Federal Court of Australia
McNickle v Huntsman Chemical Company Australia Pty Ltd (Assessors)  FCA 780
MONSANTO AUSTRALIA PTY LTD
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The proceeding be adjourned for the making of orders to effect the appointment of an assessor or assessors.
(Revised from the Transcript)
1 A novel issue has arisen which is required to be determined in relation to this large class action, namely, whether an assessor should be appointed.
2 The background to the proceeding has been set out in some detail in McNickle v Huntsman Chemical Company Australia Pty Ltd (Expert Evidence)  FCA 370 and need not be repeated here. In simple terms, this is a class action whereby 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 (NHL).
3 I previously remarked when this matter first came before me for the purposes of case management, that my preliminary view was that the Court should appoint a referee to inquire into, and report upon questions relating to the characteristics of Roundup products (or at least some of them) and their alleged carcinogenic effects. This course was not pursued for reasons I have previously explained: see McNickle (Expert Evidence) (at –).
4 Part of the reason why I initially considered it would be appropriate for questions to be referred to a referee was because of the complexity of the scientific issues that will need to be resolved. Indeed, the core of the scientific dispute about whether glyphosate, glyphosate-based formulations or Roundup products are carcinogenic or increase the risk of developing NHL involves, at least in large part, examining a large body of scientific data. This data includes the results of scientific studies in various disciplines including epidemiology, several sub-disciplines within toxicology (animal studies, mechanistic studies, and exposure and absorption studies), oncology/haematology and biostatistics.
5 The present controversy is singularly complex because, at least on the materials thus far in evidence, it appears that since glyphosate was introduced in the early 1970s, various regulatory assessments have concluded that glyphosate has a low hazard potential to mammals. However, in March 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans”. This IARC conclusion was apparently not confirmed by the US Environmental Protection Agency, European regulators or a later Report of the World Health Organisation and the United Nations Food and Agricultural Organisation. Needless to say, a review of the scientific basis upon which individuals within various organisations have formed different views is going to be a matter not unattended by difficulty.
6 It is against this background that the question arises as to whether an assessor should be appointed to assist me.
B locating assessors within the general law
7 Almost exactly 100 years ago, Dean Roscoe Pound in his famous work The Spirit of the Common Law (Marshall Jones Company, 1921) (at 214–5) suggested that steps be taken to equip courts with research staffs comparable to those employed by administrative agencies in order to provide judges with specialised investigations, information and advice. Yet, despite what some have described as centuries of legal history dotted with proof to the contrary, the traditional common law confidence that courts can handle any dispute without assistance has long persisted: see Beuscher J H, “The Use of Experts by the Courts” (1941) 54(7) Harvard Law Review 1105 (at 1105). In saying this, there has been attempts by courts to provide, in different ways, expert aid to determination. There are three obvious examples: (1) special juries; (2) referees; and (3) assessors.
8 First, in relation to special juries, Style’s Practical Register (4th ed, 1707) (at 335) records that as long ago as 1645 it was observed that:
The Court [of King’s Bench] was moved, that a Jury of Merchants might be returned, to try an Issue between two Merchants, touching Merchant Affairs, and it was granted, Hill. 21 Car. B. R. Because it was conceived they might have better knowledge of the matters in difference which was to be tryed, than others could, who were not of that Profession.
(Italics in original).
9 A special jury of this type was converted into a regular institution by Lord Mansfield, who trained a core of jurors as a permanent liaison between law and commerce: see Fifoot C H S, Lord Mansfield (Clarendon Press, 1936) (at 105). It was by this mechanism that Lord Mansfield obtained expert advice on mercantile problems (even though his Lordship was sometimes very persistent in his refusal to follow it). The use of this expedient has been described as accounting, at least in part, for Lord Mansfield’s success in giving coherence and direction to the law-merchant within the common law system: see Beuscher (at 1108–9).
