The rules for expert evidence in Australia
In a previous paper, the author reviewed various current issues involved in briefng experts, including the cases on expert evidence arising from the class action litigation on the Victorian bushfres. That paper discussed the rules relating to expert evidence in the Supreme Court of Victoria and the Federal Court.
As with many other aspects of the law in Australia, there are signifcant differences in the law and the rules for expert evidence between the different State, Territory and Commonwealth jurisdictions. Some jurisdictions now have Uniform Evidence Acts, whilst the common law of evidence still applies in three jurisdictions. A number of jurisdictions have explicit codes of conduct for expert witnesses, whilst the others do not. All jurisdictions have civil procedure rules that regulate expert evidence. The differences may mean that expert evidence that is complying in one jurisdiction may not necessarily comply with the rules in another jurisdiction.
This paper provides a comparison of the rules relating to expert evidence in the nine jurisdictions of the state and territory Supreme Courts and the Federal Court.
A table in the Annexure cites for each jurisdiction the specifc clause references to the requirements for expert evidence in the civil procedure rules and expert witness codes of conduct. This table provides details of the requirements for expert evidence under nine categories, including procedural requirements for expert reports, the required content of an expert report, procedural rules for expert conclaves, and giving expert evidence in court.
The fnal section of the paper contains suggestions for the contents of an expert report that the author considers would satisfy the formal requirements in any jurisdiction, irrespective of the specifc rules. Whilst this may seem to be an unnecessary counsel of perfection, this author believes there is merit in adopting a uniform approach to expert evidence that incorporates the current best practice in Australia.
EXPERT EVIDENCE RULES IN AUSTRALIAN JURISDICTIONS
There are differences in the applicable evidence law between Australian jurisdictions. The Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, Norfolk Island, Tasmania and Victoria are Uniform Evidence Act jurisdictions, whereas the common law still applies in Queensland, South Australia and Western Australia.
Such differences in evidence law may be signifcant in the extent to which case law in one Australian jurisdiction may not be applicable in another jurisdiction.
For example, there are differences between the common law and the Uniform Evidence Act in the extent to which an expert’s draft reports can be called for or disclosed. 2
Each Australian jurisdiction has rules that govern the content of, and the manner of giving expert evidence. The provisions of Reg 31.17 of the Uniform Civil
Procedure Rules 2005 (NSW) are typical of the rationale for these rules:3
(a)to ensure that the court has control over the giving of expert evidence;
(b)to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings;
(c)to avoid unnecessary costs associated with parties to proceedings retaining different experts;
(d)if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court;
(e)if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings; and
(f)to declare the duty of an expert witness in relation to the court and the parties to proceedings.
The specifc scope and content of the rules applicable to expert evidence differ significantly between Australian jurisdictions. A number of jurisdictions also have codes of conduct that experts are required to adhere to. One common feature of the different rules and codes of conduct is that the court exercises considerable control over the form of expert evidence. This is refective of the importance of, and the need for the court to rely on expert opinion in many cases. Such reliance is only possible if expert reports comply with appropriate procedures for the preparation and articulation of expert evidence.
The exact content of the individual rules and codes of conduct relating to the superior courts in the various Australian jurisdictions is beyond the scope of this paper. Clearly, a legal practitioner or expert involved in the preparation and presentation of expert evidence in a particular jurisdiction must be familiar with and comply with the relevant rules.
The Expert Subcommittee of the Society of Construction Law Australia is currently preparing a detailed comparison of the rules and codes of conduct applying to expert evidence in the various courts of the different Australian jurisdictions.
