FEDERAL COURT OF AUSTRALIA

BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited [2017] FCA 1268

ORDERS

THE COURT ORDERS THAT:

1.    The tender of Exhibit VX3 on the voir dire, comprising the marked-up report of Mr Michael Veitch dated 13 October 2017, be rejected.

2.    Exhibit VX1 on the voir dire, comprising the expert report dated 30 September 2016, and the addendum to that report dated 15 December 2016, be admitted into evidence in the hearing.

3.    The affidavit of Michael Veitch affirmed on 9 October 2017, and the evidence in chief and cross-examination of Mr Veitch on the voir dire, be admitted into evidence in the hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

A    Introduction

1    The central allegation in this proceeding is that a traffic forecaster (Arup) provided misleading and negligent traffic forecasts, which were relied upon by the applicants (BrisConnections), causing loss. In this circumstance, a potentially important aspect of the evidence will be expert traffic forecasters providing opinions as to the quality of Arup's work and, more particularly, as to whether the Arup forecasts were based upon reasonable grounds and whether a competent traffic forecaster, acting reasonably, would have produced Arup's forecasts.

2    The recoverable loss is said to be in the region of $2.2 billion. Proportionality of legal costs to the amount in dispute is not an issue that looms large. It is unsurprising that very significant resources have been spent in marshalling expert traffic forecasting evidence.

3    BrisConnections engaged Mr Michael Veitch (to whom I will refer as Mr Veitch) and his son, Mr Tim Veitch, to provide expert opinions. Those opinions were contained in the following reports:

(a)    “Expert report regarding Arup's traffic forecasts and modelling for Airport Link in Brisbane” dated 30 September 2016 (998 pages) (Veitch Report);

(b)    “Addendum to expert report of Mike Veitch and Tim Veitch” dated 15 December 2016 (2 pages);

(c)    “Expert report in reply regarding Arup's traffic forecasts and modelling for Airport Link in Brisbane” dated 21 July 2017 (326 pages) (Reply Report);

(d)    “Addendum to expert report of Mike Veitch and Tim Veitch” dated 27 July 2017 (55 pages).

4    Arup engaged Mr Philip Bates to provide opinion evidence. Mr Bates prepared a report on 12 April 2017 (234 pages) (Bates Report) and, following a conclave with Mr Veitch and his son, a further document was produced entitled “Joint Report of Mike Veitch, Tim Veitch and Philip Bates” dated 28 August 2017 (79 pages) (Conclave Report).

5    It suffices for present purposes to note, with some understatement, that the expert traffic forecasting evidence is complex and lengthy. How important the expert evidence will be to the resolution of the contested issues, is yet to be seen.

6    At a case management hearing on 8 September 2017, Arup foreshadowed that objection would be taken to the admissibility of the Veitch Report and the additional expert opinions. This objection was maintained when the hearing commenced on 3 October 2017. There was no suggestion that Mr Veitch or his son lacked specialised knowledge; nor was it suggested that their opinions, purportedly based on their knowledge, were not relevant to a fact in issue (if the opinions were otherwise admissible). The objection, in short, was that, as a ‘joint’ opinion, it was not apparent the opinions expressed were wholly or substantially based on the specialised knowledge of either Mr Veitch or his son and, as a consequence, the exception to the exclusionary Opinion Rule, contained in s 79 of the Evidence Act 1995 (Cth) (Act), was not engaged.

7    In circumstances recounted below, a voir dire was conducted on 16 October 2017. At present it is appropriate to deal only with the objection to the expert evidence in chief, being the Veitch Report and its addendum, which were the subject of the tender, although the parties accepted, should it become relevant, that identical issues arise in relation to the Reply Report and the Conclave Report (insofar as the Conclave Report records opinions of the Veitchs). Upon the conclusion of the voir dire, I rejected the tender of some material but ruled that the Veitch Report and its addendum would be admitted into evidence (along with the additional evidence of Mr Veitch on the voir dire, which was admitted without objection).

8    I adopted the expedient of ruling immediately and publishing reasons later because: first, a decision on admissibility should generally be made when evidence is tendered or at least before the tendering party closes its case: see International Harvester Co of Australia Pty Ltd v McCorkell [1962] Qd R 356 at 358 per Philp J; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 152-153 [87] per McHugh J; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at 599 [19]-[20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and 620 [83] per Heydon J; and secondly, although it is not common practice to give reasons for rulings on admissibility of evidence (R v Dobson; Ex parte Anm (1975) 15 ACTR 33 at 36 per Fox J), written reasons where objections have merit or raise substantive or novel questions serve some useful purpose (see J R Forbes, “Inadmissible Evidence: Objections Well Taken and Rulings Well Made” (1984) 13 University of Queensland Law Journal 197 at 200).

9    Before coming to the substance of the argument, it is useful to provide some context as to the circumstances in which this issue as to admissibility arose.

B    Procedural Background

10    This proceeding commenced as long ago as May 2014. The following February, an order was made that representatives of Arup confer with Mr Veitch of Veitch Lister Consulting Pty Ltd (VLC) and other employees of VLC assisting Mr Veitch, in the presence of legal representatives, to discuss various issues relating to the traffic model used by Arup.

11    An order was made that BrisConnections serve any expert traffic forecasting evidence by 30 September 2016. In compliance with that order, the Veitch Report was served, albeit later supplemented by an ‘addendum’. As noted above, the Veitch Report was a ‘joint’ report that was said to contain the opinions of both Mr Veitch and his son. On the same day as the Veitch Report was signed, a letter of instruction was sent by Gilbert + Tobin to the Veitchs (Instruction Letter). I will return to the Instruction Letter below.

12    On 11 October 2016, the matter came before Flick J, the then docket judge. At that time, Senior Counsel for BrisConnections indicated that the traffic forecast evidence had been served. In response, Senior Counsel for Arup said as follows (T 3-4):

The [Veitch Report] is 998 pages of text and of immense complexity. The executive summary…is something 39 pages long and, frankly, raises a whole series of new issues in a number of chapters well over two or three hundred pages in length, which find no [reflection] in the pleading at all. Now, with my instructing solicitors, we have engaged expert assistance and my instructing solicitors… are presently in the United Kingdom, consulting affidavits. We’ve prepared an affidavit … which explains the position we find ourselves in.

13    As a result of the Veitch Report’s complexity; the time needed for a response; and its departure from the then pleaded case; his Honour was persuaded to vacate the scheduled hearing commencing in April 2017, and orders were made for Arup to file evidence in response and for the convening of an expert conclave for a fortnight in August 2017.

