Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors

EXPERT WITNESS - Overarching obligations - Duties of experts to court- Expert Code of Conduct - Whether breach of overarching obligations by expert witness when preparing report giving evidence - Overarching obligation not to mislead or deceive - Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

For ISS Hygiene Services Pty Ltd formerly the Third Defendant

1 The first defendant employed the plaintiff as a cleaner. Her cleaning duties included a boys' toilet at the second defendant's school. On 27 April 2005, the plaintiff was confronted with a mess of liquid soap that had emanated from the soap dispensers in the toilet, which appeared to her to have been vandalised. When cleaning up the spill, the plaintiff slipped, which she contended was a cause of her injuries. The various events related to her injury played out over three days; 27-29 April 2005.

2 The plaintiff commenced proceedings against her employer and the school on 24 September 2009. Her proceeding included claims, in summary, against the plaintiff's employer for failing to provide her with a safe system of work as a cleaner, against the school as the occupier of the premises where the accident occurred and against the supplier and maintainer of a soap dispenser that was vandalised, whom I shall refer to as 'ISS'. There were cross claims between defendants. The VWA commenced recovery proceedings against the school on 26 October 2009.

3 Following a trial that commenced on 13 November 2012, a jury of six returned verdicts of no negligence. In the proceeding, the plaintiff claimed damages for personal injury following a slip when cleaning a mess of liquid hand washing soap on the floor and walls of a boy's toilet at a secondary school. At the trial, the plaintiff called evidence from Mr Mark Dohrmann, a professional consulting engineer, with qualifications in mechanical engineering who had a forensic practice in the field of occupational health and safety since 1976. Mr Dohrmann signed, and sent out before the trial commenced, three differing versions of his report. The first and second versions of the report were each dated 9 April 2010 and the third version was dated 12 November 2012. The plaintiff's evidence about the accident varied significantly from what Mr Dohrmann reported. The existence of different versions of his report emerged during his evidence.

4 During the trial, all claims against, and by, ISS were compromised. On 30 November 2012, such claims were dismissed with no order as to costs. On 12 December 2012 in this proceeding, I entered judgment for the remaining defendants.

5 Clark, Toop & Taylor Lawyers (a firm) were the plaintiff's solicitors in the proceeding.[1] I was concerned that there were circumstances surrounding the third version of Mr Dohrmann's report that required explanation, in the context of whether Mr Dohrmann and the plaintiff's solicitors had discharged their paramount duty to the court. I was concerned that the solicitors and the expert may not have properly discharged their overarching obligations to the court to act honestly at all times, not to engage in conduct that was deceptive or misleading and to disclose the existence of documents.

6 When pronouncing judgment, I noted in 'Other Matters', amongst other things, that:

1. The court considers there are prima facie grounds in this proceeding on which the court might be satisfied that Mark Francis Dohrmann of 200 Mount Alexander Road, Flemington, 3031 Victoria and Clark, Toop & Taylor Lawyers (a firm), 67 Jeffcott Street, West Melbourne, 3003, Victoria (Ms Patsy Toop) have contravened an overarching obligation under any or all of ss 16, 17, 21 or 26 of the Civil Procedure Act 2010 (Vic) in relation to the circumstances surrounding a third version of a report of Mark Francis Dohrmann that are identified in the evidence transcribed at pages 601-626, 664-686, 687-786, the file marked D1I(MFI), the submissions transcribed at 1481-1493, 1519-1534, 1590-1609 and the ruling at 1609-1615.

1. Pursuant to s 29(2)(b) of the Civil Procedure Act 2010 (Vic) the court proposes, on its own motion to consider whether any order under s 29(1) of the Act should now be made in the interests of justice.

1. Mark Francis Dohrmann and Clark, Toop & Taylor, a firm, attend before the court at 9.30 am on Wednesday 30 January, 2013 for directions to be given for the hearing and determination of the court's motion that an order under s 29(1) of the Civil Procedure Act 2010 be made against them or either of them.
2. The solicitors for the second defendant shall by 15 January serve a copy of this judgment on Mark Francis Dohrmann and Clark, Toop & Taylor.
3. Any application by any party pursuant to s 29 of the Civil Procedure Act 2010 shall be made returnable before me at 9.30 am on 30 January 2013.

7 In summary, when the solicitors explained that all of the dealings that appeared to concern the court had occurred between counsel retained to conduct the trial and Mr Dohrmann, it became clear that for the court to properly appreciate the relevant circumstances, counsel should also explain their conduct. Mr J Richards SC, senior counsel for the plaintiff at trial, volunteered a frank affidavit of explanation. I then directed that Mr J Richards SC and Mr A Ingram of counsel also attend before the court in relation to the matter and I further directed that Mr Ingram file an affidavit of explanation.

8 There are two matters that I will deal with at the outset. Once I had the opportunity to determine the content of the applications being made by parties and the evidence admitted on those applications and in respect of the court's own motion, based on Mr Ingram's unchallenged explanation of his limited involvement and role in the subject circumstances, which I will later explain, I was not persuaded that there was a basis to make any finding that Mr Ingram had breached his paramount duty to the court or any overarching obligations under the Civil Procedure Act 2010 (Vic). During the hearing, I informed Mr Ingram's counsel that I would make this finding and excused Mr Ingram from further attendance.

9 At the same time, I was also satisfied that there was no basis remaining for the court to be concerned about any contravention by any person of s 17 of the Civil Procedure Act, the overarching obligation to act honestly at all times in relation to a civil proceeding. As I will later explain, in the absence of further explanation, the evidence before the jury could have supported an inference that the third version of Mr Dohrmann's report had been backdated, as although dated 12 November 2013 it may have been created during the trial which had commenced on 13 November 2013. During the hearing, I informed counsel that I would make the finding that the report was not backdated, and was created prior to the commencement of the trial, and that it was not necessary to address any issue of possible breach of s 17 of the Civil Procedure Act.

10 The following eight issues remain to be resolved. Issues one to three arise inter partes, on ISS's application, and issues four to eight arise on the court's own motion.

1. Did Mr Dohrmann's conduct, in relation to the first and second versions of his report, breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding, under s 21 of the Civil Procedure Act.
2. Did Clark, Toop & Taylor's conduct, in relation to the first and second versions of Mr Dohrmann's report, breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding.
3. Did Clark, Toop & Taylor in relation to the first and second versions of Mr Dohrmann's report, breach the overarching obligation to disclose the existence of documents under s 26 of the Civil Procedure Act.
4. Did Mr Richards in relation to the third version of Mr Dohrmann's report, breach the overarching obligation to disclose the existence of documents.
5. Did Mr Richards, in relation to the third version of Mr Dohrmann's report and in leading evidence from Mr Dohrmann, by his conduct breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding.
6. Did Mr Dohrmann, in relation to the third version of his report, by his conduct when preparing his report and giving his evidence, breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding, whether by failing to adhere to the Expert Code of Conduct or otherwise?
7. Did Clark, Toop & Taylor, by Ms Toop's conduct in relation to the third version of Mr Dohrmann's report, breach the overarching obligation to disclose the existence of documents under s 26 of the Civil Procedure Act.
8. Did Clark, Toop & Taylor, concerning Mr Dohrmann's evidence, by Ms Toop's conduct in relation to the third version of Mr Dohrmann's report, breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding.

11 I will first summarise my conclusions on each of these issues before setting out relevant procedural matters, the evidence, my findings on the evidence and explaining my reasons for the conclusions I have reached.

12 It is not necessary to decide whether Mr Dohrmann, in relation to the first and second versions of his report, owed or breached the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding under s 21 of the Civil Procedure Act.

13 It is not necessary to decide whether Clark, Toop & Taylor in relation to the first and second versions of Mr Dohrmann's report, owed or breached the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding under s 21 of the Civil Procedure Act.

14 It is not necessary to decide whether Clark, Toop & Taylor in relation to the first and second versions of Mr Dohrmann's report, owed or breached the overarching obligation to disclose the existence of documents under s 26 of the Civil Procedure Act.

15 Mr Richards, in relation to the third version of Mr Dohrmann's report, breached his paramount duty to the court, in particular the overarching obligation to disclose the existence of documents under s 26 of the Civil Procedure Act and the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding under s 21 of the Civil Procedure Act, concerning Mr Dohrmann's evidence.

16 Mr Dohrmann, in relation to the third version of his report, breached the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding, and he failed to adhere to the Expert Code of Conduct.

17 Clark, Toop & Taylor, by Ms Toop's conduct in relation to the third version of Mr Dohrmann's report, breached the overarching obligation to disclose the existence of documents under s 26 of the Civil Procedure Act, but did not breach the overarching obligation not to engage in misleading or deceptive conduct in respect of a civil proceeding under s 21 of the Civil Procedure Act.

18 On 1 January 2011, the relevant provisions of the Civil Procedure Act 2010 (Vic) commenced operation. The Act affected both the content of the duties owed by legal practitioners and expert witnesses to the court and to others involved in a civil proceeding, and the remedies available on breach of such duties, including the principles concerning non-party costs orders.[2]

19 Of its own motion, the court called the matter on for directions and ordered that -

(a) any party to the proceeding contending for an order under s 29(1) of the Act in her or its favour, file and serve any application and affidavit in support;

(b) Mr Dohrmann and Clark, Toop & Taylor positively depose to the circumstances that they contend demonstrate compliance with their paramount duty to the court, particularly the overarching obligations arising under ss 17 and 21, and additionally for the solicitors s 26 of the CPA, the rules of civil procedure, particularly r 44.03(3), and the expert witness code of conduct.

20 I gave reasons for making these directions[3] that need not be repeated in full. I would now emphasise my view that the paramount duty that is owed to the court by legal practitioners and expert witnesses entitles the court, in the first instance, to an explanation of circumstances that, if not explained, raise a serious question whether there has been a failure to discharge the paramount duty to the court.[4] At the same time, procedural fairness requires that the responding persons have proper notice of the complaint made and a full and sufficient opportunity to answer it.

21 To address these concerns, I set out in my reasons a summary of relevant matters about which findings could be drawn by a finder of fact from the evidence before the jury.[5] I then set out, in summary form, the topics or specific matters that should be addressed in providing an explanation to the court.[6] Further, I stated[7] -

Thereafter, once all participants have explained what occurred, the court will be in a position to give notice of the type of order being contemplated and the relevant aspects of the conduct of Mr Dohrmann and Clark, Toop & Taylor that might constitute a contravention of an overarching obligation. If further clarification then be needed, the court can then inform Mr Dohrmann and Clark, Toop & Taylor of the grounds on which it appears to the Court that costs have been incurred or wasted arising from a contravention of an overarching obligation. In the circumstances of this proceeding, it is at this next stage that the guidance afforded by Shire of Gisborne v King becomes important.

22 The application proceeded on two bases; the court's own motion originated by the judgment of 12 December 2012, and two inter partes summons. The employer filed a summons on 24 January 2013 that sought 'remedies under the Civil Procedure Act pursuant to Section 29' and 'orders as the court considers appropriate'. On this application on 17 May 2013 orders, by consent, were made withdrawing it with no order as to costs. ISS filed a summons on 22 February 2013 that was directed to the parties, Mr Dohrmann and Clark, Toop & Taylor. ISS did not join Mr Richards or Mr Ingram to its summons. ISS sought orders[8] that:

1. Should the Court make a finding that the plaintiff's lawyers, Clark Toop & Taylor and/or the plaintiff's expert, Mark Dohrmann have contravened any or all of sections 21 or 26 of the Civil Procedure Act 2010 (Vic) (Act), then the third defendant and third party seeks remedies pursuant to s 29(1) of the Act that those persons, to the extent of such contravention or contraventions.

(a) pay some or all of the third defendant and third party's legal costs or other costs or expenses arising from the contravention or contraventions; and/or

(b) compensate the third defendant and third party for any financial loss or other loss which was materially contributed to by the contravention or contraventions.

1. Such further or other Orders as the Court may think fit.

23 The ISS application extended the scope of the inquiry. Of its own motion, the court directed inquiry into the circumstances surrounding the third version of Mr Dohrmann's report and proposed that its inquiry would be within the parameters outlined in the ruling of 4 February 2013, recognising that the circumstances surrounding the preparation of the first and second versions of the report relevantly informed the circumstances of the preparation of the third version of the report. However, ISS's application was limited to matters arising out of the first and second versions of the report.

24 The school did not seek any specific order in its favour other than costs in connection with this inquiry.

25 The other person with an interest in this matter was the plaintiff herself. At a directions hearing on 30 January 2013, Mr Worth of counsel, for Clark, Toop & Taylor, undertook to the court to inform Clark, Toop & Taylor that I required that the plaintiff be informed of this application and of her right to have separate legal representation in case she has an interest that she wished to pursue. At a directions hearing on 28 March 2013, Mr Gillies QC, who then appeared with Mr Worth, informed me that the plaintiff had been given a full set of documents by his client, and advice as to the nature of the application. The plaintiff was advised to seek independent legal advice if at all troubled by any part of the information she had received. Clark, Toop & Taylor, now Slater & Gordon Ltd, still acted for the plaintiff, who had appealed the judgment at trial. Mrs Hudspeth has not appeared or made any application and Clark, Toop & Taylor filed and relied on an affidavit that she provided to them. I accept counsel's assurances that Mrs Hudspeth was informed of the nature of the application and of her right to independent advice, but I was not informed as to whether she elected not to participate in this application on the basis of independent advice.

26 On reflection, I was not persuaded that the procedure adopted by Clark, Toop & Taylor was sufficient in the circumstances. However, subsequent developments have avoided any need to inquire whether Mrs Hudspeth's failure to participate in this application was consequent on proper independent advice.

27 The main purposes of the Civil Procedure Act 2010 include providing for an overarching purpose in relation to the conduct of civil proceedings, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Act provides, inter alia, for overarching obligations for participants in civil proceedings to improve standards of conduct in litigation.

28 The Act has its origins in a reference given by the Victorian Government to the Victorian Law Reform Commission in September 2006 to undertake a review of the civil justice system and the Commission presented its Civil Justice Review Report[9] in March 2008.

29 The participants in a civil proceeding, which means any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding and includes an action for damages before a judge and a jury of six, are determined by reference to s 10 of the Act. That section states:

(1) The overarching obligations apply to -

...

(b) any legal practitioner or other representative acting for or on behalf of a party;

(c) any law practice acting for or on behalf of a party;

...

(3) The overarching obligations (other than the overarching obligations specified in sections 18, 19, 22 and 26) apply to any expert witness in a civil proceeding.

Expert witness is a defined term.[10] Section 16 provides that each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved.

30 The overarching obligations that are presently relevant are stated by ss 21 and 26, which are in the following terms:

1. Overarching obligation not to mislead or deceive

A person to whom the overarching obligations apply must not, in respect of a civil proceeding, engage in conduct which is -

(a) misleading or deceptive; or

(b) likely to mislead or deceive.

1. Overarching obligation to disclose existence of documents

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

(3) [Not relevant for present purposes]

31 This application concerns contravention of overarching obligations.

Part 2.4 - Sanctions for Contravening the Overarching Obligations

1. Court may take contravention of overarching obligations into account

(1) In exercising any power in relation to a civil proceeding, a court may take into account any contravention of the overarching obligations.

(2) Without limiting subsection (1), in exercising its discretion as to costs, a court may take into account any contravention of the overarching obligations.

(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to -

(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;

(b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;

(c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including -

(i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or

(ii) an order for no interest or reduced interest;

(d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;

(e) an order that the person not be permitted to take specified steps in the civil proceeding;

(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

(2) An order under this section may be made -

(a) on the application of -

(i) any party to the civil proceeding; or

(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or

(b) on the court's own motion.

(3) This section does not limit any other power of a court to make any order, including any order as to costs.

32 There are issues concerning the application of the Act to conduct that occurred in early stages of the proceeding. Chapter 2 of the Act commenced operation on 1 January 2011.[11] The relevant transitional provisions are found in ss 72 and 73. Section 72 provides that if a civil proceeding has commenced before the commencement of Part 2.1 of Chapter 2, on and from the commencement of that Part, the overarching purpose applies in relation to that proceeding. Section 73 provides that if a civil proceeding has commenced before the commencement of Parts 2.2 to 2.4 of Chapter 2 but the court has not begun to hear and determine that proceeding, on and from the commencement of that Part, the overarching obligations apply in relation to that proceeding.

33 This proceeding commenced before 1 January 2011 but the court had not begun to hear and determine the proceeding on that date. The overarching purpose and the overarching obligations apply in relation to the proceeding on and from 1 January 2011.

34 Each of Mr Richards SC, Ms Toop, and Clark Toop & Taylor had a paramount duty to the court to further the administration of justice in this proceeding on and from 1 January 2011 as persons to whom the overarching obligations applied, which required that they each observe the normative standards of conduct prescribed by the overarching obligation not to mislead or deceive, and the overarching obligation to disclose the existence of documents.

35 Mr Dohrmann, as an expert witness, had a paramount duty to the court to further the administration of justice in this proceeding on and from 1 January 2011 as a person to whom the overarching obligations applied, which required that he observe the normative standard of conduct prescribed by the overarching obligation not to mislead or deceive.

The regulation of experts other than by the Civil Procedure Act

36 When the first and second versions of the report were prepared, the relevant rules governing the preparation and use of expert evidence in civil proceedings were set out in Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 and the Expert Code of Conduct. The Code is found in Form 44A to the Rules. The Rules are now supplemented by the Civil Procedure Act. Order 44 defines 'expert' in the same terms as the Act.[12] It prohibits a party, save with the leave of the court or by consent of the parties affected, except in cross-examination, from adducing any expert evidence at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under the Order. The relevant procedural requirements are that the engaging party, as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the Code. The expert's report, prepared in accordance with r 44.03(2), must be served on each other party not later than 30 days before the day fixed for trial. I might add that it is now commonplace for the court to direct that the parties exchange experts reports at an earlier time, particularly to assist with alternative dispute resolution.[13]

37 The report, which must be signed by the expert, must state the opinion of the expert and must state, specify or provide inter alia, an acknowledgement that the expert has read the Code and agreed to be bound by it and a declaration that the expert has made all the enquiries which the expert believes are desirable and appropriate; and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court. Rule 44.03(3) is relevant and I shall set it out:

(3) If the expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report -

(a) that party shall forthwith serve the supplementary report on all other parties; and

(b) in default of such service, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court.

1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.
2. An expert witness is not an advocate for a party.
3. Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide ... [the matters set out in r 44.03(2), the relevant parts of which have been referred to in the preceding paragraph].
4. Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause.
5. If directed to do so by the Court, an expert witness shall -

(a) confer with any other expert witness; and

(b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing.

1. Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement.

39 The issues raised for explanation, and on which I proposed to consider making findings, were identified in the following sources:

(a) In paragraph C of 'Other Matters' in the judgment of 12 December 2013 referring to the evidence transcribed at pages 601-626, 664-686, 687-786, the file marked D1I(MFI),[14] the submissions transcribed at 1481-1493, 1519-1534, 1590-1609 and the ruling at 1609-1615 of the transcript;

(b) my rulings of 4 February and 9 April 2013;[15]

(c) the ISS summons filed on 22 February 2013; and,

(d) various affidavits, which I will shortly identify.