10 A second way in which courts were assisted by experts was, and is, the appointment of referees, which is properly to be regarded as a form of special jury. I traced the history of the appointment of referees in CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2)  FCA 2112; (2018) 268 FCR 590 (at 597–600 –). There I observed (599 ) that after a long period of stultification, it was unsurprising that the practice of appointing referees “received renewed focus at a time of increased volume of litigation and at a time where the efficient allocation of public resources by courts has come under greater scrutiny.”
11 A third example, and most relevantly for present purposes, has been the use of assessors to sit with and advise judges. This practice has a very long history. The first reported case concerning assessors assisting the High Court in Admiralty appears to be Re Rumney and Wood (1541) Seldon Society, Vol 6, pp 102–4 (at trans pp 213–5), as can be seen from the following:
… by and with the express advice and assent of the distinguished men Sir Thomas Sperte knight and William Gonson yeoman of the body guard of the said lord our king and Commissary or Vice-Admiral of the Admiralty in Suffolk and Norfolk [both] well skilled in seamanship and also commanders in the Royal Navy our colleagues in this behalf and by reason of the experience each of them has my assessors in this business of inquisition I pronounce decree and declare that you the aforesaid Jacob Rumney and John Wood and each of you by your fault negligence and carelessness did cause the same ships to strike and ground upon the shoal aforesaid and were the cause of the breaking of the keel of the said [ship the] Martyn …
12 The fact that this practice developed first in Admiralty might have something to do with the fact that even before this time, there sat at Barcelona the Court of Councils of the Sea to hear and settle disputes between members of the Merchants’ Guild and members of the Mariners’ Guild. The judges of this early form of international court, after the evidence was in, conferred with the authorities of the Guilds and, in the case of conflicting advice, could take the advice of the navigators: see Beuscher (at 1109–10).
13 In any event, the Admiralty Court, during its separate existence, developed the practice of calling to its assistance members, to use their full name, of the “Elder Brethren of the Holy and Undivided Trinity”. When the common law courts obtained further jurisdiction previously exercised by the Admiralty Court, they took over the practice of calling on Trinity Masters in maritime cases. These men were considered not only to be well-equipped by experience, but also of unquestioned contemporary stature. As an interesting historical sidenote, apparently Samuel Pepys often sat with the courts while a member of Trinity House: see Beuscher (at 1110).
14 By modern times the practice was so entrenched that no less a judge as Devlin J (as his Lordship then was) observed in Southport Corporation v Esso Petroleum Co Ltd  3 WLR 773 (at 774) that “[t]he practice of sitting with the Elder Brethren is always followed in the Admiralty division, and if it is not followed in this division as well, it is hound to lead to the belief that the result will not be as satisfactory as it should be.”
15 It was never the case, however, that assessors were limited to Admiralty; although it is fair to say that they have been used infrequently in other areas of the common law. Assessors, for example, were used extensively in the British Colonies in Africa and elsewhere, and they still operate in a number of other countries. They were also used extensively in this country in specialised areas. Indeed, as the Australian Law Reform Commission observed in Recognition of Aboriginal Customary Laws (Report 31, 1986) (at ), “between 1939 to 1954 there was provision for Courts of Native Affairs to be convened on an ad hoc basis … empowered to call to its assistance the head man of the tribe to which the accused belonged, and could take into account in mitigation of punishment any tribal custom which was an element of the offence.”
16 Given the benefit of having assessors in technical areas, it is notable that both the Native Title Act 1993 (Cth) (see s 83) and the Patents Act 1990 (Cth) (see s 217) expressly provide for assessors, although those powers have been very rarely used: for an example, see Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368 (Heerey J), a patent infringement proceeding in which the applicant successfully applied for the appointment of an assessor; the issue of a proposed appointment was also considered in F Hoffmann-La Roche AG v New England Biolabs Inc  FCA 1424; (1999) 47 IPR 105 (Emmett J) and Britax Childcare Pty Ltd v Infa-Secure Pty Ltd (No 2)  FCA 1018 (Middleton J).