14    On 20 April 2017, the matter came before me for the first time for case management. I had previously indicated that I wished to deal with any outstanding matters that could or should be resolved. Detailed directions were made, which relevantly included the following:

2.    That under a supervision of a Registrar of the Court, an expert conclave take place between each of the expert witnesses proposed to be called by a party (Experts), as referred to in Orders 4(a) to 4(d) below, at a date and time to be fixed by the Registrar but as soon as practicable after 21 July 2017.

3.    ...

4.    That by no later than 21 August 2017, a joint report be prepared by each of:

(a)    the traffic expert witnesses;

…

(each such joint report being a Joint Report), with each Joint Report, subject to further order, to:

(e)    identify with precision the questions in respect of which the Experts are asked to express their opinion (Part A);

(f)    identify, in summary form, each Expert’s views on each question (Part B);

(g)    identify by reference to each question the relevant matters in which there is no disagreement between the Experts (Part C);

(h)    identify, in summary form, the areas of principal disagreement between the Experts as to each question and, to the extent relevant, identify:

(i)    brief reasons for the disagreement; and

(ii)    the extent to which different assumptions relied upon by each Expert are the cause of any disagreement (Part D).

5.    Each Joint Report is to be:

(a)    prepared following one or more initial expert conferences attended by:

(i)    a Registrar and the traffic expert witnesses;

…

(b)    prepared in accordance with such directions about the practice and procedure to be followed in relation to the conclave and preparation of each Joint Report as are made by the Registrar pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), and if the Registrar directs that the questions in respect of which any competing experts are asked to express their opinion should differ materially from the questions agreed pursuant to order 0, the Registrar will notify the parties of that direction; and

(c)    provided to the Registrar upon completion and distributed to the parties and to the Associate of Lee J upon its completion but no later than 21 August 2017.

15    A conclave then took place in Melbourne attended by Mr Veitch and his son, a Registrar of the Court (and his assistant) and Arup’s expert, Mr Bates, who had travelled from the United Kingdom. Consistently with the scope and complexity of the expert evidence, the conclave was a substantial undertaking; it convened on 7 to 11 and 14 August 2017 and typically ran from 9.00 am to 5.00 pm. Given the terms of the Conclave Report, it is evident that the experts worked diligently during this period.

16    I mention this background for a reason. Consistently with the Court’s obligation under s 37M(3) of the Federal Court of Australia Act 1976 (Cth), any directions power on 20 April 2017 was to be exercised in a way that best facilitated the just resolution of this dispute as quickly, inexpensively and efficiently as possible. I have no doubt whatsoever that if I had been apprised in April 2017 of the fact that Arup would argue that the principal expert evidence relied upon by BrisConnections was wholly inadmissible, I would not have ordered an expensive and time consuming conclave; rather, I would have ordered a preliminary hearing to allow a ruling to be made with celerity as to the admissibility the Veitch Report, in accordance with s 192A of the Act. Of course, as is to be expected, in April, a date for the exchange of objections was set close to the commencement of the hearing, but this is beside the point – this was not some ‘run of the mill’ objection.

17    If I had ordered a s 192A advance hearing, the ruling I am writing now would have been written six months ago and, assuming the same result, the conclave would have proceeded with the certainty that the objection had been overruled and, as it happens, a later dispute as to who was to attend the conclave, resolved by the Registrar, would have been unnecessary. More importantly, so long as any objection to the totality of the Veitch Report was unresolved, the spectre existed of a wholly worthless conclave. If upheld, not only would all the Veitch Report, the Reply Report and the Conclave Report have been excluded, but much of the Bates Report, responsive to the Veitch Report, would have become the forensic equivalent of clapping with one hand.

18    This is not meant as a criticism of anyone acting for Arup; I infer the inadmissibility point must have been appreciated only after recent, intensive preparation for hearing had begun, but the consequence of raising it almost a year after service was that, if the objection was successful, it was inevitable that an adjournment for a lengthy period would have been sought to allow BrisConnections to obtain further expert evidence (with further responsive reports and another conclave resulting).

19    Having noted all this, the question that arises is one of admissibility under Part 3.3 of the Act and not discretionary exclusion under Part 3.11 of the Act (no s 135 general discretion was sought to be invoked). The potentially grim consequences of upholding the objection must be put entirely to one side and attention must be focussed solely on whether the opinions, sought be adduced in evidence, are admissible in accordance with the principled application of s 79.

20    The balance of these reasons will be divided as follows:

    Section C    The ‘Joint’ Report and its Tender

    Section D    Relevant Findings and Evidence on the Voir Dire

D.1    Relevant Findings

D.2    The ‘High-water’ Mark

    Section E    The Contentions of the Parties

    Section F    The Ruling on the Veitch Report and Addendum

    Section G    The Ruling on the Revised Veitch Report

    Section H    FCR 23, Conclaves and Letters of Instruction

    Section I    Conclusion and Orders

C    THE ‘JOINT’ REPORT AND ITS TENDER

21    In opening, Mr Rich SC, who appears on behalf of BrisConnections, noted the ‘threshold’ objection and proposed that it be dealt with immediately after the parties had completed oral openings. The next day, after completion of the openings, Mr Hutley SC, who appears on behalf of Arup, articulated the objection. At this time, the position of BrisConnections was to: (a) press for the tender in chief of the Veitch Report and the addendum and to call both Mr Veitch and his son; and (b) not rely on any evidentiary material additional to the Veitch Report and the addendum to demonstrate admissibility. Following some preliminary exchanges and after a short adjournment, Mr Rich SC indicated that he did wish to adduce further evidence on the issue of admissibility and consequently directions were made for service of any affidavits to be relied upon on the voir dire. While the substantive hearing proceeded, notices to produce and a subpoena were served and, after cross-examination of the lay witnesses for BrisConnections, there was an adjournment to prepare for the voir dire and for a ruling to be made prior to closure of BrisConnections’ case.

22    During the adjournment, BrisConnections filed and served an affidavit of Mr Veitch, together with a bundle of further material. Importantly, it was at this juncture that BrisConnections changed its position. Rather than relying on the Veitch Report as an expression of the joint opinions of Mr Veitch and his son, notification was given of an intention to call Mr Veitch only and to rely upon a revised version of the Veitch Report, which was ‘amended’ to represent that the Veitch Report was the work of Mr Veitch only (Revised Veitch Report). This revision involved a litany of changes to pronouns littered throughout the document, together with some further drafting changes.