40 Mr Dohrmann's applications previously made at directions hearings, for a statement of claim, or points of claim, or detailed particulars, which were supported by the solicitors, were not renewed at the hearing. No such application was made at the hearing for Mr Richards SC. No application was made to cross-examine any deponent, save that Mr Dohrmann's counsel cross-examined Mr Michael Kavanagh, a solicitor, who gave evidence on behalf of ISS. That evidence, and the cross-examination, did not concern the nature, or particulars, of the allegations and addressed causation issues. The responding parties each submitted that the scope of the court's inquiry of its own motion not extend beyond the matters referred to in the earlier rulings. No responding party contended that he or it did not understand, for the purposes of filing explanatory material, cross-examining the deponents of affidavits filed by others, or making submissions to the court, the contentions made against him or her or the issues on which I proposed to consider making findings.

(a) Affidavits of Michael Montegu Kavanagh, sworn 22 February 2013, 27 February 2013 and 16 May 2013.

(b) Affidavit of John Bennett Richards, sworn 13 March 2013.

(c) Affidavits of Mark Francis Dohrmann, sworn 22 March 2013 and 6 May 2013.

(d) Affidavits of Patricia Faye Westray Toop, sworn 22 March 2013 and 6 May 2013.

(e) Affidavit of Linda Hudspeth, sworn 27 March 2013 (and filed on behalf of the solicitors).

(f) Affidavit of Martin Alan Gannoni, sworn 19 April 2013.

(g) Affidavit of Andrew Reiner Seiter, sworn 22 April 2013.

(h) Affidavit of Andrew Donald Beardsworth Ingram, sworn 3 May 2013.

Further, it was agreed that in addition to those parts of the transcript of proceedings at trial that are referred to above, I would have regard to the whole of the evidence of Mr Dohrmann at transcript pages 601-626 and 664-786. I will refer to the evidence given by Mr Kavanagh before me in its proper context in due course.

42 On this material, I will now state my findings about the relevant events and the explanation proffered for them.

43 Mr Dohrmann was engaged to express expert opinion about the human factors in design, work and movement, including the actions and effects of forces, with particular reference to the employer's system of work and, also, on the functioning of machines and structures, including the actions and effects of forces, with particular reference to the condition of the premises. An important aspect of the latter was the presence of soap dispensers on the walls above the hand troughs that were the source of the spill of liquid soap.

44 In February 2010, Mr Travis Fewster, a solicitor then employed by Clark Toop & Taylor, instructed Mr Dohrmann to prepare an expert report providing an assessment of the workplace and the circumstances in which the plaintiff was injured. Mr Dohrmann was instructed that the plaintiff's accident had occurred on the afternoon of 27 April 2005 when cleaning up a spill of liquid soap from a vandalised soap container. Mr Dohrmann was invited to consider that 'the school was in fact aware of previous incidents of vandalism in the toilet block and in particular to the dispensers'. The materials provided to Mr Dohrmann included 'affidavits'.

45 Both Mr Fewster and the plaintiff attended a site inspection with Mr Dohrmann, during which Mr Dohrmann obtained further instructions directly from the plaintiff, and he recorded some brief handwritten notes on the outside of a manila folder. The plaintiff, in her affidavit for this hearing, recalled instructing Mr Dohrmann about prior acts of vandalism at the school and previous attempts to vandalise the soap dispensers, which included trying to set them on fire. At trial, the plaintiff's evidence about vandalised soap dispensers was 'they had burnt one of the soap dispensers' about which the plaintiff explained:

I think it was the day of the fall that I saw the soap dispenser had a burn mark on it and in the trough itself there was a pile of burnt tissues and a box.

46 Following the site inspection, Mr Dohrmann prepared a report.

47 Mr Dohrmann's report dated 9 April 2010, ('the first report'), was emailed to Mr Fewster. His report identified the sources of information from which it was compiled; including Mr Fewster's letter of instructions, the plaintiff's affidavit sworn 11 December 2008 and an interview with the plaintiff on site on 15 February 2010. Section 4 of the report recited assumed facts upon which Mr Dohrmann's opinion was based. Two aspects of the assumed facts are now significant. First, the timeline of the assumed facts (in terms of what had occurred on which of the three days) was both confused and inaccurate. Second, Mr Dohrmann made the following statements:

4.23 It is understood that the soap dispensers had been fitted to the walls in this toilet perhaps six months before the date of the accident, in response to a request from the student council, who had complained at the lack of availability of soap in the toilets.

4.24 Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed.

48 There were obvious discrepancies between the recitals of the timeline and content of the events in the assumed facts and the timeline and content of the events set out in the information with which Mr Dohrmann had been instructed. Further, his statement that Mrs Hudspeth had not previously seen any evidence of vandalism or missing soap dispensers was inconsistent with the assumption that Mr Fewster had specifically instructed him to make in that regard. I pause to observe that if he looked at Mr Dohrmann's first report at all, Mr Fewster did not notice these discrepancies or Mr Dohrmann's failure to acknowledge the instruction he received. There was neither an affidavit from Mr Fewster, nor an explanation from any party, about his contemplation of Mr Dohrmann's report when he received it, or any other matter.

49 Mr Fewster immediately on 9 April 2010 provided a copy of the first report to the solicitors for the employer and for the school. On 10 May 2010, a copy of the first report was provided to the solicitors for the VWA.

50 The VWA's solicitor, Mr Siedal, observed an inconsistency in Mr Dohrmann's report, referring to the statement 'no previous incidence of vandalism in toilet block' in paragraph 4.24, and telephoned Mr Fewster on 30 June 2010 to inform him. The following day, Mr Fewster called Mr Dohrmann's office. His diary note suggests that Mr Fewster spoke to 'Gay' and then received an amended version of the report (the second version).

51 Mr Dohrmann was not consulted on the amendments made to the first version of the report. He established that Ms Gainore Atkins of his office made those changes after speaking with Mr Fewster. On the mistaken assumption that the only change made was the deletion of the words 'not' and 'any' from cl 4.24, Mr Dohrmann suggested that it was common practice for members of his staff to liaise with solicitors in correcting typographical and other minor errors.

52 In fact, in the second version of the report, cl 4.24 read, with changes tracked:

Ms Hudspeth said that she had not previously seen any evidence of vandalism on the or missing soap dispensers during the few months over which they had been installed, to which she had advised her employer.

Either Mr Fewster dictated this statement or Ms Atkins composed it. Without further explanation, I consider it probable that Mr Fewster dictated the changes he wanted and I do not accept that such changes could be regarded as correcting typographical and other minor errors.

53 Mr Dohrmann filed a second affidavit on this application to confront the fact that the changes made to cl 4.24 were more extensive than he had initially suggested. In this affidavit he stated that he was informed by Ms Atkins and believed that her recollection was that she called the document up on the computer, typed in the amendments as requested by Mr Fewster and then saved the revised document. In the process, the original form of the report was overwritten.

54 Five observations can be made about this process. First, Mr Dohrmann accepts that Ms Atkins acted with his authority and he accepts responsibility for the second version of his report. Second, the date of the report was not changed and no note was added informing the reader that the report was revised on 1 July 2010. Third, section 3 of the report where Mr Dohrmann's sources were recorded, was not amended to record that additional instructions were provided orally by the solicitors on 1 July 2010. Fourth, the changes that were made to the text of the report were not tracked or otherwise identified. Fifth, the fact that the report was amended was disguised by the overwriting process, by which an electronic copy of the first version was lost.

55 Upon receipt of the second report, Mr Fewster again immediately served a copy on the solicitors for the employer, the school and the VWA, baldly stating 'We enclose, by way of service, updated report of Mark Dohrmann & Partners dated 9 April 2010'. At this stage, an Order 44 statement of an intention by the plaintiff to adduce that evidence at trial did not accompany the reports.

56 In her affidavit[16], Ms Toop stated:

Although I was the supervising partner responsible for the file at the time of the service of the two reports bearing the date 9 April 2010, Mr Fewster had the day-to-day conduct of the file and I was unaware, and Mr Fewster did not communicate to me, that the two reports dated 9 April 2010 had a difference at paragraph 4.24, and thereafter in the management of the file, and until the events that took place during Mr Dohrmann's evidence in chief, I was unaware that there were in fact two different reports dated 9 April 2010.

57 Ms Toop's usual practice was to send Mr Dohrmann's reports to her clients for comment and on occasions a client would communicate that there were errors, usually pertaining to the 'assumed facts'. In those circumstances, Ms Toop would ordinarily write to Mr Dohrmann and ask that he consider amending the assumed facts in his report. Mr Dohrmann gave evidence of his practice of receiving information from his instructors about basic factual errors, typos and the like after publishing a report. His usual practice in such instances was to consider the requested amendments and, if appropriate, adopt them into a revised or final report.

58 The plaintiff specifically recalled instructing Mr Fewster that Mr Dohrmann's first report was incorrect, because it recorded that she had not seen any evidence of prior vandalism at the second defendant's premises, which was untrue. Around June of 2010, she told Mr Fewster that she had seen evidence of prior vandalism and Mr Dohrmann's report would need to be amended.

59 Notwithstanding this evidence of 'usual practice', I find it probable that the circumstances in which the second version of the report came into existence were as I have described at [50]-[53]. The file of Clarke Toop & Taylor reveals no note of Mrs Hudspeth's specific instructions to Mr Fewster and there is no note or communication evidencing the 'usual practice' that was deposed to by Ms Toop, apart from the diary note of Mr Fewster's attendance on Mr Siedal on 30 June 2010 and his attendance on Gay at Mr Dohrmann's office on 1 July 2010.

60 The proceeding was listed for trial on 14 October 2010. On 5 October 2010, the plaintiff's solicitors served an Order 44 statement notifying the plaintiff's intention to call expert evidence from Mr Dohrmann, the substance of which was as set out in his report dated 9 April 2010, as attached to the Order 44 notice. The first version of his report was attached to that notice. The trial did not proceed on that date.

61 Prior the first trial date, the employer was served with the first version of the report by letter dated 12 April 2010 and the second version of the report by letter dated 1 July 2010. Its solicitors were also served with the Order 44 statement attaching the first version of the report on 6 October 2010 and a copy of the Court Book prepared by the plaintiff's solicitors containing that Order 44 statement and report was served on 12 October 2010.

62 The solicitors for the school also received the first and second versions of Mr Dohrmann's report on 13 April and 2 July 2010 respectively. However, the solicitors were also served as follows:

(a) In the recovery proceeding, the VWA served an Order 44 statement attaching Mr Dohrmann's second version report on 5 July 2010.

(b) The plaintiff's solicitors served a bundle of reports on 31 August 2010 that included a copy of Mr Dohrmann's second version report

63 Mr Andrew Reiner Seiter, the solicitor with the conduct of the proceeding for the school, said that the differences between the two versions of the reports were neither known nor detected by the school or its legal team. The Court Book that was served for the October 2010 trial contained the first version of Mr Dohrmann's report, but that Court Book was not copied and provided to counsel. Both the Court Book and counsel's briefs for the November 2012 trial contained only the second version of Mr Dohrmann's report. Mr Seiter believed, and I accept, that none of the legal representatives for the school were aware that two different versions of Mr Dohrmann's 9 April report existed until Mr Dohrmann's evidence in chief at trial.

64 After the first trial date was vacated, ISS was joined into the proceeding, initially by the school as a third party and then by the plaintiff, as the third defendant.

65 ISS was joined into the proceeding in the following circumstances. On 19 October 2011, the school's solicitors wrote to the plaintiff's solicitors noting Mr Dohrmann's criticism of the fastening and installation of the soap dispensers in the school. It was likely that the focus of the solicitor's concern was section 7 of Mr Dohrmann's report, 'Discussion and Analysis', which remained unchanged through the different versions. The school's solicitors observed that the school had relied on the skill and judgment of ISS, which had installed, and was responsible for maintaining, the soap dispersers. The school's solicitors stated that, despite serving Mr Dohrmann's report, the plaintiff made no allegations against the school in respect of the installation of soap dispensers and had not joined ISS into the proceeding. The school contended that part of Mr Dohrmann's opinion was irrelevant. Further, if allegations were made by the plaintiff that made such an opinion relevant, the school would issue a third party proceeding against ISS, noting that the relevant limitation period would soon expire.

66 On 8 November 2011, the plaintiff's solicitors rejected the contention that any part of Mr Dohrmann's report was irrelevant but, that said, ISS 'probably should be a party to this proceeding ... our view is that clearly your client is in a better position than our client to formulate the required pleadings and once we have reviewed a Third Party Notice we will be in a position to obtain instructions'. In December 2011, third party proceedings were duly issued and served and the plaintiff joined ISS as third defendant in the proceeding in January 2012.

67 That Mr Dohrmann's opinions were the basis for this joinder was further explained in Calderbank correspondence in October 2012.[17] In that correspondence, the school's solicitors stated to ISS's solicitors:

As you are aware, we joined your client to the proceeding as a third party on the basis of a report relied on by the plaintiff, namely the report of Mr Mark Dohrmann, dated 9 April 2010. Relying on Mr Dohrmann's report, the plaintiff alleged our client, the Roman Catholic Trust Corporation for the Archdiocese of Melbourne, was negligent. The plaintiff's lawyers would not agreed (sic) not to rely on Mr Dohrmann's opinions in its claim against our client.

68 The crux of Mr Dohrmann's opinion affecting this issue was his criticism of the fastening and installation of the soap dispensers in the school by ISS, which the school contended was not its responsibility but that of ISS. Mr Dohrmann's criticisms of the methods of installation and fastening of the soap dispensers are unchanged between the first and second versions of his report. While the school's solicitors did not appreciate that there was any difference between the two versions of Mr Dohrmann's report, ISS's solicitors were only served with the second version by the school's solicitors. Paragraph 7.7 of Mr Dohrmann's report notes, curiously in the first version because of the form of paragraph 4.24, that the school was on notice, by the plaintiff's prior report, that a soap dispenser had disappeared from the wall and had possibly been torn off.

69 Following its joinder as a third defendant, ISS was not served with any Order 44 statements or reports in respect of Mr Dohrmann's evidence by the plaintiff's solicitors. Ms Toop did not dispute ISS's claim that the plaintiff served no Order 44 statements, or reports in respect of Mr Dohrmann's evidence. Rather she argumentatively set out a basis to draw an inference that the school's solicitors were in possession of both versions of Mr Dohrmann's report, effectively inviting an inference that responsibility for the failure to provide ISS with the first version of Mr Dohrmann's report lay with the school's solicitors.

70 The plaintiff's further, further amended further amended statement of claim (sic), dated 8 December 2011, included in the particulars of negligence against ISS the method of installation of the soap dispensers, the failure to recommend soap dispensers that would not be pulled from the wall, the supply of soap dispensers that could be pulled from the wall, the failure to install soap dispensers that were designed to be tamper-proof and the failure to respond adequately or at all to previous damage to soap dispensers and resultant mess. Although in opening to the jury, the plaintiff's counsel referred to the duty of ISS to use reasonable care in affixing the dispensers, it was clear that the issues raised in the pleadings remained relevant.[18]

71 I accept Mr Kavanagh's unchallenged statement that Clark, Toop & Taylor served none of the three versions of the report on ISS, and the school's solicitors only served the second version on it. I am satisfied that at no stage prior to Mr Dohrmann's evidence in chief, was ISS aware of the first version of Mr Dohrmann's report.

Events before Mr Dohrmann's evidence at the trial

72 Mr Richards SC was briefed, with Mr Ingram, to appear for the plaintiff at the trial that commenced on 13 November 2012. In preparing for the trial, Mr Richards foresaw a forensic difficulty arising from a variance between the assumed facts that were set out in Mr Dohrmann's report dated 9 April 2010 (the second version) and the plaintiff's instructions. Mr Richards decided that one way of addressing the forensic difficulty was to ask Mr Dohrmann to assume facts in keeping with the plaintiff's statement dated 7 June 2005 and see what effect, if any, this had upon his opinion.

73 In the afternoon of 12 November 2012, Mr Richards contacted Mr Dohrmann who was not available to take his call. He told Mr Dohrmann's secretary that he wished Mr Dohrmann to consider a different set of assumed facts from those set out in his report of 9 April 2010, and he explained the changes that he wished Mr Dohrmann to make to the assumed facts. Mr Richards identified his requested changes in both a post-it note, apparently made by Mr Dohrmann's secretary and found in Mr Dohrmann's file during cross-examination at trial, and in Mr Dohrmann's third version of the report dated 12 November 2012.

74 Mr Dohrmann identified Ms Jasmine Morris as the member of his staff with whom Mr Richards spoke and who took the note on a post-it note of the changes required in the assumed facts. Ms Morris made the changes, as requested by Mr Richards, to the copy of the report then saved on the computer system, the second version, and saved the amended report as a new document, which became the third version. Ms Morris marked the date as 12 November 2012, amended the office reference number on the front of the report cover (to include her initials) and left it for Mr Dohrmann to check on his return to the office.

75 Mr Dohrmann reviewed Ms Morris' note and considered the requested amendments. His opinions with respect to the incident did not change on the altered assumed facts. Mr Dohrmann then rang Mr Richards. The two men agreed on the content of this conversation. Mr Richards explained that the new assumptions came from the plaintiff's statement made several years ago which should have been provided to him. I pause to note that the plaintiff's affidavit of 11 December 2008, but not the plaintiff's statement of 7 June 2005, was originally provided to Mr Dohrmann in 2010. Mr Dohrmann said he had examined the changes that had been phoned through and that they did not affect any opinions he had previously expressed. Mr Richards asked Mr Dohrmann to send to Mr Richards a revised report incorporating these factual changes. Mr Richards also said he would forward a copy of the June 2005 statement to Mr Dohrmann prior to him giving evidence.

76 Although the statement deals with the circumstances of the incident in which the plaintiff was injured in greater detail than the affidavit, there are obvious inconsistencies in the plaintiff's version of the incident between the affidavit and Mr Dohrmann's assumed facts in the April 2010 versions of his report. Either Mr Dohrmann did not carefully consider his instructions or did not exercise appropriate care in setting out the assumptions on which is opinion was based. The plaintiff's June 2005 statement, made some six weeks after the incident, was the basis for the revision of the assumed facts for the third version of the report, but Mr Dohrmann had not seen it when he signed off and published that third version. Mr Richards sent a copy of that statement to Mr Dohrmann early in the afternoon of 15 November 2012. During the morning session in court that day, counsel for the employer had completed their cross-examination of the plaintiff.

77 At 6.28 pm on 12 November 2012, the third version of the report was emailed by Mr Dohrmann to Mr Richards. The email is addressed solely to Mr Richards and contains the message, 'Here it is, John', but it contains a curious postscript.

Ps - Gary - I don't know who currently has carriage of Linda Hudspeth's matter (it had been Travis Fewster). I have just got back this afternoon from a trip, and learnt that John Richards needed the attached amended report immediately (he's opening in the morning) - so I took the liberty of sending this update directly. Hope that is ok? Perhaps you could also on forward this communication to whoever is looking after the matter at CCT.

78 Mr Dohrmann stated, and I accept, that he intended to also include Mr Gary Clark, a partner of Clark Toop & Taylor, in the email communication but did not do so. Clark Toop & Taylor never received the email or a copy of the third version of the report from Mr Dohrmann, but he presumed that the third version would be duly served on the other parties to the proceeding by the solicitors before Mr Dohrmann gave his evidence.

79 After Mr Richards had spoken to Mr Dohrmann he telephoned Ms Toop and informed her of that conversation. Mr Richards informed Ms Toop that he had asked Mr Dohrmann to prepare a further report. Ms Toop's recall of this conversation was that 'Mr Richards said words to the effect "Mr Dohrmann may prepare another report"'.

