Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 8) [2015] NSWSC 1284

Supreme Court New South Wales

Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 8) [2015] NSWSC 1284 Hearing dates: 4, 5 August (Evidence on Commission); 7, 10 – 14, 17 – 20 August 2015 Date of orders: 20 August 2015 Decision date: 20 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: See [10] Catchwords: PROCEDURE – civil – admissibility of expert evidence – challenge to independence of expert Legislation Cited: Evidence Act 1995 (NSW); Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Securities and Investment Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242; Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Category: Procedural and other rulings Parties: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant) Representation: Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant)

Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant) File Number(s): 2012/393861

revised extempore judgment 1. As I have recorded in the transcript I am conducting a voir dire on the question of whether the opinions of Mr Wagstaff, an expert qualified by the first defendant, are admissible as expert evidence. Essentially the second defendant has challenged his expertise. It is clear that Mr Wagstaff has tertiary qualifications, and experience in the mining industry that would enable him to express opinions complying with the conditions of s 79 Evidence Act 1995 (NSW). The real objection advanced by the second defendant in relation to his entitlement to do that relates to a question of his independence. 2. Reliance is placed in particular on the expert Code of Conduct found in Sch 7 Uniform Civil Procedure Rules 2005 (NSW) and incorporated within the body of the rules by the terms of r 31.23. Rule 31.23(1) provides that an expert witness must comply with the Code of Conduct as set out in Sch 7. Schedule 7 itself and in particular cl 2, imposes an overriding duty upon an expert to assist the Court impartially. Subclause 2 provides an expert's paramount duty is to the Court and not to the party qualifying him and by cl 2(3) an expert witness is forbidden from being an advocate for the party qualifying him. 3. The expert Code of Conduct is an extremely important part of the rules about the admission of expert evidence. Its purpose is to lift the bar in relation to the quality of expert evidence that courts will receive to assist them in making decisions in civil litigation. 4. The matters that Mr Harris QC relies upon going to the second defendant's concern about Mr Wagstaff's independence arise out of the fact that since March 2014 he has been a consultant to an organisation named SAFEgroup Pty Ltd who provided consultancy services to the first defendant in the immediate aftermath of this dreadful accident; and in the months and years that followed. 5. Their involvement with the first defendant led to a claim of legal professional privilege in respect of many of the documents they brought into existence and provided to the first defendant and its general solicitors (not to the solicitors currently representing it in this personal injuries claim). Mr Harris points out with his customary candour that it is not possible for the second defendant to point to any evidence of any actual involvement of Mr Wagstaff in the generation or creation of any of the privileged documents. Mr Harris also tells me that there is simply no evidence of any involvement by him at all in the non‑privileged documents generated by SAFEgroup to which the second defendant has had access. 6. The question of the need for expert witnesses to be independent was addressed at some length by Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [55]-[59] under the heading "Difficulties with expert opinion evidence". His Honour referred to a decision of the distinguished American jurist, Judge Posner, where his Honour observed: Many experts are willing for a generous (and sometimes for a modest) fee to bend their science in the direction from which their fee is coming. The constraints that the market in consultant services for lawyers places on this sort of behaviour are weak…The judicial constraints on tendentious expert testimony are inherently weak because judges (and even more so juries…) lack training or experience in the relevant fields of expert knowledge. Lord Wolfe MR in his report on access to justice made comments to a similar effect. 1. I have made these observations to flesh out the legitimate concern which has been raised with me by the second defendant. I am not in any way, shape or form prejudging the question of Mr Wagstaff's independence or in any way reflecting otherwise on his credit. 2. However, I accept the argument of Mr Cavanagh SC that strict compliance with the provisions of the Code are not intended to operate as preconditions to the admissibility of expert evidence. Heydon J did not suggest that the "difficulties" by which he prefaced his analysis of the requirements of s 79 of the Act went to admissibility. 3. It has been held in Australian Securities and Investment Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242 by Austin J that the primary intention of the Code is to operate as a Code of Conduct designed to improve the quality of expert evidence. Mr Cavanagh referred to other authorities, which I need not cite, indicating that the type of issue about which the second defendant is concerned does not go to admissibility. 4. Under s 192A Evidence Act I rule that Mr Wagstaff has specialised knowledge, based upon his training, study or experience, qualifying him within the confines of that expertise to express opinions on matters relevant to the topics that will be discussed in the evidence of the panel of mining engineers which will be received this afternoon.