Melbourne Law School - Research Publications
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ItemAssessors in the Kilmore East bushfire proceeding(Supreme Court of Victoria, 2016-04-13)This paper, the fourth and final in a series on the management of expert evidence during the Kilmore East bushfire proceeding, considers the use of assessors. During the proceeding, Justice J. Forrest appointed assessors to assist him with some of the most complex aspects of the expert evidence. The assessors played a significant role in the proceeding, helping to guide the expert conferences, sitting with Justice J. Forrest during the largest concurrent evidence session and participating in the examination of the experts. This paper is based on interviews conducted with some of the judges, barristers, solicitors and experts involved in the proceeding, and it records their reflections on whether the use of assessors was valuable. It appears that the use of assessors was a success, and all the participants interviewed regarded them as being beneficial to the trial. They were satisfied that the method of selection adopted by the Court was appropriate. The assistance the assessors provided Justice J. Forrest with understanding the expert evidence was essential, and having people capable of engaging in technical dialogue with the experts while they were giving evidence was useful. This paper suggests that the appointment assessors should be considered in future cases of similar complexity to help the trial judge deal with very difficult expert evidence.
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ItemConcurrent Evidence in the Kilmore East bushfire proceeding(Supreme Court of Victoria, 2016-04-13)This paper, the third in a series on the management of expert evidence during the Kilmore East bushfire proceeding, considers the use of the concurrent evidence procedure. During this case, the largest class action in Victoria’s history, the parties and the Court were confronted with challenging factual issues that generated a substantial amount of expert evidence. The volume and complexity of this evidence led to the adoption of more innovative methods of managing expert evidence, including hearing the evidence concurrently at trial. This paper considers whether the adoption of the concurrent evidence procedure usefully contributed to the trial. It records the views of a range of participants in the proceeding, including the presiding judge, barristers, solicitors and experts, material gathered in interviews conducted after the case settled. These interviews indicate that the use of concurrent evidence was a success. It was seen as a useful tool to help the Court deal with complex expert evidence. The experience in the Kilmore East bushfire proceeding also illustrated some of the challenges of very large concurrent evidence sessions, including resourcing issues and the need to protect the well-being of the experts. Notwithstanding these concerns, the procedure should be considered by judges in all cases where there are multiple experts giving evidence on the same issues.
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ItemExpert Conferences in the Kilmore East bushfire proceeding(Supreme Court of Victoria, 2016-04-13)This paper, the second in a series on the management of expert evidence during the Kilmore East bushfire proceeding, considers the use of expert conferences. Most of the expert evidence in the proceeding went through this process, and the scale of the conferences and extent of their use was a distinctive aspect of the proceeding. This paper is based on material from interviews with some of the judges, barristers, solicitors and experts who were involved in the proceeding, and explores their experience regarding the use of expert conferences in this case. They agreed that the expert conferences and the production of joint reports was a useful exercise. The joint reports provided a summary of the lengthy and complex expert evidence, and gave a clearer picture of the issues that remained in dispute between the experts. The experts also found the conferences valuable, permitting them to have robust and technical discussions about the evidence. The role of the Associate Justice as a moderator in the larger conferences was seen as very helpful, even essential. This is not to say all the participants were completely satisfied by how the procedure was adopted. The paper shows that separating experts into conferences covering different areas of expertise can be difficult to get right, and also the importance of the Court properly consulting with the parties if a requirement for further testing emerges from the expert conferences. It suggests that experts were sometimes adversarial and positional during the conferences when the moderator was not present, which indicates that care should be taken to ensure the experts properly understand their role in the trial process. Nevertheless, the use of expert conferences was a success and the experience in the proceeding is testament to the procedure’s benefits.
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ItemPre-trial management of expert evidence in the Kilmore East bushfire proceeding(Supreme Court of Victoria, 2016-04-13)This paper, the first in a series on the management of expert evidence during the Kilmore East bushfire proceeding, considers the pre-trial management of experts. This case was the largest class action in Victoria’s history, and expert evidence played a central role. Despite the volume and complexity of this evidence, the Court in this proceeding was not particularly interventionist in the management of experts prior to trial. This paper considers whether the management of experts by the Court prior to trial usefully contributed to running of the proceeding. It records the reflections of a range of participants in the proceeding, including the presiding judge, barristers and solicitors. This material was gathered in interviews conducted after the case settled. While the judges thought a more hands-on approach by the Court in the selection and briefing of experts would have been reduced the volume of expert evidence, the legal practitioners were not convinced that this kind of intervention would be useful. They noted how difficult it would be for the Court to choose the best experts and navigate disputes between experts about the appropriate methodology for developing their evidence. This is not to say that some intervention is not useful, and the participants in the Kilmore East bushfire proceeding identified a number of procedures that could be adopted to improve the effectiveness of the expert evidence. This paper considers some of these proposals, such as case management conferences and increased sharing of information between parties about the expert evidence they will be using in the proceeding.