Gale v New South Wales Minister for Land & Water Conservation

Legislation 4 Order 34 relevantly provides: "2 (1) Where a question for an expert witness arises in any proceedings the Court may, at any stage of the proceedings, on its own or on application by a party or the Registrar: (a) appoint an expert to inquire into and report upon the question; (b) authorize the court expert to inquire into and report upon any facts relevant to his inquiry and report on the question; … (d) give such instructions as the Court thinks fit relating to any inquiry or report of the expert. … 5 (1) The remuneration of the Court expert shall be fixed by the Court and shall include: (a) a fee for his report; and (b) a proper sum for each during which he is required to attend before the Court or before an examiner. (2) Unless the Court otherwise orders, the parties shall be jointly and severally liable to the court expert to pay the amount fixed by the Court for his remuneration. (3) The Court may, on application by any party or by the court expert, make orders in the proceedings for payment in or towards discharge of the liability of any party under sub-rule (2). (4) Sub-rules (2) and (3) do not affect the powers of the Court as to costs."

Consideration 5 The Court's power to appoint an expert exists to ensure that the court has all the necessary technical information it needs, so as to minimise the prospect of any miscarriage of justice. In Dalrymple Holdings Pty Ltd v Gohl (unreported, 31 March 1993, Federal Court) Spender J observed at p 13 of expert witnesses in general that "the primary function of an expert witness is to assist the Court in the Court's function". This view has been vindicated by a Practice Direction for experts to be reminded that their primary obligation is to assist the Court: see Practice Direction: Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia. Order 34 r 2 does not authorise the Court to act for the purpose of assisting any particular party to a proceeding against others in the gathering or presentation of evidence, although unintended or incidental assistance to a party may be a consequence of the Court's utilisation of that power. The touchstone is the interests of justice. 6 In Britten v State of Western Australia [2001] FCA 1256, Gray J ordered that an expert anthropologist be appointed to inquire into and report upon the question of the identification, name or description of the persons claimed by the applicant to be the holders of native title. In that case, there were two applications for determination of native title which to a significant degree overlapped. Section 67 of the Native Title Act 1993 (Cth) ("the Act") requires that, if two or more proceedings before the Court relate to native title determination applications that cover, in whole or in part, the same area, the Court must ensure that to the extent that the applications cover the same area they are dealt with in the one set of proceedings. The claim lodged by the applicant in one of the proceedings did not name the claimed native titleholders. That applicant was unrepresented, and did not appear to read or write. In order that the Court might comply with s 67, it was necessary to ascertain the claimed native titleholders so as to make them parties to the second application which the Court proposed to hear. It was for this purpose that the court appointed an expert. 7 The circumstances in these proceedings are very different. The applicants have had the services of Mr Neumann as their solicitor, and have also had the services of senior counsel, although the legal advisors have, throughout, acted without fee. The matter has been long in preparation for trial and the applicants have filed expert evidence. This evidence has now been revealed to their legal advisors to be deficient to support their application, in the light of the large amount of expert evidence put on by the respondents. In essence, the applicants' application seeks the appointment of an expert not primarily to assist the Court in the resolution of any specialised issues in dispute but to assist them in the gathering of further expert evidence, because of their inability to fund the further provision of such evidence. 8 Further, O 34 r 5 provides that all parties to the proceedings are jointly or severally liable for the costs of the expert unless the Court otherwise orders. The power to order otherwise tells against a contemplation that, except in very unusual circumstances, the Court should pay the costs itself. Regrettably, it is increasingly the case that one party to civil litigation cannot afford properly to fund it. Given the apparent lack of means of the applicants, to accede to the application would be, as a practical matter, to require that the respondents pay the costs of gathering evidence in support of the applicants' case, regardless of the outcome. That is certainly not what is intended as the ordinary operation of O 34 r 5. 9 Special considerations may exist in relation to native title cases. Native title determinations operate as against all the world: ss 13(1)(a), 68(a) and (b) of the Act. Where applicants are, through no fault of their own, embarrassed in the presentation of expert evidence by lack of funds, but the Court's sense, based on general experience, is that there would be a substantial probability of success if independent expert evidence were obtained, it may be that the Court should go further than in normal litigation. The Court would not permit the perpetuation of injustice for want of procedural innovation or by failure to utilise its own powers and resources. Even so, a clear case of probability of success would need to appear: the Court cannot be unmindful that there are legal aid provisions and processes to assist applicants in such cases, and these in large measure depend on determinations by aboriginal controlled bodies involving assessment of the merits of would-be applicants' claims. 10 Unfortunate though it is for these applicants, I do not consider that any such (or other) special considerations exist here. I therefore decline to appoint an expert witness. 11 The third respondent seeks its costs of the application. Section 85A(1) of the Act provides that unless the Court orders otherwise each party bears its own costs. Subsection 85A(2) provides that the Court may order costs against a party if by any unreasonable act or omission that party caused another party to incur costs. The possibility of the appointment of a Court appointed expert was first suggested by me at the directions hearing on Friday 19 October 2001 and again on Monday 22 October 2001. The parties were asked to give the matter consideration and make any submissions they wished at the directions hearing on 8 November 2001. Counsel for the third respondent made submissions opposing the application, which were adopted by the other respondents. With the benefit of his submissions and upon giving the matter deeper consideration I have concluded that the circumstances of this case do not require the appointment of an expert. The point was novel. Nothing in the conduct of the applicants warrants any reason to order costs against them. Pursuant to s 85A(1) the parties are to bear their own costs of the application.

Disposition 12 Accordingly, the application for the Court to appoint an expert will be dismissed. There will be no order as to the costs of the application. I have had from the parties draft directions for the further conduct of the case, but will refrain for seven days from making any further directions to enable all parties fully to consider the costs implications of the matter proceeding, in light of the view of the existing evidence taken by the applicants' legal advisors. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitors for the Applicant: Craddock Murray Neumann

Solicitor for the 1st Respondent: New South Wales Crown Solicitor

Solicitors for the 2nd Respondent: New South Wales Aboriginal Land Council

Solicitors for the 3rd Respondent Chalk & Fitzgerald

Date of Hearing: 8 November 2001

Date of Judgment: 23 November 2001