The following table summarises the location of the applicable rules and codes of conduct in nine Australian superior court jurisdictions:4
Jurisdiction and evidence law
Civil Procedure Rules relating to expert evidence
Expert Witness Code of Conduct
Supreme Court of the Australian Capital Territory [ACTSC]
Uniform Evidence Act Evidence
Act 2011 (ACT)
Court Procedures Rules 2006 (ACT) Part 2.12 Expert Evidence Rules 1200—1246
Schedule 1 Expert Witness Code of Conduct
Federal Court of Australia [FCA]
Uniform Evidence Act Evidence
Act 1995 (Cth)
Federal Court Rules 2011 (Cth) Rule 5.04 and Part 23 Experts RR 23.01—23.15
Practice Note CM7 Expert Witnesses in proceedings in the Federal Court of Australia
Supreme Court of New South Wales [NSWSC]
Uniform Evidence Act Evidence
Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) Rules 31.17—31.54
Schedule 7 Expert Witness Code of Conduct
Supreme Court of the Northern Territory [NTSC]
Uniform Evidence Act Evidence
Act 2011 (NT)
Supreme Court Rules (NT) Order 44 Expert Evidence
Supreme Court of Queensland [QSC]
Common law Evidence Act
Uniform Civil Procedure Rules 1999 (Qld) Ch 11, Part 5, Division 2 Rules 423—429S
Supreme Court of South Australia [SASC]
Common law Evidence Act
Supreme Court Civil Rules 2006 (SA) Rules 160, 161
Part I Practice Direction 5.4 Expert Witnesses (Rule 160)
Supreme Court of Tasmania [TSC]
Uniform Evidence Act Evidence
Act 2001 (Tas)
Supreme Court Rules 2000 (Tas) Part 19 Division 5 Expert Opinion Evidence Rules 514—517
Supreme Court of Victoria [VSC]
Uniform Evidence Act Evidence
Act 2008 (Vic)
Supreme Court Rules 2005 (Vic) Order 44 Expert Evidence Rules 44.01—44.06
Form 44A Expert Witness Code of Conduct
Supreme Court of Western Australia [WASC]
Common law Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA) Order 36A Expert Evidence Rules 1—9
Legal practitioners or experts are referred to the relevant provisions of the applicable rules in the table in the Annexure for the detailed requirements applying in a particular jurisdiction. The signifcant differences between the rules, as well as the applicable evidence law, should be borne in mind when looking at the applicability of case law.
A detailed comparison of the rules and codes of conduct referred to in the table in the Annexure reveals that, collectively, they cover the following issues (although no set of rules or code of conduct covers all of the issues):
(1)General issues in relation to the rules for expert evidence
(2)Overarching obligations of an expert witness
(3)Procedural requirements for expert reports
(4)Required content of an expert report
(5)Procedural rules for expert conferences
(6)Procedural rules for giving evidence in court
(7)Procedures for court appointed expert or jointly appointed single expert
DETAILS OF SPECIFIC PROVISIONS
GENERAL ISSUES IN RELATION TO THE RULES FOR EXPERT EVIDENCE
The general issues cover:
- Immunity of expert witness
- Expert report admissible as evidence of opinion
- Expert report to be tendered by rule or by leave of court
- Expert evidence in chief by experts’ reports
- Expert witness bound by code of conduct
- Application of the rules to a party witness
- General court powers in relation to expert evidence
Most jurisdictions provide that expert evidence in chief is to be adduced by expert reports, in some jurisdictions only after the court has made appropriate directions.
In those jurisdictions that have an explicit expert code of conduct, an expert is bound by its provisions, and usually has to acknowledge in their report that s/he has read, understood and complied with the code. The importance of this formal acknowledgement is highlighted by the provision in the ACTSC rules:
If an expert report does not contain an acknowledgement by the expert witness who prepared the report that the expert witness has read the code of conduct and agrees to be bound by it, service of the expert report by the party who engaged the expert is not valid service.5
The rules in three jurisdictions specify whether the expert evidence code/rules apply to a party who is also qualifed to act as an expert witness. The expert witness code of conduct does not apply in Victoria6 nor do the Rules apply in Queensland,7 however the Practice Direction applies to a party witness in South Australia.8
OVERARCHING OBLIGATIONS OF AN EXPERT WITNESS
Expert witnesses have some or all of the following explicit obligations in the majority of jurisdictions:
- Overriding duty to assist the court
- Paramount duty is to the court
- An expert witness is not an advocate for a party
- A duty to comply with court directions or cooperate with another expert witness
PROCEDURAL REQUIREMENTS FOR EXPERT REPORTS
All jurisdictions defne in the
Rules and/or Codes of Conduct, some of the following procedural requirements:
- A party is required to give an expert witness a copy of the code of conduct.
