Bushby (by his litigation representative Webling) v State of Victoria

MCEVOY J: 1 This proceeding was commenced on or about 19 July 2018 and is listed for a final hearing commencing on 15 March 2023. The applicant, who suffers from, amongst other things, Autism Spectrum Disorder (ASD), seeks orders for compensation and other relief against the respondent, the State of Victoria (Department of Education and Training), on the grounds that the State discriminated against him on the basis of his disability and that its discrimination was unlawful under provisions of the Disability Discrimination Act 1992 (Cth). The discrimination is alleged to have occurred while the applicant was a student at Southern Autistic School, a specialist school dedicated to the education of children with ASD. The State denies the alleged discrimination and any entitlement to the relief sought. 2 Both parties have filed numerous lay affidavits and expert reports in support of their respective positions. In this context the Court has indicated to the parties that it would be assisted in the conduct of the matter by expert witness conclaves. 3 The respondent has, accordingly, proposed orders for expert conclaves in the following terms: 1. The parties are to cause the following sets of witnesses (Experts) to each hold a joint conference of experts (which may be conducted virtually for no more than 90 minutes) (Conclave), with each conference to consider the following topics and take place by 1 March 2023: Participants Topic Dr Roberts and Dr Gonzales • Clinical assessments of the applicant (including the applicant's diagnosis, strengths and weaknesses) • Educational potential and the factors that influence it • Critical learning and language development periods Dr Roberts and Ms Kerr and/or Ms Francis • Language development in children • Assessment of language disorders in children • Communication plans and Functional Communication Methods • The role of speech pathology in an educational setting • The speech pathology support provided by Southern Autistic School • The respondent's use of Augmentative and Alternative Communication for the applicant at Southern Autistic School • Whether the communication plan as set out in Annexure F in the Second Consolidated Statement of Claim was appropriate to enable the applicant to develop functional communication skills in a school setting Dr Roberts and Dr Hammond • Educational potential and the factors that influence it • Evidence based literacy and numeracy programs • Whether the individual education plan as set out in Annexure E in the Second Consolidated Statement of Claim was required for the applicant to meet his educational potential Dr Roberts and Dr Leif • Behaviour support plan/strategy for the applicant • The interplay between the ability to communicate and the use of functional communication methods and behaviour

2. Each Conclave will take place with the assistance of a Senior Judicial Registrar Legge, who shall act as Facilitator. 3. By 4.00 pm on 8 March 2023, for each Conclave, the Facilitator shall provide to the Court and to the parties a written Joint Report that identifies, in relation to the topics which they have each addressed in their expert reports, matters on which: a. they agree; b. they disagree and, in relation to each, a succinct statement of the reasons for their disagreement; and c. the matters on which they express no opinion because they are outside their field of expertise or require further (and, if so, what) information or work. 4. Each Joint Report shall be signed by the Experts confirming that the joint report contains a summary of their respective answers to the questions and certified by the Facilitator as the joint report of the Experts. 5. Each Conclave between Experts referred to in order 1 above is intended to be a consultation of Experts without any influence from a party (or their representatives) to the proceeding. To that end, subject to order 6 below: a. the Conclave of each set of Experts and the Facilitator and all communications between them in relation to that conferral process and the preparation of the Joint Report must be conducted in the absence of the parties, their employees or agents, or any practitioner for or associated with any party; and b. none of the Experts, or Facilitator, may in the preparation of the Joint Report independently consult with any party, their employees or agents, or any practitioner for or associated with any party. 6. Notwithstanding order 5 above, the Experts may jointly request further information or direction by correspondence sent jointly by them, via the Facilitator, to the representatives for both parties, and the Facilitator may receive such further information, for the purpose of facilitating their conferral and preparing each Joint Report. 4 The applicant opposes these orders and on 22 February 2023 filed submissions explaining the basis of his opposition. The primary basis for the applicant's opposition is an argument that Dr Roberts, an expert giving evidence for the respondent, has no specialised knowledge (that is, no relevant training, study or experience) that qualifies her as an expert in the applicant's experts' respective areas of expertise and, or alternatively, that Dr Roberts has no relevant expertise to opine in response to the particular questions the applicant has engaged his experts to address. 5 The applicant contends that the respondent is seeking to have Dr Roberts give expert opinion evidence in response to experts called by the applicant in the fields of neuropsychology, learning disorders and applied behavioural analysis; all fields in which, so the applicant says, Dr Roberts has no expertise. Although it is accepted that Dr Roberts is a qualified speech pathologist and generalist teacher, the applicant maintains that she does not hold sufficient specialised knowledge to give evidence in the fields of behavioural expertise, learning disorders and evidence-based literacy and numeracy programs, and neuropsychology. It is said that whilst Dr Roberts has a long history of working in the field of autism, this does not qualify her as an expert in any discipline relating to a difficulty or disability that a person with autism may have. 6 The applicant also submits that because he does not rely on an independent expert speech pathologist, there is no speech pathology expert to confer with Dr Roberts. The applicant notes in this regard that Ms Francis is not called by the applicant as an expert, and that Ms Kerr does not hold any speech therapy qualifications. 7 It is also the applicant's position in opposition to expert witness conclaves that while Dr Roberts has been provided with a large number of the respondent's lay affidavits, she has not been provided with any of the lay affidavits filed by the applicant, and therefore her opinion evidence has been "irreversibly compromised." The applicant submits that for Dr Roberts to give meaningful and impartial expert evidence to the Court, she ought to be provided with either all of the lay affidavits in the proceeding, or none. In this regard the applicant submits that Dr Roberts has, effectively, been appraised of a set of alleged facts which are disputed by witnesses for the applicant, and are in some instances demonstrably incorrect. The assumptions, or some of the assumptions, on which Dr Roberts' opinions are based are thus said to be invalid and her evidence compromised at least to this extent. 8 The final matter raised by the applicant in opposition to the proposed expert conclaves is the overarching purpose of the civil practice and procedure provisions, that is s 37M of the Federal Court of Australia Act 1976 (Cth). It is submitted that the applicant has already spent much time, effort and money to engage his experts and to have reports prepared, filed and served. It is the applicant's position that the costs of engaging the relevant experts to attend the conclave would be additional and unnecessary costs, and would thus impose an unreasonable financial burden. 9 On 23 February 2023 I heard the parties at a case management hearing on the applicant's opposition to the expert witness conclave orders. Ultimately I was satisfied that orders for expert witness conclaves, broadly in the form proposed by the respondent, were appropriate and I made orders to that effect. The applicant's counsel requested written reasons. What follows are those reasons.