80 Having carefully considered what is said by each of Mr Richards and Ms Toop about this conversation, the terms of the exhibited documents and the circumstances surrounding the preparation of the affidavits, I prefer Mr Richards' evidence that he told Ms Toop that Mr Dohrmann had been asked to prepare a further report and, later that evening, he assumed that it had been sent by Mr Dohrmann to Clark, Toop & Taylor. It is improbable that Mr Richards would not have done so, because, apart from the postscript to the email, giving instructions to expert witnesses and then dealing administratively with the report fall within the province of the solicitor.

81 Between instructing Mr Dohrmann to amend his report and receiving the third version, Mr Richards began to doubt his forensic decision. On the basis of Mr Dohrmann's indication that the different assumed facts did not change his opinions, Mr Richards decided to lead Mr Dohrmann's evidence of those opinions by putting the plaintiff's evidence to him as his assumed facts and not leading evidence of the assumptions set out in the report. Mr Richards admitted that he was proceeding on what he called a mistaken reading of r 44.03(3). Mr Richards considered that a supplementary report need only be served where an expert changed his opinion on a material matter expressed in an earlier report. Mr Richards believed that he had an option as to whether or not to serve the third version of the report. I am not inclined to accept those untested statements of belief.

82 I am not persuaded that the full substance of conversations between Mr Richards and Ms Toop concerning the third version of Mr Dohrmann's report were revealed. Mr Richards believed that Ms Toop knew he had sought the report from Mr Dohrmann and that she had received a copy of it. Mr Richards, when he opened his client's case, was in two minds as to whether or not to serve the third version of the report and he continued to consider that matter as the trial progressed. On the other hand, believing that Ms Toop had received Mr Dohrmann's third version, and that she was aware that leave would be required to rely upon a late produced report and that the sooner the report was served on other parties the better the prospects of obtaining leave, some further communication between Ms Toop and Mr Richards seems probable.

83 Despite what Mr Richards told her on the afternoon of 12 November 2012, Ms Toop said she did not turn her mind back to this issue.

I had no further contact with Mr Dohrmann until the break in his evidence in chief (on 21 November 2012). After the telephone call from Mr Richards on 12 November 2012, I also had no further communication, and, to the best of my knowledge having made all inquiries, there was no further communication [with Mr Dohrmann] ... Mr Richards had not mentioned to me that he had received the report dated 12 November 2012 and I was unaware of the existence of that report until it was raised during the cross-examination of Mr Dohrmann on 21 November 2012

84 Ms Toop instructed counsel in court during the trial and conversed with Mr Richards about the trial, but there was no evidence whether there was, or was not, any further discussion between them about Mr Dohrmann's evidence. While Mr Richards was contemplating his forensic dilemma, he would not want the third report served, yet he believed that it was in the physical possession of his solicitors. Mr Richards may, or may not, have discussed his forensic tactical dilemma either with Ms Toop or with Mr Ingram, but this contention was not explored by cross-examination.

85 Ms Toop's explanation for not serving the third version was that it did not come into her possession. Before me, counsel contended that Ms Toop's explanation was a complete explanation of the firm's apparent non-compliance with s 26 of the Civil Procedure Act. The third version was also in Mr Richard's possession, and formed part of his brief, from 6.28 pm on 12 November 2012. Ms Toop was aware that Mr Richards had instructed Mr Dohrmann to prepare the third version for the purposes of the trial. It seems improbable that, in the circumstances, competent practitioners would not have discussed the matter.

86 Mr Richards told Mr Ingram shortly prior to the commencement of the trial of his perceived difficulties with Mr Dohrmann's report and that he proposed speaking to Mr Dohrmann. At about the commencement date of the trial, Mr Ingram learned from Mr Richards that a further report from Mr Dohrmann had been obtained. He was not given a copy of the third version. Apparently, Mr Ingram took no interest in liability issues, confining his attention to presenting the medical evidence.

87 Mr Dohrmann did not see the facsimile copy of the plaintiff's statement of 7 June 2005 that Mr Richards sent to him on 15 November 2012, although he accepts that his office received the facsimile. When he conferred with Mr Richards on 19 November 2012, Mr Richards opened the conference with the comment that he could not discuss any evidence, but repeated that Mr Dohrmann's chronology of events was miss-ordered in places. Mr Richards handed Mr Dohrmann a copy of the 7 June 2005 statement. This was the first time that Mr Dohrmann read and considered the contents of that document. Mr Dohrmann told Mr Richards that the contents of this statement did not change any of the opinions or conclusions that he had (already) expressed in the third version of the report. Mr Dohrmann believed that the third version of his report had been served on the other party and it was Mr Richards' belief that he did not tell Mr Dohrmann that the third version of the report had not been served.

88 In the interim, there were other dealings between Mr Richards and Mr Dohrmann on 15, 16 and 19 November 2012 that concerned the preparation of a brief further report dealing with Occupational Health and Safety (Manual Handling) Regulations 1999 issues. These dealings are not relevant.

89 On or about 20 November 2012, that is, after completion of the cross-examination of the plaintiff and on the day before Mr Dohrmann was to give evidence, Mr Richards decided that he would not serve the third version of the report but would seek to overcome his perceived forensic difficulties in another way, which I will in due course explain. In the circumstances, it again seems improbable that competent practitioners would not have discussed the matter when counsel believed the solicitor to be in possession of the third version of the report and the solicitor was aware that counsel had instructed the expert to prepare a third version of the report for use in the trial.

The application to exclude Mr Dohrmann's evidence

90 On the evening before Mr Dohrmann was scheduled to give evidence, the plaintiff served a supplementary report[19] prepared by Mr Dohrmann that addressed an issue concerning the application of the Manual Handling Regulations. Leave to call evidence about the matters deposed to in this report was refused. Objection was also taken to Mr Dohrmann's evidence. Of particular relevance, the defendants submitted that part of the assumed facts identified in the report had not been established through the plaintiff. The school contended that Mr Dohrmann had drawn certain conclusions from assumed facts that had not been proved by the plaintiff, the only person who could prove them. The objection drew clear attention to the difficulty facing the plaintiff, which Mr Richards had anticipated and for which he had sought an amended report. The existence of the third version of the report was not revealed to the court. Mr Richards submitted that other evidence would support the assumed facts, referring to answers to interrogatories. I ruled that the evidence from Mr Dohrmann must be limited to the content of the report,[20] with some exclusions.

91 In making that ruling, I accepted that the plaintiff, at any time before the close of evidence, could establish a sufficient factual basis for the opinion expressed, albeit one which did not exactly correspond with the stated factual assumptions in the report.[21] Had the existence of the third version of the report been revealed to the court and the defendants, the outcome of this application would likely have been different. The parties and the court were unaware that the plaintiff required leave to rely on any version of the report due to r 44.03(3), and could not adduce any expert evidence from Mr Dohrmann without that leave. However, the plaintiff had already been extensively cross-examined about her instructions to Mr Dohrmann. Further, the content of the third version, signed as true and correct by Mr Dohrmann, would have been a matter of central importance in considering whether to grant that leave, had it been sought. Mr Richards explained his failure to reveal the third report on this application as caused by a misunderstanding of the proper effect of r 44.03(3). It was, I consider, a most unsatisfactory explanation. Had the true circumstances that were exposed in part in cross-examination and in part on this application, been revealed or have otherwise emerged when the admissibility of Mr Dohrmann's evidence was being debated, an application for its exclusion or to limit its use under ss 135 or 136 of the Evidence Act, 2008 (Vic) may have been successfully made. Alternatively, I may have refused leave under r 44.03(3)(b) to rely on any report by Mr Dohrmann.

92 After explaining his qualifications and experience, Mr Dohrmann told the jury that he was asked by the plaintiff's solicitors to give an opinion in relation to the injury sustained on 27 April 2005. Before Mr Dohrmann identified to the jury the factual assumptions on which he expressed that opinion, Mr Richards asked him to assume the circumstances of her slip from the evidence that had been given at trial. At this stage, Mr Dohrmann had not given evidence of any opinion. Mr Richards' question runs three pages of transcript and when he then asked for an opinion based upon the sequence of events that he had just put, the defendants objected.

93 Mr Richards was invited to approach the matter in a different way but he again asked Mr Dohrmann to express an opinion not on the assumed facts stated in the second version, but in relation to the plaintiff's evidence as Mr Richards had related it to him. Again, the defendants objected to the admissibility of that opinion. Again, I invited Mr Richards to adduce evidence as notified by Order 44 statements.

94 When Mr Richards attempted, yet again, to avoid having Mr Dohrmann read from his report and the following exchange occurred:

COUNSEL: I object to any further leading on this matter. The witness should be asked what assumed facts did you have and the witness should answer the question. We object to the leading nature of these questions. It's skirting around what I'm going to be putting anyway.

HIS HONOUR: I think that's right, Mr Richards. It's been perfectly clear these are contentious matters and the witness should be asked non-leading questions --- I will just take it straight from the report, certainly, Your Honour.

95 Each of Mr Richards and Mr Dohrmann was aware of the third version of the report, which directly addressed some of the changes in the assumed facts that were the subject of these questions and counsel's objections. Mr Dohrmann did not tell the court that he had prepared an amended report that expressed his opinion on different assumed facts which had been provided to the plaintiff's legal representatives before the commencement of the trial, and which corresponded with the assumption he was now being asked to make. Mr Dohrmann believed that the third version of his report had been served on the defendants so there was no apparent reason for not revealing the third version.

96 Mr Dohrmann then gave his evidence in chief by reading from his report until the following exchange occurred:

WITNESS: Ms Hudspeth said that she had not previously seen any evidence of vandalism"

MR RICHARDS: I beg your pardon, read that again, please? --- "Ms Hudspeth that said she had not previously seen any evidence"

Try again, please, I think the word "not", 4.24? --- "Ms Hudspeth said that she had not previously seen" - -

Is the word "not" there? --- The word "not" is in the one I'm reading from. It's in this copy here. This may not be the time but if I can - I will eventually have recourse to my notes on that point.

Please, if you would? --- My handwritten notes at the time say, "No prior observation of loose or", something, "dispensers", which is consistent with what I was reading out to you a moment ago, at least in relation to soap dispenser vandalism.

I wonder if you read the whole of that paragraph? --- 4.24, in the report it says: "Ms Hudspeth said that she had not previously seen any evidence of vandalism or missing soap dispensers during the few months over which they had been installed". "Loose or torn dispensers", my handwritten note is confined to what she told me about previously seeing dispensers being interfered with, just that.

Thank you. Then you had an inspection? --- I did.

This passage of transcript does not fully reveal the drama of the moment. For the plaintiff, this was a devastating turning point in her fortune in the trial. It is now apparent that Mr Richards was referring to the second version of Mr Dohrmann's report in leading his evidence but Mr Dohrmann was reading from the first version of the report. Each was unaware that the version in possession of the other existed.

97 When Mr Dohrmann expressed his opinions, he referred to evidence of possible vandalism in other parts of the toilet and Mr Richards asked him to assume that 'the evidence from the plaintiff in this regard is that there was extensive vandalism that occurred at the school as well as those matters, it included doors being removed, toilet seats being broken and matters such as that'. Mr Dohrmann was then shown a soap dispenser that had been produced to the court by ISS as a sample of the type of soap dispenser installed at the school.

98 Again, the defendants objected that Mr Dohrmann was not being asked to give the evidence notified by the Order 44 statement. Counsel debated this objection in the absence of both the jury and the witness. Mr Richards conceded that he was seeking an opinion that went beyond what had been expressed in the report that was served to establish a case against the school and ISS that there should have been a tamper proof product installed.

99 In refusing leave to Mr Richards to pursue this line of questioning, I observed that it is incumbent upon competent litigators to make sure that their expert evidence is in order well before the case commences. The failure to do so can have a material effect on the way all parties run the case because it is well understood by all litigators that expert evidence is disclosed in advance of the commencement of the trial. These observations did not lead to the revelation of the third version of the report.

100 When Mr Dohrmann resumed his evidence, he continued explaining the reasoning for his opinions and Mr Richards again attempted to direct Mr Dohrmann away from the assumed facts stated in the report towards the evidence that the jury had heard from the plaintiff.

101 Concerning his evidence in chief, Mr Dohrmann later observed in his affidavit:

Throughout my examination in chief on 21 November 2012, there was neither reference to nor questions put to me about the third report. I was only questioned on my report dated April 2010. I was not asked to adopt the third report I prepared. The evidence I provided was in line with what was asked of me and put to me by Mr Richards SC. I had assumed that Mr Richards SC would come to my third report at some stage in his examination of me, however he did not ask me any questions about it. My experience as an expert witness has taught me not to interrupt when being examined; to answer questions put to me, to provide answers simply and not to make comments or statements over and above what is responsive to the questions being asked, unless I sense or believe that my duty to the court may be compromised. During the examination in chief I did not believe I had placed myself in a position of compromise by answering what was asked of me. There was no attempt by me to conceal the existence of the third report. At the time I gave my evidence in chief, I assumed it had been served and the other parties to the proceeding knew of its existence. I readily and freely discussed the existence of the third report when the opportunity arose in cross-examination.

102 It is difficult to reconcile Mr Dohrmann's experience as an expert witness, and his knowledge that he had prepared a third version of the report which he declared to be true, with his failure to inform the court of its existence, because he believed it had been served on all parties. Mr Dohrmann's explanation - that he was waiting for Mr Richards to question him about it and that it was inappropriate for him to refer to it unless he sensed that his duty to the court might be compromised - is unsatisfactory. Notwithstanding that he was not cross-examined on his affidavits, I do not accept this explanation. I will say more of this later.

103 Like feeding sharks, cross-examining counsel immediately circled around the revelation of at least two versions of Mr Dohrmann's report. The employer's counsel first cross-examined Mr Dohrmann, who told the court that he had a draft copy and a file copy. He then gave this evidence:

WITNESS: I do have two reports, each dated 9 April 2010. They both have the same 4.12 on them, Thursday, the 27th of April. The report I just referred to as a draft in fact is not, it's a more recent rewriting by me of this report or these two reports following the reading of a statement which I got the other day, which clarified and redirected me as to the order of events which is where we are discussing at the moment. I have that too.

COUNSEL: What date does that second document bear? --- The second document is 12 November 2012. It was written for my own purposes just to get the facts as right as I was directed to.

Can I understand how many reports there are. Do you have a draft copy report dated 9 April 2010? --- No, I have two copies of the same report of that date.

Are they the same? --- In all places except for one word which is the word "not" which was discussed this morning and I think that was a typographical error which led me to redo that report and it is for all other intents and purposes the same as the one you've got in your hand.

Which is the correct version, the version with the word "not" or the version without the word "not"? --- I will re-read that, I'm not sure about that. It's the version without the word "not".

That is the correct version? --- That is the correct version.

104 In that passage of evidence, confusion is evident. Mr Dohrmann says there are two reports but he alluded to the third version of the report. He described it as his more recent re-writing of the report for his own purposes, just to get the facts right as he was directed to. At this point, the cross-examiner was directing his attention to the versions dated 9 April 2010. Mr Dohrmann adopted the second version as the correct version. Mr Dohrmann was then asked to explain why, in evidence in chief, he stated on three occasions that the plaintiff had not previously seen any evidence of vandalism. The following exchange then occurred:

WITNESS: When I went to my notes I read: "No prior observation of loose or torn dispenser."

COUNSEL: Okay? --- Whereas, and the report I declare to be final says she had previously seen evidence of vandalism on the soap dispensers. It was different forms of vandalism, it was not tearing or looseness and I didn't become aware of this anomaly until lunchtime today, where I realised, worried about that word "not", as to why there was some differences about, where it was coming from and I found it.

How did you become aware of that anomaly at lunchtime today? --- I went through the report again and found - -

Who brought it to your attention? --- Nobody, myself.

If you look at this report [the first version] and tell me whether or not this is your report so far as it relates to clause 4.24 of 9 April 2010? --- That has the word "not", that is the report that has gone to my instructors.

105 Mr Dohrmann was unable to explain the alteration made to cl 4.24. Initially he said he did not know when that alteration was made. After reviewing his handwritten notes taken at the view, which recorded 'no prior obs of loose or torn dispensers', Mr Dohrmann declined to resile from that statement. 'What I said this morning I stand to. It's consistent with my notes and my recollection'.

106 By this point in his evidence, Mr Dohrmann had confirmed each of the first and second versions of the report as being the correct version. Further, despite appearing bewildered about the change from the first to the second version, he speculated that the basis for the change was to correct a typographical error on 9 April 2010. When asked whether he had been provided with further information, Mr Dohrmann referred to the 7 June 2005 statement that had recently been provided to him by Mr Richards, but counsel's question was directed as to the source of his instructions that produced the second version of the report. Mr Dohrmann had no recollection about that.

107 The subsequent explanations by affidavit on this application show that Mr Dohrmann played no role in producing the second version of his report, which perhaps explained his lack of a recollection concerning it when in the witness box. However, it is clear that Mr Dohrmann was aware that he had signed off on a third version of his report, which also made corrections to his statement of the plaintiff's instructions. Mr Dohrmann did not expressly tell the court about the third version. I am satisfied that Mr Dohrmann well understood that the plaintiff was not disclosing the third version of the report.

108 Consistently with his belief, Mr Dohrmann alluded to the third version as a document produced for his 'own purposes just to get the facts as right as I was directed to'. The third version of the report, signed off by Mr Dohrmann as true and correct before he forwarded it to the plaintiff's legal advisers, was significant in the context of the evidence he had given about prior observations of vandalism, and Mr Dohrmann knew that Mr Richards was withholding it from the court. By preparing the third version of the report, Mr Dohrmann had acknowledged that earlier versions of it were inaccurate. Yet his evidence in chief contained no qualification to that effect. Having regard to the course of his evidence in chief, and bearing in mind his experience as a forensic witness, Mr Dohrmann was acting as an advocate for the plaintiff because he was complicit with Mr Richards in not disclosing the third version of the report.

109 At this point, the cross-examiner called for Mr Dohrmann's file. An overnight adjournment allowed counsel to inspect that file and for Mr Dohrmann to collect his thoughts. However, it is plain that Mr Dohrmann did not conduct any inquiries of his staff. He told the cross-examiner that the first version was a draft that had been incorrectly distributed, but, soon after, told the cross-examiner that the incorrectly distributed draft properly represented what his instructions were.

110 Counsel for the school next cross-examined Mr Dohrmann. Again, Mr Dohrmann was happy to speculate about the changes made between version 1 and version 2. Mr Dohrmann accepted that the difference between the two versions was important adding somewhat facetiously:

It's the easiest thing in the world to occur when you dictate in a noisy environment. You have just got to clear your throat while the trams go past and someone types "not". It's very important that I correct and look at the report closely before it goes, which I did.

111 Although the solicitors did not serve the second report until 1 July 2010, Mr Dohrmann maintained that he had corrected and sent the second version of the report (as the only version) to the solicitors in April 2010. He agreed that the solicitors must have had both copies. He said:

COUNSEL: You had alerted the solicitors to the change, you say that, don't you? --- No, I don't. My belief is that I didn't know that the first one had gone, that they had only got the second, the one with the "not".

What is the basis of that belief? --- Firstly, the fact that they have obviously got it - - -

You say you didn't know that, what is the basis of your belief that the draft hadn't been sent out? --- No, the draft had been sent out.

So you believed? --- Yes.

In the April when you prepared this draft that it had been sent out? --- Yes, by mistake, and unknown to me - well, I'm responsible.

112 Mr Dohrmann could not explain the addition of the words in the second version, 'to which she had advised her employer'. Initially, Mr Dohrmann suggested that he had a note to that effect from his interview with the plaintiff. When he could not identify that note, Mr Dohrmann told the jury that he had a recollection of that part of a conversation with the plaintiff at the school.

