The Land and Environment Court of New South Wales
Expert Witness Practice Direction 2003
TABLE OF CONTENTS
1. This Practice Direction replaces the existing 1999 Practice Direction (as amended in 2002) relating to Expert Witnesses.
2. This Practice Direction shall commence on 2 February 2004.
3. In this Practice Direction:
"expert witness" means an expert engaged for the purpose of:
(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
(b) giving opinion evidence in proceedings or proposed proceedings.
"the code" means the expert witness code of conduct provided in Schedule 1.
4. Unless the Court otherwise orders:
(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code,
(b) unless an expert witness's report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:
(i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note, and
(ii) the report shall not be admitted into evidence,
(c) oral evidence shall not be received from an expert witness unless:
(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and
(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.
5. If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness:
(a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and
(b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.
6. (1) The Court may, on application by a party or of its own motion, direct expert witnesses to:
(a) confer and may specify the matters on which they are to confer,
(b) endeavour to reach agreement on outstanding matters, and
(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement
and in complying with any such direction, the requirements stipulated in Schedule 2 shall apply.
(2) An expert so directed may apply to the Court for further directions.
(3) The Court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively.
(4) The content of the conference between the expert witnesses shall not be referred to at the hearing or trial unless the parties affected agree.
(5) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.
(6) Where, pursuant to this paragraph, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.
Expert Witness Code of Conduct
Application of code
1. This code of conduct applies to any expert engaged to:
(a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
(b) give opinion evidence in proceedings or proposed proceedings.
General Duty to the Court
2. An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise.
3. An expert witness's paramount duty is to the Court and not to the person retaining the expert.
4. An expert witness is not an advocate for a party.
The Form of Expert Reports
5. A report by an expert witness must (in the body of the report or in an annexure) specify:
(a) the person's qualifications as an expert,
(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed),
(c) reasons for each opinion expressed,
(d) if applicable---that a particular question or issue falls outside his or her field of expertise,
(e) any literature or other materials utilised in support of the opinions, and
(f) any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.
6. If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
7. If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
8. An expert witness who, after communicating an opinion to the party engaging him or her (or that party's legal representative), changes his or her opinion on a material matter shall forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect which shall contain such of the information referred to in 5 (b), (c), (d), (e) and (f) as is appropriate.
9. Where an expert witness is appointed by the Court, the preceding paragraph applies as if the Court were the engaging party.
10. An expert witness must abide by any direction of the Court to:
(a) confer with any other expert witness,
(b) endeavour to reach agreement on material matters for expert opinion, and
(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.
11. An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.
Requirements for Joint Conference of Expert Witnesses
1. The objectives of the Court giving directions for a joint conference of experts are:
(a) the just, quick and cost effective disposal of the proceedings;
(b) the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;
(c) the consequential shortening of the trial and enhanced prospects of settlement;
(d) apprising the Court of the issues for determination.
(e) binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed.); and
(f) avoiding or reducing the need for experts to attend court to give evidence.
2. Where, pursuant to a direction given by the Court, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.
3. The experts to attend should be those specified in the Court's direction. If none are so specified, the parties should arrange for experts to attend who have expertise pertinent to the questions to be asked. Separate conferences may be required between experts in different specialities in relation to different issues arising in the case.
4. The questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration.
5. The questions to be answered should be framed to resolve an issue or issues in the proceedings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.
6. The materials to be provided to each of the participating experts should include:
(a) this Practice Direction;
(b) an agreed chronology, if appropriate;
(c) relevant witness statements or, preferably, a joint statement of the assumptions to be made by the experts, including any competing assumptions to be made by them in the alternative (which should be specified clearly as such);
(d) copies of all expert opinions already exchanged between the parties and all other expert opinions and reports upon which a party intends to rely; and
(e) such records and other documents as may be agreed between the parties or ordered by the Court.
7. Subject to any directions given by the Court concerning the range of dates for the convening of the conference, the parties should communicate amongst themselves to fix a mutually convenient date, time and place for the conference.
8. The conference should take the form of a personal meeting. Alternatively the participants may choose to hold the conference by teleconference, videolink or similar means if a personal meeting is not practicable.
9. The Court may direct that the conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively.
10. The experts should be given a reasonable opportunity to prepare for the conference by ensuring that before the conference the experts have:
(a) an opportunity to seek clarification from the instructing lawyers or the Court concerning any question put to them; and
(b) access to any additional materials which the parties are able to provide and which the experts consider to be relevant.
11. The experts should provide their respective opinions in response to the questions asked based on the witness statements or assumptions provided. Where alternative assumptions are provided the experts should provide their respective opinions on the alternative assumptions.
12. The experts may specify in their joint report other questions which they believe it would be useful for them to consider.
13. An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter.
14. The experts should accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer.
15. The conference should be conducted in a manner which is flexible, free from undue complexity (so far as is practicable) and fair to all parties.
16. The participating experts may appoint one of their number as a chairperson. If one of them so requests and the parties agree or the court orders, some other person may be appointed to act as chairperson.
17. Secretarial or administrative assistance should be provided by the parties if so requested by the experts.
18. If the participating experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of matters agreed, matters not agreed and reasons for disagreement.
19. The conference may be adjourned for no more than 7 days and reconvened as may be thought necessary by those participating.
20. The joint report should specify matters agreed and matters not agreed and the reasons for non agreement.
21. The joint report should, if possible, be signed by all participating experts immediately at the conclusion of the conference and, otherwise, as soon as practicable thereafter.
22. Prior to signing of a joint report, the participating experts should not seek advice or guidance from the parties or their legal representatives except as provided for in this Practice Direction. Thereafter, the experts may provide a copy of the report to a party or his or her legal representative and may communicate what transpired at the meeting in detail if they wish.
23. The report of the joint conference should be composed by the experts and not the representatives of the parties. The report should be set out in numbered paragraphs and should be divided into the following sections:
(a) statement of agreed opinion in respect of each matter calling for report;
(b) statement of matters not agreed between experts with short reasons why agreement has not been reached;
(c) statement in respect of which no opinions could be given e.g. issues involving credibility of testimony;
(d) any suggestion by the participating experts as to any other matter which they believe could usefully be submitted to them for their opinion; and
(e) disclosure of any circumstances by reason of which an expert may be unable to give impartial consideration to the matter.
24. The joint report, when signed by all participating experts, should be forwarded to the Court.
25. Legal representatives who attend a conference pursuant to an order of the Court or who are approached for advice or guidance by a participating expert should respond jointly and not individually, unless authorised to do so by the legal representatives for all other parties with an interest in the conference. Such advice or guidance may be provided by:
(a) responding to any questions in relation to the legal process applicable to the case;
(b) identifying relevant documents;
(c) providing further materials on request;
(d) correcting any misapprehensions of fact or an misunderstanding concerning the conference process; and
(e) recommended amendments to plans.
26. The legal representatives of the parties should perform any other role the Court may direct.
27. The legal representatives of the parties should inform the Court of the date of a conference when arranged, the names of the participating experts and the questions submitted.
28. It is not intended that the joint report provided to the Court or that information provided to the Court concerning a conference will be evidence in the proceedings unless admitted into evidence in the ordinary way. The content of the conference between the expert witnesses shall not be referred to at the hearing or trial unless the parties affected agree.
29. An expert directed to confer may apply to the Court for further directions. That may be done, at the expert's election, by arrangement with the Court. A party may also apply for further directions in relation to a directed conference.
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