EXPERT EVIDENCE:
the Kilmore East-Kinglake
Bushfire Trial
Jack Forrest, Supreme Court of Victoria
April 2015
Legislative Background
and Rules

Order 44 Supreme Court (General Civil Procedure) Rules
2005 (Vic).

Order 23 Federal Court Rules 2011 (Cth).

Part 4.6 Civil Procedure Act 2010 (Vic).
Key Aspects of
Part 4.6 of the CPA

Amendments to the CPA came into force on 24 December
2012: introduce Part 4.6 and relevant definitions into s 3 of the
CPA.

Parties must seek directions from the Court in respect of
expert evidence as soon as practicable if intending to adduce,
or “may adduce” expert evidence at trial (s 65G).
Key aspects of
Part 4.6 of the CPA

The Court may give directions as to use of experts in both
pre-trial and trial (s 65H and s 65K) and, particularly
preparation of expert reports, the issues to be covered,
limiting the number of experts, the appointment of experts,
limitations on the scope of evidence and “any other direction
that may assist an expert witness…” (s 65H).

The Court has specific powers in relation to the preparation of
joint reports and the conclave of experts in conjunction with a
concurrent evidence session (s 65I).
Key aspects of
Part 4.6 of the CPA

The “content” (presumed to be the discussions) of a conclave
of experts must not be referred to at any hearing of the
proceeding to which it relates, except that disclosed in the
joint report (s 65J).

Joint expert reports in relation to any matters not agreed may
only be tendered at the trial in accordance with the rules of
evidence and rules of the Court (s 65J). R 44.06(1) of SCR
provides that at the Court’s discretion experts may provide
joint reports setting out matters agreed and not agreed.
Key aspects of
Part 4.6 of the CPA

The Court may give directions in relation to giving of evidence
by expert witnesses at trial: direct expert witnesses to give
concurrent evidence, provide an oral exposition of evidence,
give an opinion of opinions given by other expert witnesses, to
be cross examined or permitted to ask questions of other
expert witnesses (s 65K).

The Court may order the parties to engage a single expert
jointly – which may then be tendered by a party at the trial (s
65L).
Key aspects of
Part 4.6 of the CPA

A party may not adduce evidence of any other expert witness
on any issue arising in proceedings if a single joint expert or
court appointed expert has been appointed in relation to that
issue (s 65O).

Where a single joint expert/court appointed expert is engaged
the parties must agree on written instructions to be provided
and facts/assumptions of fact upon which the expert’s report
is to be based (s 65N).

The Court may appoint an expert to assist the Court or to
report to it (s 65M) in addition to the special referee power
(SCR Order 50) and the assessor’s power (s 70 SCA).
However s 65M does not provide for the use that can then be
made of a report provided by that expert.
Concurrent Evidence:
a Three Step Process
1.
Early identification of the critical questions that need to be
addressed and answered by the experts;
2.
Conference between the experts without the involvement of
practitioners, and a preparation of a joint report identifying
areas of agreement or disagreement after the experts have
exchanged their individual written reports; and
3.
The giving of concurrent oral evidence by the experts after
all lay evidence in the case has been adduced.
Perceived Advantages of
Concurrent Evidence

Greater efficiency, particularly substantial reductions in court
time and costs;

Conferences between the experts and joint reports prior to
trial inevitably limit the contested issues at trial and may lead
to an early resolution;

The ability for experts to comment on each others’ evidence
allows for greater clarity and the clear identification of any
disagreements;

Experts give their evidence at a time when the critical issues
have been refined and the area of real dispute has been
narrowed to a bare minimum;
Perceived Advantages of
Concurrent Evidence

Experts do not feel as pressured as in the usual adversarial
contest;

Peer presence can increase the objectivity and accountability
of experts;

It can eliminate lengthy and unnecessary cross-examination
on matters that are not of any real importance;

Judicial decision-making is facilitated because evidence on
one topic is given by all experts at the same time and it is
easier for courts to compare their evidence and to evaluate its
weight or persuasiveness; and

Parties retain the right to engage in cross-examination on key
issues and, on matters of credit, if required.
Perceived Disadvantages of
Concurrent Evidence

The necessity for judicial involvement early in the process;

Personalities, particularly those which are dominant or forceful, may
subvert the process

Limitations on the ability of counsel to conduct the
examination/cross-examination of witnesses;

Unwieldy when there is a large number of witnesses;

Arranging for witnesses to participate in expert conclaves and to
give concurrent evidence;

“Forcing experts to come to a shared position… could possibly
undermine the veracity of the evidence given, to the detriment of
one of the parties”; and

“[Hot tubbing] is where you have a couple of experts who are
encouraged to massage each other to get to a common position”.
Kilmore East-Kinglake Trial
Kilmore East-Kinglake Trial

Fire took 119 lives, injured more than 1,000 people and
destroyed over 125,000 ha of land in five municipalities,
including much of the Kinglake and Strathewan townships

Approximately 10,000 group members

Claim settled for $494 million after trial concluded

Settlement approved by Osborn JA in December 2014
Kilmore East-Kinglake Trial

Claims against the electricity company for breach of common
law and statutory duties, such as failure to replace the power
line, failure to maintain the line, inadequate suppression
devices, and inadequate inspection regime