113 The cross-examiner then turned to the third version of the report. Mr Dohrmann told the jury that he had a conversation with Mr Richards SC in the afternoon of 15 November after court. Mr Dohrmann said there had been a previous conversation either that morning or the day before when Mr Dohrmann was told that he had his facts wrong. Mr Richards asked Mr Dohrmann to consider the contents of a statement that he was going to send as the plaintiff's instructions about what happened and the order of events.

COUNSEL: Did you understand that he was requesting you to alter your report? --- No, he wasn't. He wouldn't do that. He wanted me to take those instructions, they are factual instructions, they are from the plaintiff ultimately, being her statement, and suggested that I might prepare an amended report which I did.

So you prepared a third report? --- I did, in which - - -

For what purpose? What were you going to do with this third report? --- I was awaiting directions on that point. I was just told to prepare it. I didn't know where it was going to be done. I believe nothing was done with it. It corrected the errors around the facts of the order of events.

On whose instructions, on the plaintiff's instructions? --- On the plaintiff's instructions, yes, from what's in her statement of 7 June 2005.

114 Inspection of Mr Dohrmann's file had revealed the yellow post-it note. When asked whose writing it was, Mr Dohrmann evasively responded 'It's not mine'. When he swore his affidavit on this application, he identified the writing as that of Ms Jasmine Morris, a member of his staff. In cross-examination, Mr Dohrmann subsequently identified the correlation between the amendments made in the third version of his report and the matters recorded in this post-it note. The following exchange occurred:

COUNSEL: You wrote up a third report, didn't you? --- Yes, I did.

On instructions? --- Yes.

On instructions after the plaintiff had been giving her evidence? --- Yes.

You were being asked to alter your report on the basis of evidence which she gave which was inconsistent with your report, is that how you understood it?

--- I would just be careful about the use of the word "alter". Yes, the facts had to alter if I was to take those instructions but it was also said - I was also asked whether or not it was likely to change my opinion. I wasn't told to change any opinion.

115 Mr Dohrmann subsequently explained that he read the third version of the report and acknowledged that its contents were true and correct by signing it. He then sent it to the solicitors Clark Toop & Taylor copying it on to Mr Richards SC at the same time. Mr Dohrmann accepted that the third version was in many respects different from the earlier one, noting that it repeats the error of the 'not'. Mr Dohrmann told the cross-examiner that during the course of the trial he acted in accordance with the Expert's Code. This was his explanation:

WITNESS: Well, I'm very aware of my duty to the court and my - the requirement to provide independent advice. I've been quite handicapped by discovering very late in the piece that there were factual errors in the account that I had set out. Secondly, I didn't know that there were two versions of the report that had been sent and they were in different people's hands. Had I known that, I would have dropped everything to let that be known and try to correct it, and other than that, I've just tried to answer the questions put to me, that's my job. That's all.

COUNSEL: You said you were alerted to factual errors and that's why you changed the report, the third report? --- Yes.

What made you think that you had made factual errors? --- Two things: the reading of the statement I was given just recently of the plaintiff and Mr Richards confirming that when I read it I would see that the day one, day two, day three scenario I had painted was not right.

So you accepted without reservation that the error was yours? --- Yes.

Amongst the material you had been provided with before you produced this April 2010 report was, you had the plaintiff's own affidavit? --- Yes.

Setting out the circumstances of the accident? --- Yes.

Didn't you --- ? --- I did.

Had you read that? --- I had.

116 When cross-examined for ISS, Mr Dohrmann again insisted that he had made all desirable and appropriate inquiries and had not withheld any information from the court. He denied that his report was careless stating that he gave it 'all the attention that it warranted and required' Counsel pressed Mr Dohrmann as to why his report did not directly state his instructions. 'No prior observation of loose or torn dispensers'. Mr Dohrmann claimed the right to change phrases in the way that he sees fit. 'Apart from typographical or single word statements, I may change the tenor of the whole statement, if I am re-reading it and I think there's a better way to put it'.

117 Mr Dohrmann denied that he was unprofessional but admitted, 'We made a mistake, and I acknowledge it and I apologise for it. The mistake is in, I think, document handling at our end and perhaps one of our people who has been a bit enthusiastic about getting a draft report out'.

118 In re-examination, Mr Richards SC intransigently sought to put to Mr Dohrmann the substance of the third report. Drawing on matters that had been raised in Mr Dohrmann's cross-examination, Mr Richards invited Mr Dohrmann to confirm that his opinions as expressed to the court were unaffected by any of the matters that have been put to him. Finally, Mr Richards invited him to respond to the allegation that he had been partisan, an advocate for the plaintiff. Mr Dohrmann responded:

I've tried very hard to not be partisan but to answer each question as best I can and hope that I've understood the question properly. That is my job and nothing but that. As I said earlier, I don't have any role in advocacy, I know that very, very well. We are not lawyers, we do our best and we require guidance. Sometimes we step over the line without knowing it and we are corrected but I've tried hard in this matter to answer the questions as best they are framed as well as I can and that is all.

There was no attempt by me to conceal the existence of the third report. At the time I gave my evidence in chief, I assumed this had been served and the other parties to the proceeding knew of its existence. I readily and freely discussed the existence of the third report when the opportunity arose in cross-examination.

120 Mr Dohrmann, as is clear from the passages set out above, did not tell the court that there was an amended version of the report to be served on other parties. Describing the document of 12 November 2012 as written for his own purposes 'just to get the facts as right as I was directed to' did not plainly expose the existence of an amended report. Further, I am satisfied that at all times when giving his evidence Mr Dohrmann was fully aware of the circumstances of preparation of the third report. Although he did not deny the existence of the third report, when cross-examined, that was hardly surprising as a copy of it was on the file inspected by the cross-examiners. Further, having carefully observed Mr Dohrmann when he gave his evidence before the jury, I do not accept that he assumed that the solicitors had served the third version and that the other parties knew of its existence. Nor do I accept that when giving evidence before the jury Mr Dohrmann readily and freely discussed the content of the third version and the source of his instructions to amend the report.

121 In his affidavit, Mr Dohrmann contended that he properly complied with cl 3(d) of the Expert Code of Conduct. The third version of his report does not state that the facts, matters, and assumptions on which each opinion was expressed were in part based upon information provided to his secretary by counsel for the plaintiff. The second version of the report likewise did not reveal Mr Fewster's conversation with his secretary as a relevant source of information. I am satisfied that, in each case, those were the only sources of information for the amendments that were made to the report.

122 Mr Dohrmann's evidence to the jury was not to the effect that his conversation with Mr Richards took place on 12 November 2012 before the commencement of the trial. He told the cross-examiner that he prepared the third version after the plaintiff had given her evidence. Mr Dohrmann's evidence was that that conversation occurred after court on the afternoon of the 14th or before court on the morning of the 15th, in either case after cross-examination of the plaintiff had commenced. In the affidavits of explanation, Mr Dohrmann and Mr Richards have demonstrated that this conversation occurred before the commencement of the trial. Neither Mr Dohrmann nor any other witness for the plaintiff made this important clarification before the jury. The failure to do so remains unexplained. This mistake left the jury with evidence supporting a conclusion that was very damaging to Mr Dohrmann's integrity.

123 I accept that Mr Dohrmann was also instructed to prepare a different opinion about the Manual Handling Regulations, which was ultimately ruled out. Possibly, he was confused about the timing of his conversations with Mr Richards. Mr Dohrmann offered two reconstructed justifications about his compliance with the Expert Code. First, he contended that the change in the assumed facts left his expressed opinion unaffected. This proposition is fatuous. Secondly, he suggested that he did not know whether Ms Hudspeth was the usual or only cleaner of the relevant bathroom so that even if she had been unaware of any prior vandalism or missing soap dispensers that would not mean that there had not been prior vandalism. This assertion was never made at trial. It is a statement that cannot possibly be advanced by an expert complying with the Expert Code of Conduct, being precisely the kind of inappropriate speculation that must be dealt with either as a qualification to an opinion expressed in the report or as a request for further instructions.

124 Mr Dohrmann believed that no relevant matter was withheld from the court. His explanation is limited to the change between the first and second versions of the report and his belief that he discharged his obligation to the court in respect of the third version by providing a copy of it to Mr Richards. I reject this explanation. I am persuaded that Mr Dohrmann well knew, when giving evidence in chief, that the third version was being withheld from the court.

125 In summary, the differences between the third version and earlier versions was that vandalism was said to have occurred in the week before the accident, the date of the accident was different, the sequence of events on consecutive days was different, the plaintiff was said to have reported the accident to 'Russell' but not 'Mark', a reference to a note on the door was deleted, and paragraphs 4.10, 4.11, 4.12, 4.13 were deleted. The earlier versions provided a basis for the jury to think that the plaintiff gave Mr Dohrmann quite a different version of what occurred when compared to her evidence.

126 The reports did not identify the respective versions in their title, as original, amended or revised as the case may be. Further, the first and second versions of the report bore the same date. Consequently, the second version bore a date other than that on which it was published. Bearing the same date as the first version, it was more likely that a reader might be misled into assuming that there was no material difference between the versions. Alterations, additions and excisions in the content of the report were not marked up in the manner required for a pleading by r 36.05(4). In most, if not all, cases, that, or a like, process for distinguishing the amendment from the original should be adopted as prudent practice. Such a practice, plainly, would obviate the risk that an amended document may be likely to mislead.

127 Each version of the report bore Mr Dohrmann's signature. Whether or not the signature was electronically affixed, or by whom, was not in issue, for Mr Dohrmann accepted what his staff had done and that he represented by the affixed signature that he had read and authorised the report. That representation was false in respect of the second version of the report.

128 Mr Dohrmann's report states its sources, although in an abbreviated fashion. He did not amend this section of the report in either later version. The report represented that there were three types of source material; information from the instructing solicitor in the form of a letter, information from the instructing solicitor in the form of pleadings and affidavits, medical reports and a Cleaner's Training Guide and information provided directly to Mr Dohrmann by Mrs Hudspeth in an interview at the school on 15 February 2010. This statement was misleading in respect of the sources for the second and third versions of the report for which there was a further source, information provided by legal practitioners in telephone conversations.

129 The assumed facts section of the report does not identify the source for each assumption, save that the expressions 'Mrs Hudspeth said' and 'she said' reasonably suggest that the source was Mr Dohrmann's February 2010 interview.

130 The instructions provided by Mr Richards, via the yellow post-it note, which Mr Dohrmann adopted without comment, were not consistent with instructions he had received from Mrs Hudspeth that he had recorded on the cover of his file and in the first version of his report. Mr Dohrmann uncritically accepted the varied assumptions and did not check the chronology of events against the suggested correct source, despite the conflict between that version and what he had been told.

131 Mr Dohrmann's methodology was not consistent with his declaration of compliance with the Expert Code. There is no comment, by way of qualification, about the variance between the new assumed facts, provided by the legal representative and instructions received directly from the plaintiff. There is no comment, by way of qualification, that the new assumed facts leave his opinions unaffected, with a statement of his reasoning why that is so. In the first instance, Mr Dohrmann permitted a procedure that allowed his instructing party, without his knowledge, to change a report that bore his signature. In the second instance, Mr Dohrmann simply made the amendments requested, added the word 'amended' to the title and changed the date, before applying his signature to the version and publishing it. He maintained at trial that his opinions were unaffected by the variations in his assumed facts, from which it must follow that the third version of the report presented his reasoning process from assumed facts to opinion.

132 Mr Dohrmann endorsed a process that created an unexplained conflict between the history of the incident as he recorded the plaintiff's instructions and the plaintiff's own instructions to her legal representatives. I am satisfied that Mr Dohrmann has sufficient experience as an expert witness to appreciate the implications that might follow on such a conflict. In my opinion, a prudent expert adhering to the Code would not abandon a version of a report based on direct instructions from the client without assessing whether his error or the altered instructions from the client caused the change. An explanation was called for.

133 When I stated that I would make no finding against Mr Ingram, his counsel submitted that I ought to take into account the fact that Mr Ingram was named in an inquisitorial process, in and of itself a serious matter. He submitted that Mr Ingram's exculpation should reflect the fact that his involvement does not bear upon his professionalism or his practice as a barrister in any way. I am unable to accede to this submission. I was referring to an absence of inculpatory circumstances rather that the presence of exculpatory circumstances.

134 Mr Ingram's statements that he was responsible for the bulk of the medical and other witnesses relevant to quantum, was under time constraints on the eve of the trial, did not see the further report from Mr Dohrmann, and did not turn his mind to Order 44 were not challenged. However, Mr Ingram admitted to some involvement in forensic tactical decisions. Further, the impression that his brief was confined to quantum issues was not accurate.[22]

135 Mr Ingram is a very experienced senior junior practising in the common law jurisdiction, capable of appearing on his own in complex personal injury litigation. The division of counsel's responsibility in the preparation and conduct of the trial that Mr Ingram deposed to was never revealed to the court. Mr Richards SC announced at trial that he appeared with Mr Ingram for the plaintiff. The court could only assume that each member of counsel appeared, and accepted responsibility equally, for the plaintiff. Neither counsel suggested that this assumption was inappropriate at any stage during the trial by announcing that his appearance for the plaintiff was limited to any particular issue(s) or witness(es). The court was entitled to expect that each of the plaintiff's counsel was responsible for the preparation and presentation of the plaintiff's case. I did not find Mr Ingram's explanation to be satisfactory[23] but, on the evidence as a whole, I do not find that he was implicated in the conduct of Mr Richards and Mr Dohrmann in respect of his report.

Relevant background to the civil procedure reforms in 2010

136 There are two reasons why it is desirable to review the nature of the duties owed to the court by lawyers and experts prior to the Civil Procedure Act. The first is that the provisions of the Act supplement rather than override, except in the case of inconsistency, legal or other obligations owed by lawyers and experts.[24] The second reason is that Mr Dohrmann and Mr Richards SC submitted that the scope and extent of the statutory duties are informed by the common law, although the proper construction of the statute should be determined by reference to its terms.

137 At common law, witnesses stood in a different position in litigation to lawyers, for a witness owed no more than a duty to tell the truth and an obligation to answer a subpoena. As Lord Morris observed in Rondel v Worsley,[25] the public interest in the administration of justice is the source of duties that lawyers owe to the court.

138 In Myers v Elman,[26] Lord Atkin[27] recognised that the courts have assumed the inherent power to impose on lawyers duties owed to the court since time immemorial. In the same case, Lord Wright[28] identified the underlying principle to be that 'the court has a right and duty to supervise the conduct of those appearing before it, and to visit with penalties any conduct of a lawyer which is of such a nature as to defeat justice in the very cause in which he is engaged professionally'. Lord Wright considered that:

The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.

139 The content of a lawyer's duty to the court was to be found in diverse rulings by judges made in ad hoc circumstances. I will return to the duties of lawyers. However, whether at common law the court has like powers over expert witnesses to those discussed by Lord Wright is open to question. Primarily, the law of evidence and rules of court, notably the Expert Code of Conduct, regulate expert evidence.

140 In Clark v Ryan,[29] Dixon CJ explained the essential nature of expert evidence. He said -

The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J. W. Smith in the notes to Carter v. Boehm, 1 Smith L.C., 7th ed. (1876) p. 577. "On the one hand" that author wrote, "it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." Then after the citation of authority the author proceeds: "While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.

141 The Expert Code deals not with admissibility of opinion but with the manner in which the courts regulate the preparation and presentation of expert evidence. The Code emphasises, primarily by requiring acknowledgement of adherence to it before an expert's opinion is ordinarily admissible, that the expert owes to the court a duty to impartially assist the court to form a correct judgment on matters about which judges, or juries, are not knowledgeable. This duty is paramount, and it is owed to the court not to a party to whom an expert may owe other duties arising from contract or in tort. An expert must not be an advocate for a party.

142 In Makita (Australia) Pty Ltd v Sprowles,[30] Heydon JA remarked that the duties of expert witnesses identified in The Ikarian Reefer[31] influenced the development of the Expert Code of Conduct under the New South Wales Rules of Court. Cresswell J's oft-cited exposition of duties owed by expert witnesses to the court was in these terms.

The duties and responsibilities of expert witnesses in civil cases include the following:

1. 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).
2. 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.
3. 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).
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. 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).
6. 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.
7. 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).

143 Ipp JA observed in Sydney South West Area Health Service v Stamoulis[32] that the effect of the equivalent NSW provisions to Order 44 is that, by subsidiary legislation, expert witnesses owe a duty to the court, but the content of that duty, and the powers of the court in enforcing that duty, are yet to be determined finally.[33]

144 The application of these duties is not limited to giving evidence from the witness box and necessary preparation for that task. Sir John Donaldson MR remarked in Naylor v Preston Area Health Authority[34] that justice is not achieved either by a war of attrition in which survival is a prize to be awarded to the party with the greatest determination, and longest purse, or by the surprise attack (although it can be), and that litigation is to be conducted with all the cards face up on the table, put down well before the hearing. The Master of the Rolls acknowledged the common law's growing appreciation that the public interest demands that justice be provided as swiftly and as economically as possible. This demand now has statutory expression. In Naylor, a medical negligence action, the Master of the Rolls considered that there is 'a duty of candour resting on the professional man' and he concluded:

Accordingly the court has to have regard to all the circumstances although, in the nature of things, they are likely to be different in medical cases when contrasted, for example, with those involving barristers, solicitors, surveyors or accountants. The exercise of discretion has to be approached on the basis of the philosophy that the basic objective is always the achievement of true justice, which takes account of time, money and what can only be described as the anguish of uncertainty, as well as of a just outcome. It has to be exercised on the basis that the procedure of the courts must be, and is, intended to achieve the resolution of disputes by a variety of methods, of which a resolution by judgment is but one, and probably the least desirable. Accordingly anything which enables the parties to appreciate the true strength or weakness of their positions at the earliest possible moment and at the save time enables them to enter upon fully informed and realistic discussions designed to achieve a consensual resolution of dispute is very much in the public interest. (Emphasis added).

145 In my view, that passage also speaks eloquently about the importance of expert reports prior to trial in modern litigation and reveals the significance of adherence to proper ethical standards and prudent practices by both instructing legal practitioners and the expert witness in the preparation of reports. Overwhelmingly, disputes resolve by compromise before trial. In disputes that will, at trial, turn on expert evidence, alternative dispute resolution depends for early success not simply on disclosure of expert evidence, but upon the diligent observance by experts of their duties to the court before trial when preparing reports. There is no doubt, in my view, that the Expert Code is not limited to reports that are used in evidence or form the basis for disclosure of evidence to be led from an expert. The Civil Procedure Act now expresses that extended application of an expert's duties.

146 An expert who does act as an advocate for his or her instructing party or who in other ways fails to adhere to the Expert Code, when aware that the report is to be relied on, not simply by that party in preparation[35] of the litigation, but in negotiation, mediation or other alternative dispute resolution procedures, may well inhibit rather than facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in the proceeding. Moreover, by analogy with the lawyer's duty to the court, an expert who believes that the client may not be able to pay any costs that might be awarded against the client, may aggravate a breach of his duty, if false hope of a favourable outcome at trial is engendered in a partisan way. In certain circumstances and when instructed to do so, a lawyer may proceed, in a confined way, to advocate a case that is not certainly hopeless but has little prospect. The expert's position, unless retained to assist his instructing party, is entirely different.