- Service of expert reports.
- Expert is to issue a supplementary report when they have changed their opinion for any reason.
- Notice to the court where an expert has changed their opinion.
- Draft of expert report communicated to a party is to be retained by an expert.
In respect of the service of expert reports, the wording in the rules is signifcantly different between jurisdictions.
The following reports are to be served:
- ACTSC: ‘each expert report obtained by the party in accordance with any direction made by the court’;9
- FCA: ‘an expert report that complies with rule 23.13’;10
- NSWSC: ‘experts’ reports’;11
- NTSC: ‘a statement in accordance with subrule (2)’;12
- QSC: a report that a party is intending to rely on;13
- SASC: ‘a copy of each expert report in the party’s possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not)’;14
- TSC: ‘a statement signed by the witness’ where a party intends to adduce oral evidence from the expert witness at trial;15
- VSC: ‘a report by the expert’, where ‘a party who intends at trial to adduce the evidence of a person as an expert ‘;16
- WASC: ‘a report of an expert witness the substance of which a party intends to rely on at the trial or hearing’.17
South Australia is thus the only jurisdiction that requires that all expert reports in a party’s possession to be served on every other party, whether or not the party intends to rely on them at trial or not.
South Australia is also the only jurisdiction that explicitly requires an expert to retain a copy of any draft report s/he has communicated to a party.18
REQUIRED CONTENT OF AN EXPERT REPORT
Western Australia is the only jurisdiction that does not specify some or all of the following requirements for the content of an expert report:
- Contents of expert report.
- Statement that expert has understood and complied with their duty.
- Statement that expert has made all inquiries that they believe appropriate.
- Summary of expert’s qualifcations and experience.
- Statement that opinion is provisional when available information is insuffcient.
- Statement that opinion is qualifed when available information is incomplete or inaccurate.
- Statement that a particular question or issue is outside the expert’s expertise.
- Statement that opinion is genuinely held by the expert.
- Acknowledgement that opinions are based on the expert’s specialised knowledge.
- Report to be signed by the expert.
- Details of the expert’s fees or communications with the expert.
New South Wales and South Australia have explicit provisions that require an expert to reveal certain details about their fees. In New South Wales, an expert must include information on any contingency fees or deferred payment schemes.19 In South Australia, an expert must provide on request, details of his/her fees,
and details of any communications relevant to the preparation of their report with their instructing party/ legal representative, or any other expert.20
PROCEDURAL RULES FOR EXPERT CONFERENCES
With the exception of Western Australia, all jurisdictions have procedural rules and/or provisions in codes of conduct in respect
of pre–trial conferences between experts, covering some or all of the following issues:
- Court may direct a conference with another expert.
- Court direction to produce
a joint report setting out the opinions where experts agree and disagree and the reasons why they disagree.
- Experts must endeavour to reach agreement.
- Expert is not to act on any instruction to withhold or avoid agreement with other expert witnesses.
The clear aim of these provisions is to minimize the differences between expert opinions, by a structured process that addresses the facts on which expert opinions are based, as well as ensuring that experts address the same questions.
The procedures generally aim to minimize the infuence of lawyers on the outcome of an experts’ conference, perhaps by excluding lawyers from attending, and ensuring that the conference proceedings themselves are ‘without prejudice’.
PROCEDURAL RULES FOR GIVING EVIDENCE IN COURT
Whilst the modern focus on expert evidence is on the preparation of expert reports as evidence–in–chief, oral testimony may still be important to supplement or test expert evidence. Procedural rules cover some or all of the following issues:
- Complying expert report is a precondition to giving oral evidence.
- Experts to consider factual evidence adduced at trial.
- Cross–examination of experts can be separate or concurrent.
- Expert permitted to question other experts.
