Part 4.6 - Expert Witnesses and Expert Evidence Flashcards
65F Objects of this Part
further OP by.. enhance CM powers .. restrict EE .. emphasise primary duty
Further overarching purpose by: (a) enhance case management powers of courts re: EE, (b) restricting expert evidence to that reasonably required to resolve proceeding; (c) emphasise primary duty of expert witness to the Court.
65G Party to seek direction of court to adduce expert
evidence (ASAP if becomes aware it will)
(1) Unless the rules of the Court otherwise provide, a party must seek a direction from the court ASAP if they (a) intend to adduce expert evidence at trial or (b) they become aware that the party may adduce expert evidence at trial.
(2) does not apply to the MC unless MC rules of court specify the requirement does apply.
65H Court may give directions in relation to expert evidence (eg, preparation, time for service, limit EE, limit number of EWs, provide directions on SJE, CAE), at any time
(1) Court can give any directions it considers appropriate (at any time in a proceeding) re: EE in a proceeding, this may include:
(2) direction may include:
(a) Preparation of an expert’s report; (b) Time for service of an expert’s report; (c) Limiting expert evidence to specified issues; (d) Providing that expert evidence may not be adduced on specified issues (e) Limiting the number of expert witnesses who may be called to give evidence on a specified issue
(f) Providing for the appointment of (i) Single joint experts; or (ii) Court appointed experts, (g) Any other direction that may assist an expert witness in the exercise of their functions as an expert witness in the proceeding.
(3) This direction can be given at any time in a proceeding
65I Court may give directions to expert witnesses—
conferences and joint experts reports (or both - with/out parties’ attendance)
(1) A Court may direct EWs in a proceeding —
● (a) To hold a conference of experts
● (b) To prepare a joint experts report
● (c) To do both
(2) Court may direct a conference of experts to be held with or without the attendance of all or any of the following — (a) The parties (b) Legal practitioners (c) An independent facilitator
(3) A direction to prepare a join experts report may include the:
● (a) (i) matters agreed and not agreed by the experts; (ii) reasons for any agreement and disagreement
● (b) issues to be dealt with in the joint experts report
● (c) The facts, and assumptions of fact, on which the joint experts report is to be based
(4) direction may be (a) general or in relation to specified issues and may be given at any time, including (b) before/after they have prepared reports.
65J Use of conference of experts and joint experts
reports in proceeding - not to be referred to - J report to be tendered at trial - cant adduce EW otherwise from J report without leave
(1) Unless parties agree/Court otherwise orders, contents of an expert conference, except as referred to in joint report, mustn’t be referred to at any hearing of proceeding to which it relates.
(2) A joint experts report may be tendered at trial as evidence of any matters agreed.
(3) In relation to any matters not agreed, a joint experts report may be used or tendered at the trial only in accordance with — (a) The rules of evidence; and
(b) rules of court and practices of court in which trial is heard.
(4) Except by leave of court, a party affected may not adduce evidence from any other expert witness on issues dealt with in joint experts report.
Section 65K — Court may give direction about giving of
evidence, including concurrent evidence, by expert witnesses (eg, at any stage, concurrently, oral exposition, opinion on another EW, be examined, x’d etc, ask Qs of another EW, permitted to ask questions), court can question EW to identify real issues in dispute
(1) A court may give any direction it considers appropriate in relation to the giving of evidence by any expert witness at trial.
(2) W/o limiting the court may direct that any expert witness:
● (a) Give evidence at any stage of the trial, including after all factual evidence has been adduced
● (b) Give evidence concurrently with one or more other experts
● (c) Give an oral exposition of their opinion on any issue
● (d) Give opinion on any opinion given by another expert
● (e) Be exam’d, X-exam’d or re-exam’d in a particular manner or sequences, including by putting to each EW, in turn, each issue relevant to one matter or issue at time
● (f) Be permitted to ask questions of any other expert witness who is concurrently giving evidence
(3) Court can question any expert witness to identify the real issues in dispute between the witnesses including questioning more than one expert witness at the same time.