147 The interests of justice - what is now described in the Civil Procedure Act as the overarching purpose - in relation to the preparation and use of expert evidence in alternative dispute resolution prior to trial were not facilitated by the laws of evidence, but by rules of civil procedure. In this court, in FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat[36] Ormiston JA said, of the interrelation between the laws of evidence and the Expert Code applying by rules of civil procedure:

[A]ll that has been said, particularly in recent years, about the desirability of expert witnesses providing independent evidence by way of opinion to the courts should be seen as expressions of the ideal manner in which expert witnesses should go about their tasks and the resultant opinions which those witnesses should strive to express. With but a few minor exceptions, none of them should be treated as stating principles of the law of evidence but they should be seen rather as admonitions to those who would give expert evidence, especially as to the way they should prepare and present that evidence to courts, if they and their clients wish it to be acted upon. Some of the statements are also directed to the ways in which courts prefer from time to time to direct the manner in which such evidence should be given, whether, for example, by way of appointment of so-called court experts or by directions requiring experts to consult and the like. However desirable these new rules and protocols may be, they cannot establish changes to the principles underlying the law of evidence, for they can do no more than change the relevant practice in particular jurisdictions, albeit that the form of such rules may involve an effective change in some of those rules under and by the authority of the relevant delegated powers invested in particular rule-making bodies.

148 Referring to The Ikarian Reefer,[37] Ormiston JA said:

Cresswell J was dealing, as may be seen from the report, with witnesses called pursuant to guidelines laid down in the 1993 Guide to the Commercial Court Practice, which were in part directed to restricting the number of expert witnesses who could be called. It is again significant to note that the seven precepts laid down by his Lordship in that case were not directed to competence or admissibility in general but were introduced by the words: 'The duties and responsibilities of expert witnesses in civil cases include the following ...' I should treat them, therefore, as essentially precepts or ideals towards which expert witnesses should strive rather than the basis of any new exclusionary rules. Even the Civil Procedure Rules 1998 (Eng) which flowed from the seemingly radical recommendations of Lord Woolf's Final Report on Access to Justice July 1996, were not expressed in terms denying competence or admissibility, but merely in terms of a 'duty' to aid the Court ...[38]

149 I would, with respect unhesitatingly agree with the substantive point expressed in FGT Custodians respecting the competence or admissibility of expert evidence, a point in issue in that case. However, for my part, I consider that Ormiston JA understated the role of Order 44 and the Expert Code before the Civil Procedure Act. Order 44 and the Expert Code are now more than expressions of the ideal manner in which expert witnesses should go about their tasks or admonitions to those who would give expert evidence.

150 In ASIC v Rich,[39] Austin J agreed that neither the propositions of Cresswell J nor the Expert Code was to be construed as rules of admissibility of expert evidence. Austin J noted that the structure and content of the present law for responding to the problem of bias in expert evidence is 'controversial and arguably unsatisfactory'.[40]

151 In Wood v R,[41] there was a live issue as to whether a failure to comply with the obligations under the Expert Code renders the expert's evidence inadmissible. This decision appears to generally align the views of the Victorian and NSW Courts of Appeal. McClellan CJ at CL stated,[42] obiter, that the Expert Code is not merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act. McClellan CJ at CL approved of an earlier observation of Campbell J (as he then was) in United Rural Enterprises Pty Ltd v Lopmand Pty Ltd[43] that the expert's 'failure to understand his [or her] responsibilities as an expert' may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party.

152 In understanding the role of experts at trial, it should be recalled that witnesses, both lay and expert, have been held in many jurisdictions[44] to enjoy immunity from civil suit for damages in respect of their evidence given in court. Moreover, it is accepted that such immunity, to be effective, extends to preparatory steps. In D'Orta-Ekenaike v Victorian Legal Aid,[45] the plurality of High Court said, in seriously considered dicta:

From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:

The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.

D'Orta-Ekenaike affirmed that at common law an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court or for work done out of court that leads to a decision affecting the conduct of the case in court.

153 In the United Kingdom, advocate's immunity from suit was abolished in 2002.[46] In 2011 in Jones v Kaney,[47] the United Kingdom Supreme Court, by majority, abolished expert witness immunity from suit for breach of duty. The issue in that case was whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit for negligence. The divergent views between the High Court of Australia and the United Kingdom courts in respect of advocate's immunity from suit requires that Jones v Kaney must be approached with considerable care, for the common law of Australia in respect of witness immunity is not in doubt.[48] That said, the debate about whether and to what extent experts are immune from suit brings into focus the proper appreciation of the role of an expert witness in civil litigation.

154 Before Jones v Kaney, the Court of Appeal in Stanton v Callaghan[49] reviewed the authorities in respect of the expert witness's immunity from suit. This decision is not, in its broad scope, inconsistent with D'Orta-Ekenaike. Chadwick LJ summarised the effect of the authorities in the following passage:

(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence;

(ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and

(iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party's claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial - say, to comply with directions given under RSC, Ord 38, r 37 - in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness.

155 Chadwick LJ concluded that the public interest in facilitating full and frank discussion between experts before trial required that experts should be free to make proper concessions without fear that any departure from advice previously given to the retaining party will be seen as evidence of negligence. Public policy justified immunity, which avoided the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.

156 In Phillips v Symes (No 2)[50] Peter Smith J held that expert witnesses were not immune from being held liable to wasted costs orders. Although the principles of advocates and witnesses immunity had then diverged, Peter Smith J accepted, on the authority of Ridehalgh v Horsfield,[51] the court's power to order officers of the court to pay for wasted costs was not connected with the immunity. In concluding that the court had power to order costs of an action against any non-party, his Honour followed Aiden Shipping Co Limited v Interbulk Limited.[52]

157 In Meadow v General Medical Council[53] the Court of Appeal rejected the reasoning of the trial judge that Professor Meadow was, as an extension of the immunity from suit enjoyed by witnesses, entitled to immunity from disciplinary proceedings, but held, by majority, that Meadow was not guilty of professional misconduct and dismissed the appeal.

158 Neither exception to the witness immunity is here in doubt. An expert witness is not immune from disciplinary proceedings. In South Australia, the Full Court refused prohibition or mandamus to a forensic pathologist who faced complaints that his conduct in giving evidence both before the Medical Board and in the Supreme Court trial was improper, unethical and incompetent.[54] That this court has jurisdiction to order costs against a non-party, including an expert witness, is not in doubt,[55] but the authorities recognise that the jurisdiction is exceptional[56] and the power must of course be exercised judicially.[57]

159 By the Civil Procedure Act, the legislature has enhanced the expression of the duties to the court owed by experts. The provisions of O 44 and the Expert Code still apply, as the application of the overarching obligations to experts is in addition to, and not in derogation of, any existing duties applying to expert witnesses. Section 10 of the Act provides that the overarching obligations (other than the overarching obligations specified in sections 18, 19, 22 and 26) apply to any expert witness in a civil proceeding. Six explicit obligations now found in the Act are that an expert -

(a) must act honestly at all times in relation to a civil proceeding.

(b) must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.

(c) must not, in respect of a civil proceeding, engage in conduct which is misleading or deceptive or likely to mislead or deceive.

(d) must use reasonable endeavours to resolve by agreement any issues in dispute which can be resolved in that way; and narrow the scope of the remaining issues in dispute, unless it is not in the interests of justice to do so; or the dispute is of such a nature that only judicial determination is appropriate.

(e) must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute; and the amount in dispute.

(f) must use reasonable endeavours in connection with the civil proceeding to act promptly; and minimise delay.

Section 12 provides that subject to the paramount duty, the overarching obligations prevail over any legal, contractual, or other obligation that a person to whom the overarching obligations apply may have, to the extent that the obligations are inconsistent.

160 Returning to the duties owed to the court by lawyers, s 13 of the Act provides that to the extent that any duty or obligation of a legal practitioner to a client, whether arising under the common law, by, or under any statute or otherwise, can operate consistently with the overarching obligations it is not overridden. A legal practitioner or a law practice engaged by, or on behalf of, a client in connection with a civil proceeding must comply with the overarching obligations despite any obligation the legal practitioner or the law practice has to act in accordance with the instructions or wishes of the client. Where there is inconsistency between any duty or obligation and an instruction or a wish of a client, the overarching obligation prevails to the extent of that inconsistency.

161 By 2010, the following propositions were uncontroversial.[58]

(a) That the lawyers' duty to the court is paramount, even if the client gives instructions to the contrary was stated by Mason CJ in Giannerelli v Wraith.[59]

(b) A lawyer's duty is owed as a matter of public interest in the administration of justice to the community, not to a particular judge.[60]

(c) The lawyers' duty to the court is personal in nature and non-delegable. The obligations are legal, imposed under the general law.[61]

(d) A breach of a duty to the court by a lawyer is unlawful conduct, which may, or may not be unethical just as unethical conduct may not be unlawful.

(e) A breach of a lawyer's duty to the court usually did not provide a basis for an independent cause of action supporting a civil claim. A breach was generally the subject of sanction imposed by a summary procedure.[62]

(f) In that summary proceeding, the court's jurisdiction was both punitive and compensatory.

(g) Where a compensatory order was sought against a lawyer, the claimant needed to show a causal connection between the lawyer's conduct and the financial loss sought to be recovered.

162 Ipp J,[63] writing extra-curially in the Law Quarterly Review,[64] attempted to collate and explain lawyers' duties in a rational and structured way. He classified lawyers' duties under four broad categories; the general duty of disclosure owed to the court, the general duty not to abuse the court process, the general duty not to corrupt the administration of justice, and the general duty to conduct cases efficiently and expeditiously. The author sourced the first three of these general duties as derived from the public interest that dishonest, obstructive or inefficient practices not distort the administration of justice.[65] The final duty reflected current community attitudes and standards.

163 When the High Court in D'Orta-Ekenaike,[66] revisited the advocates immunity from suit as stated in Giannerelli, the High Court opined on the nature of the lawyer's duty to the court. The immunity was justified on the finality principle. Once controversies have been resolved by a judgment, it is repugnant to the interests of justice to reopen 'quelled' controversies by proceedings against the participating advocates in the original proceeding.[67] The legislature has substantially preserved the finality principle and the summary procedure for the resolution of questions of breach of overarching duties by the procedure provided under Part 2.4 of the Civil Procedure Act.[68]

164 In D'Orta-Ekenaike, McHugh J made the following observations about the lawyers' duty to the court.

Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount. That duty to the court imposes obligations on the barrister with which the barrister must comply even though to do so is contrary to the interests or wishes of the client. Thus, the barrister can do nothing that would obstruct the administration of justice by:

• deceiving the court;
• withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas;
• abusing the process of the court by preparing or arguing unmeritorious applications;
• wasting the court's time by prolix or irrelevant arguments;
• coaching clients or their witnesses as to the evidence they should give;
• using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.

Moreover, the advocate owes a duty to the court to inform it of legal authorities that "bear one way or the other upon matters under debate". The duty applies "quite irrespective of whether or not the particular authority assists the party which is so aware of it".[69]

165 When s 21 of the Civil Procedure Act was passed, it was well established that lawyers had a duty to disclose the law[70] and not mislead as to the facts.[71] The former aspect of the duty requires that counsel prepare the case properly and know the relevant law.[72] Other judges have described this duty as requiring counsel to present argument based on full research, not practice books,[73] to be knowledgeable in their field of particular experience,[74] and to be aware of the requirements of the relevant rules of court.[75] It is well understood that counsel is obliged to bring all relevant authorities to the attention of the judge, even if they do not assist the client. The latter aspect of the duty required that lawyers should not mislead the court by stating facts that are untrue, or mislead the judge as to the true facts, or conceal from the court facts or documents which ought to be drawn to the judge's attention or knowingly permit a client to attempt to deceive the court. This duty is paramount.[76]

166 At common law, mere mistake or error of judgment was not a breach of the duty to the court. What was required was misconduct, default or negligence of a serious nature, considered by the court to be sufficient to justify an appropriate order.[77] Circumstances vary. On the one hand, the power to award costs against a lawyer personally is exercised with caution for sound policy reasons including that it is not appropriate to overtly inhibit lawyers in the conduct of litigation and it is the parties to the proceeding who risk exposure to an adverse costs order. On the other hand, breach by lawyers of procedural rules that are for the benefit not just of the parties to litigation, but to the court in case management will ordinarily constitute breach of a lawyer's duty to the court.

167 The prohibition against coaching witnesses is well understood. Except when the witness is being cross-examined, a barrister may discuss the case with a potential witness at any time. Equally, a barrister may refer material from the case to a witness for comment at any time, including pleadings, affidavits, statements, exhibits or, subject to any contrary order, the testimony of witnesses that has already been given. The court does not expect witnesses to be called when the barrister does not know what the witness will say on the key issues. Counsel must never cross the line between taking instructions and improper assistance to a witness by coaching, or pressuring, a witness to particular evidence favourable to the client. Witnesses can be cross-examined about such discussions. The position of the expert witness differs in important respects from the witness of fact. The same observations about discussions with a witness apply to experts, but lawyers should not 'settle' the evidence of experts, who must remain true to the Expert Code. The undisclosed settling of an expert's report by a lawyer could place the expert in breach of the Expert Code, and the lawyer in breach of his or her duty to the court, if the expert's evidence was changed or modified in a material respect.[78]

168 In Giannerelli,[79] Mason CJ explained in general terms the importance of counsel exercising an independent judgment or discretion and its relationship with the speedy and efficient administration of justice. Apart from cases concerning whether the duty of counsel extends to exercising an independent judgment about points taken in submissions, there are few cases that deal specifically with the interaction of forensic tactics and a lawyer's duty to the court.

169 One such case is Meek v Fleming[80] The defendant, a police officer, persuaded a jury to reject the plaintiff's claim for damages for assault and wrongful imprisonment. Credit was in issue as the plaintiff's unsupported evidence of the critical events was in direct conflict with that of the defendant, whose evidence was corroborated by other uniformed police. However, by a decision for which leading counsel for the defendant accepted full responsibility, certain facts were concealed from the jury. Between the issue of the writ and the trial, the defendant had been demoted from chief inspector to station sergeant by a disciplinary board. There were facts known to the defendant's legal team. The case was conducted in a manner that did not reveal these facts. The defendant wore plain clothes, was addressed as 'Mr', and was not asked to state his rank when introduced to the court to give evidence. The plaintiff's counsel frequently referred to the defendant as 'inspector' or 'chief inspector' without being disabused. The trial judge similarly referred to the defendant many times in his summing up as 'inspector' or 'chief inspector.' The Court of Appeal was satisfied that the trial judge considered that the defendant's rank and status were relevant on credibility, a conclusion that was assisted by the manner in which the defendant's counsel had referred generally to officers of high rank in his opening and closing speeches. Further, the fact that the defendant's advisers were prepared to act as they did showed the great importance that they attached to the facts concealed.

170 The Court of Appeal set aside the judgment and ordered a new trial. Delivering the leading judgment, Holroyd Pearce LJ stated:

Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials.

In every case it must be a question of degree, weighing one principle against the other. In this case it is clear that the judge and jury were misled on an important matter. I appreciate that it is very hard at times for the advocate to see his path clearly between failure in his duty to the court, and failure in his duty to his client. I accept that in the present case the decision to conceal the facts was not made lightly, but after anxious consideration. But in my judgment the duty to the court was here unwarrantably subordinated to the duty to the client.

171 In Vernon v Bosley (No 2)[81] the defendant appealed an award of damages for nervous shock and psychiatric injury. The Court of Appeal upheld the judge's finding on liability but reduced the award of damages. Before the final order of the Court of Appeal was drawn up, the defendant's advisers learned of County Court proceedings between the plaintiff and his wife in relation to custody of their surviving children. The same experts had given evidence in both trials but in the family proceedings they said that the plaintiff's condition had improved dramatically and gave a much more optimistic prognosis than they gave in the personal injuries action. The plaintiff's legal advisers had known of the improved prognosis before judgment was given in the personal injuries action, but they advised the plaintiff that he was not obliged to disclose that fact to the judge, the defendant's advisers, or to the Court of Appeal.

172 The Court of Appeal, by a majority, allowed an application for rehearing of the appeal and for leave to adduce further evidence. The plaintiff sought to rely on the distinction between actively misleading and passively standing by and watching the court being misled.[82] In a civil case, neither the litigant nor his lawyers were bound to call witnesses who did not support their case. Similarly a party's lawyers were entitled to put such matters in evidence or omit other matters to their client's advantage.[83] Stuart-Smith LJ stated that different considerations apply where the case has been conducted based on certain material facts which are an essential part of the party's case. In this case those matters were the plaintiff's condition at trial and his prognosis. Where those matters are discovered before judgment to be significantly different from the evidence at trial, the court was not being misled by the failure of the defendant to put before it material of which she could or should have been aware. It was misled by the failure of the plaintiff and his advisers to correct an incorrect appreciation. His Honour illustrated that proposition by reference to Meek v Fleming.

173 Thorpe LJ accepted that counsel's decision to withhold the material was the result of a conscientious but erroneous exercise of judgment. Concerning counsel's forensic judgment, Thorpe LJ stated:

There is a value in instinctive and intuitive judgment. The more difficult the decision the greater that value. The course that feels wrongly is unlikely to be the safe course to follow. In general terms the balance between the advocate's duty to the client and the advocate's duty to the court must reflect evolutionary change within the civil justice system. If evolutionary shifts are necessary to match civil justice reforms they should in my judgment be towards strengthening the duty to the court ... The only difference of opinion that I hold from Stuart-Smith LJ is as to counsel's obligation if his client demurs in the communication of necessary material to the judge. If counsel's duty goes no further than requiring his withdrawal from the case there seems to me to be a remaining risk of injustice. Of course such an event leads to speculation. But more than one inference is there to be drawn. I would hold that in those circumstances counsel has a duty to disclose the relevant material to his opponent and, unless there be agreement between the parties otherwise, to the judge.[84]

174 The duty not to mislead the court was recently considered by the Victorian Court of Appeal in Forster v Legal Services Board.[85] Kyrou AJA (Weinberg and Harper JJA agreeing) said:

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]

175 When the Civil Procedure Act came into operation, the lawyer's duty not to mislead or deceive the court was well established. While the advocate's duty to not mislead the court may have been re-expressed in the Act, possibly without substantive change, immunity from suit has been eroded by the power under s 29 to make any order that the court considers appropriate in the interests of justice. I will return later to the issue of remedies but I now turn to the obligations under the Act that are presently relevant.

Overarching obligation not to mislead or deceive

176 It is immediately apparent that the legislature, in the expression of this obligation, has adopted the language of what is now s 18 of the Australian Consumer Law. Much judicial ink has been spilt explaining the 23 words that constitute s 18 and its predecessor, s 52 of the Trade Practices Act 1974 (Cth). The section does not create a liability or, by itself, a cause of action. It establishes a norm of conduct. In the case of the Australian Consumer Law, that norm is in respect of conduct in trade or commerce. In the case of the Civil Procedure Act, it is conduct in respect of a civil proceeding.

177 It is well settled that intention is irrelevant in the context of s 18 of the Australian Consumer Law. The issue is whether, tested objectively, the conduct met the statutory description.[87] Conduct will be misleading or deceptive if it induces or is capable of inducing error.[88] The High Court has recently restated in Google Inc v Australian Competition and Consumer Commission[89] that the section is not confined to conduct which is intended to mislead or deceive. A corporation could contravene s 52 even though it acted reasonably and honestly.