17 Writing extra-curially, the Hon Justice J B R Beach, in an article entitled “The Use of Assessors in Class Actions” (2015) 129 Precedent (Australian Lawyers Alliance) 15, has made the important point that class actions, as compared with ordinary inter partes proceedings, have a different dimension in their use of scientific and other technical evidence. Justice Beach also observed that because of the economies of scale in dealing with an action that aggregates a large number of individual claims with significant aggregate sums, it can become economically viable to use forensic techniques that might not otherwise be justified in ordinary litigation. He noted that (at 16):
Judges are required to quickly grasp unfamiliar scientific and other technical concepts, but particular difficulties are presented when highly technical evidence is adduced by the parties. Quantitative evidence such as mathematics, statistics and their inbuilt formulae may be challenging to grasp, and more so than qualitative evidence (for example, in the economics field relating to questions of market power or substantial lessening of competition).
Further, rather than clarifying matters, an expert witness called by a party may interpret or give evidence in a manner that is biased to the party who engaged them. The judge is not assisted. Conflicting and largely unhelpful expert evidence may be the consequence. Such disadvantages have been ameliorated by relatively recent procedural developments such as an expert witness code of conduct (see The ‘Ikarian Reefer’  FSR 563), joint meetings of experts, joint reports, concurrent evidence sessions and the like. But engaging an independent assessor whose sole duty is to the court can have additional benefits.
18 With respect, I agree. This case is a paradigm example of where the use of an assessor may be of considerable benefit. In forming this view I am assuming that: (1) I have power to order an assessor; and (2) the assessor will be used in a particular way.
19 I will consider each of these matters in turn.
20 Unlike some other superior courts of record, for example, the Supreme Court of Victoria (see s 77 of the Supreme Court Act 1986 (Vic)), there is no express power in the Federal Court of Australia Act 1976 (Cth) (Act) or in the Federal Court Rules 2011 (Cth) (FCR) to appoint an assessor. As noted above, the only express power is contained in legislation regulating the conduct of specific types of proceedings in this Court, being native title and patent litigation. Despite this, there is little doubt that such a power exists not only in relation to class actions, but also in relation to other types of proceedings in the event that a judge forms the view that it is appropriate to make such an order.
21 In the specific context of class actions, s 33ZF of the Act confers a wide power which empowers “the making of orders as to how an action should proceed in order to do justice”: BMW Australia Ltd v Brewster  HCA 45; (2019) 374 ALR 627 (at 630  per Kiefel CJ, Bell and Keane JJ). If a court is satisfied that the appointment of an assessor will assist in determining an issue in dispute between the parties to the proceeding, and thereby can be regarded as appropriate or necessary to ensure that justice is done, then s 33ZF provides sufficient power.
22 But even in the absence of s 33ZF (for example, a representative proceeding commenced pursuant to FCR 9.21) or an ordinary inter partes proceeding, it seems to me there is power to order the appointment of an assessor. Such power can be found in s 23 of the Act, which provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. Any order under s 23 is an order which is capable of being properly seen as “appropriate” to be made by the Court in the exercise of its jurisdiction: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (at 622 per Deane J). Given that the Act does not deal at all with the issue of assessors or contain any limitations on their use (in contrast, for example, to the use of juries), appointing an assessor under s 23 could not be seen as transcending any specific limitations in the statute by recourse to the general provisions of s 23.
23 Moreover, this Court, like all federal courts, has the implied powers necessary to exercise its jurisdiction: see Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 (at 452  per Gaudron, Gummow and Callinan JJ). As was explained by Dawson J in Grassby v The Queen (1989) 168 CLR 1 (at 16), “every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.” In these circumstances the term “necessary” does not have the meaning of “essential”; rather “it is to be subjected to the touchstone of reasonableness”: see Pelechowski (at 452  per Gaudron, Gummow and Callinan JJ).
24 I am amply satisfied that I have the necessary power to appoint an assessor.
D The Function of THE Assessor
25 I now turn to consider the function of the assessor to be appointed. In this respect the word “assessor” is somewhat of a misnomer. The assessor is not going to assess anything. The assessor’s role will be consistent with the original Latin roots of the word, namely someone who sits with another, or is an assistant.
