J.J. HAWKINS AND CO PTY LTD -v- INTERNATIONAL RAW MATERIALS PTY LTD [2024] WASC 124 (15 April 2024)

(a) their findings from the inspections which have been undertaken including the level of corrosion identified;

(b) whether the method or storage and handling of ammonium sulphate at the premises was an acceptable practice in the fertiliser industry;

(c) the connection between any material damage and the past storage of ammonium sulphate;

(d) the effects if any which water, humidity and moisture have on the corrosive nature of ammonium sulphate on building materials;

(e) the extent water ingress arising from damage caused by storms could increase the corrosive nature of ammonium sulphate and the damage to the building materials and units;

(f) the suitability of the premises for storage of ammonium sulphate; and

(g) maintenance and other steps which could mitigate the corrosive effects.

1. The plaintiff has proposed that Dr Zurhaar be called before the conclusion of the lay evidence - in effect after three of the lay witnesses for the plaintiff have been called - and that Dr Farinha give evidence concurrently with Dr Zurhaar. The defendant has similarly proposed that the two experts give their evidence concurrently but, in contrast to the plaintiff's position, only upon the conclusion of all relevant lay evidence.[1]

1. I have considered the oral submissions made by the parties on this issue and now set out my reasoning below.

Whether the expert evidence should be given concurrently?

1. The first issue to consider is whether the giving of evidence concurrently by the experts is appropriate. This is uncontroversial in the present case. Both parties agree that it would be preferable and appropriate for the two experts to give evidence concurrently. Given the pleaded issues in the case, and the importance to the case of the evidence of these experts, I also agree that this is an appropriate course in the present circumstances.

1. Quite apart from the Court's inherent jurisdiction to control its own processes, an order such as the one sought by the defendant falls within the Court's power to order a case management direction pursuant to O 4A r 2(1) of the Rules of the Supreme Court 1971 (WA) (RSC). That is, it would be in the nature of a procedural direction, but would require the Court to be satisfied it is just to make the order to facilitate the attainment of the objects referred to in O 1 r 4B(1) RSC. The Court also has specific power to set a timetable for the trial of an action: see O 4A r 2(2)(p) RSC.
2. That said, in assessing the scope of the Court's power to impose an order contrary to the wishes of the plaintiff, the Court should recognise that the duty of deciding which witnesses to be called and in what order they should be called is typically a matter for counsel for each party.[2] Counsel for the plaintiff emphasised this duty (or right) during the course of his submissions. Some consideration of the relevant principles is thus necessary in this regard.
3. The Full Federal Court addressed the point in Hospitality Group Pty Ltd v Australian Rugby Union Ltd,[3] in considering an appeal in which the trial judge had (it was contended) refused to permit the appellants to subpoena and call sixteen lay witnesses who had either participated in a survey or were secondary consumers in relation to those participants. The Full Court, on the facts, found there was no substance to the complaint. However, in addressing the broader point of principle, the court held:[4]

[80] There are two significant errors evident in these reasons. In the first place, the learned primary Judge seems to be of the opinion that a court has authority to decide which witnesses a party may call. This is not correct. It is for a party and his lawyers to decide what evidence is to be called in support of that party's case, and it is not a function of the court to become involved in that process: Briscoe v Briscoe [1968] P 501; Barnes v BPC (Business Forms) Ltd [1975] 1 WLR 1565.

1. The analysis undertaken by Phillips J in Barnes v BPC (Business Forms) Ltd,[5] one of the authorities relied upon by the Full Federal Court in the preceding passage, warrants closer inspection.
2. In that case, the chairman of an industrial tribunal in effect instructed the appellants' solicitors to interpose four witnesses who had attended the hearing on the day in question, thus interrupting the evidence of one of the appellants. This was done to avoid the necessity of requiring those witnesses to attend on a subsequent date, but it had the effect that the evidence of the appellant in question was fragmented. It was contended on appeal that this course of action had deprived the appellants of their fundamental right to call witnesses in the order they though best and was a breach of natural justice.
3. Phillips J thought the approach of the chairman was unwise. However, he preferred the view that the proper focus was upon the effect of the departure from the usual approach. His Honour posed the question whether there has been a substantial practical impairment of the right of a party to conduct a case as he or she sees fit.[6] His Honour distinguished the earlier authority of Briscoe v Briscoe,[7] also relied upon by the Full Federal Court. Phillips J did not regard that earlier decision as laying down as a proposition of law that wherever counsel has been prevented from calling witnesses in the order in which he or she thinks fit, it necessarily follows that the decision subsequently arrived as it vitiated.
4. I take the view from this admittedly brief analysis that it remains open to depart from the usual rule subject to a consideration of the effects of any such departure, including to consider whether the particular party's case has been impaired or prejudiced by the modification of the order of witnesses.
5. Certainly, in the present case, the Court is not being invited to opine as to whether Dr Zurhaar or Dr Farina should be called. That is a matter for the parties. The present dispute relates solely to the order in which the experts will be called.

The interplay of the expert evidence and the lay evidence

1. Further, where expert witnesses are concerned, and the controversy is as to the timing of the expert being called, the position must be approached in a more flexible manner, particularly in a modern environment where experts in the same field, opining on the similar issues, typically give their evidence concurrently. In this regard, considerations beyond the right of a party to decide the order in which to call the witnesses come into play, including whether there are management and forensic issues which, in the interests of justice, may impact on the order of the witnesses being called, as well as the availability of the various expert witnesses.
2. The relative importance in the particular case of all relevant lay evidence being adduced before the concurrent expert evidence session is held must be considered. The defendant's position is that, given the importance of the testimony of these experts, all relevant lay evidence should first be adduced.
3. The rationale for the modern procedure of taking concurrent expert evidence only once all of the lay evidence of both sides touching upon the issues relevant to the opinion of experts has been taken, was explained by Campbell J in Gill v Wingham Chamber of Commerce Inc:[8]

In this way the differences between the parties in terms of primary fact are much better identified and usually greatly reduced when compared with the perception of the parties at the commencement of the trial. That facilitates the expeditious taking of expert evidence because it facilitates better directed questioning of the experts.