- Expert can give an exposition of his/her own opinion or their opinion about other experts’ opinions.
- How lay or expert evidence in the hearing may be given.
- The scope ofevidence–in–chief is restricted.
- Expert must be available forcross–examination if required.
In most jurisdictions, the preparation of a complying expert report is a precondition for giving oral evidence, and an expert must be available forcross–examination if required.
Courts generally have wide discretion to adopt procedures for giving expert evidence appropriate to the circumstances, such as their location in the hearing room, the order in which factual and expert evidence is given, the order ofcross–examination, the ability for experts to give an exposition of their own opinion, or question the opinion of other experts.
Five jurisdictions have a provision that experts can be required to confrm their opinions or otherwise after the factual evidence has been adduced.21
PROCEDURES FOR COURT APPOINTED EXPERT OR JOINTLY APPOINTED SINGLE EXPERT
Three jurisdictions have specifc provisions in respect of the appointment of a single expert by the court or the parties:22
- Court procedure for appointment of its own expert witness or special referee.
- Cross–examination of court appointed expert.
- Other expert’s reports on question addressed by the court appointed expert.
- Joint engagement of a single expert.
Appointment of a single expert, either by the court or the parties, may result in signifcant cost savings over the appointment of separate experts by each party. However, it may result in genuine concerns as to its reliability in the absence of confrming opinion, and may need to be tested bycross–examination.23 New South
Wales specifcally prohibits adducing other expert evidence on an issue if a court appointed expert has been appointed in respect of that issue.24
South Australia is unique in having provisions to regulate the involvement of shadow experts.25
A shadow expert is an expert who:
- is engaged to assist with the preparation or presentation of a party’s case but not on the basis that the expert will, or may, give evidence at the trial; and
- has not previously been engaged in some other capacity to give advice or an opinion in relation to the party’s case or any aspect of it.26
A shadow expert in South Australia is required to provide a certifcate acknowledging:
- that their role is not to provide evidence in the trial; and
- they have not previously been engaged in any other capacity to give advice or an opinion in relation to any party’s case or any aspect of it.27
The consequences of not complying with the requirements of the applicable rules/code of conduct are well illustrated in the English case ofSPE International Ltd v Professional Preparation Contractors (UK) Ltd EWHC 881 (Ch). In that case pretty well everything that could possibly go wrong with expert evidence did go wrong. The judge rejected the evidence as inadmissible because the ‘expert’ had breached all of his obligations to the court and had not complied with the fundamental requirements of giving independent expert evidence based on relevant qualifcations, training and experience.
RECOMMENDATIONS ON CONTENTS OF AN EXPERT REPORT
As outlined above, there are differences in the requirements of the rules and expert codes of
conduct between jurisdictions, and those specifc rules and codes should be consulted to ensure that an expert report complies with the applicable procedural requirements and content of expert reports to be used in court proceedings.
Although not mandatory in arbitral proceedings, these codes of conduct/rules (or their equivalent) are often also applied in arbitrations because they are perceived to defne the norms
that experts should comply with for their evidence to be relevant, persuasive and of assistance to the tribunal. Experts would be well advised to comply with such requirements in arbitral proceedings in any event, as such compliance should negate any grounds for rejection of the evidence on the grounds of admissibility.
The following are recommendations on the substantive contents of an expert report to be used in litigation or arbitration in Australia. Whilst not all of these matters are specifcally required by the rules/code of conduct in any one jurisdiction, the author believes that they represent best practice in the preparation
of an expert report, and should satisfy the specifc requirements of any jurisdiction, the requirements of section 79 of the Uniform Evidence Acts or the common law requirements for expert evidence.