23    It followed from the above that the principal submission that the Joint Report was admissible and represented the opinion evidence of both its authors was no longer pressed in oral submissions on the voir dire (although it was not expressly abandoned).

24    The admissibility of the ‘joint’ opinions was, however, the subject of written submissions exchanged prior to the change of position by BrisConnections. It will be necessary to deal with those submissions below because the central contention of Arup was that BrisConnections’ new position (which might uncharitably be described as throwing one traffic expert under a bus), did not cure the insuperable problem that had commenced with an instruction from BrisConnections’ solicitors for the retained experts to form joint opinions. Accordingly, there is a very considerable overlap between the submissions made as to whether joint opinions could ever be admissible and the distinct argument advanced by Arup on the voir dire that Mr Veitch, having formed his opinions in the context of the joint Veitch Report, was unable to say now that the opinions contained in that report were the product of the application of Mr Veitch’s specialised knowledge (that is, the deployment of his and not someone else’s specialised knowledge).

D    Relevant Findings AND EVIDENCE on the Voir Dire

25    Mr Veitch’s affidavit of 9 October 2017 was read on the voir dire and he was cross-examined. Additionally, BrisConnections tendered its bundle of further material, which primarily comprised communications between solicitors concerning the Veitch Report and the expert conclave. Arup also tendered a bundle of material, comprising a collection of tax invoices sent to Gilbert + Tobin by VLC which recorded, by reference to various time periods, the hours charged by individuals within VLC who had worked on the Veitch Report and also identified those within VLC who had responsibility for ensuring the completion of various tasks.

D.1    Relevant Findings

26    Although parts of the evidence in chief on the voir dire strayed into the underlying merits of the opinions held by Mr Veitch, the cross-examination was directed, entirely appropriately, to the issues that arose on this adjectival question of admissibility. It follows that I have reached no conclusions on the underlying merits of the opinions expressed in the Veitch Report, and I have eschewed forming any views on the substantive merits of those opinions to the extent they are assayed in the affidavit read on the voir dire. Having noted this, from the oral and documentary evidence in evidence on the voir dire, I make the following findings:

(a)    Mr Veitch was retained to provide expert evidence in separate Federal Court proceedings (RiverCity litigation) and, in late 2012, was provided with his only copy of the then current Practice Note on expert evidence (Practice Note CM7);

(b)    the work that Mr Veitch did in connexion with the RiverCity litigation was essentially the same work he was eventually called upon to perform in relation to this proceeding and the preparation of the RiverCity report was a substantial undertaking which required the assembly of a team carrying out analysis and reviewing material at the direction of Mr Veitch; part of that team included his son;

(c)    in the RiverCity litigation, Mr Veitch was retained in an orthodox way as a single expert, and although he had substantial assistance, including that of his son, he held all the opinions expressed and they were not included in his report or modified because they reflected another person’s view or experience;

(d)    in late 2014, Mr Veitch was engaged to provide evidence in this proceeding; when first retained, without a letter of instruction, Mr Veitch understood the scope of his engagement to be essentially the same as he was then performing in the ongoing RiverCity litigation; he also knew that his engagement was subject to Practice Note CM7 and that it was necessary for his opinions to be based on his own experience; he also understood he may be required to give evidence and be cross-examined;

(e)    his subjective intention was to approach the assessment of Arup’s work in the same way as he had conducted the RiverCity litigation engagement, including by gathering a team to assist him, which included his son;

(f)    the engagement was highly complex and it would have been practically impossible to fulfil it without the assistance of a team; this was because the traffic model used for the Airport Link project comprised approximately 95,000 files and the process of review was a very substantial undertaking;

(g)    up until July 2015, it was assumed by everyone that Mr Veitch would be the only expert signing any report (as in the RiverCity litigation); this changed in early July 2015, when Mr Veitch returned from the United Kingdom with a serious foot infection (which took around six months to be brought under control);

(h)    by at least 20 July 2015, the solicitors for BrisConnections had determined to also engage Tim Veitch to prepare a joint report with Mr Veitch; indeed, unbeknownst to Mr Veitch, an affidavit was made by Tim Veitch on 20 July 2015, which affirmed to the fact that he had been jointly engaged in May 2014; this representation was false;

(i)    from July 2015, the engagement became a joint one, although no-one immediately told Mr Veitch of this fact during his illness; Mr Veitch was only informed by the solicitors for BrisConnections in late 2015 or early 2016; he did not ask the reason, but was content because he thought Tim Veitch was adequately equipped and it would be a valuable experience for his son; he also thought it was a sensible contingency plan, given his health issues;

(j)    the decision to engage Tim Veitch did not change the way in which Mr Veitch went about his task when he became re-engaged with the work; he continued to develop his opinions and prepare a report in the same way as he had for the RiverCity litigation; the change was seamless (indeed this is reflected in the fact that he was ignorant of any change for a significant period); it also did not change the nature or process of the work being conducted by VLC, as Tim Veitch was already part of the team;

(k)    access was not secured to a working version of Arup’s model (used to replicate Arup’s traffic forecast) until well into 2015; the Veitch Report was drafted and prepared over a substantial period from mid-2015 until September 2016 and it involved a very significant commitment of time from the staff that had assisted both Mr Veitch and his son (an indication of this can be seen by the number of hours worked by both Mr Veitch (1,343) and his son (1,680) and the charges recorded by others in the tax invoices in evidence);

(l)    the authors of the Joint Report were both Mr Veitch and his son, in that his son was identified separately from the other employees who ‘assisted’; essentially, Tim Veitch was a “co-writer” of the Veitch Report;

(m)    the attempt in the Revised Veitch Report to identify Tim Veitch as merely a person who had assisted is less than accurate, as it obscures what occurred; as noted above, it is more fitting to describe Tim Veitch as a co-drafter and co-author, rather than a person who merely assisted in the Veitch Report’s preparation;

(n)    from about July or August 2015, VLC had moved its entire operation into the offices of the solicitors for BrisConnections; no iterations of the draft Veitch Report or its constituent parts were retained (although they were printed out from time to time); the process that took place was that either Mr Veitch or his son would review and draft different chapters at different times; there were 19 chapters and an expedient was adopted of having 19 ‘thumb’ drives, one for each chapter, and, prior to collation, only one document on the ‘thumb’ drive was to be edited at any one time;

(o)    prior to any drafting commencing, all the ‘big ticket items’ identified by Mr Veitch as being problematical in Arup’s forecasts had been identified and discussed by the team, so that when Tim Veitch produced any chapter, it did not reflect something which was ‘new’ in the sense that it held any surprises for Mr Veitch;

(p)    at all relevant times, it was Mr Veitch’s understanding that he was required to express his own opinions and that he had to justify those opinions on the basis of his knowledge and experience; certainly subjectively, he did not believe that he was being asked to arrive at a consensus or compromise opinion with his son;

(q)    at the time the Veitch Report was finalised on 30 September 2016, Mr Veitch had read every chapter many times, and held every one of the opinions expressed in the Veitch Report; he did not consciously modify or change his opinions in order to reach a consensus opinion with his son, and there were no opinions in the Veitch Report which Mr Veitch did not genuinely hold.