178 Mr Richards and Mr Dohrmann each submitted that s 21 of the Civil Procedure Act requires advertent conduct and that I should interpret the word 'conduct' as having 'a knowing element'. Alternatively, that the word 'knowingly' should be read into the section as follows:

engage in conduct which is knowingly -

(a) misleading or deceptive; or

(b) likely to mislead or deceive.

This construction of the section was required, it was submitted, by s 35(a) of the Interpretation of Legislation Act 1984 (Vic), being the construction that would best promote the purpose or object underlying the Civil Procedure Act. Counsel contended in this submission that the purpose or object underlying the Act was that expressed in s 1(1)(c), that is, to facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute.

179 Acknowledging that the requirements for reading words into a statute are stringent, counsel focussed on the consequences of not so reading the section. A purely objective assessment of conduct would have a very wide ranging effect on the practice in law because a court could be misled or deceived, in the sense of having a tendency to lead it to error, simply by putting a case on a mistaken basis, or by making a simple mistake. Lawyers would over-prepare to ensure they do not mislead or deceive, that no mistake however innocent is made. The just, efficient, timely and cost effective resolution of disputes would not be achieved. Rather, the approach of conservative careful preparation of litigation would blow out the time taken and the cost incurred.

180 I am not attracted to this construction of s 21 for the following reasons.

181 First, as I have explained above, courts have always expected that they will not be accidently misled or deceived in any respect by legal practitioners. That expectation is not limited to intentional conduct that may breach professional conduct rules and rightly may be sanctioned as professional misconduct. I do not accept the premise that if the just, efficient, timely and cost effective resolution of disputes be the only purpose relevantly being considered in the Act, achieving that purpose is best promoted by reading a requirement of knowledge into s 21, lest the floodgates be opened.

182 Secondly, the phrase 'engage in conduct' directs attention to the nature of acts or omissions of the person who is subject to the overarching obligation, and the remaining words of the section provide the relevant characterisation of that conduct. This distinction is most evident in the 'intermediary' cases of which Google is the most recent example. An issue was whether by publishing sponsored links, Google had engaged in misleading and deceptive conduct as a principal. The ACCC relied on the fact that Google used its technology to display the sponsored links in response to search requests made by users of the Google search engine. On the facts, the court concluded that the keywords and other content of the sponsored link that the advertiser chose wholly determined the automated response that the Google search engine made to a user's search request. Google did not create, in any authorial sense, the sponsored links that it published or displayed. Google did not itself engage in misleading or deceptive conduct, or endorse or adopt the representations that it displayed on behalf of advertisers.[90] The plurality did not focus on what Google intended to do, rather on the character of its conduct in the circumstances.

183 In Google, Hayne J cautioned against melding the two issues of conduct and characterisation, stressing that describing the offending conduct as 'making a misrepresentation' is distracting and confusing. Hayne J expressed this caution because neither knowledge of contravention nor intention to contravene is an element of s 52. Hayne J also emphasised that any case concerning s 52 is concerned with the application of a statutory text, expressed in general terms, to particular facts and each case must be understood by reference to the statutory text and the particular facts that were identified as relevant to the application of that text.

184 Transposing Hayne J's words[91] to the context of s 21 of the Act, the section looks at the conduct of a person subject to the overarching obligation and is concerned only[92] with whether that conduct misled or was likely to mislead the court or a party in a civil proceeding. It is not concerned with the mental state of that person. In the context of Google, his Honour concluded that as far as notions of endorsement and adoption direct attention to whether the alleged contravener had some specific intention or knowledge, or was reckless as to some matter, these notions collide with that fundamental proposition.

185 In my view, that proposition is equally fundamental to s 21 of the Act. I have substituted for Hayne J's reference to 'consumer' in s 52 the expression 'the court or a party in a civil proceeding'. As ss 11-16 of the Act make clear, the overarching obligations are primarily owed to the court, which, in this case, included the jury. The paramount duty is to further the administration of justice in any civil proceeding in which the person owing the duty is involved, and the overarching obligations apply in respect of the conduct of any aspect of a civil proceeding in a court. To that end, the court, the parties and their legal representatives are necessarily not to be misled or deceived.

186 Thirdly, it is not appropriate to read the word 'knowingly' into the section. The requirements to be satisfied before words are to be read into a statute are not here met. As the Court of Appeal has recently observed in DPP v Leys & Leys:[93]

The common law has long sought to avoid interpreting legislation in a manner that leads to a result that is manifestly absurd, unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. In certain circumstances, departure from the literal meaning is justified and 'the court is entitled to attribute to the provision the meaning which it was obviously intended to have'.

The question which arises here is whether judicial intervention could be justified to depart from the literal meaning of cl 5 by adding or implying additional words where the consideration of the legislative history of cl 5, its context and the clear intent of the Parliament leads to the conclusion that applying a literal meaning would stultify that intent? That a court may sometimes be justified in abandoning the literal meaning and adding or implying words to avoid an unintended result can no longer be doubted.

After an extensive review of the authorities, the court in Leys & Leys approved the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones[94] concerning the three conditions that must be satisfied before a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said:

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.

187 The Court of Appeal concluded that the question - whether a construction should be adopted that departs from the literal meaning of the words used in a statutory provision to give effect to the purposes of the provision - is to be answered by reference to the three conditions set out by Lord Diplock, together with the additional requirement that the modified construction is reasonably open. That is to say, it must be possible to 'read in' or imply the additional words into the relevant statutory provision without giving the provision an unnatural, incongruous or unreasonable construction, and the provision as modified must produce a construction that is in conformity with the statutory scheme.[95]

188 As I have already stated, I do not accept that the section, interpreted without a requirement that the actor knows that conduct is misleading, leads to a result that is manifestly absurd, unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. Section 21 was not obviously intended to have the interpretation for which Mr Richards SC and Mr Dohrmann contended, instead of its literal meaning. It is possible to determine the mischief at which the Civil Procedure Act is aimed, but it is not apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved.

189 To the contrary, the Victorian Law Reform Commission's Civil Justice Review Report[96] made plain that the proposed prohibition on misleading or deceptive conduct in connection with civil litigation, which it recommended to government, was based on s 52 of the Trade Practices Act. The Commission preferred this expression of the standards expected of lawyers in the conduct of civil proceedings to statements found in ethical and professional conduct rules of professional associations. The latter, mostly, are directed to prohibiting knowingly false and misleading conduct. The Commission considered, and rejected, the proposition for which counsel contended; of a knowledge element in the obligation.

190 The Attorney General, in his second reading speech,[97] explained that the overarching obligations prescribe standards of conduct in civil proceedings. He also stated that the Bill was the product of a reference to the Victorian Law Reform Commission and that the Commission's strategic objectives for reforms of civil procedure rules, substantive law and case management were reflected in the Bill. Those objectives sought not only to change the formal rules for the conduct of proceedings, but also to change litigation culture itself.[98] Informed by the Law Reform Commission's report, the legislature chose not to adopt a knowingly false and misleading conduct requirement in the statute because that expression of an overarching obligation would merely mirror existing professional conduct rules concerning misleading a court and not achieve an appropriate change in litigation culture.

191 Further, I do not accept that the resolution of disputes in a just, efficient, timely and cost effective manner is an objective that cannot be achieved because it must be assumed that civil procedure will become inefficient, delayed and costly as lawyers exercise extreme care not to mislead a court by simple mistake. I do not think that eventuality is realistic. The objective standard for false and misleading conduct predates the Civil Procedure Act and, in any event, is not likely to impede achieving in any way the purposes and objectives of the Act.

192 Some overarching obligations require a particular state of mind, in particular the duty under s 17 of the Act to act honestly at all times in relation to a civil proceeding. There is little, if any, difference between failing to act honestly and engaging in conduct that knowingly misleads or deceives. The overarching obligation to only take steps to resolve or determine a dispute under s 19 of the Act is conditioned by reference to a reasonable belief.

193 I am satisfied that the legislature adopted the wording of the s 21 obligation so that the content of the obligation be informed by the jurisprudence on s 18 of the Australian Consumer Law in the context of conduct in trade or commerce. Save that s 21 of the Act must be read in its statutory context, which is conduct in respect of a civil proceeding, nothing in the language of the Act read as a whole suggests that it is not so informed.

194 I am satisfied that by s 21 of the Civil Procedure Act, the legislature intended to establish a norm of conduct in the conduct of civil proceedings that persons by whom overarching obligations are owed shall not engage in misleading or deceptive conduct, whether or not that was their intention. Although I make no finding against the legal practitioners and Mr Dohrmann in respect of intention, that is because it is unnecessary for me to do so. It may be not open in other circumstances if relevant, as for example in the context of professional ethical regulation, to find their conduct to have been intentional. I consider it appropriate to invite the Legal Services Board and the Institute of Engineers Australia to review my judgment and those of the Court of Appeal and the circumstances revealed thereby.

195 It is important to recall what Hayne J emphasised in Google,[99] which I consider equally applicable to s 21 of the Act.

The generality with which s 52 was expressed should not obscure one fundamental point. The section prohibited engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. It is, therefore, always necessary to begin consideration of the application of the section by identifying the conduct that is said to meet the statutory description "misleading or deceptive or ... likely to mislead or deceive". The first question for consideration is always: "What did the alleged contravener do (or not do)?" It is only after identifying the conduct that is impugned that one can go on to consider separately whether that conduct is misleading or deceptive or likely to be so.

196 The crux of the conduct that was misleading or deceptive or is likely to mislead or deceive was that, first; Mr Richards SC did not reveal the existence of the third version of the report, which he had commissioned. Before turning to my findings, I note that all members of the Court of Appeal found there had been a contravention of Order 44 by the appellant's senior counsel and that, under the circumstances, that contravention constituted conduct which was unjustified and misleading.[100] The Chief Justice catalogued Mr Richard's forensic decisions as they would have appeared to the jury, and with the exception of the first of those decisions,[101] each decision was part of a course of conduct that led the court into error. Her Honour's catalogue was:

2. to not comply with the Order 44 obligation;

3. to not seek leave to amend the Order 44 report of Mr Dohrmann;

4. to leave matters such that the true course of events tumbled out during Mr Dohrmann's cross-examination in a way that aroused suspicion given that the appellant's history of events was under scrutiny;

5. to in fact call Mr Dohrmann as a witness;

6. to not re-examine Mr Dohrmann on the topic; and

7. to not seek to recall the appellant (her case not having closed at that point).

The Chief Justice concluded, and with respect I agree that:

On the face of things there was a strategy to cover up the circumstances of the drafting of the third report. There seems to have been a forensic decision to preserve consistency with the appellant's evidence. It remains that at any time the third report could have been produced and given to the respondents and the jury. Instead a different path was chosen.

197 Whelan JA, with whom Tate JA agreed, also catalogued the respects in which the third version of the report was misleading,[102] noting that it was not revealed in exchanges with me about the admissibility of Mr Dohrmann's evidence.[103] My own analysis of why I was misled about the admissibility of Mr Dohrmann's evidence is consistent with Whelan JA's analysis.[104] Whelan JA also catalogued the concerns that arose from the first and second versions of the report,[105] identifying three areas of concern. Mr Dohrmann had not prepared the second version of the report. Reconstructing at trial, he adopted the first version as correct and later adopted the second version as correct. The second version failed to comply with the Expert Code. Whelan JA concluded, and with respect, I agree that:

It seems to me that what occurred in relation to the 9 April 2010 report was very close to what senior counsel for the [school] unjustifiably asserted that the appellant's lawyers had attempted in relation to the 12 November 2012 report. Whatever the motivations may have been, and whatever misunderstandings there were, the effect of what occurred was that the appellant's solicitors altered the account of what the appellant had told Mr Dohrmann in the course of his interview with her.

198 Mr Richards misled the court when he led expert evidence from Mr Dohrmann, because as r 44.03(3) makes plain, the existence of the unserved third version of the report required that the plaintiff obtain the leave of the court to lead any expert evidence from Mr Dohrmann.[106] The plaintiff did not seek that leave. The defendants, being unaware of Mr Richards' attempt to circumvent his forensic difficulties, could not take the point that leave was required. Mr Richards led the court into the error of assuming Mr Dohrmann had not prepared and adopted as correct a supplementary report, and that, without leave, evidence could be led based on the 'original' report that was served.

199 Secondly, when the school objected to the admissibility of Mr Dohrmann's report on the basis that the plaintiff could not prove the assumed factual basis for his opinions, the circumstances of the third version of the report demonstrate that that objection was well founded. Critical aspects of Mr Dohrmann's assumed facts would not be proved in the trial, yet Mr Richards SC submitted that the original (second version) report was relevant and admissible because the assumed facts would ultimately be established. Mr Richards was not fully frank with, and misled the court on this application by this submission because, at the time it was made, Mr Dohrmann had signed off on the third version. Mr Richards attempted, during Mr Dohrmann's evidence in chief, to gloss over the assumed facts stated in the report and obtain from Mr Dohrmann his opinion expressed on the basis of the plaintiff's evidence.

200 What Mr Richards SC was most likely seeking to circumvent by having the third version prepared was the jury rejecting Mr Dohrmann's opinions. Had I ruled in favour of the school's application that significant parts of the report were inadmissible, I can only now speculate whether Mr Richards would have produced Mr Dohrmann's third version and applied for leave to rely on it. The court was also led into error in assuming that the plaintiff could, by the time her case was closed, establish a sufficient basis in the evidence to make Mr Dohrmann's opinions admissible.

201 As then became apparent when the evidence was taken, in truth, Mr Dohrmann was no longer basing his opinion on the assumed facts set out in his reports as served. Mr Richard's conduct on the objection to admissibility led the court and the defendants into the error of assuming that he was so basing his opinion and that the plaintiff could establish those assumed facts before her case was closed. Mr Richards perpetuated the error when the defendants objected to his attempts to put the plaintiff's version of the incident given at trial to Mr Dohrmann during his evidence in chief.

202 Thirdly, by not serving the third version as soon as practicable - on the eve of trial or before court on the first day - that version was not available to cross-examining counsel or for re-examination of the plaintiff when she gave evidence. The third version of the report could never save the plaintiff's credibility from the damage that could flow in cross-examination from exploitation of the inconsistent assumed facts. Possibly, it might have been used to assist the plaintiff in re-examination.

203 The consequences for the plaintiff when Mr Richards attempted, during Mr Dohrmann's evidence, to shift the basis for Mr Dohrmann's opinions to that expressed in the third version that I described above, were catastrophic. Mr Richards did not reveal his role in the third version of the report during the trial, but the deceptive and misleading nature of his conduct, which was attributed to the 'plaintiff's legal team', was revealed once Mr Dohrmann was cross-examined.

204 I add that the circumstances in which Mr Richards dictated to a secretary the changes to be made to the report, which were transcribed from the yellow post-it note, went beyond proper conduct by counsel in dealings with an expert witness. That is so because it effectively directed the expert away from duly observing the Expert Code. In particular, the expert's sources for his assumptions remaining unaltered was misleading. But, further, there was conflict between instructions provided by Mr Richards and instructions provided in conference by the plaintiff that was disguised. The legal practitioner's role is to transparently instruct an expert, not to write or amend his report. How a report is amended following a variation in instruction is a matter for the expert.

205 I make findings about Mr Dohrmann's conduct in two parts; first his conduct when giving evidence and secondly, his conduct when preparing his report. The crux of Mr Dohrmann's conduct that was misleading or deceptive or was likely to mislead or deceive was that he did not reveal the existence of the third version of the report, which Mr Richards SC had commissioned. Mr Dohrmann led the court into the error of assuming that he had not prepared and adopted as correct, another version of the report which was materially different to the report that was the basis for his evidence in chief. I am satisfied that during the course of his evidence in chief, when Mr Dohrmann was confronted with the existence of two versions - the first and second versions - Mr Dohrmann led the court into the error of assuming that there was not a third version. He did this by remaining silent about the fact that he had signed and sent to the plaintiff's legal team an amended version of his report, assuming that it would be served.

206 Mr Dohrmann perpetuated the error when defence counsel objected to Mr Richards' attempts to put the plaintiff's evidence of the incident to Mr Dohrmann during his evidence in chief, rather than the assumed facts stated he set out in his report. I am satisfied that Mr Dohrmann well understood what Mr Richards was doing, yet he did not inform the court of the third version.

207 When Mr Dohrmann explained that given he had provided the third version to the legal team, he felt it was not for him to mention it in his evidence if Mr Richards didn't go to it, he demonstrated that he was not adhering to the Expert Code of Conduct when giving his evidence in chief. So much follows because he was aware that he had adopted an amended version of his report that he expected would have been served on all parties. This was a plain breach of paragraph 2 the Expert Code. It revealed that Mr Dohrmann not assisting the Court impartially on matters relevant to his expertise. He was acting as an advocate for the plaintiff. Mr Dohrmann was advocating for the plaintiff by his acquiescence in Mr Richards' forensic tactics. It is difficult to conceive of circumstances where it would be proper for an expert to engage in forensic tactics.

208 Further, Mr Dohrmann told the court when cross-examined, that the third version of the report was prepared under direction from the plaintiff's legal team, but he told the jury that his conversation with Mr Richards commissioning the amended report took place after cross-examination of the plaintiff had commenced. I accept that in giving this evidence Mr Dohrmann was mistaken and that Mr Richards' directions for amendments to the report and the preparation of the third version, occurred before the trial commenced. Nonetheless, Mr Dohrmann's mistake could well have lead the jury to erroneously believe that Mr Dohrmann had backdated the report.

209 I have set out above the other respects in which Mr Dohrmann's conduct in preparing his report did not comply with the Expert Code. In essence, the different versions of the report were not identified as such and Mr Dohrmann did not record in the report his instructions to amend it. This omission was significant in each of the second and the third versions. The conflict between his instructions to alter his report and his note, or recollection (if that be what it was) of the plaintiff's instructions given at the site inspection was neither acknowledged nor explained. Rather, it was disguised. Mr Dohrmann was unaware of the second version of the report that was altered by Mr Fewster and his secretary. Mr Dohrmann never read and considered the second version of the report and his evidence that he did so was misleading. Plainly bewildered by the existence of a second version, his duty was to ascertain the facts before responding, not to speculate.

210 Because the source of the amendments was not stated, the plaintiff was cross-examined on the basis that she had given inconsistent accounts to Mr Dohrmann and she was not a credible witness.

211 I do not find that Ms Toop engaged in any conduct in connection with the third version of the report that was misleading or deceptive or likely to mislead or deceive. I have confined this inquiry to the circumstances of the third version of the report, and I note that the Court of Appeal's consideration of responsibility for the costs of the appeal was not so constrained, and the Court of Appeal considered that the solicitor's conduct in respect of the second version of the report was unsatisfactory.[107]

Overarching obligation to disclose existence of documents

212 A person subject to the overarching obligation of disclosure, in this case the legal practitioners but not the expert, must at the earliest reasonable time after the person becomes aware of the existence of the document or as the court may direct, disclose to each other party the existence of all documents that are or have been, in that person's possession, custody or control. The obligation is qualified in two ways. It applies to those documents of which a person is aware and to those documents that the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

213 It was not contended that Mr Dohrmann's reports were not considered critical to the resolution of the dispute. There was no issue raised that this obligation was inapplicable on the ground of privilege that had not been expressly or impliedly waived. The overarching obligation imposed by s 26 is an ongoing obligation for the duration of the civil proceeding.

214 Mr Richards contended that the third version of the report would not reasonably be considered a critical document as that evidence was to be called viva voce from the witness box. The 'mental element' required for s 26(1)(b) was not made out and the overarching obligation did not extend to this document.

