Pre-Trial Management of Expert Evidence in the Kilmore East Bushfire Proceeding

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McKenzie, Simon
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2016
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Abstract

This paper, the first in a series on the management of expert evidence during the Kilmore East bushfire proceeding, considers the pre-trial management of experts. This case was the largest class action in Victoria’s history, and expert evidence played a central role. Despite the volume and complexity of this evidence, the Court in this proceeding was not particularly interventionist in the management of experts prior to trial. This paper considers whether the management of experts by the Court prior to trial usefully contributed to running of the proceeding. It records the reflections of a range of participants in the proceeding, including the presiding judge, barristers and solicitors. This material was gathered in interviews conducted after the case settled. While the judges thought a more hands-on approach by the Court in the selection and briefing of experts would have been reduced the volume of expert evidence, the legal practitioners were not convinced that this kind of intervention would be useful. They noted how difficult it would be for the Court to choose the best experts and navigate disputes between experts about the appropriate methodology for developing their evidence. This is not to say that some intervention is not useful, and the participants in the Kilmore East bushfire proceeding identified a number of procedures that could be adopted to improve the effectiveness of the expert evidence. This paper considers some of these proposals, such as case management conferences and increased sharing of information between parties about the expert evidence they will be using in the proceeding.

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Law and legal studies

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McKenzie, S, Pre-Trial Management of Expert Evidence in the Kilmore East Bushfire Proceeding, 2016

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