In New Aim Pty Ltd v Leung [2022] FCA 722, a single judge of the Federal Court rejected entirely an expert report on the basis of eviscerating criticisms of how it came to be prepared by New Aim’s solicitors. This case was the subject of a case note in the MTECC News Edition 22.12. That case note sets out the facts and the trial judge’s criticisms.

On appeal, the Full Court held that the trial judge erred in rejecting the entirety of the expert report. In its reasons, the Full Court undertook a detailed review of the evidence, including the transcript of the cross-examination of the expert, and did not consider that many of the findings of the trial judge leading to his wholesale rejection of the evidence were founded on the evidence.

One of the critical aspects of the report which was relied upon by the trial judge was the fact that the report dated 8 March 2022 had annexed to it a letter of instruction setting out the questions to be answered, itself dated 7 March 2022. Among other things, the trial judge considered that the report could not have been prepared in 24 hours. Disregarding the fact that the report also annexed an initial letter of engagement dated 21 February 2022.

The Full Court observed that it is not unusual or improper for a letter of instructions, containing the final form of the questions to be answered, to be prepared shortly before the expert report is finalised. The Full Court considered that the process of engagement of an expert, including how the questions might be framed, should be transparent, saying at [89]:

We observe that it is not unusual in a number of contexts to not finalise the formulation of the question asked of the expert without first discussing the issues with the expert. It would be expected, for example, that a solicitor would engage with an expert in a specialized field of scientific knowledge about how to frame a question so as not to give rise to a non-sensical question or one that misses the real issues or one which fails to engage with all of the issues… What is appropriate or desirable depends on any number of circumstances peculiar to the particular case and different equally proper approaches can be expected from different legal practitioners.

The trial judge was critical of the fact that New Aim’s solicitors drafted the factual evidence on behalf of the expert. The Full Court observed that the preparation of factual evidence by a solicitor is far from unusual. The Full Court stated that there can be no one rule or practice to cover all experts or all situations. While the Full Court did observe that it might be desirable that the fact of any drafting by a solicitor be disclosed in the report, there was no legal obligation to do so and any ethical obligation depends on the circumstances. Likewise, in circumstances where the expert may receive oral instructions from lawyers, any ethical and legal requirement that these be documented depends on the circumstances.

The key take away from this decision is that in engaging experts legal practitioners must always be mindful of what ethical or legal obligations arise in the particular circumstances and should pay particular care to identifying what they may be.
 

Michael F Sharkey

Liability limited by a scheme approved under professional standards legislation