Consideration
34 In effect, the Gulf Coast parties are seeking to adduce the addendum so as to enable them to reopen the issue that the joint statement in answer to question 2 in the second report closed, namely, that the Kurtijar People, on the anthropological experts' view, hold native title rights and interests over the northern and western areas, albeit that the experts do not necessarily agree as to the nature and extent of those rights and interests.
35 The principles of case management that are reflected in Pt VB of the Federal Court Act are now an established part of the system of administration of justice in Australia. The High Court has twice endorsed their importance in case management in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303. Section 37M requires the Court to interpret and apply its rules in a way that best promotes the overarching purpose of the civil practice and procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
36 Section 37M(2) identifies, non-exhaustively, the objectives of the overarching purpose. Those include the just determination of all proceedings before the Court, the efficient use of the Court's judicial and administrative resources, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely matter, and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute. As French CJ, Kiefel, Bell, Gageler and Keane JJ held in Expense Reduction (250 CLR at 323 [56]-[57]), of an analogue of Pt VB of the Federal Court Act, namely Pt 6, Div 1 of the Civil Procedure Act 2005 (NSW):
The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
(emphasis added)
37 Ordinarily, where a party seeks to change the substantive direction of a case either by an amendment, a withdrawal of an admission or, in this case, an attempt to qualify or withdraw an agreed statement in a joint expert report arranged and facilitated by the Registrar, an explanation for the change of position and the circumstances in which the change came about should be given to the Court. This is in order that the Court can weigh the explanation against the effects of any delay, the impact of the change of the position on the proceeding and on the other parties and the objectives in s 37M (see Aon 239 CLR at 215 [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
38 Ultimately, the question comes down to what is in the interests of justice. Those interests are informed, but not concluded, by the objectives in s 37M. The Court must weigh up all of the relevant considerations and arrive at a decision that does justice to all of the parties.
39 The expert evidence practice note provides in par 7.5 for a joint conference so as to ensure the efficient hearing of the experts' evidence. And in par 7.6, the practice note requires that, unless the Court otherwise orders, the parties and their lawyers must not involve themselves in a conference of experts or the process. In particular, the parties and their lawyers must not seek to encourage an expert not to agree with another expert or otherwise seek to influence the outcome of the conference of experts. A joint report must be clear, plain and concise and must summarise the views of the experts on the identified issues including a succinct explanation for any differences of opinion (par 7.10).
40 The harmonised expert witness code of conduct, which forms part of the practice note, provides that where an expert witness has provided a report to a party or a party's legal representative or for use in Court and the expert thereafter changes his or her opinion on a material matter, the expert should forthwith provide to the party or the party's legal representative a supplementary report that states the matters set out in the code. That is not what happened here.
41 Dr Murphy appears to have been asked on the invitation of the Gulf Coast parties' solicitors to provide the addendum about what he meant in the clear and unambiguous terms of the joint statement in answer to question 2. There is no evidence as to whether Dr Murphy had ever expressed any concern about what he said in that joint statement or what he meant prior to being instructed on 25 July 2019 to provide his addendum.
42 In Ansell Healthcare Products LLC v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2016] FCA 765 at [49]-[57], I considered the application by a party to withdraw an admission and its impact on the overarching purpose. Here, of course, the Gulf Coast parties have not made an admission and, indeed, wish, steadfastly, to maintain their opposition to the Kurtijar People's claim.
43 The purpose of the joint experts' conferences and reports is to enable the Court to have the assistance of a joint position, expressed by independent experts after discussion among them, unaffected by the views of parties who retain them. Those conferences and reports enable the experts to express their opinions in accordance with their overriding obligation to the Court as to the matters about which they agree and those on which they disagree. This ensures that the Court will be informed as to the real issues in the expert evidence that it will need to resolve.
44 Here, I am not satisfied that there was any basis to think that Dr Murphy misunderstood, or was misled about, what he agreed with the other experts in the joint statement in answer to question 2 in the second report. That joint statement, in plain English, responded to a simple question, also in plain English, and it is unambiguous. Dr Murphy had the opportunity to read the draft of the second report after that draft recorded the agreed position in the joint statement and he also had the opportunity to correct or supplement it with what he wished to say in elaboration of the matters in the draft on which he disagreed before signing the second report.