26 As Sir Joseph Napier observed in The “Magna Charta” (1871) 1 Asp. M. L. C. 153 (PC) (at 154), a case concerning the duty and powers of Trinity Masters as assessors:
[The judge] is advised and assisted by persons experienced in nautical matters, but that is only for the purpose of giving him the information he desires upon questions of professional skill, and having got that information from those who advise him, he is bound in duty to exercise his own judgment, and it would be an abandonment of his duty if he delegated that duty to the persons who assisted him. The assessors merely furnish the materials for the court to act upon, and, for convenience sake, they are allowed to hear all the evidence. If the learned judge is unable to see what are the grounds upon which they give their opinion and draw their inferences, or assume facts, and if they are other than those to which he gives his assent, he is not at liberty to act upon any inferences which they draw from the evidence, except [if] they accord with those of which he himself approves. The deductions to be drawn from the evidence must be his own, and all the assessors can do is merely to give him their aid and advice in those matters in which they are supposed to be skilled.
27 Indeed, given this Court is exercising Ch III judicial power, granted to it by Parliament acting conformably with the Constitution, it is necessary that the assessor acts in a way which does not constitute an impermissible delegation of judicial power: see Harris v Caladine (1990) 172 CLR 84. I have already written extensively on this issue in CPB Contractors in the context of referees. As I explained there (at 600–1 ), the typical features of an exercise of judicial power are the quelling of controversies between the parties, the determination of existing accrued rights or incurred liabilities, and the conclusive nature of the decision made in the exercise of power. Further, as I observed, the requirements of Ch III cannot be considered only by reference to the characteristics of the function exercised; it is also necessary to consider the process adopted by the court, as well as the independent and impartial character of the court. I went on to note that (at 605 ) “[t]he task undertaken by the referee lacks the most basic characteristic of the exercise of judicial power, that is, quelling a controversy between parties by determining rights or liabilities in a manner that is authoritative, conclusive or binding.” These comments apply a fortiori in respect of an assessor.
28 It has been remarked that, “[i]n some respects the function of assessors is similar to that of expert witnesses in that they are sources of information on matters concerning their own special skill or knowledge”, although assessors “are not called by the parties, are not sworn, and cannot be cross-examined”: Dickey A, “The Province and Function of Assessors in English Courts” (1970) 33 Modern Law Review 494 (at 501). Indeed, usually, at least historically, the advice of assessors is both sought by and given to the court in private and is only disclosed to the parties at the court’s discretion and then usually at the end of the case in the judgment: see Carlewie Pty Ltd v Roads and Maritime Services  NSWCA 181; (2018) 98 NSWLR 233 (at 237  per Basten JA, with whom Payne and White JJA agreed).
29 The distinction between an assessor and a witness, although fundamental, has sometimes been somewhat blurred – at least historically. As Viscount Simon LC explained in respect of a medical assessor in Richardson v Redpath, Brown & Co Ltd  AC 62 (at 70, with whom Lords Thankerton, Russell of Killowen, MacMillan and Wright agreed):
… to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence.
30 Later in his Lordship’s speech (at 71) he went on to disapprove of judges referring to the advice of assessors as “evidence”, and stressed that the role of an assessor is not to supply anything which might be regarded as being evidence, but to help the judge understand the evidence.
31 Although this view has been criticised as too restrictive, and it said that assessors may properly be required to answer any question of fact within their special skill or knowledge that is relevant to the case (Dickey (at 501)), this is not the way I would intend using an assessor. In saying this, I note that there is some authority which could be seen as interpreting the role of an assessor as being somewhat akin to an expert. For example, in Owners of S.S. Australia v Owners of Cargo of S.S. Nautilus  AC 145 (at 150) Viscount Dunedin said “assessors may be used to the full for information” and Lord Sumner observed (at 152) that assessors “are not only technical advisers; they are sources of evidence as to facts”. A similar statement was made in by Scott LJ in The “Clan Lamont” (1948) 79 Ll. L. Rep. 521 (at 524, with whom Bucknill LJ agreed), when it was said that in arriving at the conclusion that the master of a vessel was not negligent, “we attach the greatest weight to the expert advice which has been given to us by our [nautical] assessors – and that advice, it should be remembered, is expert evidence, admissible in Admiralty Courts, on all issues of fact about seamanship.”