D.2    The ‘High-water’ Mark

27    Having made these findings, I now turn to what was relied upon by Arup, in the course of submissions, as the ‘high-water’ mark of the evidence relevant to its attack. Of course, I had regard to this evidence in coming to findings set out above, including those as to subjective intention identified at [26(p)] and [26(q)]. Given its importance to the argument, I set out this evidence in full, notwithstanding its length (T 296-8):

What’s happening here, isn’t it, is that your son is doing some work and writing it up. You’re doing some work and writing it up; correct?---Yes.

Right. And he’s forming his judgments about what the opinion should be in his field of discourse; correct?---No, not independently of me. I mean, you’ve got to consider the situation where – how the team was operating. The team was operating in Gilbert + Tobin’s office and we had a room with a very large table. We each had a computer. Our heads were no more than 3 metres apart, and therefore if someone discovered something, goes, “Eureka, look at this,” Thomas Potersil – if it was a toll choice thing – would discuss it with Tim, and I would be across it all because you couldn’t have a conversation in that room without all four people in the room knowing what it was.

And you would come to a consensus between you and your son as to what should go in the report. That’s correct, isn’t it?---We generally discussed something and I would form an opinion as to what should go in the report. He would form an opinion of what should go in the report, but the two married.

Identically over thousands of pages, do you tell his Honour?---Look, this is – if something in a model has been done in a way that I would consider it was an unreasonable thing for Arup to do, I believe my son would agree with me. Of course there’s an agreement. I think every reasonable traffic forecaster on each of the opinions we have expressed would think there is something wrong here. There would be a meeting of the minds. That’s the philosophy of the report.

A meeting of the minds. That was the philosophy of the reports, do you tell his Honour? And you would say that, with respect – there are lots of opinions in this report which go down to precise percentages which should be entered into the model; correct?---On some instances, yes. On some of the variables, yes.

Yes, many of them, would you agree with that? Yes. There would be a lot, yes.

And do you tell his Honour there was this precise meeting of the mind between you and your son as to those precise figures; correct?---But the precise figure is not associated with the opinion that Arup did something wrong. When we’re talking about precise figures, it’s about, “Well, what would have been a reasonable number to put in there?’ And we have to make an estimate and we put it in.

And - - -?---And we have to agree what that is between – because someone has got to do it.

All right. In other words, the two of you kicked around ideas and came to a consensus as to what you thought was a reasonable view; is that correct?---Yes. There were things we would come to consensus on, yes.

Exactly?---That’s natural.

You might have had a slightly view to your son, he may have had a slightly different view, and you compromised?---Well, I would say it doesn’t really matter. You know, if we had seen 10 per cent or 15 or 20, it doesn’t really matter in this instance. We have made our point, let’s run it with 15.

His Honour will be unable to tell where you started and where he started in respect of those opinions, just that there was a consensus between you and your son; that’s correct, isn’t it?---There was a consensus, and other people’s advice would be sought, like Thomas Potersil. Opinions – with four people working in a room, you are going to get four opinions on every issue when a discussion happens.

Quite. But you are putting forward joint opinions to the court in your report; correct?---Yes. I ultimately signed off on all of the opinions in that report, and all the inputs to the model. So I was happy with everything.

Could the witness be shown VX1. If you go to 5 page 1-7?---Yes.

And at 1.2(b) say:

We were asked to provide our expert opinion.

Do you see that?---I do.

That’s what you were requested to do; correct? Correct?---I just need to see what version of the report this is.

That’s the final version. That’s the one you signed originally?---30 September?

Yes?---Yes, it says that.

Yes. That’s what you thought you had been asked to do; correct?---That’s what it says.

That’s what you thought you had been asked to do; correct?---At that time, yes. September 2016, yes.

Right. And what you gave to the – prepared in here is the outcome of the joint work by you and your son, reflecting your consensus opinion; correct?---You would have to ask Tim about his consensus opinion. He signed this document; I signed the document. My signatory to that document means that, everything in there, I subscribe to the opinions contained therein.

You thought you were asked to bring forward an opinion with your son; correct?---I knew at this stage that he was going to be expressing an opinion.

28    I will come back to this aspect of Mr Veitch’s evidence and how it fits with the findings I have made, in Section G below.

E    The Contentions OF THE PARTIES

Arup’s Contentions

29    As noted at [6] above, Arup asserted that it was impossible to conclude that the opinions expressed were wholly or substantially based on the specialised knowledge of Mr Veitch. The difficulty is that Mr Veitch and his son were engaged to produce a joint opinion and, as a result, the process miscarried. Particular reliance was placed on the observations of Stone J in Cooke v Federal Commissioner of Taxation [2002] FCA 1315; (2002) 51 ATR 223 at 234 [38]:

To be admissible, an expert opinion must be wholly or substantially based on the expert witness’s specialised knowledge….This requirement clearly cannot be met if it is partly based on the knowledge or opinion of someone else.

(citation omitted, emphasis added)

30    It was submitted, in writing, that the Veitch Report was provided pursuant to the Instruction Letter which was addressed to both Mr Veitch and his son and noted (on the first page at the third paragraph):

We are instructed to retain you on behalf of our clients for the purposes of obtaining a report from you, containing your opinion as an expert on the questions set out in section 5 below.

31    The Veitch Report demonstrates that this is how Mr Veitch and his son understood their instructions, the report being replete with first person plural pronouns. An example of this is section 2.9(a) (which, to adopt the idiosyncratic numbering system used, is on page 2-23) which states:

In Section 2.5 above, we provided a summary of our detailed investigation of Arup’s AL Model which identified some of the conclusions that we reached from those investigations, but not all of them.

