should be
applied.
Appeal to Court of Appeal
24. In certain circumstances, an appeal from a decision of an Associate Judge
does not lie to a Judge of the Trial Division, but to the Court of Appeal.
Generally speaking, Associate Judges do not have authority to conduct the
trial of a proceeding, grant an injunction, appoint receivers, hear or
determine any proceeding relating to the liberty of a person or applications
relating to vexatious litigants. 10 However, pursuant to rule 77.05 of the
Rules and rule 16.1(3) of the Supreme Court (Corporations) Rules 2003 (the
Corporations Rules) a matter may be referred to an Associate Judge by a
Judge of the Court. In such a case an appeal lies to the Court of Appeal.
7 Clark v Stingel [2007] VSCA 292 at [25].
8 [1996] 2 VR 582 at 609-610.
9 Doherty v Murphy [1996] 2 VR 553.
10 As to the authority of Associate Judges, see rules 77.01 and 77.02 of the Rules.

8
25. A recent example of this occurring, was an order made by the Judge sitting
in the Practice Court on 12 June 2013 referring the hearing of an urgent
injunction to restrain a bank from selling land over which it held a
mortgage to an Associate Judge. The relevant order was made in the
following terms:
“The Originating Process filed on 12 June 2013 is referred to an Associate
Judge for hearing and determination pursuant to rule 77.05 of the Supreme
Court (General Civil Procedure) Rules 2005 and, if required, also pursuant
to rule 16.1(3) of the Supreme Court (Corporations) Rules 2003”
26. Practitioners should be aware that such referrals do occur in practice.
27. Pursuant to rule 16.5(3) of the Corporation Rules an appeal lies to the
Court of Appeal from any judgment or order of an Associate Judge in any
application under section 459G of the Corporations Act 2001 (Cth)
(applications to set aside a statutory demand).
28. Appeals from an Associate Judge to the Court of Appeal are subject to Order
64 and the Practice Statements of the Court of Appeal.
Miscellaneous Matters
29. Unless a Judge of the Court otherwise orders, an appeal from a decision of
an Associate Judge does not operate as a stay of execution. 11
30. A respondent wishing to appeal from the decision from which the appellant
has appealed, shall do so by notice of cross-appeal. The notice of crossappeal
must be served on the appellant and any other party directly
affected by the cross-appeal within 14 days after service of the notice of
appeal. Within 7 days after service of the notice of the cross appeal the
11 Rule 77.06.6

9
respondent has to file a copy of the notice together with a list of the
persons upon whom the notice was served and the dates of such service. 12
31. If the respondent wishes to rely on a notice of contention, it must file and
service the notice not less than 14 days before the day fixed for the hearing
of the appeal. The notice of contention must state the grounds to be relied
upon. 13
Hugo de Kock
Dawson Chambers
19 June 2013
12 Rule 77.06.7
13 Rule 77.06.8

THE PARTY‐PARTY IS OVER
THE SUPREME COURT’S NEW COSTS REGIME
Presented by:
Paul Duggan
Commercial Practice Seminar 20 June 2013

GORDON & JACKSON
DISCLAIMER OF RESPONSIBILITY
The provision of seminar papers by Gordon & Jackson is a free service provided for
members of the legal profession.
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As the law is constantly evolving and subject to change it is very likely that the
information contained in the seminar papers may be out of date even shortly after
publication.