A INTRODUCTION AND BACKGROUND
1 In this class action, a novel issue has arisen in relation to expert evidence in complex cases. This is not the first occasion in which the Court has sought to grapple with the best way for it to receive expert assistance in determining large cases. Controversy as to how opinion evidence is often deployed by litigants is not new and some best placed to judge have expressed their criticism with some force. As Lord Woolf MR observed in the report, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995) (at 183):
Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are, in practice, hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.
2 Reflecting these concerns, in Australia, there has been extensive law reform discussion concerning the role, deficiencies and remedial responses to perceived difficulties with expert evidence. Most relevantly for present purposes, in the Victorian Law Reform Commission Civil Justice Review (2008) (at 484), reference was made to the notion of "adversarial bias". That conception falls into three varieties:
(1) deliberate partisanship - an expert who deliberately tailors evidence to support the retaining client;
(2) unconscious partisanship - the expert does not intentionally mislead the Court, but is influenced by the situation to give evidence in a way that supports the retaining client; and
(3) selection bias - litigants choose as their expert witnesses persons whose views are known to support their case.
3 Put simply, this is a class action where the applicant, Mr McNickle, and group members allege that Roundup Products are carcinogenic and, as a consequence, exposure to Roundup Products increases the risk of developing personal injury, relevantly, Non-Hodgkin Lymphoma. Enough has been said to indicate it is a case where expert evidence is likely to be determinative of issues of liability.
4 With this in mind, when the matter first came before me for the purposes of case management, I indicated my preliminary view was that the Court adopt the process of appointing a referee to inquire into, and to report upon, questions relating to the characteristics of Roundup Products (or some of them) and their alleged carcinogenic effects. Obviously enough, the precise questions to be inquired into by a special jury would have been far more sophisticated and granular than I then indicated, but this description suffices for present purposes.
5 Both parties opposed this proposed course, indeed it was opposed with some vigour. A vast array of arguments were deployed, including that to proceed along these lines would be constitutionally invalid (an argument decisively rejected by this Court: see CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112; (2018) 268 FCR 590).
6 However, amidst arguments of little or no merit, there was one contention made by Mr McNickle that caused me pause and which ultimately persuaded me to adopt the course of allowing expert evidence to be deployed in a more traditional way. In broad terms, it was that prevailing scientific opinion had been skewed or somehow manipulated by the respondents (which I will compendiously describe as Monsanto). When this allegation was pleaded by way of a reply it, in effect, amounted to an assertion that Monsanto failed to disclose that it had: (a) initiated, funded, wrote, or edited scientific research, studies or papers which disputed, or did not support the notion, that Roundup Products were carcinogenic; and (b) further acted to undermine or invalidate scientific studies, research, papers or reviews which supported or expressed a contrary view.
7 At the very least, the prospect that the referee may need to assess material which was said to be infected by this allegation of scientific manipulation created some prospect of complicating the inquiry process. Further, the allegation is one of some seriousness and is of a character which in my view should, to the extent it is relevant to the determination of the real issues, be resolved in open Court by a judge.
8 In the result, instead of appointing a referee, I considered it would be appropriate that concurrent evidence be given at an initial trial by experts selected by the parties.
9 As is well-known, Australia's version of concurrent evidence typically involves two interrelated processes. First, there is a pre-trial joint expert conferral or conclave phase during which the parties' experts meet to clarify the areas of agreement and/or disagreement to produce a joint report. The second part of the process is the giving of concurrent evidence at a hearing in which the parties' experts sit together and present evidence in an interactive process moderated by the judge. This latter process is sometimes described in a colloquial (and vaguely disquieting) way, as a "hot tub".
10 Although there are slight distinctions in the rules concerning concurrent evidence among different jurisdictions, the processes are substantially similar. This was explained in Butt A and Stowe H, "Playing in the hot tub - a guide to concurrent expert evidence in New South Wales" [2018] (Spring) Bar News 44 (at 45):
The process is always intended to enable the 'real issues in dispute between experts to be identified and narrowed from an early stage,' for the purpose of achieving a proceeding's just and efficient resolution. At its core essentials, concurrent evidence aims to shorten trials (and reduce associated work), enhance fact-finding and judicial decision-making, and improve settlement prospects.
(Citations omitted).
11 This is reflected in r 23.15 of the Federal Court Rules 2011 (Cth) (FCR), which provides that if two or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any party may, inter alia, apply to the Court for an order that the experts confer, either before or after writing their expert reports, or the experts give concurrent evidence: FCR 23.15(a) and (g).
12 In some jurisdictions, such as the Supreme Court of New South Wales, the court may direct that a conference be held with or without the attendance of a facilitator: see r 31.24(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)). As Butt and Stowe note (at 47):
Facilitators are becoming increasingly utilised in conclaves. In jurisdictions such as native title, facilitators (there Registrars) are always used. In some jurisdictions they are rarely used.
(Citations omitted).
13 Similarly, UCPR 31.24(2)(b) provides that a judge may direct that a conclave be held with or without the attendance of the parties affected or their legal representatives, at the option of the parties.
14 Even in the absence of specific rules, both these aspects of the current evidence process are commonly used in the Federal Court and, in some respects, the orders that have now commonly been made in class actions (and the orders made in this case) go a little further. Whatever precise orders are made, it is common that two aspects of the concurrent evidence process be adopted: first, the attendance of an experienced facilitator, such as a Registrar or an experienced independent barrister, provides a useful mechanism in ensuring that the conclave process proceeds effectively and the work product emerging from any conclave best assists the Court; and secondly, the absence of any contact between the experts and the parties or their legal representatives, assists in preserving the integrity of any conclaves and the joint report process in ensuring that experts deal with one another in a way that might be inhibited if those that retain the experts are present during the conclave process or the experts have contact with them.