For clarity and logic, the following substantive matters should be addressed in separate and clearly labeled sections of the expert’s report:
(a)a brief summary of a lengthy or complex report;
(b)the name and address of
the expert and details of their qualifcations, training and experience by which the expert has acquired specialized knowledge relevant to their opinions expressed in the report;
(c)the instructions the expert’s report is responding to, including the questions they have been asked to address and the material they have been asked to consider (this may be by annexing the letter of instructions);
(d)each of the material facts, matters and assumptions of fact (written or oral) on which the opinions are based (some of which may be detailed in the letter of instructions annexed), distinguishing facts identified by the expert and their source from assumed facts, and distinguishing objectively verifiable facts from matters of opinion;
(e)details of any examinations, tests or other investigations on which the opinion is based, the name and qualifcations of the persons who carried them out and supervised them;
(f)details of any literature or other materials referred to such as photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matters relied on by the expert to support his/her opinions—these will need to be made available to the opposite party when the expert report is served;
(g)the expert’s opinions on each of the questions addressed to him/ her;
(h)the expert’s reasons for each opinion expressed, and if there is a range of opinion on matters
dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion; and
(i)the expert’s signature.
In addition to the above substantive content, the following ‘ethical’ obligations should be acknowledged in an expert’s report:
(a)whether any particular question, issue or matter falls outside the expert’s feld of expertise (if applicable);
(b)whether any opinion expressed in the report is not a concluded opinion because of insuffcient research or insuffcient data or for any other reason;
(c)whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion; and
(d)a declaration that:
(i)the expert has made all the enquiries which the expert believes are appropriate and necessary or desirable;
(ii)the report contains reference to all matters the expert considers signifcant, and no matters of signifcance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the report;
(iii)any qualifcation of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;
(iv)the expert’s opinions are genuinely held and are based wholly or substantially on his/her specialized knowledge;
(v)the factual matters stated in the report are, as far as the expert knows, true; and
(vi)the expert has been provided with copies of and has read the relevant rules and experts’ code of conduct (if applicable), understands and will comply with his/her duty in
accordance with those rules/code, and the expert’s report complies with the rules and experts’ code of conduct (if applicable).
If an expert has altered his/her opinion as expressed in an expert report, the expert should prepare a supplementary report as soon as possible, expressing the change of opinion, supported by a statement of the relevant substantive
matters as outlined above. Such a supplementary report should be communicated to the opposing party without delay.
TABLE OF RULES OF EXPERT EVIDENCE
The following table lists the specifc clauses for expert evidence in the Rules and Codes of Conduct (where applicable) in each Australian jurisdiction, under the headings as noted above.
There are differences in the applicable evidence law between Australian jurisdictions …
… Such differences in evidence law may be signifcant in the extent to which case law in one Australian jurisdiction may not be applicable in another jurisdiction.
Applicable law in relation to expert evidence
Expert witness code of conduct
General issues in relation to rules for expert evidence
Immunity of expert witness
Expert report admissible as evidence of opinion
Expert report to be tendered by rule or by leave of court
Expert evidence in chief by experts’ reports
Expert witness is bound by code of conduct
Rules apply to a party witness?
General court powers in relation to expert evidence
Overarching obligations applying to an expert witness
Overriding duty to assist the court
Expert witness’s paramount duty to the court
An expert witness is not an advocate for a party.
Duty to comply with court direction or cooperate with another expert witness
Procedural requirements for expert reports
Party required to give expert witness a copy of the code of conduct
Service of expert reports
Expert to issue a supplementary report when they have changed their opinion for any reason.
Notice to court where expert has changed their opinion
Draft of expert report communicated to a party to be retained by expert
Required content of an expert report
Contents of expert report
Statement that expert has understood and complied with their duty
Statement that expert has made all inquiries that they believe appropriate
Summary of expert’s qualifications and experience
Statement that opinion is provisional when available information is insuffcient
Statement that opinion is qualified when available information is incomplete or inaccurate
Statement that particular question or issue outside expert’s expertise
Statement that opinion is genuinely held.
Acknowledgement that opinions are based on specialised knowledge
Report to be signed
Details of expert’s fees or communications with expert
Applicable law in relation to expert evidence
Expert witness code of conduct
Procedural rules for pre–trial expert conferences
Court may direct conference with another expert
RR31.24, 31.25, 31.26, C6(1)
Court direction to produce a joint report setting out the opinions where experts agree and disagree and the reasons why they disagree
Experts must endeavour to reach agreement
R31.24(1), CC4, 6(1)
Expert is not to act on any instruction to withhold or avoid agreement with other expert witness.
