FEDERAL COURT OF AUSTRALIA

McNickle v Huntsman Chemical Company Australia Pty Ltd (Expert Evidence) [2021] FCA 370

ORDERS

THE COURT ORDERS THAT:

1.    Orders 11, 12, 13, 14, 15, 16 and 17 of the orders dated 28 September 2020 and Order 4 of the orders dated 5 March 2021 be vacated.

2.    The proceeding be listed for a case management hearing at 9am on 23 March 2021, at which time the Court will make orders as to expert evidence and any other topic relevant to readying the proceeding for an initial trial.

3.    Any orders proposed by either party for the future progress of the proceeding should be provided to the Court at the discovery conference on 22 March 2021.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    In this class action, a novel issue has arisen in relation to expert evidence in complex cases. This is not the first occasion in which the Court has sought to grapple with the best way for it to receive expert assistance in determining large cases. Controversy as to how opinion evidence is often deployed by litigants is not new and some best placed to judge have expressed their criticism with some force. As Lord Woolf MR observed in the report, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995) (at 183):

Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are, in practice, hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.

2    Reflecting these concerns, in Australia, there has been extensive law reform discussion concerning the role, deficiencies and remedial responses to perceived difficulties with expert evidence. Most relevantly for present purposes, in the Victorian Law Reform Commission Civil Justice Review (2008) (at 484), reference was made to the notion of “adversarial bias”. That conception falls into three varieties:

(1)    deliberate partisanship – an expert who deliberately tailors evidence to support the retaining client;

(2)    unconscious partisanship – the expert does not intentionally mislead the Court, but is influenced by the situation to give evidence in a way that supports the retaining client; and

(3)    selection bias – litigants choose as their expert witnesses persons whose views are known to support their case.

3    Put simply, this is a class action where the applicant, Mr McNickle, and group members allege that Roundup Products are carcinogenic and, as a consequence, exposure to Roundup Products increases the risk of developing personal injury, relevantly, Non-Hodgkin Lymphoma. Enough has been said to indicate it is a case where expert evidence is likely to be determinative of issues of liability.

4    With this in mind, when the matter first came before me for the purposes of case management, I indicated my preliminary view was that the Court adopt the process of appointing a referee to inquire into, and to report upon, questions relating to the characteristics of Roundup Products (or some of them) and their alleged carcinogenic effects. Obviously enough, the precise questions to be inquired into by a special jury would have been far more sophisticated and granular than I then indicated, but this description suffices for present purposes.

5    Both parties opposed this proposed course, indeed it was opposed with some vigour. A vast array of arguments were deployed, including that to proceed along these lines would be constitutionally invalid (an argument decisively rejected by this Court: see CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112; (2018) 268 FCR 590).

6    However, amidst arguments of little or no merit, there was one contention made by Mr McNickle that caused me pause and which ultimately persuaded me to adopt the course of allowing expert evidence to be deployed in a more traditional way. In broad terms, it was that prevailing scientific opinion had been skewed or somehow manipulated by the respondents (which I will compendiously describe as Monsanto). When this allegation was pleaded by way of a reply it, in effect, amounted to an assertion that Monsanto failed to disclose that it had: (a) initiated, funded, wrote, or edited scientific research, studies or papers which disputed, or did not support the notion, that Roundup Products were carcinogenic; and (b) further acted to undermine or invalidate scientific studies, research, papers or reviews which supported or expressed a contrary view.

7    At the very least, the prospect that the referee may need to assess material which was said to be infected by this allegation of scientific manipulation created some prospect of complicating the inquiry process. Further, the allegation is one of some seriousness and is of a character which in my view should, to the extent it is relevant to the determination of the real issues, be resolved in open Court by a judge.

8    In the result, instead of appointing a referee, I considered it would be appropriate that concurrent evidence be given at an initial trial by experts selected by the parties.

9    As is well-known, Australia’s version of concurrent evidence typically involves two interrelated processes. First, there is a pre-trial joint expert conferral or conclave phase during which the parties’ experts meet to clarify the areas of agreement and/or disagreement to produce a joint report. The second part of the process is the giving of concurrent evidence at a hearing in which the parties’ experts sit together and present evidence in an interactive process moderated by the judge. This latter process is sometimes described in a colloquial (and vaguely disquieting) way, as a “hot tub”.

