Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors - [2014] VSC 567 - VSC 2014 case summary — Zoe

[201]

Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246 at p 256, per Lord Wilberforce).
An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd's Rep 379 at p 386 per Mr Justice Garland and Re J [1990] FCR 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.
An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup).
An expert witness should make it clear when a particular question or issue falls outside his expertise.
If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 per Lord Justice Staughton).
If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).

[248]

In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client's case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the court and thereby breach his or her duty to the court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.

Misleading the court by presenting a misleading or false document is contrary to the lawyer's duty of honesty and candour, including in his or her capacity as a litigant. In Law Society of New South Wales v Foreman, the New South Wales Court of Appeal ordered that the respondent be removed from the Roll of practitioners, because she had knowingly presented a falsified document to the court on the basis that it was genuine. Mahoney JA stated that:

A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner's duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at 382 and 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.

In Myers v Elman, Viscount Maugham said that: "A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record." Similarly, in Foreman, Giles AJA stated that the respondent's failure to reveal and correct the conduct by which the court had been misled, compounded the unacceptable conduct involved in preparing the falsified document.[86]

[363]

As to the position of the lawyers, r 63.23 of the Rules empowers the court to make orders against a solicitor or barrister in relation to costs which were improperly incurred, incurred without reasonable cause, or wasted by a failure to act with reasonable competence; s 29 of the Civil Procedure Act empowers the Court to make orders as to costs against a lawyer who contravenes any of the overarching obligations provided for in that Act. Amongst other things, there are overarching obligations to disclose critical documents and not to mislead. The rules applied at all relevant times. The Civil Procedure Act commenced on 1 January 2011. It was in operation during the trial. It was not in operation when the dealings which led to the two versions of the 9 April 2010 report occurred. In Yara, this Court emphasised the significant changes in approach to civil litigation which the Civil Procedure Act requires, particularly in relation to costs.

Each of the parties here bears responsibility for the mistrial. The second respondent's senior counsel made statements to the jury in the course of his final address which went beyond what was justified by the evidence as it then stood. It is impossible to assess with any confidence what would have occurred if the explanation now given in relation to the 12 November 2012 report had been given at the trial. As to the appellant, in my view the fundamental cause of what went wrong in this trial, of which the unjustified statements by senior counsel for the second respondent were the culmination, was the manner in which the appellant's lawyers dealt with the expert, Mr Dohrmann, and his reports. That would have been my conclusion had the issue been confined to what happened in relation to the 12 November 2012 report, but it is now fortified by what happened in relation to the two versions of the 9 April 2010 report. The first respondent is not 'blameless'. It supported the second respondent on the discharge application and it also supported the second respondent on the appeal.

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Judgment (482 paragraphs)

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Legislation Cited (56)

Cases Cited (21)