Claims against the CFA, DSE and VicPol for not giving timely
warnings to residents in respect of the approaching fire

Claims against DSE for not conducting sufficient planned
burning

Claims against asset inspection company for not inspecting
the power line properly
Kilmore East-Kinglake Trial

Commenced 3 March 2013

208 days of trial

Last day of trial 18 June 2014

26 counsel

100s of solicitors

26 pre-trial directions hearings

34 pre-trial in-court applications

83 general forms of order
Kilmore East-Kinglake Trial

21,621 pages of transcript

40 expert witnesses

60 lay witnesses

400+ pages of pleadings

700+ pages of opening submissions

23,105 documents on the electronic court book

4000+ pages of closing submissions
Pre-trial Management
of the Expert Evidence:
Case Management Conferences

Working with the parties

Providing guidance to the parties as to the running and
operation of the conclaves

Documents including:

Development of ‘Procedure and Administrative
Arrangements Protocols for Conclave’

Expert obligations

Agenda questions
Pre-trial Management
of the Expert Evidence

Arrangement of conclaves of expert witnesses, identification
of topics/issues

Division (if necessary) of conclaves into separate groups
addressing particular topics/issues

Use of court officers (in particular an associate justice) as
moderators present throughout the conclave

Production of joint reports identifying issues upon which
agreement exists/does not exist
Pre-trial Management
of the Expert Evidence

There were 11 areas of expertise on which expert witnesses
gave evidence:
 Electrical engineering
 Materials engineering
 Lightening
 Asset management principles
 Analysis of vibrations and dynamics
 Probabilistic risk analysis
 Prescribed burning
 Fire behaviour
 Budget process and resources allocation
 Fire fighters; and
 Warnings.
Expert Evidence at Trial
Expert Evidence at Trial

Concurrent evidence:
–
Joint reports, provided prior to the trial as a result of the
conclave process and then questionnaires completed
immediately prior to the session
–
Six concurrent evidence sessions
–
In one session, ten expert witnesses gave evidence
–
Preliminary rulings were given as to expertise and the
application of s 79 of the Evidence Act 2008 (Vic)
Expert Evidence at Trial

Witnesses sworn in and adopt report(s)

Order of questioning determined by the judge, depending on
the topic and the diversity of opinion: usually the party calling
the witness would commence by adducing any further
explanatory evidence and the witness then cross-examined
by opposing counsel

Leading questions permitted, but may affect the weight to be
given to the answer, particularly where the evidence is led
from an expert called by that party
Expert Evidence at Trial



At the conclusion of the evidence on a topic:

Experts given the opportunity to question each other.

Each expert also given an opportunity to explain or
enlarge upon any of the answers he or she has given.
Re-examination generally not permitted unless the
questioning by counsel involved:

an attack upon the witness’ expertise; or

an attack upon the credit of the witness.
At the conclusion of the particular topic, the next topic is
addressed in similar fashion.
The Use of Assessors

Prior to the trial, it was held that expert assessors should sit with the trial
judge when hearing complicated expert evidence about fracture mechanics
and vibration theory – which went to the heart of the plaintiff’s case about
the cause of the break of the conductor.

In Ruling No 32 [2013] VSC 630:
(a) The assessors’ role is to assist the judge. The decision is that of the
judge alone.
(b) The assessors will sit with me during the concurrent evidence
sessions. If they wish, they may question the experts (or counsel) in
this context. Such questioning however will be limited to clarification of
the evidence; that is, where they consider the evidence to be
ambiguous, unclear or incomplete.
(c) I may consult with the assessors while sitting if I find a point of
evidence unclear and seek their immediate input as to an appropriate
or useful inquiry to make.
The Use of Assessors
(d) I will consult with the assessors whilst in chambers on matters
raised by the experts in their oral evidence and in their individual and
joint reports. This may include advice as to any questions the assessors
think I should ask counsel or the experts in order to determine the
questions at hand.
(e) I will seek the guidance of the assessors on technical matters upon
which I lack the requisite knowledge to understand without qualified
assistance. This may include “lessons” on matters fundamental to, for
example in this case, fracture mechanics or vibration.
(f) If the assessors raise a theory or opinion that has not previously
been identified by the parties, I will discuss this with counsel.
(g) The assessors may from time to time provide me with advice on
matters over which there is dispute between the experts. Such advice is
not binding and the determination of a particular issue rests with the
judge.
The Use of Assessors
(h) I anticipate that I will consult with the experts immediately after the
conclusion of the concurrent evidence session and, from time to time,
while drafting the judgment. This is likely to include seeking
confirmation from them that I have properly understood the meaning of
the expert evidence of conclaves 1, 3 and 4. I repeat, however, that
their role is confined to providing advice and ensuring that I have
comprehended the evidence given. I also repeat that the decision on
these issues is mine and mine alone.

At the trial, I was assisted by two assessors – both professors of
engineering with vast experience in fracture mechanics and vibration. They
sat with me for approximately one month during the course of the largest
and longest of the concurrent evidence sessions.