Order 44 - Expert Evidence Flashcards
44.01 Definitions (three definitions)
Expert means a person who has specialised knowledge based on the person’s training, study or experience
Opinion includes more than one opinion
The code = the expert witness code of conduct in Form 44A.
44.02 Application of order
(1) to a proceeding however commenced
(2) Doesn’t apply to evidence of party who if gave evidence as W would be qualified to give EE in respect of any proceeding Q
(3) Re: medical opinion in proceeding for med-neg in which P claims damages re: bodily injury, this order applies to opinion on liability of D but doesn’t otherwise apply to a medical report to which order 33 applies
44.03 Report of expert (give them code, serve 30 days pre trial, state name/address, code acknowledgment, qualifications, FMA on which opinion based, re opinion, reasons, literature, summary, any ultra vires questions, exams/tests etc. on which relied, declaration all relevant inquiries made, qualifications, tentative opinions, supplementary report, shall be signed, include photogs, plans, calculations, etc.
(1) Party who intends at trial to adduce evidence of EW shall
● (a) ASAP after engaged expert and before expert prepares report, provide them with copy of Code
● (b) serve on other parties not later than 30 days before date of trial the expert report and also deliver copy to the court
(2) report to state the opinion of expert and shall state/specify/provide
• (a) name and address (b) acknowledgment re Code (c) qualifications of EW to prepare report (d) facts, matters and assumptions on which opinion based (LOI may be annexed)
● (e) re opinion: (i) reasons; (ii) any literature or other materials utilised in support of it (iii) summary of opinion
● (f) if applicable, that particular question, issue or matter falls outside the expert’s field of expertise
● (g) any exams, tests, other investigations on which expert has relied, identifying the person who carried them out and that person’s qualifications
● (h) declaration that (i) expert has made all enquiries expert believes are desirable and appropriate; (ii) no matters of significance which experts regards as relevant have to his knowledge, been withheld from the Court
● (i) any qualification of opinion expressed in the report without which the report is or may be incomplete or inaccurate
● (j) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason
(3) If expert provides a supp report, including report indicating a change of opinion on a material matter:
• (a) Serve forthwith on all other parties
• (b) In default of such service, party and any party with common interest shall not be able to use either report except with leave of the court
(4) Any report (a) shall be signed by expert and (b) include clear copies of photogs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers
44.04 Other party’s report as evidence (can use report served on you by another party as evidence)
Unless otherwise ordered, a party may put in evidence a report served on that party by another party under this Order.
44.05 No evidence unless disclosed in report
Except with leave of Court or by consent of parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order.
44.06 conference between experts
(1) Court may direct EWs (a) to confer; and (b) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for their not agreeing
(2) Court may specify the matters on which experts are to confer.
(3) An expert can apply to the court for further directions
(4) Court may direct legal representatives: (a) To attend the conference, (b) not to attend conference, or (c) to do so at the choice of party they represent
(5) Subject to (1)(b), except as affected parties agree in writing, no evidence shall be admitted of anything said/done by any person at conference. (6) Agreement reached during conference shan’t bind party except insofar as party agrees in writing.