Procedural rules for giving expert evidence in court
Complying expert report is a precondition to giving oral evidence
Experts to consider factual evidence adduced at trial
Cross–examination of experts can be separate or concurrent
Expert permitted to question other experts
Expert can give an exposition of own opinion or opinion about other experts’ opinions
How lay or expert evidence in hearing may be given
Scope of evidence–in–chief restricted
Expert must be available for cross–examination if required
Procedures for court appointed expert or jointly appointed single expert
Court procedure for appointment of its own expert witness or special referee.
RR429I, 429P, R429S
Cross–examination of court appointed expert
Other expert’s reports on question addressed by court appointed expert
Joint engagement of a single expert
RR429G, 429H, 429R
Rules applying to the engagement of a shadow expert
Certificate by shadow expert
Some jurisdictions now have Uniform Evidence Acts, whilst the common law of evidence still applies in three jurisdictions. A number of jurisdictions have explicit codes of conduct for expert witnesses, whilst the others do not. All jurisdictions have civil procedure rules that regulate expert evidence. The differences may mean that expert evidence that is complying in one jurisdiction may not necessarily comply with the rules in another jurisdiction.
1.Donald Charrett ‘Getting the Most Out of Expert Witnesses— Lessons from the Victorian Bushfres’ (2015) 181
Australian Construction Law Newsletter 6
2.Dodds–Streeton J set out these distinctions in Shea v TruEnergy Services Pty Ltd (No 5)  FCA
3.There is a similar statement of purposes in section1200 of Court Procedures Rules 2006 (ACT).
4.I am indebted to the Expert Subcommittee of SoCLA for a preview of their draft report and permission to use
some of their content in this table, and the table in the Annexure.
5.Court Procedures Rules 2006 (ACT) R1203(3)
6.Supreme Court Rules 2005 (Vic) R44.02(2)
7.Uniform Civil Procedure Rules 1999 (Qld) R424
8.Practice Direction 5.4 Expert Witnesses 5.4.8
9.Court Procedures Rules 2006 (ACT) R1240
10.Federal Court Rules 2011 (Cth) R23.11
11.Uniform Civil Procedure Rules 2005 (NSW) R31.28
12.Supreme Court Rules (NT) R44.03
13.Uniform Civil Procedure Rules 1999 (Qld) R429
14.Supreme Court Civil Rules 2006 (SA) R160
15.Supreme Court Rules 2000 (Tas) R516(2)
16.Supreme Court (General Civil Procedure) Rules 2005 (Vic) R44.03(1)
17.Rules of the Supreme Court 1971 (WA) R36A.3(4)
18.Practice Direction 5.4 Expert Witnesses 220.127.116.11
19.Uniform Civil Procedure Rules 2005 (NSW) Rule 31.22
20.Supreme Court Civil Rules 2006 (SA) Rule 160(5)
21.Court Procedures Rules 2006 (ACT) Rule 1211; Federal Court Rules 2011 (Cth) Rule 23.15; Uniform Civil Procedure
Rules 2005 (NSW) Rule 31.35; Supreme Court Rules (NT) Order 44.05(2); Supreme Court Rules 2000 (Tas) Rule 516(6)
22.Federal Court Rules 2011 (Cth); Uniform Civil Procedure Rules 2005 (NSW); Uniform Civil Procedure Rules 1999 (Qld)
23.Federal Court Rules 2011 (Cth) Rule 23.02(2); Uniform Civil Procedure Rules 2005 (NSW) Rule 31.51; Uniform
Civil Procedure Rules 1999 (Qld) Rule 429M(1)
24.Uniform Civil Procedure Rules 2005 (NSW) Rule 31.52
25.Supreme Court Civil Rules 2006 (SA) Rule 161
27.Supreme Court Civil Rules 2006 (SA) Form 32