45 The parties appear to have proceeded on the basis, thereafter, that the joint statement in answer to question 2 limited the areas in respect of which the experts remained at issue to places other than the Gulf Cost parties' pastoral leases. That was so although the Gulf Coast parties continued to seek to oppose any finding that there were native title rights and interests over the northern and western areas, despite whatever the experts may have agreed. They relied on what they said was a principle that emerged from the decision of the Court of Appeal of the Supreme Court of New South Wales in Salzke v Khoury (2009) 74 NSWLR 580. There Ipp JA, with whom Basten JA and Gzell J agreed, noted that the then New South Wales version of what has developed into the harmonised expert witness code of conduct (that is now replicated in this Court's expert evidence practice note) was based on the discussion of the nature of expert evidence in National Justice Compania Naviera SA v Prudential Assurance Company Limited (The "Ikarian Reefer") [1993] 2 Lloyd's Rep 68. Ipp JA said (at 591 [63]):
[t]he report should be construed benevolently and not as if it were a pleading or an affidavit or even a statement of a witness prepared by a lawyer.
46 He said that the Court could allow an expert to provide additional report or reports to clear up any misunderstanding that may arise from a construction of his or her earlier report or reports lest the expert be misunderstood (Salzke 74 NSWLR at 591 [63] and 598 [109]). No doubt, as a general principle, that is so. However, their Honours' remarks must be understood in the context that they were dealing with a bespoke rule of Court that required the original report, that the expert later sought to clarify, to be served with the statement of claim when commencing the proceeding. That is a far cry from the present situation.
47 In Samsung Electronics Co. Limited v Apple Inc. [2013] FCAFC 138 at [44], Jacobson, Flick and Griffiths JJ said that, in determining whether or not to allow a party to adduce further evidence on points at a late stage in a proceeding, a court can have regard to the failure to give a reason for the delay in bringing the evidence forward earlier and the probative value of the material.
48 In my opinion, it would not be in the interests of justice or consistent with the overarching purpose in Pt VB of the Federal Court Act to permit the Gulf Coast parties to throw open the clear and unambiguous agreement of the experts in the joint statement in answer to question 2 of the second report. Their defence sought to take issue with that agreement after the experts made the second report, hence the applicant's reply that relied on the joint expert position.
49 Moreover, they have given no explanation as to why Dr Murphy had subsequently come to any different view in the three months after his signing the second report on 24 April 2019 when he had acknowledged that he had reached his view in light of what he and his fellow experts had discussed with one another, among other matters, having had regard to each other's views and expertise. That is, ordinarily, the case when experts are able to discuss matters in a neutral environment.
50 What is striking in Mr Perrett's affidavit is the absence of any explanation as to how he or his firm came to issue the letter of instructions to Dr Murphy. He gave no evidence about what, if anything, had occurred that would cause those instructions to be given, other than identifying that the applicant appeared to be on fairly solid ground in suggesting, in the draft (joint statement of agreed facts and substantive issues in dispute) that there was no anthropological evidence of a dispute about the holding of native title in the northern and western areas. Indeed, that position had been plain since the parties received the second report three months earlier, as Dr Martin's evidence confirmed.
51 I have had regard to the hearing being so close in time to the attempt to rely on the addendum, and the difficulties the applicant has encountered in obtaining access to parts of the claim area that appear (on my impressionistic understanding) to be jealously guarded by, at least, the Gulf Coast parties to the point where, earlier, I almost had to resolve disputes about allowing the applicant to go on parts of the claim area to prepare its evidence.
52 It would not be appropriate, at this late stage of the proceeding, to allow the Gulf Coast parties to raise anew the issue that the joint statement in answer to question 2 had resolved. To do so would require the applicant to undertake a very substantial amount of work and preparation, including revising what it had done on the faith of the agreed expert position, to deal with an issue that, for the last three months, it was entitled to consider was no longer in play. That has led the applicant to direct its energies to the preparation of other aspects of the case.
53 Moreover, it is not in the interests of justice to allow a party to seek to reopen an agreement between the experts in a joint report prepared under the supervision of Registrars of the Court in a joint conference.