215 I am satisfied that Mr Richards was aware of the third version of the report and was knowingly in possession of a copy of it provided directly to him by Mr Dohrmann.

216 The contention that the third version of the report was not a critical document was misconceived for at least two reasons. First, the plaintiff was not entitled as of right to adduce any evidence from Mr Dohrmann while in possession[108] of a supplementary report by that witness that had not been served and the third version was a supplementary report. On electing not to serve the third version, the plaintiff required, under r 44.03(3), the leave of the court to use any version of the report at trial.

217 No leave was sought and Mr Dohrmann's evidence, based on his earlier report, was heard by the jury before the existence of a third version of the report was revealed. The non-disclosure of the third version for tactical reasons, which was the explanation given in conjunction with a surprising admission by Mr Richards SC that he did not understand the requirement of r 44.03(3) concerning supplementary reports, deprived the defendants of the opportunity to require that the plaintiff obtain the leave of the court for the whole of Mr Dohrmann's evidence. The other parties, unaware of the third version, could take no objection. The effect of the non-disclosure was that the plaintiff adduced Mr Dohrmann's expert evidence without first obtaining leave.

218 The earlier forensic decision to instruct Mr Dohrmann to prepare a further version of his report inevitably required that it be forthwith served on the other parties. There was no proper forensic choice of the kind described by Mr Richards open to him. As I have noted, it was a nice question whether the whole of Mr Dohrmann's evidence was inadmissible.[109]

219 Second, the basis for characterising the third version as not being critical to the resolution of the dispute turned on the notion that Mr Dohrmann had not changed his opinion on a material matter expressed in an earlier report and that his opinion remained unchanged notwithstanding that it was expressed on different assumed facts. This contention is misconceived. Mr Richards SC admitted that in preparing for trial he foresaw a forensic difficulty in the variance between the assumed facts stated by Mr Dohrmann and the plaintiff's proposed evidence. That Mr Richards invited Mr Dohrmann to reconsider his opinion on different assumed facts demonstrates that he considered the issue critical in the resolution of the proceeding. Further, any competent trial advocate would consider a document that showed a significant variation between the plaintiff's proposed evidence and the history taken from the plaintiff by an expert to be critical to the resolution of the dispute.

220 I do not accept the notion that, in the relevant sense, Mr Dohrmann's opinion remained unchanged. Each version of the report expresses a different opinion because, although the conclusions are expressed in the same terms, each is on its face the application of expertise by reasoning to a conclusion from different assumed facts.

221 For these reasons, I reject the contention that Mr Richards SC did not consider, and ought reasonably not have considered, the third version of the report to be critical to the resolution of the dispute.

222 Ms Toop's counsel submitted that she was 'bullet proof' as regards any matter concerning the third version of the report. Counsel submitted that I should find that she had 'no knowledge of that third report'.

223 This submission was, in effect, that the section required not simply that the third version of the report was, or had been, in her possession, custody or control but, further that Ms Toop was aware of that 'possession'. I do not accept that, in the sense required by the section, Ms Toop had no knowledge of the third version of the report. For the reasons that follow, I am satisfied that Ms Toop was aware that the third version of Mr Dohrmann's report was in her control. That it was in the physical possession of Mr Dohrmann, which was where the original signed copy of it would have been, or the physical possession of Mr Richards, who had received an emailed duplicate original, electronically signed, did not matter.

224 The section does not require awareness by actual personal knowledge of the document and Ms Toop's statement that she was not aware that Mr Dohrmann had sent the third version to Mr Richards was not a sufficient answer. Ms Toop was responsible for supervising the engagement of Mr Dohrmann and subsequent management of that engagement by Clark Toop & Taylor. Clark Toop & Taylor were responsible for Mr Dohrmann's fee. Mr Fewster, under Ms Toop's supervision, provided the initial instructions. Mr Dohrmann reported to Clark Toop & Taylor. The third version of the report was addressed to Clark Toop & Taylor. Mr Dohrmann suggested that he intended to send it to Clark Toop & Taylor and the note at the bottom of his email to Mr Richards supported his suggestion. Mr Richards only become aware of Mr Dohrmann's report because Clark Toop & Taylor briefed him with an earlier version of the report. The papers with which a barrister is briefed belong to the solicitor and remain within the solicitor's control. All of Mr Richards' dealings with Mr Dohrmann were in the context of his instructions and undertaken on behalf of Clark Toop & Taylor and the plaintiff. When Mr Richards informed Ms Toop that he had instructed Mr Dohrmann to prepare a third version of his report, that instruction was given by Mr Richards on behalf of, and received by Mr Dohrmann as from, Clark Toop & Taylor. Ms Toop did not explain why she acquiesced in that manner of a discharge of a solicitor's responsibilities in preparing expert evidence for trial.

225 Moreover, the fact that Ms Toop never later turned her mind to the existence of a third version following the conversation with Mr Richards when he told her what he had asked Mr Dohrmann to do, and that Mr Richards did not tell Ms Toop that he had the third version, if either circumstance be the case, is of no consequence. Counsel's knowledge of the document, gained from performing his instructions, may properly be imputed to the solicitor since it was acquired both for the purpose of the plaintiff's case in a civil proceeding and in the course of his retainer by Clark Toop & Taylor. It was the duty of counsel and the expert to communicate that knowledge to the solicitor.[110]

226 Put another way, where a solicitor has arranged matters so that the retained counsel undertakes on her behalf dealings with an expert witness, the solicitor not only authorises the barrister to perform all necessary steps but also places the barrister in the position of acquiring firsthand knowledge of relevant facts. At the same time, the solicitor deprived herself of the opportunity of acquiring such firsthand knowledge. If the dealings by the barrister invest him with actual personal knowledge of the document, those dealings will bind the solicitor with that knowledge. Where the barrister's awareness of the document is unequivocal and arises in performance of his retainer, at the time when the barrister is aware that he is in possession, custody or control of the document, the solicitor will be aware of the document in the sense required by s 26 of the Civil Procedure Act. The duly authorised conduct of the barrister, who has acquired the relevant knowledge, will, without either conduct or actual knowledge on the solicitor's part, constitute an effective awareness of the document.[111]

227 To paraphrase an observation of Mason J in Sargent v ASL Developments Ltd,[112] the barrister is to be regarded as the alter ego of the solicitor, and the overarching obligation of disclosure under s 26 of the Civil Procedure Act cannot be made to depend on the diligence or lack of diligence exhibited by either of the solicitor and the barrister in their dealings with each other.

228 In a different context, Whelan JA, when rejecting Ms Toop's explanation for the circumstances of the second version of the report, said:[113]

It was (to say the least) unsatisfactory for the appellant's solicitors to alter the report in the way in which they did. It was unsatisfactory to then serve it without notifying the other parties of what had happened. Ms Toop attributes all the relevant conduct to her employee solicitor. We do not know what he says about the issue. For present purposes, it cannot absolve her of responsibility in any event. She was the supervising partner and had the conduct of the proceeding on the appellant's behalf.

Finding - s 26 obligation

229 I find that Ms Toop and Mr Richards SC breached the overarching obligation of disclosure under s 26 of the Civil Procedure Act on 13 November 2012 by failing on that day, or so soon thereafter as was practicable, to disclose to the defendants the third version of Mr Dohrmann's report and continued to do so through to the conclusion of Mr Dohrmann's evidence in chief. That breach was integral to the conduct that was deceptive and misleading.

230 ISS alleges that Clark Toop & Taylor and Mr Dohrmann, in their failure to disclose the first version of the report to ISS, breached the overarching obligation not to mislead or deceive, and Clark Toop & Taylor breached the overarching obligation to disclose the existence of documents. ISS seeks an order that Clark Toop & Taylor and/or Mr Dohrmann compensate it pursuant to s 29 of the Civil Procedure Act, by paying ISS's costs arising from Clark Toop & Taylor and/or Mr Dohrmann's failure to disclose the existence of the first report.

231 ISS characterised the claim against it as closely analogous to a product liability claim, in that it was alleged that ISS failed to take reasonable care in the installation of the soap dispensers to secure them adequately to the wall with proper and sufficient materials, to prevent them from being manually dislodged from the wall and their contents spilled upon the floor. A critical issue was whether the risk of injury to the plaintiff was reasonably foreseeable. As ISS was not only involved in the installation of the soap dispensers, but also regularly serviced them, any observations made by the plaintiff of prior vandalism to the soap dispensers, or that soap dispensers had been torn from the wall, or were missing were clearly relevant to her case against it.

232 Mr Dohrmann's first report stated that the plaintiff had not previously seen any evidence of vandalism or missing soap dispensers, evidence which favoured ISS on the issue of foreseeability of risk. The tenor of Mr Dohrmann's second report was that there was a systemic problem with vandalism of soap dispensers and their removal immediately after they were installed. ISS was initially joined into the proceeding by the school based on Mr Dohrmann's second report because Mr Dohrmann's opinion was that the school should have prevented exposing the plaintiff to risk by 'ensuring that any soap dispenser fastened to the wall was secured in a way that would resist attempts to tear them off by vandals.' Although this opinion is expressed in each version of the report, the facts outlined in the first version of the report provided a strong basis to challenge the opinion expressed.

233 ISS argued that Clark Toop & Taylor and Mr Dohrmann contravened their respective overarching obligations in the following ways:

(a) ISS was never served with the first report, and Clark Toop & Taylor did not serve either version of the report on ISS, which was misled into believing that there was only one version until Mr Dohrmann gave evidence at the trial.

(b) The circumstances of its preparation and the form of the second version also misled the school and Mr Dohrmann himself when he gave evidence at trial.

(c) The second version was not prepared as an amended report, with a different date from the original and a clear explanation that it was an amended report.

(d) Mr Fewster, who instigated the creation of the second report and undoubtedly knew of the differences between the two, when serving the second report did not state that alterations had been made, and in fact stated simply that the 'updated report dated 9 April 2010' was served. The failure to reference the amendment disguised the serious inconsistency between the versions.

234 Mr Kavanagh, of Lander & Rogers acting for ISS, gave evidence that enquiries would have been made had ISS been aware of the first version of the report. Mr Kavanagh deposed that he would have sought an explanation from Clark Toop & Taylor and that Mr Dohrmann's file would have been subpoenaed, which in turn would have led to the discovery of Mr Dohrmann's hand written note that there were 'no prior obs [observations] of loose or torn dispensers' resulting in yet further investigation.

235 Clark Toop & Taylor failed to comply with Order 44.03(3) of the Supreme Court Rules. The plaintiff required leave to rely on the original report. The joinder of ISS arose solely from the service of the second report, and there is a causal link between the contravention of the overarching obligation and legal costs or expenses incurred by ISS. Mr Kavanagh stated that ISS was actively seeking to resolve the proceeding in a commercially sensible manner, and ISS submitted that the failure to disclose the report deprived ISS from fully exercising its own overarching obligation to use reasonable endeavours to resolve the dispute and/or narrow the issues in dispute. As a result, ISS lost an opportunity to use the undisclosed matters to persuade the plaintiff that her case against it was bound to fail. Had that opportunity been available, ISS would have incurred less legal costs that it did.

236 ISS's application was for a costs order against Clark Toop & Taylor and Mr Dohrmann. It made no specific submission about how the court should frame its order. Rather, it put a more general submission that the court's discretion to make such an order depended on the extent of the breach. ISS submitted that I should consider that disputes must be resolved in a just, efficient, timely and cost effective manner and determine whether an order pursuant to s 29 would be warranted in light of that purpose.

237 The principal difficulty with ISS's application is that ISS settled out of the proceeding during the trial. It did so on confidential terms on 30 November 2012. On that day, I was informed that all claims against and by the third defendant had been compromised by agreement. By consent, I dismissed all claims without adjudication on their merits. I also ordered that there was no order as to costs. The terms of settlement were not put in evidence, but it must follow that there was either a sum paid that was inclusive of costs and/or that the parties agreed to bear their own legal costs.

238 In my view, having made the forensic decision not to proceed to verdict by compromising the claims that affected it, it is not now open to ISS to seek a costs order against Clark Toop & Taylor and Mr Dohrmann.

239 ISS was aware of all of the material facts on which it now relies when it settled the claims against it. Mr Dohrmann completed his evidence on 22 November 2012. Further, ISS had extant a submission that the claims against it be withdrawn from the jury on the basis that there was no evidence that ISS owed the plaintiff a duty of care. That submission was to be ruled on at the close of the evidence.[114] ISS obtained the benefit of the compromise of the proceeding, and it made no application to set that settlement aside. It may be that s 29 would permit the court to set aside the settlement on being satisfied of a contravention of an overarching obligation that relevantly affected the settlement but there was no such application and making such an order was not addressed in argument. I say no more about it.

240 ISS relied on Caboolture Park Shopping Centre Pty Ltd (in liq) v Flower and Hart (a firm)[115] in which the court rejected the contention that it was functus officio when costs orders were sought against the solicitors personally, subsequent to final orders being made. That case was concerned with federal jurisdiction to award costs against persons who were not parties to a proceeding. Flower & Hart sought to invoke the common law rule that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order that alters or sets aside that judgment. The only remedy in such a case for a dissatisfied litigant is, where available, an appeal.[116]

241 The court held that it had a separate jurisdiction to make an order against a solicitor representing one of the parties even after judgment had been obtained in the main action.[117] It was critical that the non-party costs order in that case did not seek to vary or alter the initial order, being characterised as supplemental to it. The Full Court said:

It is of the utmost importance for the administration of justice in this court that legal practitioners acting in proceedings before the court are honest, candid with the court and neither obstruct the administration of justice by the court, nor abuse the court's process. It can hardly be accepted that the court must stand idly by when practitioners appearing before it, or acting in matters in the court, act with impropriety. If it be correct that the Court has jurisdiction to make an order against a solicitor representing one of the parties before it based on the ability of the Court to enforce a duty owed by practitioners to the Court, it seems clear as a matter of authority that it is a separate jurisdiction which would continue even after judgment had been obtained in the main action.[118]

242 Although the court had finally adjudicated on the claims in the proceeding between the plaintiff and the defendant including as to costs, there had not been any final adjudication on the claim made against the solicitor personally for costs.

243 I infer that ISS contends that this principle, in respect of judgments, is equally applicable in the case of a settlement. This issue was not directly addressed. There are material distinctions between completion of a proceeding by settlement and completion of a proceeding by judgment. One obvious distinction is that this court did not exercise its costs discretion at all. In this case, a consent order that there be no order as to costs was made.[119] Rather than being supplemental to a costs order in favour of a party to the proceeding, making a costs order in favour of ISS may amount to a variation or alteration of the consent order. It could not be characterised as supplemental to that order, and might not be consistent with the underlying agreement that was the basis of the consent to that order.

244 The Full Court observed that Flower & Hart's submission, if accepted, would have enabled a solicitor, who was able to keep information of his misconduct hidden, to escape an order for costs once judgment had been entered. The solicitor might be liable only in damages in tort. That, too, is not this case, as ISS did not settle in ignorance of the material facts on which its claim that there had been a breach of an overarching obligation was founded. Having elected to compromise the proceeding, including any claim for costs had its defence succeeded after Mr Dohrmann's evidence was completed, ISS was acting inconsistently with its decision to bear its own costs by its application. Presumably, if its settlement agreement warranted an alternative conclusion, it would have been put in evidence.

245 ISS did not base its application on the non-party costs jurisdiction. It was founded on s 29 of the Civil Procedure Act. As Tracey J pointed out in Mijac Investments Pty Ltd v Graham,[120] speaking about the equivalent provisions of the Federal Court of Australia Act 1976 (Cth),[121] the principles that apply when exercising a discretion to make a non-party costs order have been qualified, at least in part. One qualification is that such applications must be made before the finalisation of the civil proceeding to which the application relates, although there is power to extend time. The evident legislative intention is that the trial court should deal with such applications, as ss 30 and 31 of the Civil Procedure Act make clear.

1. Applications for orders under section 29

(1) An application for an order under section 29 is to be made-

(a) in the court in which the civil proceeding was, or is being, heard; and

(b) in accordance with the rules of court.

(2) An application for an order under section 29 must be made prior to the finalisation of the civil proceeding to which the application relates (excluding any period for appeals).

(3) For the purposes of subsection (2), if an order, including an order in respect of costs, is made after the date of finalisation of the civil proceeding to which the application relates, the date of making of the last of the orders is taken to be the date of finalisation of that proceeding.

(1) Despite section 30(2), a person may apply to the court for an extension of time to apply for an order under section 29 after the finalisation of the civil proceeding.

(2) The court may grant an extension of time for making an application under section 29 if satisfied that the person making the application was not aware of the contravention of the overarching obligations until after the end of the period specified in section 30(2).

(3) An application under this section may be made by-

(a) any party to the civil proceeding; or

(b) any other person who has a sufficient interest in the civil proceeding.

246 ISS did not make its application before the finalisation of the civil proceeding to which its application relates. Relevantly, the claims made by the plaintiff and the school against ISS and the contribution claims between defendants constituted that civil proceeding. It is in respect of those claims that ISS contended for a causal link between the contravention of the overarching obligation and legal costs or expenses. Once orders were made dismissing those claims on 30 November 2012, the civil proceeding to which ISS was a party was finalised.

247 No extension of time was sought. Had an extension of time been sought, I may have refused to extend time, because ISS was aware of the material facts on which its claim that there had been a breach of an overarching obligation was founded, when it compromised the proceeding.

248 For these reasons, ISS's application will be dismissed. I add that, in these circumstances, it is unnecessary to determine whether the conduct identified by ISS surrounding the second report is conduct in contravention of the Civil Procedure Act, which commenced operation on 1 January 2011, or whether there is a causal nexus between that conduct and the claim for costs.

249 This is an exceptional jurisdiction in that a non-party costs order will only be made where the interests of justice justify a departure from the general rule that only parties to proceedings may be subject to costs orders.[122] In most cases, it will be prima facie unjust to award costs against a non-party and as a matter of discretion[123] the circumstances in which an order will be made are confined. Confinement has been expressed using a variety of epithets[124] to the effect that the jurisdiction is exceptional, but exceptional in this context may mean no more than outside the ordinary run of cases.[125]

250 The factors identified in the cases as relevant to the exercise of the discretion include -

(a) The non-party's connection both with the proceeding and with the incurrence of the costs. As Gobbo J explained in Bischof v Adams,[126] this involves an inquiry into the connection between both the non-party and the proceeding, which is a necessary but not a sufficient condition for the exercise of the discretion, and the causal connection between the non-party and the costs. A non-party will not ordinarily be held liable for costs that would have been incurred without the non-party's involvement. That connection must be real and direct.

(b) Whether the non-party could have been joined as a party to the proceedings. A costs order against a non-party who could have been joined will only be made in exceptional circumstances, because of the failure of the party seeking the costs order to have afforded to the non-party the protections conferred by rules of court.[127] Similarly, whether the non-party was warned that costs might be sought against it may be relevant.

(c) Whether the conduct of the non-party was unnecessary or unreasonable. Plainly, improper conduct may influence the discretion but proof of a want of good faith or of improper conduct is not a necessary condition for exercise of the jurisdiction.[128]

(d) Whether the party that would ordinarily be liable for costs can meet a costs order and, possibly, the reasons for any inability to do so. This in turn may raise the question of whether security for costs was, or ought to have been sought at an early stage in the proceeding.[129]

251 Where the costs liability of a legal practitioner is in issue, r 63.23 is relevant. The rule provides that where a solicitor (or a barrister) for a party has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition, the court may order that costs as between solicitor and client be disallowed or that the practitioner repay to the client the whole or part of any money paid on account of costs. The court may also order that the practitioner pay to his or her client all or any of the costs which the client has been ordered to pay to any party, or that the practitioner pay all or any of the costs payable by any party other than the client.

