Expert Evidence – Order 44

Question 1

How can a W be categorised as an expert?

Answer 1

[Witness] is likely an expert as he has specialised knowledge based on his training, study or experience as [occupation/research field].

Question 2

2. What steps need to be taken in order to rely on the expert evidence?

Answer 2

• Must seek direction from the court as soon as practicable if the party intends to adduce expert evidence at trial (s65G). Court may give appropriate directions (s65H).
• Must, as soon as practicable after engagement, provide expert with copy of the expert code (Form 44A).
• Must file the expert report no later than 30 days before trial and serve on parties.
• Must be signed by the expert.
• Must be accompanied by copies of photos/plans/analyses etc.
  Needs to state, specify and provide:
• Name & address of the expert;
• Acknowledgment expert has read the code and agrees to be bound;
• Qualifications of the expert to prepare the report;
• The facts, matters and assumptions on which each opinion express in the report is based (a letter of instructions may be annexed)
• The reasons for, any literature or other materials utilised in support of, a summary of, each opinion;
• If applicable that a particular question, issue or matter falls outside the expert’s field of expertise;
• Any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications;
• A declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have been withheld from the Court;
• Any qualification of an opinion expressed in the report is or may be incomplete or inaccurate; and
• Whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.

Question 3

Can you adduce evidence that is not in the expert report?

Answer 3

NO
* Cannot adduce evidence that is not in the report (r44.06)

Question 4

How can joint reports be commissioned?

Answer 4

• Court may direct experts to confer and to provide the Court with a joint report which specifies matters agreed and matters not agreed and the reasons for their not agreeing.
• Court may specify the matters on which the experts are to confer.

Question 5

What are the duties of the expert witness?

Answer 5

• Witness will not be an advocate for a party.
• Overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.
• The overarching obligations (except 18, 19, 22 and 26) apply to expert witnesses.
• Expert should be provided with a copy of the overarching obligations and confirm that she/he has read and understood them and agrees to be bound by them.
• The evidence should be presented in such a way to explain to the court how the opinion is substantially based on the specialised knowledge.
• Under a duty not to mislead or deceive the court (s21 CPA)

Question 6

What happens if an expert witness fails to comply with CPA?

Answer 6

• An expert who breaches CPA duties and contravenes the CPA may be liable to orders under s29 CPA in respect of costs or compensation.