(emphasis added)

32    This is consistent with the assertion that the Veitch Report is “infected with the cross- pollination of ‘specialised knowledge’ between Messrs Veitch”. Examples were given, such as sections 17.9.5 and 13.5.7.3(f), where it is evident that opinions said to be held by Tim Veitch were not based on his training, study or experience, but rather on the more extensive experience of Mr Veitch. The pervading vice is that there is no way to identify who did what, on the basis of what, and whose specialised knowledge was deployed in forming the opinions. The Veitch Report is said to be a truly collaborative work, in which the experience of both authors was brought to bear.

33    The ‘high-water’ mark evidence extracted at [27] above was said to demonstrate that the joint opinions arose from a process of collaboration and inevitable compromise. A compromised opinion is not an admissible opinion. This impermissible feature of compromise is demonstrated by a tell-tale: it was absurd to suggest that Mr Veitch and his son had separately and independently come to the same conclusion on the basis of the same reasoning on each and every matter. The Veitch Report, it is said, contains countless opinions on matters of professional judgment, each of which is precisely formulated, and there is not a cigarette paper of difference between the co-authors.

34    It was further submitted that if the Veitch Report was admissible then, if this conclusion was applied in other contexts, “chaos” and “enormous unfairness” would result, particularly in the criminal law. An example was given that if an applicant in an auditor’s negligence case was sufficiently resourced, then the consequence of admitting the Veitch Report would be to accept, as matter of principle, that such an applicant could say (T 311):

“Let us have the entire audit department of Ernst & Young give an opinion on your negligence.” And as long as they can come to a consensus view – a consensus view and say, after coming to the consensus, “This is all our opinion,” you can have one report with 30 people.

BrisConnections’ Contentions

35    Having moved away from the intention to call both witnesses, the ultimate submission of BrisConnections was that the evidence adduced on the voir dire established, beyond peradventure, that all the opinions sought to be tendered were held by Mr Veitch, who applied his specialised knowledge in expressing those opinions.

36    In this regard, BrisConnections contended that even though it was accurate to call the Veitch Report a joint report, one must have regard to what is said in subparagraph (d) on page 1-12 of the Veitch Report, that is, that each of the opinions stated in the Veitch Report are held by both authors based on their training, study and experience.

37    As a matter of substance, what is said to have occurred is no different from what happens in many complex expert engagements where there is a need for a team to amass all the factual data upon which an opinion is to be expressed; it is clear that such tasks can be delegated to another. As Austin J explained in Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242 at 320 [329]:

…There is nothing in the law to prevent such delegation from occurring. But it is necessary for the expert who is the author of a report to apply his or her mind to the analysis and reasoning processes that his or her subordinates have developed, so that when the report is finalised, the whole of the reasoning and conclusions that it contains have been adopted as the expert’s own reasoning and conclusions. Were that not the case, the expert could not claim to be the author of the report.

38    The critical point is that the whole of the reasoning and conclusions in the Veitch Report have been adopted as Mr Veitch’s own reasoning and conclusions. In response to the proposition that there are a vast number of opinions in the Veitch Report and yet no differences between the authors, Mr Rich SC’s submission was that in any complex expert report prepared, at least in part, by a team, this process will necessarily involve an exchange of views and interaction between those involved. What is necessary to make the opinions in such a report admissible is that the expert who comes to give evidence has duly considered everything in the report, and has ‘adopted’ the opinions in the report, including the reasoning processes, as the expert’s own.

F    The Ruling on the Veitch Report and Addendum

39    If the determination of a question as to whether evidence should be admitted depends on the Court finding that a particular fact exists, the question whether that fact exists is, for the purposes of s 189 of the Act, a preliminary question. As the argument of BrisConnections was refined, the preliminary question the subject of the present voir dire was whether the opinions contained in the Veitch Report and its addendum, sought to be adduced in chief in the hearing, were opinions to which the Opinion Rule did not apply because it was apparent that they were opinions wholly or substantially based on Mr Veitch’s specialised knowledge. 

40    Stating the question in this way directs attention to the fact that what is being considered is the admissibility of opinion evidence, not of a particular report which contains those opinions. Given the way the objection was framed, and the fact that there was no suggestion that some opinions in the Veitch Report may be admissible and others not, this might be thought to be a distinction without a difference. It is not. For one thing, s 79 requires the relevant opinion to be “completely or substantially” based on specialised knowledge, and s 142 provides that the question of admissibility is to be determined on the balance of probabilities; it would be an error to say that a substantial number of the opinions in the report are properly based so that the whole report goes in because ‘substantiality’ is proved on the balance of probabilities. Further, it is a distinction worth emphasising because it may be thought, from a literal reading of what was said by the Court of Appeal of New South Wales in Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 (per Hodgson and McColl JJA at 112 [69], Young CJ in Eq at 119 [113]), that the relevant question is whether the report was based wholly or substantially on the expert’s knowledge. But no doubt this was just a shorthand way of referring to the relevant opinions contained in the report.

41    In Dasreef, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) noted at 604 [37] that, in the ordinary case, if expert evidence is to be admissible, it must be apparent from the evidence how the opinion expressed follows from the stated (known or assumed) facts by the application of the specialised knowledge of the witness to those facts. It follows that if the evidence does not demonstrate that an opinion expressed by a witness is based on the specialised knowledge of that witness, the evidence is not admissible.

42    Additionally, Heydon J separately identified three relevant common law rules applicable to the tender of opinion evidence (matters that went to admissibility and not to weight) including, relevantly for present purposes, “the statement of reasoning rule” (at 612 [61]). As to the statement of reasoning rule, at 622-624 [91]-[94], Heydon J went on to explain that the function of the rule was to protect cross-examiners by enabling them to go straight to the heart of any difference between the parties without the delay of “preliminary reconnoitring”; it also aids the tribunal of fact in assessing the rational force of expert evidence and, when the tribunal is a judge, in giving reasons.

43    I will come back to the statement of reasoning rule and s 79 shortly, but it is convenient to first deal with the approach taken in the United States in relation to joint opinions, which was relied upon by BrisConnections as persuasive authority.

44    In the United States, r 702 of the Federal Rules of Evidence (US) provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a)    the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b)     the testimony is based on sufficient facts or data;

(c)     the testimony is the product of reliable principles and methods; and

(d)     the expert has reliably applied the principles and methods to the facts of the case.