Specialised knowledge 10 Consistently with the exception regarding opinion evidence in s 79 of the Evidence Act 1995 (Cth), Sch 1 of the Federal Court Rules 2011 (Cth) defines an expert as "a person who has specialised knowledge based on the person's training, study or experience": see also Honeysett v The Queen (2014) 253 CLR 122 at 131 [23], where the Court explained that specialised knowledge may be acquired by experience. 11 Notwithstanding the applicant's submissions to the contrary, I am satisfied that Dr Roberts has the requisite specialised knowledge to participate in expert conclaves with the applicant's experts as proposed by the respondent. Dr Roberts has academic qualifications in education, speech pathology and linguistics. Her expertise in the area of speech pathology is derived both from her academic qualifications and from practical experience as a speech pathologist. Dr Roberts also has post-graduate research experience and has published extensively in the field of autism education, communication, intervention and treatment. Dr Roberts' work suggests that she has an organised and recognised body of specialised knowledge in these fields and can therefore participate usefully in witness conclaves in relation to these matters. 12 Insofar as Mr Francis and Ms Kerr are concerned, the respondent now accepts that Ms Francis is not called as an expert and should not participate in the witness conclaves. I am satisfied that there would be utility in Dr Roberts conferring with Ms Kerr.

Collaborative and multi-disciplinary approach 13 I observe also that the issues that arise in the proceeding and are the subject of expert evidence arise in the particular context of the applicant's allegations of discrimination. If it be the case that common or best practice in the education of a child diagnosed with ASD requires a multidisciplinary approach, the Court is likely to be assisted by a collaborative approach between the relevant experts to address the issues in the proceeding. In this sense a precise match in the expertise possessed by the conferring experts is unnecessary. I accept that there is some level of commonality in the concepts, theories and issues which are addressed in the expert reports upon which the parties rely, and for this reason also expert witness conclaves are desirable.

Experts are not required to agree on all or any matters 14 In any event, it is relevant to note that the orders for expert conclaves only require the experts to confer, with the assistance of a court-led facilitator, and report on topics that they agree, disagree or express no opinion about because the topics are outside their fields of expertise or the experts require further information or work to be done. The witness conclaves do not require the experts to come to a concluded view on all issues in the proceeding. In this sense, there is scope for Dr Roberts to refrain from commenting on topics which she considers are outside her field of expertise, and it is expected that she should do so where appropriate. There is also scope for the applicant's experts to disagree with Dr Roberts, should this be appropriate. The role of the facilitator is merely to facilitate the process for conferral. It is not to make any findings in relation to the content of the expert reports filed by the respective experts.

The alleged impartiality of Dr Roberts 15 Insofar as the applicant submits that Dr Roberts' evidence has been compromised, irreversibly, by the respondent providing her with all of the respondent's lay affidavits and none of the lay affidavits of the applicant, I do not share this concern. Should it be thought desirable Dr Roberts can familiarise herself with the applicant's lay affidavits prior to the expert conclaves. If there are proof of assumption problems of the kind essayed by Heydon J in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 608ff in Dr Roberts' evidence, this will become apparent and may operate to diminish the force of Dr Roberts' opinions. This issue does not provide a proper basis to refrain from having expert witness conclaves.

Cost efficiency 16 As to the costs of engaging experts to attend the proposed conclaves, I do not accept the applicant's submissions that the process will be so costly it should not be contemplated. I consider it to be both time and cost effective for the experts to confer directly in relation to the matters at issue in the proceeding prior to the commencement of trial. This conferral will likely narrow the issues in dispute, and limit those matters to be ventilated at trial in cross examination of each expert. This is likely to save time at trial. It may also address whether differences of opinion are referrable to differing instructions or differing professional judgments.

Applicant's objections to Dr Roberts evidence 17 It will be apparent, for the reasons set out above, that I do not accept the applicant's submissions that Dr Roberts' answers to questions 1 and 8 are objectionable on the basis that she there comments on areas partially or wholly outside of her qualifications/expertise. Insofar as the applicant also objects to Dr Roberts' answers to questions 3, 5, 7, 13, 14 and 15 on the basis that she has been unduly influenced by the information from the respondent's witnesses without having regard to lay evidence filed by the applicant, at the present time I do not regard this submission as compelling either. In any event it is not apparent that this complaint should interfere with the expert conclave process. If there are proof of assumption problems of the kind to which the applicant adverts, they can be dealt with at trial.

Subpoena to Ms Tania Clarke 18 I note, finally, that the applicant seeks to subpoena Ms Tania Clarke, and that leave to issue the subpoena is presently opposed by the respondent. To enable the respondent to understand the evidence that Ms Clarke may give, in order that it may more fully consider its position, there will be an order that the applicant provide a proof of evidence of Ms Clarke by 2 March 2023. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.