10    Although there are slight distinctions in the rules concerning concurrent evidence among different jurisdictions, the processes are substantially similar. This was explained in Butt A and Stowe H, “Playing in the hot tub – a guide to concurrent expert evidence in New South Wales” [2018] (Spring) Bar News 44 (at 45):

The process is always intended to enable the ‘real issues in dispute between experts to be identified and narrowed from an early stage,’ for the purpose of achieving a proceeding’s just and efficient resolution. At its core essentials, concurrent evidence aims to shorten trials (and reduce associated work), enhance fact-finding and judicial decision-making, and improve settlement prospects.

(Citations omitted).

11    This is reflected in r 23.15 of the Federal Court Rules 2011 (Cth) (FCR), which provides that if two or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any party may, inter alia, apply to the Court for an order that the experts confer, either before or after writing their expert reports, or the experts give concurrent evidence: FCR 23.15(a) and (g).

12    In some jurisdictions, such as the Supreme Court of New South Wales, the court may direct that a conference be held with or without the attendance of a facilitator: see r 31.24(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)). As Butt and Stowe note (at 47):

Facilitators are becoming increasingly utilised in conclaves. In jurisdictions such as native title, facilitators (there Registrars) are always used. In some jurisdictions they are rarely used.

(Citations omitted).

13    Similarly, UCPR 31.24(2)(b) provides that a judge may direct that a conclave be held with or without the attendance of the parties affected or their legal representatives, at the option of the parties.

14    Even in the absence of specific rules, both these aspects of the current evidence process are commonly used in the Federal Court and, in some respects, the orders that have now commonly been made in class actions (and the orders made in this case) go a little further. Whatever precise orders are made, it is common that two aspects of the concurrent evidence process be adopted: first, the attendance of an experienced facilitator, such as a Registrar or an experienced independent barrister, provides a useful mechanism in ensuring that the conclave process proceeds effectively and the work product emerging from any conclave best assists the Court; and secondly, the absence of any contact between the experts and the parties or their legal representatives, assists in preserving the integrity of any conclaves and the joint report process in ensuring that experts deal with one another in a way that might be inhibited if those that retain the experts are present during the conclave process or the experts have contact with them.

B    THE CURRENT ISSUE

15    The current issue arises in the following way. I had set down a regime, by orders made on 28 September 2020, which, relevantly, had the following effect:

10.    By 17 November 2020, the parties are to [identify]: (a) the areas of specialised knowledge in respect of which an expert is intended to give evidence relating to the Expert Issues; [and] (b) one proposed expert witness in respect of whom the party seeks to adduce evidence in respect of that area of specialised knowledge (Nominated Experts).

11.    Between 8 March 2021 and 15 March 2021, and after having been provided by the Court with a document recording the Expert Issues, conclaves of the Nominated Experts are to occur, in the absence of the lawyers for the parties but in the presence of a barrister nominated by the Court (Independent Barrister), for the purpose of identifying the final list of questions (Questions) each of the Nominated Experts are to address in their expert reports and identifying, to the extent possible, any preliminary areas of agreement between the experts (Initial Conclave).

12.    Following the completion of the Initial Conclave, by 24 March 2021, the Independent Barrister is to provide the Associate to Justice Lee and the parties with: (a) a list of the Questions each of the Nominated Experts are to address; and (b) an identification of any preliminary matters of agreement between the Nominated Experts relevant to the Questions.

13.    By 4 June 2021, the parties are to file and exchange expert reports by the Nominated Experts addressing the Questions.

14.    Between 16 September 2021 and 15 October 2021, a second round of conclaves of expert witnesses is to occur between the Nominated Experts (Further Conclaves), in the absence of the lawyers for the parties but in the presence of the Independent Barrister, for the purpose of preparing joint reports in each area of specialised knowledge (Joint Reports) addressing the Questions and specifying:

a.    the matters in relation to which they agree;

b.    the matters in relation to which they disagree; and

c.    a brief statement of areas of disagreement.

15.     The Further Conclaves are to take place as directed by the Independent Barrister and are to result in the provision of the Joint Reports to the Associate to Justice Lee and the parties by 13 November 2021.

16.     The Joint Reports are to completed by the Nominated Experts working together with the Independent Barrister, are to be as short as is practicable and, to the extent possible, be in plain English and are not to incorporate, by reference, aspects of the expert reports already filed.

17.     There is to be no contact between the parties, their lawyers or any agent of the parties or their lawyers with any of the Nominated Experts:

a.    of any type from the date of this order until completion of the Initial Conclaves other than a senior solicitor and/or counsel for a party communicating with a proposed Nominated Expert for the purpose of assessing: (a) the availability of a proposed Nominated Expert; (b) assessing his experience; (c) his ability to provide admissible evidence; and (d) the logistics of the involvement of the proposed Nominated Expert in the proceeding; and

b.    of any type whatsoever from the time of exchange of the expert reports pursuant to order 13 on 4 June 2021 until the provision of the Joint Reports pursuant to order 15 on 13 November 2021.