1. In a similar vein, writing extra‑curially, his Honour Justice Peter Garling observed as follows:[9]

In considering the timing of the concurrent expert session, the issue becomes whether the court ought require that all of the relevant witnesses of fact to be called by all of the parties give their evidence before the concurrent evidence? Why is that important? It is to be recalled that the experts have been given various factual assumptions upon which to base their joint report (or their earlier individual reports). The acceptance or rejection of expert evidence, or the weight to be given to it, necessarily depends upon the extent of the co-incidence between the assumptions of fact made by the witness, and the facts which are proved in the evidence.

1. His Honour made reference in this regard to the well‑known principle that for expert evidence to be of any value the facts upon which it is based must be proved by admissible evidence. This trite principle finds expression in a number of authorities, including by the High Court in both Ramsay v Watson[10] and Paric v John Holland (Constructions) Pty Ltd.[11]
2. The foregoing approach appears to represent the norm in the Supreme Court of NSW[12] and in the Federal Court of Australia,[13] at least so far as my own research has shown.
3. One scenario which the above practice avoids is the possibility of leave being sought by one or other of the parties to recall experts to give evidence if the factual assumptions upon which their evidence is based have emerged in an unanticipated fashion during the course of the trial. Additional inconvenience and expense would arise if such a scenario eventuated.

1. The opinions of the two experts in question, Dr Zurhaar and Dr Farina, relate to an important set of issues in the trial of this action. Undoubtedly, their opinions are more likely to be of assistance to the Court if the basis for their opinions is sufficiently mirrored in the factual circumstances of the case which is to be decided by the Court.
2. There is apparently a degree of commonality between these experts, as appears from their joint statement dated 23 February 2022. Nonetheless, I note that their respective opinions are based on factual matters which must be proven in evidence. It is proposed by the parties that more than 10 lay witnesses are to be called at the trial, and the evidence of at least some of these witnesses will be relevant to the opinions which these experts have expressed. By way of example, I refer to the substance of outlines of evidence which have been filed on behalf of Mr William O'Neill Jr, Mr Frank O'Neill, and Mr David Goodwin, being three of the defendant's witnesses.
3. On the plaintiff's approach, the evidence of the three witnesses just identified would only be received after the concurrent expert evidence session is held. The plaintiff proposes that the expert evidence of Dr Zurhaar and Dr Farina be taken concurrently after the lay evidence of only three witnesses has been received, being Mr Joseph Hawkins, Mr Andrew Donkin and Mr Gordon Jeanes.
4. In the present circumstances, I consider the defendant's approach is to be preferred for the following reasons:

(a) the factual assumptions upon which the expert opinions of Dr Zurhaar and Dr Farina are based should be received in evidence before these experts participate in a concurrent evidence session;

(b) this approach will assist the ability of the Court to understand the expert evidence and the weight to be attributed thereto (as their evidence should ideally be received in one sitting with clarity as to the facts which underlie their opinions, rather than risk being fragmented);

(c) this approach will minimise, if not wholly avoid, the risk of one or other party applying to recall the expert witnesses at the conclusion of the trial (the likelihood of this risk eventuating is difficult to accurately assess at this early stage of the matter but it would not be right to discount the risk given the factual evidence as to the premises which the parties intend to call);

(d) this approach ought to facilitate the better directed questioning of the experts, which will facilitate the expeditious taking of the expert evidence;

(e) on the plaintiff's approach, if it then became necessary to recall the expert witnesses, that would give rise to inconvenience for the experts, would be inefficient from the Court's perspective, it would also increase the costs for both parties, and may necessitate an adjournment of the proceedings to accommodate the availability of those experts;

(f) no particular prejudice was identified by the plaintiff as potentially arising if the defendant's approach was adopted, and I can discern no such prejudice or impairment; and

(g) accordingly, the right of counsel for the plaintiff to choose the order of witnesses must, in my view, give way to the foregoing considerations.

1. In these circumstances, I am satisfied it is just to make the order sought by the defendant to facilitate the attainment of the objects referred to in O 1 r 4B(1) RSC.

1. I will therefore make a case management direction that the evidence of Dr Armand Zurhaar and Dr Peter Farina be taken concurrently after the conclusion of the lay witness evidence, other than that of Mr Lucchesi.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Other than the evidence of Mr Brett Lucchesi, whose evidence does not touch upon the factual matters which concern the experts' opinions.

[2] Heydon JD, Cross on Evidence (14th ed, 2024) [17075].

[3] Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157 (Hill, Emmett and Finkelstein JJ).

[4] Hospitality Group Pty Ltd v Australian Rugby Union Ltd [80].

[5] Barnes v BPC (Business Forms) Ltd [1975] 1 WLR 1565.

[6] Barnes v BPC (Business Forms) Ltd (1568).

[7] Briscoe v Briscoe [1968] P 501.

[8] Gill v Wingham Chamber of Commerce Inc [2018] NSWSC 802 [16].

[9] Justice Peter Garling, Concurrent Evidence: Perspective of an Australian Judge [2013] NSWJSchol 36, [58].

[10] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 649 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[11] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ).

[12] Justice Peter Garling, Concurrent Evidence: Perspective of an Australian Judge [2013] NSWJSchol 36, [59].

[13] Expert Evidence Practice Note (GPN-EXPT), Annexure B at [12].