Section 65L Single joint experts (consider disproportionate, established area, if range is needed, if will expedite/delay, other rel. consideration - by agreement or by court - SJE must consent - can’t advance communicate
(1) Court may order an expert be engaged jointly by 2 or more parties (2) at any stage of the proceeding.
(3) In making such an order, court must consider:
● (a) Whether the engagement of 2+ EWs would be disproportionate to complexity and importance of issues in dispute and the amount in dispute in the proceeding.
● (b) Whether the issue falls within a substantially established area of knowledge
● (c) Whether it is necessary for the court to have a range of expert opinions
● (d) The likelihood of the engagement expediting or delaying the trial
● (e) Any other relevant consideration
(4) single joint expert is to be selected (a) by agreement between parties or (b) otherwise if they fail to agree, by direction of Court. (5) single joint expert must consent to engagement.
(6) (a) PARTIES CANNOT COMMUNICATE with someone under consideration for engagement as joint expert to obtain their opinion and (b) must notify other parties of the substance of any previous communications on the issues concerned.
Section 65M Court appointed experts - same considerations as SJE - SJE must consent (proportionality, established area, range necessary, likelihood of expedite/delay, any other relevant consideration - EW must consent to CAE)
(1) Court can make an order to appoint an expert (2) at any time in the proceeding) (a) to assist the court and (b) to inquire into and report on any issue in a proceeding.
(3) In making such an order must consider:
● (a) Whether such an appt would be disproportionate to (i) complexity/importance of issues (ii) amount in dispute
● (b) Whether issue falls within substantially established area of knowledge (c) Whether it is necessary for the court to have a range of expert opinions
● (d) The likelihood of the engagement expediting or delaying the trial (e) Any other relevant consideration
(4) Person must consent to being a court appointed expert.
Section 65N Instructions to single joint expert or court appointed expert (must try and agree instructions and facts/assumptions, or seek court direction)
(1) The parties must endeavour to agree on —
● (a) Written instructions to be provided to the expert concerning the issues arising for their opinion
● (b) The facts and assumptions of fact on which the expert’s report is to be based.
(2) If cannot agree, must seek directions from the Court.
Section 65O Prohibition on other expert evidence without leave if SJEW or CAEW has been engaged (consider - if party doesn’t agree, proportionality, if material different opinion exists - whether any other EW knows more)
(1) If a (a) SJEW or (b) CAEW has been engaged, party cannot adduce any other expert evidence except with leave of Court.
(2) Court must consider:
● (a) Whether one party does not agree with the evidence or an aspect of the evidence of a SJEW or CAEW
● (b) Whether allowing additional evidence would be disproportionate to the (i) complexity/ Importance of the issues in dispute and (ii) the amount in dispute
● (c) Whether there is expert opinion which is different to the opinion of the SJEW or CAEW which is or may be material to deciding the issue (d) whether any other EW knows of matters which aren’t known by SJEW or CAEW that are/may be, material to deciding issue
● (e) Any other relevant consideration
Section 65P Disclosure of retainer arrangements (on application - eg disclose if contingent)
(1) Unless rules of the court otherwise provide, party may apply for order that EW retained by any party disclose all or specific aspects of the arrangement under which EW has been retained to — (a) The court; and (b) All parties to the proceeding
(2) On such application, court can make any order for disclosure it considers appropriate. (3) Eg, can make EW disclose whether the charging or payment of fees is contingent in any respect on the outcome of the proceeding. (4) Can’t adduce evidence of such a disclosure at trial without leave of the Court
Section 65Q - Interaction with other powers of Court
(1) (a)-(b) Nothing limits any other court power re case management, evidence, witnesses
(2) (a)-(c) “”” limits court’s inherent/implied/statutory jurisdiction