18.     Subject to any further order as to costs, in the first instance, the costs of the Initial Conclaves and Further Conclaves (including the cost of the Independent Barrister) are to be borne equally by the parties.

16    In February this year, Monsanto raised an issue concerning this regime and suggested there was a need to revisit the orders made. Modification was said to be necessary to address what was alleged to be a disparity in the knowledge of the experts they proposed to those nominated by Mr McNickle, who all had extensive prior involvement in litigation in other jurisdictions regarding the alleged carcinogenicity of glyphosate and Roundup Products (Expert Issues).

17    It was said that the unfairness which was thereby occasioned to Monsanto was unintentionally magnified as a consequence of the orders currently in place and the inability of the solicitors for Monsanto to communicate with their experts. In expanding upon the disparity of knowledge between the party’s respective experts, it was contended that the experts nominated by Mr McNickle came with “entrenched and already expressed opinions”. It was contended these experts were “highly likely to express opinions of the same or similar terms to those already expressed”. Although it is not possible to make any findings at this time, four experts were identified by Monsanto to fall into this category:

    Dr Christopher Portier, who has allegedly given evidence in 26 proceedings apparently dealing with the Expert Issues;

    Dr Martyn Smith, who has allegedly given evidence in 5 proceedings apparently dealing with the Expert Issues;

    Dr Dennis Weisenberger, who has allegedly given evidence in 20 proceedings apparently dealing with the Expert Issues; and

    Dr William Sawyer, who has allegedly given evidence in 28 proceedings apparently dealing with the Expert Issues.

18    Cognisant of potential issues of adversarial bias, particularly in a case such as the present involving allegations of scientific manipulation, on 22 December 2020 (and having abandoned the proposed reference), I indicated to the parties that the Court would be best assisted if the experts chosen by the parties in each area of speciality were non-partisan and were “truly independent about the issues and about their view”: see T9.43–7.

19    In any event, Monsanto sought relief from the restrictions I had put in place concerning communication with the proposed experts prior to the conclaves, but also sought orders they be provided with material by Mr McNickle’s nominated experts relating to the Expert Issues (being various documents and information concerning the details of all overseas engagements).

20    When the matter came before me on 5 March 2021, I raised with Mr Finch SC, counsel for Monsanto, whether the issues that had been put forward as to the independence of Mr McNickle’s experts were such that it was inevitable that objection would be taken as to the admissibility or discretionary exclusion of their evidence at the hearing, based on the information currently in the possession of Monsanto.

21    During the course of that case management hearing, I indicated to both parties that if there was going to be some attack on the independence of Mr McNickle’s experts then, consistent with the overarching purpose, it would be of utility to ensure that any such objection was resolved sooner rather than later. In the course of that discussion, I had referred to the possibility that it may be appropriate to make an order facilitating an advance ruling hearing pursuant to s 192A of the Evidence Act 1995 (Cth).

22    It is against this procedural history that the matter has come before me again today.

C    AN ADVANCE RULING?

23    Section 192A is in the following terms:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about:

(a)    the admissibility or use of evidence proposed to be adduced; or

(b)    the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or

(c)    the giving of leave, permission or direction under section 192;

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

24    This provision was enacted following the decision of the High Court in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, so as to permit a party to request an advance ruling from a trial judge about the admissibility of evidence. The provision is widely used in relation to the question of whether the Crown would be entitled to adduce evidence impeaching the character of the accused (if the accused was to adduce evidence of good character) but is in no way limited.

25    Importantly, when s 192A of the Evidence Act was introduced, the Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth), by which that provision was introduced, stated (at [242]):

The power to give advance rulings carries significant benefits in promoting the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty.

26    In the civil law context, this section has been considered on a number of occasions. As Biscoe J observed in NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 (at [40]):

Whether the court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute.

27    It is also apparent that to make an advance ruling it is not necessary to show special circumstances or that the circumstances are out of the ordinary: see Beslic v MLC Ltd [2015] NSWSC 908 (at [33] per Robb J). In Southern Cross Airports Corp Pty Ltd v Chief Commissioner of State Revenue [2011] NSWSC 349, Gzell J observed (at [15]):

In my view it is appropriate to give an advance ruling in this matter. Inevitably there will be a need to rule because [one party] does not accept the reports. If an advance ruling is made in favour of [the opposing party], it will provide certainty to both parties with respect to this portion of the expert evidence. If the advance ruling goes against [one party], [he] will have the opportunity before the trial … to address the question of whether [he] can adduce further evidence to cure the inadmissibility.