45    It appears that joint expert opinions are not uncommon in the United States. The US Court of Appeals, Tenth Circuit (in an opinion authored by Judge Gorsuch, before his Honor’s elevation to the Supreme Court) noted in Dale K. Barker Co. v Valley Plaza, 541 Fed. Appx 810 (2013) (Tymkovich, Holloway and Gorsuch JJ) at 815-816 [7]:

Co-authored expert reports aren't exactly uncommon…Here, Mr. Prescott and Mr. Oveson reviewed the same materials and, working together, came to the same opinions. Because they were both prepared to testify to all the opinions in the report, we see no reason why it would be inherently impermissible for them to file a joint report. Perhaps the practice could prove problematic in other circumstances—if, for example, it isn't clear whether both experts adhere to all of the opinions in the report and they do not delineate which opinions belong to which expert—but Mr. Barker identifies no reason to fear such confusion here.

(citations omitted, emphasis added)

46    To similar effect is the decision of Lungstrum J of the US District Court for Kansas, who in In re: Syngenta AG MIR 162 Corn Litigation, USDC (Kansas) Case No. 14-md-2591-JWL (2 Sept 2016) overruled an objection to a report that was jointly authored and signed by five experts. His Honor said (at 3):

…Plaintiffs argue the report fails to identify which of the five experts is responsible for which of the opinions in the report. The report and supplementation make clear, however, that all five experts adopt as their own – and would testify to – all opinions in the report. Rule 26 [of the Federal Rules of Civil Procedure] does not prohibit jointly-authored reports, which, as the Tenth Circuit has noted, “aren’t exactly uncommon.” …Indeed, in the Court’s experience, it is common practice for an expert to have employees or associates assist with studies or analysis or the drafting of a report, and such practice is clearly appropriate as long as the expert who signs the report takes all of the opinions as his own and can testify about them. Thus, although there is one written report here, it is as if five experts each submitted identical reports. That fact does not provide a basis to strike the report.

(citation omitted)

47    Despite the broad similarities between the relevant statutory provisions, there are historical differences between how the Opinion Rule was developed in the United States and by Anglo-Australian courts: see, for example, Z Cowen and P Carter, “Some Observations on the Opinion Rule” in Essays on the Law of Evidence (Clarendon Press, 1956) at 162, 163-64; J Wigmore, Evidence in Trials at the Common Law (3rd ed, rev J Chadbourn, Little Brown, 1978) Vol 7, § 1917 at 8-9. I do not think that much assistance can be gained from the authorities in the United States (a least those to which I was referred). They do not, with respect, contain any detailed analysis of the statement of reasoning rule; nor, more particularly, do they reveal any real engagement with what seems to me to be the problem focussed on by Mr Hutley SC, namely, that of ‘compromised opinions’. It should be noted however, that the Tenth Circuit did refer to the problem which arises if it is not pellucid from a report whether both experts adhere to all the opinions expressed and the report does not delineate which opinions belong to which expert – a problem said to exist in the present case.

48    It is evident that there is a need to work out where licit delegation, consultation and testing ends, and where inappropriate compromise of opinions begins. There is a danger in generalising and using labels, but I will use the term ‘compromised opinions’ to mean opinions reached as a result of decision to ‘adopt’ an opinion, which opinion is not the result of an application of the specialised knowledge of a proposed witness, but as a result of a compromise between the proposed witness and another. This is to be contrasted with an opinion which is the result of an application of the specialised knowledge of a proposed witness, but is reached following discussion and debate between the expert and another (even if the tentative or preliminary view of the expert is refined or changed by that discussion and debate, and involves, as a matter of fact, a consensus emerging, by reason of that process, between the initial view of the expert and the view of another). The former is an abdication of the expert’s responsibility to form an opinion by reason of the application of the expert’s specialised knowledge; the latter is a faithful discharge of the expert’s responsibility to test and refine the expert’s views and come to a considered opinion based on the expert’s specialised knowledge, even though it may involve embracing a final view which may not have been initially evident. Subject to how the opinion is expressed, the latter is admissible while the former is not.

49    Of course, admissibility of an expert report containing relevant opinions is not just governed by how the opinion is formed (whether, in truth, it represents the application of the specialised knowledge of the witness) but also, among other things, by how it is expressed. In Dasreef at 604 [37], the High Court explained that admissibility in part is governed by whether it is “apparent” from the tendered evidence how the opinion follows from the application of specialised knowledge. In this way, s 79 requires attention to requirements of form: see HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 427 [39] per Gleeson CJ.

50    When it is appreciated that it is both form and substance that matters, it can be seen that the Revised Veitch Report is no answer to Arup’s attack: if the opinions are hopelessly compromised and have not been properly formed, the Gatling gun approach to destroying plural pronouns will not save the day. But the obverse is also true: if the opinion is properly formed, there is no reason why deficient expression cannot be cured by additional evidence on the voir dire or in chief (subject to considerations of case management reflected in Division 23.2 of the Federal Court Rules 2011 (Cth) (FCR), and procedural fairness). By this I do not mean to say that in simpler cases (not governed by constraints about written reports), even if the opinion was not properly formed initially, it is impossible to adduce later admissible evidence viva voce on the same subject matter from the same witness. Of course in the present case, even if the written material objected to was not tendered, calling Mr Veitch in chief and leading his opinions viva voce, if done properly, would not offend s 79; but given the complexity and subject matter and the terms of Division 23.2 of the FCR, this alternative course was rightly not embraced by BrisConnections.

51    I mentioned in [38] above the submission of BrisConnections that the whole of the reasoning and conclusions in the Veitch Report were ‘adopted’ as Mr Veitch’s own reasoning and conclusions and, if this is found, then such a finding would be determinative. This submission, with respect, is expressed at too high a level of generality. The abstract use of the word ‘adopt’ in this area of discourse is problematical. It could mean blithely accepting compromised opinions as an expedient or, used differently, it could mean refinement and change through discussion with another in a principled way.

52    To use the example drawn from Kansas (Syngenta), contrary to the submission of BrisConnections, it cannot be correct that a report is admissible under s 79 just because “the expert who signs the report takes all of the opinions as his own and can testify about them”. If the so-called ‘taking of all the opinions’ involves the ‘adoption’ of compromised opinions, or otherwise does not involve and make apparent the application of specialised knowledge by the ‘adopter’, it is not admissible. Put another way, the pervading vice of which Arup complains (there is no real way to identify who did what, on the basis of what, and whose specialised knowledge was deployed) would exist.

