Wednesday, 1 February 2017

Introduction

In January last year, the Supreme Court of Tasmania was the first court to adopt rules for expert evidence that are consistent with the harmonised ‘Expert Witness Code of Conduct’. The harmonised code has been developed by a committee established by the Council of Chief Justices. 

Three other Supreme Courts – New South Wales, Victoria and the ACT – as well as the Federal Court - did the same later in the year.

We don’t yet know whether the harmonised code will be adopted in the other Supreme Court jurisdictions: Queensland, Western Australia, South Australia, and the Northern Territory. 

Summary of the Harmonised Rules

The harmonised code is largely similar to the pre-existing rules in each jurisdiction. They cover: application of the code, the expert’s overriding duty to the court, prescribed content for expert reports and supplementary reports, and conference with other experts.

When adopted by a jurisdiction, the code applies to any expert witness engaged or appointed to provide an expert’s report for use as evidence in a proceeding or to give opinion evidence in a proceeding. Every expert witness must comply with the code unless the court or a judge orders or directs otherwise.

A copy of the harmonised code can be found here (as Annexure A to the Federal Court Expert Evidence Practice Note). 

The current legislation in each jurisdiction is summarised below. 

Expert witness guidelines in each jurisdiction

 
Jurisdiction Court Rules Expert Witness guidelines found within the court rules Date of harmonisation
Supreme Court of the Australian Capital Territory Court Procedure Rules 2006 Schedule 1 Expert Witness Code of Conduct 1 July 20161
Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT) (‘Practice Note’) Annexure A: Harmonised Expert Witness Code of Conduct 25 October 20162
Supreme Court of New South Wales Uniform Civil Procedure Rules 2005 Schedule 7 Expert Witness Code of Conduct 9 Dec 20163
Supreme Court of the Northern Territory Supreme Court Rules Order 44: Expert Evidence and Practice Direction No 6 of 2015 – Expert Reports Not harmonised4
Supreme Court of Queensland Uniform Civil Procedure Rules 1999 Division 2: Evidence given by an expert; Rules 426-429. Not harmonised5
Supreme Court of 
South Australia		 Supreme Court Civil Rules 2006 Division 2: Expert reports; Rules 160-161 Not harmonised6
Supreme Court of Tasmania Supreme Court Rules 2000 Expert Witness Code of Conduct; Rules 514-516 6 Jan 20167
Supreme Court of 
Victoria		 Supreme Court (Chapter I Expert Witness Code Amendment) Rules 2016 Form 44A Expert Witness Code of Conduct 1 June  20168
Supreme Court of Western Australia Consolidate Civil Practice Direction (District Court WA) Annexure C: Code of Conduct – Expert Witnesses Not harmonised9

Note: The Supreme Court of Western Australia has no guidelines for expert witnesses. The table above shows the guidelines set out by the District Court which, in our experience, are commonly used as an alternative.​

Comparison with the harmonised code

The four jurisdictions that have not adopted the harmonised code have broadly similar expert witness rules in place, but with additional requirements: 

  • Western Australia: where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other intrinsic matter, these must be provided to the opposite party at the same time as the delivery of the report.
  • Queensland: where there is a range of opinions on matters dealt with in the report, the expert must summarise these opinions and justify why a particular opinion has been adopted by him/herself. Experts are also required to state whether access to any ‘readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion’.
  • South Australia: the report must ‘identify the differences (if any) in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’.
  • Northern Territory: if any supplementary report prepared by an expert is not served to all interested parties then the earlier report and supplementary report cannot be used at trial10.

Significance of a Harmonised Expert Witness Code of Conduct

If implemented in all jurisdictions, a harmonised code will lead to a number of benefits including:

  • Consistency of standards and obligations expected of experts across jurisdictions
  • Enhanced comparability of expert witness reports across jurisdictions
  • Larger pool of experts familiar with the obligations of each jurisdiction - greater efficiency in report preparation without any need to adjust for new rules
  • Reduced compliance costs in ensuring rules are understood and being complied with.

Even with a harmonised code, there remain differences in how experts are managed across Australia, particularly in relation to joint conferences of experts and concurrent evidence.

The Federal Court’s new Expert Evidence Practice Note, including the adoption of the harmonised code, was discussed on our blog, Forensic Spotlight, in October. Click here to read more.
 

Endnotes 

1. Supreme Court of the ACT and ACT Magistrates Court Notice to Practitioners https://www.courts.act.gov.au/__data/assets/pdf_file/0010/978472/notice_to_practitioners_-_court_procedures_rules_2006_-_amendment_2016_no_1.pdf

2. General Practice Note, Harmonised code found in Annexure A http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/gpn-expt

3. Schedule 7 Expert Witness Code of Conduct http://www.legislation.nsw.gov.au/#/view/regulation/2005/418/sch7 and; www.lawyersweekly.com.au/partner-features/20239-expert-witness-code-of-conduct-nsw-amended-from-9-december-2016

4. Supreme Court Rules – Northern Territory http://www.supremecourt.nt.gov.au/documents/Supreme%20Court%20Rules.pdf

5. Queensland – Current legislation https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SuprCrtQUCPRu99.pdf

6. South Australia Rules http://www.courts.sa.gov.au/Lists/Court%20Rules/Attachments/205/Supreme%20Court%20Civil%20Rules%202006.pdf

7. Tasmania – Expert Witness Code of Conduct http://www.supremecourt.tas.gov.au/__data/assets/pdf_file/0016/337003/Practice_Direction_1_of_2016_-_Expert_Witness_Code_of_Conduct.pdf

8. Victoria – Note to the profession regarding adoption of harmonised code http://www.supremecourt.vic.gov.au/home/law+and+practice/practice+notes/practice+notes+archive/notice+to+the+profession+-+adoption+of+harmonised+expert+witness+code

9. Annexure C is commonly referenced instead of the WA Rules of the Supreme Court 1971 Order 36A https://www.unisearch.com.au/documents/Annexure-C-to-Consolidate-Civil-Practice-Direction-District-Court-WA.pdf ;http://www.austlii.edu.au/au/legis/wa/consol_reg/rotsc1971281/

10. Supreme Court Rules – Northern Territory http://www.supremecourt.nt.gov.au/lawyers/documents/PD6of2015-ExpertReports-Final.pdf

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