28    I do not need to deal with the authorities in any greater detail but, with respect, I would adopt the approach to s 192A explained by Stevenson J in Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 (at [11]–[13]).

29    Needless to say, my suggestion that a hearing be held as to whether a s 192A ruling should be made did not indicate that a ruling would necessarily be made. Section 192A identifies that the court “may, if it considers it to be appropriate to do so, give a ruling” (emphasis added). It may be at the conclusion of any hearing, I came to the view that it would not be appropriate for a ruling to be given.

30    Returning to the circumstances of this case, by Order 1 on 5 March 2021, Monsanto was required to notify the parties and my Associate as to whether, based on information currently in its possession, there is an intention at the initial trial to object to the admissibility of, or to seek discretionary exclusion of, the evidence of the experts nominated by Mr McNickle on the basis they come with “entrenched and already expressed opinions” or that “it is highly likely that they will express opinions in the same or similar terms to the opinions they have already expressed” or on any other basis relating to the independence of those experts.

31    In compliance with this order, on 8 March 2021, Monsanto wrote to my Associate (copied to the solicitors for the other parties) stating: “pursuant to paragraph 1 [sic] of the orders made on 5 March 2021, this is to notify the Court and the parties that the second and third respondents do intend at the initial trial to take objections or to seek discretionary exclusions on the basis contemplated by that order”.

D    MR MCNICKLE’S OPPOSITION

32    Both in written submissions in advance of the case management hearing and orally, Mr Rush QC, counsel for Mr McNickle, submitted that it would be beyond power for the Court and the parties to embark on a process of presently determining whether any expert evidence which may be given by any expert witness would be excluded pursuant to s 135 of the Evidence Act or on admissibility grounds. Five points were made:

(1)    First, the “threshold jurisdictional” question for exercising the discretion in s 192A has not been satisfied. Section 192A may be enlivened where a “question arises” in relation to any of the three matters set out in subparagraphs (a)–(c) of that section. No such question presently arises. This is said to be because:

(a)    there is presently no “evidence” proposed to be adduced and thus, subparagraphs (a) and (b) of s 192A cannot apply; and

(b)    no question arises about the giving of leave, permission or direction under s 192: see s 192A(1)(c).

(2)    Secondly, further to the threshold issue, it would be inappropriate for the Court to exercise the discretion under s 192A at this time. Here, no expert reports have been filed, and as such, the Court would be making its discretionary decision in the absence of information which is critical to that decision. It was said that the Court is in no position to, and ought not to, make an advance ruling where all matters relevant to the issues have not been, and cannot be, ascertained.

(3)    Thirdly, difficulties arise in relation to any contemplated rulings since it is not clear what precise rulings would in fact be sought by Monsanto.

(4)    Fourthly, while it seems the process presently contemplated is intended to avoid disruption to the trial date, it will have the opposite effect. It was said that Monsanto appears to make a global complaint in respect of all of Mr McNickle’s experts, and as such, five experts would need to give evidence and be cross examined at a voir dire. The processes around production of documents and materials relevant to such a voir dire will take further time, and will inevitably lead to delay in the balance of the timetable to an initial trial.

(5)    Fifthly, Order 1 made on 5 March 2021 focuses the inquiry concerning the independence of the experts and whether those experts have expressed certain opinions previously. It was submitted that the questions posed indicated a misunderstanding of what is required by the notions of “independence” and “impartiality” in the expert evidence context. It was further submitted that even if an expert has expressed an opinion previously (even on many occasions), this does not mean that the expert is not independent or impartial within the court processes. It was said that it simply does not follow from the fact that an expert has extensive experience and expertise, and based on that experience and expertise has formed opinions about certain questions of science (which may have been expressed previously, including in previous litigation), that the expert lacks independence or impartiality. Accordingly, it was said that as a consequence, the rulings proposed are based on an incorrect premise.

33    The last point relates to a point made on a number of occasions by Mr McNickle that issues relating to a perceived lack of independence and impartiality cannot go to issues of admissibility, but rather only to weight. In that regard, I was referred to the judgment of Wigney J in Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622.