32 It is unnecessary for the purposes of this judgment to form a definitive view as to the precise limits of the function of an assessor in all cases in this Court conducted pursuant to the requirements of the Evidence Act 1995 (Cth). But the view expressed by the Lord Chancellor in Richardson v Redpath more closely resembles the function of an assessor that I would regard as appropriate. Certainly in this Court, if an assessor was to somehow start operating as an expert, as it appears, at least historically, has sometimes been the case in Admiralty, the more appropriate course would be to appoint a court-appointed expert, rather than an assessor.
33 In his article, Justice Beach noted (at 16–7) that assessors could perform a variety of functions at the discretion of the appointing judge at the pre-trial, trial and post-trial stages of the proceedings. These include:
(a) acting as a human primer to deliver tutorials to the judge pretrial on relevant specialised topics (see for example Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (No. 2)  UKHL 46;  RPC 9, 169 at  per Lord Hope of Craighead);
(b) explaining the expert reports, including any joint report;
(c) answering questions that a judge might have regarding the technical evidence;
(d) sitting with a judge at trial to listen to the technical evidence and to help the judge understand it in and out of court;
(e) assisting the judge with any basis or relevance evidentiary objections in an unusually complex technical matter;
(f) putting questions directly to counsel or witnesses at the hearing or suggesting questions for the judge to put to counsel or witnesses;
(g) generally, acting as a discipline on the behaviour of expert witnesses in a concurrent evidence session who may otherwise perceive that they can confound the lawyers present with technical complexity without challenge;
(h) conferring with the judge after trial to assist the judge to get the technical concepts correct; and
(i) reviewing draft judgments for technical accuracy, but solely against the evidence adduced by the parties.
34 Justice Beach also noted (at 17) that the assistance of assessors could provide added confidence to the appointing judge as to the cogency of the judge’s technical reasons; at the least, the reasons would be based on a deeper understanding of the technical evidence in a field with which the judge may not be familiar.
35 It is clear from a survey of the cases, that within limits of the proper exercise of the judicial function and the law, the precise role an assessor will play is a matter for the appointing judge in the exercise of discretion. It is for this reason that both parties submit, and I agree, that it is prudent to specify with some particularity the precise role that the assessor will play and to do so in such a way as to apprise the assessor of the metes and bounds of the function to be performed.
36 Understandably, the role of a third party assisting the judge gives rise to issues concerning procedural fairness. This was addressed by Heerey J in Genetic Institute v Kirin-Amgen, but was not considered to be a valid ground to oppose the appointment of an assessor. This issue was also addressed by J Forrest J Matthews v SPI Electricity (Ruling No 32)  VSC 630. Unlike this Court, s 77(1) of the Supreme Court Act 1986 (Vic) provides that “[t]he Court may in any proceeding call in the assistance of one or more specially qualified assessors and hear the proceeding wholly or partially with their assistance but shall not be bound by their opinion or findings.” Relying on, inter alia, s 77(1) and other case management powers, J Forrest J appointed two assessors to provide him with assistance in relation to scientific and engineering questions relating to the failure of the “Valley Span conductor on Black Saturday”, including both quantitative and qualitative analysis of the loads or stresses on the conductor.
37 In this context, his Honour went on to note the following (at ):
The primary role of the assessors is to assist the court in understanding the evidence of the experts. Applying the CPA, combined with the principles of natural justice and the guidance from the cases I have referred to, I set out below the scope of the role of the assessors in this case:
(a) The assessors’ role is to assist the judge. The decision is that of the judge alone.
(b) The assessors will sit with me during the concurrent evidence sessions. If they wish, they may question the experts (or counsel) in this context. Such questioning however will be limited to clarification of the evidence; that is, where they consider the evidence to be ambiguous, unclear or incomplete.