53    That being said, there needs to be some recognition of the reality of complex litigation here: any expert report in an arcane area of specialised knowledge, which requires analysis of a very large volume of primary data in order to form an opinion, is likely to be, in a literal and practical sense, a collaborative effort. Provided the expert’s mind is applied to the analysis and reasoning processes which those working with the expert have developed, so that when the report is finalised it is apparent that the whole of the reasoning and conclusions it contains has been ‘adopted’ as the expert’s own reasoning and conclusions (as the process was explained by Austin J in Rich), even if this causes the expert’s initial or tentative views to change, there is no difficulty. Indeed, as I explain at [68] below, the current Expert Evidence Practice Note contemplates an exchange of potentially differing views prior to the articulation of the opinions of an expert in chief in a report.

54    It may seem a trite observation, but what is acceptable (and what is not) depends upon what is apparent on the evidence, as revealed in writing and as supplemented on any voir dire.

55    I have made findings as to the subjective intention of Mr Veitch at [26(p)] and [26(q)] above, but just because Mr Veitch did not consciously modify his opinions or believe that he was reaching compromise opinions, this is not determinative. The attempt to give admissible opinion evidence would miscarry if, despite this intention, this is what he did, so it was not apparent, on the balance of probabilities, that the opinions were based on his specialised knowledge.

56    If one has regard to the ‘high-water mark’ evidence extracted at [27] above, when viewed contextually, it does not demonstrate that Mr Veitch either misapprehended his task or failed to discharge it.

57    Mr Veitch’s accepted the commonality of his opinions with those of his son. He attempted to draw a distinction between coming to precise percentages which could be entered into models (inputs the subject of to and fro discussion among members of the team), and the formation of evaluative opinions as to what, in the view of Mr Veitch and his son, went wrong (“But the precise figure is not associated with the opinion that Arup did something wrong”). Although he agreed with the proposition that he “kicked around ideas” with his son and there were “things” upon which they would come to a consensus, his response was that such a course was “natural” and made sense. The point I understood was being made by Mr Veitch was that in any collaborative effort of this complexity, there would obviously be discussion as to matters relevant to the formation of the key opinions. The evidence did not descend into individual detail, but plainly there would be a whole range of inputs relevant to the formation of opinions (such as particular percentages to adopt as to discounts or economic statistics or, more broadly, as to the interpretation of primary data) upon which reasonable minds might differ, and a final view was taken as to these matters following a discussion between the team; this is to be expected in a task of such scope and complexity. Indeed, to use the words of Mr Veitch, it is ‘natural’ that this process occurs.

58    In the end, what was clear from the affidavit evidence, as tested on the voir dire, was that Mr Veitch “ultimately signed off on all of the opinions in that report, and all the inputs to the model. So [he] was happy with everything” (T 298). Mr Veitch held every one of the opinions expressed in the Veitch Report, which he arrived at, in part, by relying on the work of the team he assembled (and particularly Tim Veitch in testing, discussing and recording his views). Put more directly by reference to the terms of the preliminary question, I am satisfied, on the balance of probabilities, that the opinions contained in the Veitch Report and its addendum, sought to be adduced in chief in the hearing, are opinions to which the Opinion Rule does not apply because it is apparent on the evidence that they are opinions substantially based on Mr Veitch’s specialised knowledge.

59    Having stated this conclusion, which accepts the evidence given on the voir dire by Mr Veitch and recognises that the opinions in the Veitch Report are not wholly or completely the result of his individual work, three matters are worth emphasising.

60    First, it is hard to imagine how the relevant work could possibly have been done within sensible time constraints without the team approach adopted in the RiverCity litigation and here, including splitting production of the first drafts of the various chapters. Given the way: (a) the Veitch Report was only drafted after views had been formed by Mr Veitch on what essentially went wrong; and (b) the drafting process developed with contributions from a team over time, it is perhaps understandable why the opinions of Mr Veitch and his son would coincide, both as to the inputs into the modelling and the evaluative opinions ultimately expressed.

61    Secondly, Mr Veitch was the more experienced man. Leaving aside any aspect of filial piety, if anyone was going to defer, it is to be expected it would be Tim Veitch to the more extensive experience of his father (see, for example, [32] above). No evidence was adduced from Tim Veitch, but after reading the Veitch Report and having regard to their respective experience, and after having the opportunity of assessing the evidence of Mr Veitch on the voir dire, I do not believe that Mr Veitch is someone who was likely to surrender the expression of his genuine views on any matter of significance to reach a compromise with his son. It is by no means clear on the evidence that the opposite is true, and that Tim Veitch’s evidence would have been admissible.

62    Thirdly (and importantly), both parties made no attempt to distinguish between the many opinions in the Veitch Report and were content that the preliminary question be resolved on the basis of whether the opinions in the Veitch Report (addressed as a whole) demonstrated compliance with s 79. This is not to fall into the error to which I made reference at [40] by considering admissibility of the report rather than the opinions in the report, but necessarily reflects the way the objection was framed and argued in attacking the opinions as all being flawed because of the same, general misapprehension of the task by Mr Veitch.

63    Speaking more generally, when one comes back to the common law basis of the statement of reasoning rule (as explained by Heydon J in Dasreef) being to protect cross-examiners by enabling them to go straight to the heart of any difference between the parties and aiding the tribunal of fact in assessing the rational force of expert evidence, there is nothing about this result which undermines these objectives. Mr Veitch has set out his opinions and his detailed reasoning; Mr Bates has done the same. Although the question of admissibility is not determined by reference to evaluative notions of fairness, it is notable that the cross-examiner will not be vexed by an inability to understand and challenge Mr Veitch’s views to the extent he wishes to do so.

64    It might be thought that the irony of this extended debate concerning admissibility is that it has probably made the process upon which the opinions have been expressed by Mr Veitch far more transparent than in the common run of case where an expert report is signed by the principal of an organisation, when a substantial amount of the work is performed by employees. Anyone with any experience in large commercial litigation will readily understand that in complex cases the opinions of experts are often finalised after much toing and froing within a team.

65    For completeness, I should say something about the Hanrahan (“We'll all be rooned”) argument advanced by Arup: see [34] above. I do not consider that the conclusion I have reached, if applied in other contexts, would result in “chaos” and “enormous unfairness”. In the posited example of an auditor’s negligence case, if the entire audit department of Ernst & Young purported to provide opinions in a report, which was a consensus view (in the sense of being compromised opinions), the report would be inadmissible for reasons I have explained. If the hypothetical 30 people all came to admissible opinions by applying their specialised knowledge, it may be that the individual opinions may, strictly speaking, be admissible under s 79, but it would be inconceivable that the Court would allow them all to be called: see s 135 of the Act. The Court will not allow expert evidence by weight of numbers or attempts to ‘out credential’ another party by calling numerous experts to give the same opinions: see Paciocco v Australia and New Zealand Banking Group Ltd [2014] FCA 35; (2014) 309 ALR 249 at 289 [169] per Gordon J. No doubt in a criminal trial, a judge would be even more vigilant to ensure that a jury was not swamped by unnecessary opinion evidence.