34    In Rush, Wigney J (at [11]–[43]) dealt with what was described as “the independence ground”, which, unsurprisingly, was an argument advanced by the publisher in that case that the alleged lack of independence of two experts proposed to be called by the applicant in a defamation proceeding ought not be admitted or alternatively excluded. His Honour dealt with an argument that the applicant had not complied with Pt 23 of the FCR because, in the circumstances of the case, the expert was an advocate for the cause of the party who proposed to call him. In doing so, his Honour dealt with a decision of Mortimer J in Guy v Crown Melbourne Limited [2017] FCA 1104, expressing (at [36]) the view that:

… an actual or perceived lack of independence, impartiality or objectivity of an expert witness goes to weight, not admissibility.

35    I think Mr McNickle puts the point too highly. A broad point was being made by his Honour in Rush, which is no doubt correct in the general run of cases. But I do not think this means there cannot ever be circumstances in which a lack of impartiality or objectivity would go to more than weight and would form a basis by which the proposed expert evidence would not be admitted. One would conceive of some circumstances where proposed expert evidence could fail to survive the balancing exercise required when applying s 135 of the Evidence Act, in that receiving such evidence would be of such limited assistance (by reason of its lack of independence, impartiality or objectivity) that it would be unfairly prejudicial to the other party or would result in an undue waste of time.

36    In any event, as the various arguments identified above indicate, as the argument made on behalf of Mr McNickle developed, it was directed to both the question of power (in relation to s 192A) and also the question of discretion. The contention was advanced that I would be falling into error in making an advance ruling, even if I was to rely on other powers (such as ss 33ZF or 37P(2) of the Federal Court of Australia Act 1976 (Cth)).

37    Monsanto has proposed a series of orders which would facilitate an advance hearing taking place. There is no need to detail these orders here, but they provide for, inter alia, a regime of procuring information as to matters alleged to impact upon the independence of the witnesses and an exchange of evidentiary material relevant to an advance ruling hearing.

E    DISPOSITION

38    The suggestion that I made for an advance ruling hearing was one which had one simple guiding principle in mind: the overarching purpose. It is evident that in circumstances where there is an inevitability that Monsanto will take the objection they have now clearly flagged, it will be necessary for me to deal with the issue at some time.

39    The position of Mr McNickle has been made plain. That is, I can only and must only, deal with such an objection in the context of the initial trial. At present, I form no view one way or the other as to whether the objections foreshadowed have any merit, but I am conscious that they have been advanced by responsible counsel and solicitors who have formed the view that there is a reasonable basis for saying that there is a want of independence on behalf of the relevant experts, such that their evidence should be the subject of (at least) discretionary exclusion.

40    Questions such as the discretion to exclude evidence are generally made at an initial trial because the discretion must be exercised by reference to all the circumstances of the case. Even though the objection is one which is based on information currently known to the solicitors of Monsanto, I cannot now be satisfied that there would not be matters relevant to the exercise of my discretion which would emerge between now and the initial trial. Of course, the most important of these matters, at least on the timetable proposed by Monsanto, would be the content of the evidence itself.

41    I did think initially that it was possible for an advance ruling hearing to be held some time prior to the initial trial if it was with the active cooperation of both parties and there was no objection to this course. However, given the opposition to this course by Mr McNickle, I am not convinced that this is appropriate. Indeed, there is some prospect that adopting this course would lead to a potential interlocutory appeal. If there had have been cooperation by both parties, I would have grasped the nettle and proceeded to have had an advance ruling hearing in advance of the initial trial, even if, at the end of that hearing, I was persuaded that it was inappropriate for a ruling to be provided. Given that course is opposed, then not without some misgivings, it appears that I will have to leave the ruling on admissibility of the expert material (on presently identifiable grounds) to the initial trial (as is said to be necessary by Mr McNickle).

42    As I stressed above, I have reached no view one way or the other as to whether or not any allegations of a lack of impartiality have any substance. No doubt Mr McNickle will maintain his contention that the evidence given by the nominated experts will be of importance in resolving the issues and carries great weight. All that is yet to be seen. Of course, if at the initial trial the objection which has now been clearly flagged is upheld, I will be required to determine the appropriate remedial response. In determining any remedial measure proposed by Mr McNickle, no doubt Monsanto will submit that its attempt to resolve this issue now pragmatically (which has been objected to) will be a relevant consideration in the event that the objection is ultimately upheld on the basis of material now known to exist or able to be obtained.

43    For these reasons, I have determined not to proceed with the s 192A hearing or any other preliminary hearing relying on any other case management powers in respect of the discretionary exclusion of Mr McNickle’s proposed witnesses.

Associate:

Dated:    15 April 2021