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Justice Lee’s latest judgment in the Roundup class action considered the appointment of an assessor in the proceeding for the purpose of assisting the Court in understanding expert evidence of a technical nature. 

The evidence which is proposed to be called at trial includes complex research and data across multiple fields of science and medicine, which evidence has been interpreted by authoritative bodies to lead to contrary conclusions on the question of whether the herbicide Roundup is carcinogenic.

His Honour observed that the case was a “paradigm example of where the use of an assessor may be of considerable benefit” but wished to elucidate on the Court’s power to make such an appointment and the precise nature of the assessor’s role, despite neither matter being in dispute as between the parties.

His Honour considered that each of ss 33ZF and 23 of the Federal Court of Australia Act 1976 (Cth) conferred such power, and that in any event the Court retained such power by reason of its inherent jurisdiction.

Turning to the assessor’s function, his Honour held that it was necessary for the scope of the assessor’s role to be adequately defined such that the appointment did not constitute an impermissible delegation of judicial power, and cited a piece of extra-curial writing by Justice Beach which articulated the appropriate functions of an assessor as follows (at [33]):

  • acting as a human primer to deliver tutorials to the judge pretrial on relevant specialised topics;

  • explaining the expert reports, including any joint report;

  • answering questions that a judge might have regarding the technical evidence;

  • sitting with a judge at trial to listen to the technical evidence and to help the judge understand it in and out of court;

  • assisting the judge with any basis or relevance evidentiary objections in an unusually complex technical matter;

  • putting questions directly to counsel or witnesses at the hearing or suggesting questions for the judge to put to counsel or witnesses;

  • generally, acting as a discipline on the behaviour of expert witnesses in a concurrent evidence session who may otherwise perceive that they can confound the lawyers present with technical complexity without challenge;

  • conferring with the judge after trial to assist the judge to get the technical concepts correct; and

  • reviewing draft judgments for technical accuracy, but solely against the evidence adduced by the parties.

The Court deferred making orders identifying which individual would be appointed as assessor and specifically describing their duties, but indicated those orders would: make communications between the assessor and the Court confidential; give the assessor the same immunity enjoyed by witnesses; and make the assessor’s costs be costs in the cause.

McNickle v Huntsman Chemical Company Australia Pty Ltd (Assessors) [2021] FCA 780

Federal Court of Australia, Lee J,  
25 June 2021

Applicant’s Solicitors: Maurice Blackburn;
Respondents’ Solicitors: Herbert Smith Freehills;
Applicant’s Funder: N/A

Austlii Link: Accessible here

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