(c) I may consult with the assessors while sitting if I find a point of evidence unclear and seek their immediate input as to an appropriate or useful inquiry to make.
(d) I will consult with the assessors whilst in chambers on matters raised by the experts in their oral evidence and in their individual and joint reports. This may include advice as to any questions the assessors think I should ask counsel or the experts in order to determine the questions at hand.
(e) I will seek the guidance of the assessors on technical matters upon which I lack the requisite knowledge to understand without qualified assistance. This may include “lessons” on matters fundamental to, for example in this case, fracture mechanics or vibration.
(f) If the assessors raise a theory or opinion that has not previously been identified by the parties, I will discuss this with counsel.
(g) The assessors may from time to time provide me with advice on matters over which there is dispute between the experts. Such advice is not binding and the determination of a particular issue rests with the judge.
(h) I anticipate that I will consult with the experts immediately after the conclusion of the concurrent evidence session and, from time to time, while drafting the judgment. This is likely to include seeking confirmation from them that I have properly understood the meaning of the expert evidence of conclaves 1, 3 and 4. I repeat, however, that their role is confined to providing advice and ensuring that I have comprehended the evidence given. I also repeat that the decision on these issues is mine and mine alone.
38 It may be that in different cases it would be appropriate for the scope of the assessor’s duties to be somewhat differently calibrated to those identified by J Forrest J. But the role of the assessors delineated in the circumstances of the Black Saturday class action accords with my views as to the appropriate use of assessors in the present case. Accordingly, upon the appointment of an assessor, I intend to make an order adapting the roles identified by J Forrest J and providing a copy of the order to the assessor so that there is no misunderstanding as to the scope of the assessor’s function.
E CONCLUSION AND THE FORM OF ORDERS
39 I do not propose to make formal orders today as to the appointment of an assessor or assessors. The parties have conferred and have provided me with a list of eight proposed assessors, all of whom, from a review of the material, are persons of eminence and could be appropriate assessors. An objection has been raised by the applicant to the appointment of one assessor because of some prior association and although I do not think there is any real basis for doubting the ability of that nominee to perform the role, given the raft of other highly suitable appointees, it is best for me to direct my attention to those assessors that, as between the parties, excite no controversy.
40 As anyone experienced in taking statements or conferring with experts would be aware, it is one thing for an individual to have a mastery over a specialised branch of knowledge, but it is quite another thing for that person to be able to impart that knowledge efficiently and in a manner that is able to be comprehended by someone who does not share that knowledge. At least in my experience, the perusal of a curriculum vitae is not an accurate guide as to whether someone is a good communicator of complex concepts to a naïf. With the consent of the parties, what I propose to do is to make inquiries of the seven individuals whose details I have been given in order to identify someone who would not only have the requisite expertise, but also the time and personal skills to perform the contemplated role effectively.
41 When I come to make formal orders, I will also deal with the following three additional matters:
(1) First, is making an order which will ensure that the communications between the assessor, my chambers and myself are to remain confidential unless I determine it is appropriate that an aspect of those communications be disclosed. This, of course, will be exercised in a way which is consistent with allowing the parties the opportunity of commenting on a matter in order to ensure procedural fairness is afforded.
(2) Secondly, it has become common when orders have been made for the appointment of a referee or in cases where an independent lawyer has been appointed for the purposes of performing some role in relation to a class action, for that person, who is essentially performing a role on behalf of the Court, to be granted an immunity similar to that which is enjoyed by a witness. In my view there is power to make such an order to protect the position of the assessor under s 33ZF of the Act and I propose to make an order to this effect.
(3) Thirdly, as to costs, the traditional position in Admiralty is that the costs of the assessor be costs in the cause. This seems to me to be the appropriate course to follow in the circumstances of this case and there is no objection by the parties.
42 I have indicated to the parties that after I have had the opportunity of making further enquiries I propose to make orders facilitating the appointment in chambers, but prior to doing so I will notify the parties of a draft of the orders for the purposes of them making any comment.