252 It is plain enough from the Victorian Law Reform Commission's Civil Justice Review Report that it was against the background[130] that the legislature enacted s 29 of the Civil Procedure Act.[131] The Commission noted that existing sanctions included criticism by a court that might result in a loss of credibility and a reduced prospect of further work as an expert witness, costs orders against an expert, disciplinary proceedings by a relevant professional body, charges for contempt or perjury and/or the expert's costs might be disallowed either as between party and party, or between expert and client.[132] The Commission recommended that the availability of these alternative sanctions, or the traditional rationale for witness immunity, should not prevent its recommended overarching obligations and sanctions for breach of those obligations applying to expert witnesses.

253 The position of lawyers and experts at common law has been significantly affected by the enactment of the Civil Procedure Act in 2010. Section 29 of the Act has effected a significant statutory change to the law through the power to sanction breaches of the overarching obligations, including by compensation orders.

Sanctions for contravening the overarching obligations

254 The jurisdiction to impose sanctions for contravening overarching obligations is broadly exercised in three ways. Any contravention of the overarching obligations may be taken into account by a court, first, exercising any power[133] in relation to a civil proceeding and, second, in exercising its discretion as to costs.[134] Third, s 29, which is set out above, empowers the court with a wide discretion to make any order it considers appropriate in the interests of justice.

255 Counsel contended, and I agree, that even if the discretion is enlivened by a finding that on the balance of probabilities, a person has contravened an overarching obligation, the court is not required if in a proper exercise of its discretion the course is not warranted, to make any order or any of the particular orders specified in s 29 of the Civil Procedure Act. There are two stages in the exercise of the discretion. Should any order be made and, if so, what order should be made?

256 The court's jurisdiction to make orders, being undefined in terms, is as broad, wide and deep as the statutory context and the particular circumstances demand. I commence with the caveat noted by LJ in Gardner v Jay:[135]

... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?

257 The statutory framework in which it sits primarily conditions the discretion. Section 8 is important as it expressly emphasises the question: will the making of an order under s 29 of the Civil Procedure Act give effect to the overarching purpose? Section 29(1) then sets out the orders that may be made to further the overarching purpose in making an order and s 29(2) sets out the matters to which the court may have regard, although s 29(3) provides that the statutory list is not an exclusive list. The court may, in my view, take account of any matter that arises out of the circumstances of the application, whether that is arising out of the proceeding, or is a matter personal to the person who is subject to the overarching obligation.

258 The particular types of order identified by s 29 are:

(a) costs orders - s 29(1)(a) & (b);

(b) compensation orders - s 29(1)(c);

(c) directive orders that persons take, or not take, specified steps in a proceeding - s 29(1)(d) and (e);

(d) orders 'in the interests of' prejudicially affected persons - s 29(1)(f).

259 Apart from ISS, whose application will be dismissed, the defendants have not sought any particular order for costs, compensation, directive orders, or orders 'in the interests of' prejudicially affected persons. The employer withdrew its summons. The school made no application for any such order. There was no direct evidence of what costs arising from Mr Dohrmann's evidence have been incurred by the employer and the school, either in the proceeding generally or more specifically arising from the presentation of his evidence in court. Inferences may reasonably be drawn.

260 No defendant called evidence from an expert to contradict Mr Dohrmann's evidence, and each can be taken to have intended to deal with the substance of his evidence by cross-examination. Preparation of that cross-examination was a necessary step in the trial and the extent of preparation does not appear to have been affected by these events. The conduct of the cross-examination was protracted by the breaches of the overarching obligation and the costs court could quantify the extent to which the costs can be attributed to the breaches.

261 There have been a number of significant developments since this matter was argued and I held back my reasons for judgment in anticipation that the plaintiff's appeal might affect the proper orders to be made on this application. First, the plaintiff succeeded in her appeal and the judgment in favour of the defendants was set aside. Orders for the costs of the proceeding made after the conclusion of the jury trial in favour of the employer and the school were set aside. When the appeal succeeded, the plaintiff ceased to be the person most plainly affected by the breaches of overarching obligations.

262 Secondly, the plaintiff settled with the school on undisclosed terms shortly before the remitted proceeding being heard, and all claims against, and by, the school were dismissed with no order as to costs. Only claims against the employer remained.

263 Thirdly, the Court of Appeal made the following orders in respect of costs.[136]

(a) The costs of the trial already held were to be determined by me.

(b) The School was to pay the appellant's costs of the appeal on a party/party basis up to 1 April 2013 and thereafter on a standard basis.

(c) The employer was to bear its own costs of the appeal.

(d) Mr J B Richards SC and Clark, Toop and Taylor:

• (i) were to each indemnify the school for 40%, making 80% in total, of the school's liability under order (b);
• (ii) were disallowed any costs and disbursements to which they would otherwise be entitled in relation to this appeal; and
• (iii) were to pay equally any legal costs and disbursements incurred by the appellant in relation to this appeal which she does not recover under order (b).

264 Whelan JA, with whom the other members of the court agreed, said;[137]

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.

It is important that Mrs Hudspeth herself not have to bear any costs of the appeal, including disbursements. The attribution of responsibility for the miscarriage of the first trial lies primarily with the second respondent, senior counsel for Mrs Hudspeth, and Mrs Hudspeth's instructing solicitors. Given that Mrs Hudspeth succeeded on the appeal, it is only appropriate that in effect they each pay a proportion of Mrs Hudspeth's costs.

265 Fourthly, I have determined in the remitted proceeding that the plaintiff is entitled to judgment against the defendant, her employer, for damages and my ruling in respect of the costs of the proceeding, including the jury trial, will shortly be known.

266 In an earlier ruling, I stated my view that the jurisdiction under s 29 is primarily compensatory, although I acknowledged that findings of breach of overarching obligations and orders under s 29 could have a punitive effect regardless of the object of the jurisdiction. That punitive effect can be significant.

267 In view of these further developments, and having now stated my findings, I will hear further argument from Clark, Toop & Taylor, Mr Dohrmann, Mr Richards SC, and the plaintiff should she choose to participate in the application, as to the appropriate orders to be made in the interests of justice pursuant to s 29 of the Act.

268 Without limiting the scope of orders that any party may wish to seek, those parties should address whether one or more of the following orders may be appropriate.

(a) an order that Clark, Toop & Taylor, Mr Dohrmann and/or Mr Richards SC compensate the plaintiff or the defendant for any financial loss or other loss which was materially contributed to by a contravention.

(b) an order that the fees, costs, and expenses to which Mr Richards SC, or Clark Toop & Taylor, or Mr Dohrmann might otherwise be entitled in the proceeding be disallowed in whole or in part.

(c) an order that Mr Dohrmann indemnify in whole or in part, Mr Richards SC, or Clark Toop & Taylor or the plaintiff in respect of costs ordered by the Court of Appeal to be paid by each of them.

(d) an order that Mr Richards SC, or Clark Toop & Taylor, or Mr Dohrmann pay any and if so what costs of the defendant or a former defendant.

(e) an order referring the matter to the Legal Services Board and the Institute of Engineers Australia.

269 Nothing in this judgment should, or I believe will, deflect legal representatives, on instructions, from vigorously pursuing and arguing the most difficult cases. Further, nothing I say should be taken as discouraging legal representatives from acting for plaintiffs on a 'no win no fee' basis provided only, and always, that the absence of definite or certain remuneration for work being done never compromises the paramount duty nor the performance of overarching obligations, or, for that matter, the legal representative's duty to his or her client. On the other hand, expert witnesses are encouraged to fearlessly accept that their fundamental role when giving evidence, and in preparation for doing so, is that described by their overarching obligations under the Act as complemented by the Expert Code of Conduct. Expert witnesses should discharge their duties to the court in that fashion, cognisant of the right and obligation and thus the protection afforded to them by s 12 of the Act.

270 I will order that the application by ISS Hygiene Services Pty Ltd be dismissed and will hear from counsel in respect of the costs of that application. I will also hear from the defendant and former parties that appeared on the application in respect of their costs on the s 29 motion.

(a) I will adjourn the application for further argument in respect of the appropriate orders to be made under s 29 of the Civil Procedure Act against Ms Toop (Clark, Toop & Taylor Lawyers (a firm)), Mr Dohrmann and Mr Richards SC, to 1 December 2014 at 10:00am.

(b) Any outline of contentions by, or on behalf of, Ms Toop (Clark, Toop & Taylor Lawyers (a firm)), Mr Dohrmann, Mr Richards SC, or any other party that has appeared on the application, must be delivered to my chambers and served on other parties by 27 November 2014.

[1] The plaintiff is now represented by Slater & Gordon Ltd, which apparently acquired the practice of Clark, Toop & Taylor.

[2] Compare Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445, 455 [31]; Mijac Investments Pty Ltd v Graham [2013] FCA 296, [45] -[49]; Kuek [2012] FCA 494, [12] - [18].

[3] Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 4) [2013] VSC 14 (4 February 2013).

[4] Compare, in the context of disciplinary proceedings the observation of Tobias JA, with Bryson JA agreeing in NSW Bar Association v Meakes [2006] NSWCA 340, [70]-[78], (6 December 2006).

[5] Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 4) [2013] VSC 14 (4 February 2013), [27]-[31].

[8] At trial ISS made clear that it did not contend any breach of overarching obligations under ss 16 and 17 of the Civil Procedure Act, which were referred to in the summons but were abandoned.

[9] [2008] VLRC 14.

[10] S 3 of the Civil Procedure Act.

[11] The Civil Procedure Act 2010 was assented to on 24 August 2010 and came into operation on 1 January 2011: Government Gazette, 14 October 2010, page 2404.

[12] See r 44.01 and s 3 of the Civil Procedure Act, 2010.

1. [13] Since these events, amendments to the Civil Procedure Act 2010 now provide that a party must seek direction from the court as soon as practicable if the party intends to adduce expert evidence at trial or becomes aware that the party may adduce expert evidence at trial. (s 65G of the Act commenced operation on 24 December 2012).

[15] [2013] VSC 14 and Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No. 6) [2013] VSC 159.

[17] No party suggested that any issue of 'without prejudice' privilege arose in connection with the disclosure of that correspondence on this application.

[18] An application was made during the trial that the plaintiff could not establish a duty of care against ISS and that such claims should be withdrawn from the jury and dismissed. This application was argued in part, pending the completion of evidence, but not ruled on because the proceeding against ISS was compromised.

[19] This was a different report to the versions discussed so far.

[21] See Dasreef Pty Ltd v Hawchar [2011] HCA 21, (2011) 243 CLR 588, at [102] - [127], per Heydon J.

[22] Mr Ingram cross-examined Watson, Siwek, Jenner, Power, and Kern, all liability witnesses.

[23] Neither did Whelan JA, (with the other members of the court agreeing), Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78, [43].

[24] See ss 12-15 of the Civil Procedure Act.

[26] [1940] AC 282.

[29] [1960] HCA 42; (1980) 103 CLR 486, [4].

[30] [2001] NSWCA 305; (2001) 52 NSWLR 705, [79]. See also James v Keogh [2008] SASC 156; (2008) 101 SASR 42, [67]-[72] (Debelle J), and ASIC v Rich [2005] NSWSC 149, [333]; [2005] NSWSC 149; (2005) 190 FLR 242, 320-1 (Austin J).

[31] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68.

[32] [2009] NSWCA 153 (24 July 2009) (with Beazley and Giles JJA agreeing).

[34] [1987] 1 WLR 958; [1987] 2 All ER 353.

[35] It is unnecessary to examine the duties of an expert reporting to an instructing party who is contemplating litigation or of an expert reporting to an instructing party as a 'dirty' expert, that is, one whose paramount duty is to the client and who is not called to give evidence.

[36] [2003] VSCA 33, [15] (Chernov and Eames JJA agreeing).

[38] See also ASIC v Rich [2005] NSWSC 149, [254] (Austin J); Kirch Communication Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 (Campbell J); and Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 (Ipp JA).

[41] [2012] NSWCCA 21, (24 February 2012), (with Latham and Rothman JJ agreeing).

[43] [2003] NSWSC 870, [19].

[44] See Frekelton & Selby, Expert Evidence, Law, Practice, Procedure and Advocacy, 4th Ed, Thomson Reuters, 602.

[45] [2005] HCA 12; (2005) 223 CLR 1, [39] (Gleeson CJ, Gummow, Hayne and Heydon JJ). See also McHugh J, [99] and compare Kirby J, [324].

[46] Arthur JS Hall & Co v Simons [2002] 1 AC 615.

[47] [2011] UKSC 13, [2011] 2 AC 398.

[48] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151, 159.

[50] [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043.

[51] [1994] Ch 205.

[52] [1986] 1 AC 965.

[53] [2006] EWCA Civ 1390; [2007] QB 462.

[54] James v Medical Board of South Australia and Keogh [2006] SASC 267 (FC).

[55] Section 24 Supreme Court Act 1986 (Vic).

1. [56] Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, 980 (Lord Goff); Taylor v Pace Developments Ltd [1991] BCC 406, 410; Symphony Group Plc v Hodgson [1994] QB 179, 192-193 (Balcombe LJ); Flinn v Flinn [1999] VSCA 134, [24].

[57] Knight v F P Special Assets Ltd (1992) 174 CLR 178, 192.

[58] I have been assisted by, and have drawn from, an article by Ipp J writing extra-judicially, D.A. Ipp, Lawyers Duties to the Court, [1998] 114 LQR 63.

[59] [1988] HCA 52; (1988) 165 CLR 543, 556.

[60] Rondel v Worsley [1969] 1 AC 191, 227, Myers v Elman [1940] AC 282, 302.

[63] Then a Justice of the Supreme Court of Western Australia.

[64] Ipp D.A., Lawyers' Duties to the Court, (1998) 114 LQR 63.

[65] Wallersteiner v Moir (No 2) [1975] QB 373, 402, Myers v Elman [1940] A.C 282, 319.

[66] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755.

[68] Yara Australia Pty Ltd v Oswal [2013] VSCA 337, [27].

[69] Ibid at [111] - [112] [citations omitted].

[70] Glebe Sugar refinery Co Ltd v Trustees of the Port & Harbour of Greenock [1921] WN 85, 86 (HL).

[71] Rondel v Worsley [1969] AC 191, 227.

[72] Ivan Fergus (1994) 98 Cr. App. R. 313.

[73] R v Dick [1982] TASRp 23; (1982) Tas. R 252.

[74] Davy-Chiesman v Davy-Chiesman [1984] Fam. 48.

[75] Kennedy v McGeechan [1978] 1 NSWLR 314.

[77] Myers v Elman [1940] AC 282, Ridehalgh v Horsefield [1994] Ch 205.

[78] Compare the observations of Lord Wilberforce in Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246, 256-257.

[79] [1988] HCA 52; (1988) 165 CLR 543, [12].

[80] [1961] 2 QB 366.

[82] See Saif Ali v Sydney Mitchell & Co [1980] AC 198, 220.

[83] See Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289, 297.

[84] Vernon v Bosley (No 2) [1999] QB 18, 63-64.

[85] [2013] VSCA 73 (11 April 2013)

[87] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11, (1978) 140 CLR 216, 228; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 197; Yorke v Lucas [1985] HCA 65, (1985) 158 CLR 661, 666.

[88] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 368 [15] (French CJ and Kiefel J), citing Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564, 589 [63]. See also Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 199 (Gibbs CJ).

[89] [2013] HCA 1, [9] (citing the cases noted in the preceding footnote).

[90] Ibid, [67]-[73] (French CJ, Crennan and Kiefel JJ).

[93] [2012] VSCA 304 (12 December 2012), [48]-[49] [citations omitted].

[94] (1980) AC 74 [citations omitted].

[95] Ibid, [109]. See also Dale v The Queen [2012] VSCA 324 (20 December 2012).

[96] [2008] VLRC 14, 184-187.

[97] Hansard, Legislative Assembly, 24 June 2010, at 2606.

[98] In the relevant sense, that litigation culture is that expressed in 1940 by Lord Wright in Myers v Elman [1940] AC 282, (PCR [138]).

[100] [2014] VSCA 003, [25], [28]-[30] (Warren CJ), [102], [107], [109], [211], [217] (Whelan JA, with whom Tate JA agreed).

[101] While it appeared at trial that Mr Richards contacted Mr Dohrmann while Mrs Hudspeth was being cross-examined to have him alter language in his report, as I have elsewhere said, Mr Dohrmann was confused about this and he may have misled the jury into finding that contact occurred at that time when it actually occurred on the eve of the trial.

[102] [2014] VSCA 003, [102].

[104] Ibid, [109], [211], [217].

[105] Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78, [16] [34]-[37].

[106] The second report may also have been a supplementary report that engaged the requirement for leave under r 44.03(3).

[107] Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78, [39].

[108] I will explain why the plaintiff was in possession of that report when dealing with Ms Toop's awareness of the third version.

[109] At paragraph [91].

[110] Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634, 658-659 (Mason J).

[113] Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78,[39].

[114] If that application had resolved in favour of ISS, it could have sought orders for its costs of the proceeding.

[115] (1993) 117 ALR 253.

[116] The rule admits some exceptions, none of which is relevant here.

[119] Such an order is apt to extend to exclude costs orders against non-parties.

[120] [2013] FCA 296 [46].

[122] Naomi Marble & Granite Pty Ltd v FAI General Insurance Co Ltd [1991] Qd R 518, 544; Vestris v Cashman (1998) 72 SASR 449, 468.

[123] As opposed to a matter of jurisdiction - see Knight v F P Special Assets Ltd (1992) 174 CLR 178, 203.

[124] They include 'with considerable caution' (Symphony Group Plc v Hodgson [1994] QB 179, 193), 'sparingly' (Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26, (2001) 179 ALR 406, 413), 'when exceptional circumstances make such an order reasonable and just' (Murphy v Young & Co's Brewery plc [1997] 1 All ER 518, 531), 'special circumstances' (Knight v F P Special Assets Ltd (1992) 174 CLR 178, 203), 'exceptional circumstances' (Flinn v Flinn [1999] VSCA 134, [24]) and 'rarely appropriate' (Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1996] EWCA Civ 671; [1997] 1 All ER 418, 424). See Professor Dal Pont's discussion of the nature of the discretion in Law of Costs, 2nd ed, Lexis Nexis Butterworths, [22.16].

[125] Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807, [25] (Lord Brown); Globe Equities Ltd v Globe Legal Services Ltd [1999] EWCA Civ 3023; [1999] BLR 232, 239-240 (Morritt LJ).

[126] [1992] VicRp 61; [1992] 2 VR 198, 205.

[127] Symphony Group Plc v Hodgson [1994] QB 179, 193; Vestris v Cashman (1998) 72 SASR 449, 468.

[128] Vestris v Cashman, ibid, 467; Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807, [33]; Re Bonlac Foods Ltd [2001] VSC 75, (2001) ACSR 457, 463; Health & Life Care Ltd v SA Asset Management Corp [1995] SASC 5181; (1995) 18 ACSR 153, 163-164.

[129] Vestris v Cashman, ibid, 457-458, 468, 472.

[130] Save for the abolition of a witness's immunity from suit in the UK by Jones v Kaney, which was in 2011.

[133] Consistently with s 8 of the Civil Procedure Act.

[134] S 28 of the Civil Procedure Act.

[135] (1885) 29 Ch D 50, 58.

[136] Hudspeth v Scholastic Cleaning & Ors [2014] VSCA 78 (16 April 2014).