[Important update: From 1 September 2025 the Victorian County Court Commercial Division operates under updated case management rules, set out in the revised Omnibus Practice Note PNCO 1-2025 (the Practice Note).  The use of a single joint expert is no longer the mandated default position]

From 1 August 2022 the Victorian County Court Commercial Division operates under new case management rules, set out in the Omnibus Practice Note PNCO 2-2022 (the Practice Note).

As discussed below, there are significant changes to the role of expert evidence and the work of the expert witnesses.  Most notable are the default use of jointly instructed sole experts (broadly similar to the regime introduced in Singapore in April, discussed here, briefly), and the facilitation of conclaves where there is more than one expert.

The previous position

Under the previous regime in the County Court:

• There was no restriction on the use of expert evidence.
• Each side selected their own expert, and formulated the questions (including assumptions) that they wanted the expert to answer.
• The Court had power to order experts to confer and produce a Joint Report.
• The experts would give evidence concurrently (i.e., side by side: colloquially known as a “hot-tub”).

The post 1 August 2022 position

From a (non-lawyer) expert’s point of view the significant changes in relation to expert evidence are:

• No expert evidence without permission – A party wanting to introduce expert evidence must obtain permission of the Court, by an application which provides “brief reasons explaining why expert evidence is required.”
• Sole joint expert by default – The application must identify whether the parties agree on a single joint expert (the default position) or “whether it is contended that the appointment of more than one expert is appropriate.”
• Selection of the sole joint expert – each party will table a list of up to three candidates, with the Court to determine the appointee if there is no agreement between the parties.
• Brief to the sole joint expert –The plaintiff will prepare a document setting out a list of proposed questions, proposed assumptions, and a list of the documents to be provided to the expert. The parties will confer and seek to agree on those matters, with the Court to determine those questions if there is no agreement.
• Objection to the evidence of the sole joint expert – A party dissatisfied with the qualifications, impartiality or evidence of the sole joint expert may object by giving written notice within 28 days of the receipt of the report; and they may seek leave to adduce other or additional expert evidence.
• Joint expert conclave and report – If there is to be more than one expert, then absent orders to the contrary those experts will each prepare a separate report (as before), and will then meet in conclave, which may be facilitated by a judicial registrar or Commercial Division lawyer, to produce a joint report (in a “Scott Schedule”[1] format where appropriate).
• Communication whilst the joint report process is underway – The default orders include a very clear prohibition on communication between the parties, their employees, agents, and legal representatives, and the experts, until the joint report has been finalised.
• The role of a facilitator – the default orders provide that:
  • The facilitator is to chair the expert conference.
  • The facilitator may request from the parties “such further information or direction as the facilitator considers appropriate.”
  • Subject to any order, the facilitator shall be responsible for the precise form of the joint report
• Complex Cases List – The default orders for the Complex Cases list specify that any conclave is to be chaired and conducted by a facilitator.

My comments on the changes

1. The requirement to obtain permission to introduce expert evidence does not seem onerous: there’s no Singapore-style pre-condition that expert evidence must “contribute materially to the determination of an issue in the case.”
2. The appointment of a single joint expert may be very helpful where the facts are clear and the assumptions straightforward, but may be problematic in situations where determining the facts is a central issue of the litigation.
3. The sole joint report will, by intention, be unchallenged and uncritiqued, and so the Court will lose the benefit of each expert’s critique of the other’s report, as occurred under the previous regime.
4. Explicit endorsement of the Scott Schedule format (which I like) will help to spread its use.
5. The availability of a facilitator for conclaves is noteworthy. In my experience, most conclaves are conducted in a constructive and collegiate way.  On occasion I’ve felt frustrated about what appears to be a counterpart’s fixed adherence to a position (noting that in fairness I can’t claim to be an unbiased observer!) – but I haven’t experienced a facilitated conclave, so I have no insight about whether facilitation solves that problem.
6. The Practice Note explains that the changes are expected to result in cost savings:
   

   Parties should expect to incur greater expense in the process of engaging and instructing the single joint expert, but significant savings in having to contribute only a proportion of the costs of a single expert, both for the preparation of any expert report and at trial.
   

   There may be circumstances where those savings are offset by the increased use of behind-the-scenes “shadow” (or “dirty”) experts, to provide advice about the framing of the questions and the agreed assumptions; and there will also be costs in the event of an objection to the evidence of the sole joint expert.

[1] Defined in the Practice Note Dictionary as “a form of landscape table which sets out each claim and the contention of each party or expert with respect to it. Scott Schedules are named after their inventor, his Honour George Scott, Official Referee of the UK High Court of Justice 1920 – 1933.”