G    The Ruling on the Revised Veitch Report

66    I have already explained at [50] above why it is that the Revised Veitch Report is of no assistance. Either the Veitch Report and its addendum (as supplemented by the evidence on the voir dire) sufficiently demonstrates that the opinions of Mr Veitch are admissible, or it does not. Nothing is served by the additional document prepared which, in some respects, is inaccurate and ahistorical. As Mr Hutley SC pointed out, this is illustrated particularly in the transmogrification in the Revised Veitch Report of Tim Veitch from being a co-author (which he was) to now being relegated and listed as a person who merely assisted. The Revised Veitch Report serves no useful purpose and I reject its tender.

H    FCR 23, Conclaves and Letters of Instruction

67    The question of admissibility was addressed by whether or not the s 79 exception to the Opinion Rule was engaged and did not, except peripherally, involve consideration of the FCR. Of course, for proceedings in this Court, Part 3.3 of the Act must be read together with Part 23 of the FCR and (from 25 October 2016) the Expert Evidence Practice Note (GPN-EXPT) (Expert Evidence Practice Note). As the Expert Evidence Practice Note explains, given the contents of the Harmonised Expert Witness Code of Conduct (Code), it overlaps with the requirements of FCR 23.13, and an expert is taken to have complied with the requirements of FCR 23.13 if the expert has complied with the requirements in the Code (see Expert Evidence Practice Note at [5.2]).

68    Interestingly, in the context of considering compromised opinions, the Expert Evidence Practice Note at [7.5] provides that the Court may order a conference of experts in a variety of circumstances including before individual experts have reached a final opinion on a relevant question. This may involve the Court ordering the exchange of draft expert reports for the use of the experts at a conference prior to them finalising their reports. It goes without saying that this process might involve the sort of give and take that might, in different circumstances, be the dynamic that occurs through the interaction of a team. It could not be said in these circumstances that an expert who changes his or her draft report, to take into account comments made by another expert or following a consensus being reached on a matter relevant to the expression of opinion, will be producing anything other than an appropriate and admissible expert report. The same could be said of a conclave report which goes further than being a memorandum of previous views but expresses additional opinions (perhaps on the basis of different assumptions) following an attempt to reach consensus on an a opinion at a conclave.

69    An additional aspect of Part 23 of the FCR is FCR 23.11, which provides that a party may only call an expert at trial if the party has complied with Division 23.2 of the FCR. This not only provides for the provision of guidelines to an expert but also deals, in some detail, with the content of an expert report. One of the requirements is to “identify the questions that the expert was asked to address” (see FCR 23.13(1)(d)). At the time of the production of the expert reports in this case, Practice Note CM7 (which has now been superseded), provided that these questions ought be included in, or attached to, the report. This almost invariably takes the form of annexing the letter of instruction.

70    A practice seems to have developed whereby a letter of instruction is provided contemporaneously (or near contemporaneously) with the finalisation of the expert report. Whether such a course actually complies with the requirements of FCR 23.13(1)(d) is open to question (although it is unnecessary to decide, given the absence of any objection on this basis). What can be said in this case is that the Instruction Letter cannot be taken seriously. It solemnly tells Mr Veitch and his son, at a time when the evidence discloses VLC had been working hand in glove with the solicitors for BrisConnections for over a year, that: “We act for the clients identified in schedule one to this letter (our clients) being the Applicants in the Federal Court proceedings mentioned above (the proceedings). It invited Mr Veitch and his son to review the pleadings by way of background; it purported to enclose a disc and hard drives, and to provide a copy of Practice Note CM7 (which the evidence suggests it did not). It also purported to instruct them on the content of the report they were to write and identify the questions asked – all at a time the Veitch Report was complete (except for signatures).

71    The point of a letter of instruction being annexed to a report is not to act out a stylised ritual, but to provide to the Court with a transparent indication of what has been provided to the expert and the questions that the expert was actually asked to address. It should be able to be read literally without being silly. As is (at the very least) implicit in FCR 23, the work of the expert is to attend to the questions “the expert was asked to address”, not to invert the process by using the expert’s specialised knowledge in order to identify the questions that should have been asked and the assumptions that should have been given. The true instruction to Mr Veitch was oral and only emerged in the evidence on the voir dire. The integrity of the expert evidence process and the independence of experts is best facilitated by transparency in what is being asked of experts prior to, or at the time, they are forming their opinions and, if the questions need to change because they are misdirected, a record being made by way of supplementary instructions as to what has changed.

I    Conclusion and Orders

72    It was for these reasons that, at the conclusion of the voir dire, I made the following orders:

1.    The tender of Exhibit VX3 on the voir dire, comprising the marked-up report of Mr Mike Veitch dated 13 October 2017, be rejected.

2.    Exhibit VX1 on the voir dire, comprising the expert report dated 30 September 2016, and the addendum to that report dated 15 December 2016, be admitted into evidence in the hearing.

3.    The affidavit of Michael John Veitch affirmed on 9 October 2017, and the evidence in chief and cross-examination of Michael John Veitch on the voir dire, be admitted into evidence in the hearing.

73    It was appropriate for the evidence on the voir dire to be re-tendered in the trial if reference is later to be made to it in determining the substantive facts in issue. This happened without objection. Although the view has been expressed that evidence given on the voir dire in a civil case heard by a judge alone may be taken into account on the issues arising at the trial itself (see R v Amo [1963] P & NGLR 22 per Mann CJ; Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534 at 540 per Meares J; Casley-Smith v F S Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 at 335 per Olsson J) this position is not entirely settled (see the Full Court’s observations in Brown v Commissioner of Taxation [2002] FCA 318; (2002) 119 FCR 269 at 291-292 [92] per Sackville and Finn JJ; ASIC v Rich [2004] NSWSC 1062; (2004) 213 ALR 338 at 341-345 [23]-[49] per Austin J).

74    For clarity therefore, the tender means the evidence in the affidavit of Mr Veitch and that given by him in answers to questions in cross-examination which went to the substantive merits, are also in evidence in the trial without limitation.

Associate:

Dated:    1 November 2017

SCHEDULE OF PARTIES