Practice Direction: Court Appointed Experts
Ref: Practice Direction No. 1 of 2005 (effective 1 February 2005), incorporating changes up to and including 2 June 2006
1. The purpose of this Practice Direction is to give guidance to parties and to expert witnesses as to the process of appointment of experts by the Court in proceedings in Classes 1, 2 and 3, how such experts are to conduct themselves and prepare their evidence, provide it to the parties and give evidence at any hearing. If a party believes that in the circumstances of a particular appeal the process should be varied from that contemplated in this Practice Direction the proposed variation should be raised with the other parties and the Court.
2. Expert evidence is commonly given in proceedings in classes 1, 2 and 3 of the Court's jurisdiction. It may involve the identification of facts as well as the expression of opinions following analysis of the facts. In an endeavour to reduce costs and to ensure that the Court has the benefit of evidence from a person who is not engaged by only one party, the Court has adopted procedures which provide for the Court to appoint experts.
3. For this purpose the Land and Environment Court has adopted Part 39 of the Supreme Court Rules 1970, which makes provision for the Court to appoint an expert to inquire into and report on any question in the proceedings. The rules make provision for the appointment of the expert, provision of a report, the remuneration of the expert and the receipt of the expert's report into evidence.
4. Pre-Hearing Practice Direction No 17 makes provision for expert evidence and the appointment of experts by the Court. This Practice Direction should be read in conjunction with Pre-Hearing Practice Direction No. 17. Where there is conflict between this Practice Direction and Practice Direction No 17 this Practice Direction prevails. In due course Practice Direction No 17 will be revised.
5. At the first call over, or as soon as possible thereafter, the Court will consider whether it is appropriate to appoint a person as the court expert to give evidence with respect to any issue or issues in the proceedings. Before a person is appointed it is expected that the parties, or their legal advisers, will have agreed with the expert the basis upon which that person will be remunerated and the quantum of the remuneration. If there is no agreement on the basis for remuneration of the expert the Court will determine it. The basis for remuneration may provide for a capped fee arrangement, an hourly rate or a combination or variation of these arrangements.
6. It will be necessary for the parties or their legal advisers to approach experts to discuss their possible appointment by the Court, identify their availability and agree upon the appropriate remuneration. However, a party must not seek the preliminary views of the expert on any question before offering that person's name as an expert. If such an enquiry is made by a legal practitioner it may constitute professional misconduct or contempt of court and may disqualify the expert from giving evidence.
7. If an expert is approached for appointment that person must disclose to the party making the approach whether he or she has had any prior dealings with the applicant or respondent, the landowner or the developer of the project or otherwise in relation to the project itself. If the expert has concerns that he or she may not be able to bring an impartial mind to the issues in dispute, this must be disclosed to the party making the approach.
8. The Court expects that the basis for remuneration of the expert will be that which the expert normally charges when undertaking court work for individual parties. The Court will not fix a level of remuneration which is greater than that person's usual rate of charging and may require evidence of the expert's usual rate before making the appointment. The parties are jointly and severally liable for the expert's fees and the expert must look to the parties for payment. The legal profession owes the usual obligation to an expert which a practitioner has engaged for payment of the expert's fees. If requested by the parties appropriate arrangements will be made for the expert's fees to be paid into court and held pending the resolution of the matter. As an alternative the parties could agree that each party's share of the fees will be held in an appropriate account on trust and paid out when owing to the expert. It would be preferable for the parties to confirm the fee arrangement with an expert in writing.
9. The evidence of an expert appointed by the Court will, subject to the objection of any party, be received as evidence in the proceedings. It will be considered by the Court together with any other evidence relating to the relevant issues.
10. A Court expert may approach any party, at any time, to obtain information, but must inform the other parties. Any party may also approach the expert with relevant information, but must inform the other parties.
11. To ensure that the expert is both perceived to be and remains independent from any party, discussions about the issues in the matter or any communication of the opinion of the expert should only occur when a representative of each party is involved in the discussion. Communication about incidental matters eg requests for basic information such as the relevant planning controls, plans, survey material, copies of other reports and the like may take place with one party provided the other parties are informed as to the information sought and the response which was given. Wherever possible such communication should be by email and copied to the other parties. Experts appointed by the Court are to conduct themselves in a manner which maintains the confidence of the parties and any objectors in their independence.
12. Although the Court will decide whether an expert or experts should be appointed the Court expects the parties to agree on the particular person or persons to be appointed. Failing agreement the Court will make the appointment. Where there is no agreement the parties shall provide a list of up to three experts acceptable to that party and the fee arrangement which each expert requires.
13. As soon as convenient after an expert has been appointed the parties must provide the expert with copies of all relevant documentation in relation to the project including, plans, relevant correspondence and reports which may be of assistance to the expert appointed by the Court. Each party must inform the other party, or parties of the information which they have provided to the expert and, where appropriate, provide the other party with copies of documents. The parties must ensure the expert is informed of any directions made by the Court relevant to the tasks requiring completion by that expert.
14. The Court may direct the expert to report orally to the parties and subsequently provide a written report. In some cases only an oral or written report may be required.
If, after reviewing the preliminary report (oral or written) of the expert, a party wishes to call another expert at the
hearing, that party may seek leave to do so by way of notice of motion supported by an affidavit. The notice of
motion must be filed and served at the first opportunity. The affidavit should outline:
(a) the name, qualifications and expertise of the expert proposed to be called;
(b) the matters proposed to be addressed by the expert; and
(c) the reasons for the need to call an additional expert to give that evidence, rather than having the court appointed expert address the matters further or in cross examination;
(d) how calling the additional expert at all, or at the particular stage in the preparation of the proceedings, promotes the just, quick and cheap resolution of the proceedings; and
(e) the party’s position in relation to any additional costs that might be caused by the calling of the expert.
If practicable, the affidavit should not exceed 3 pages in length (excluding annexures).
The notice of motion will be made returnable before the Registrar at the earliest convenient date to the Court.
If leave is granted, the Court will, if possible, give directions to ensure that any existing hearing date is not lost.
15. In summary, the obligations of an expert appointed by the Court include the following:
(a) To receive and review written documentation provided by the parties to the proceedings.
(b) If required by a party or parties, or if the expert believes it to be necessary, to meet with a representative of each party for the purpose of obtaining any information relevant to the issue or issues requiring report by the expert. Such meetings should only occur in the presence of a representative of each party unless the parties otherwise agree.
(c) If the expert is of the opinion that it is necessary, visit the site in the presence of the parties or with their knowledge, and make any inquiries, including visiting objectors' properties, necessary to enable the expert to report to the Court.
(d) Experts should address objectors concerns, if any, even when these are not identified separately in the Statement of Issues.
(e) If so directed by the Court, or if otherwise appropriate in the expert's opinion, provide an oral report to the parties indicating the view the expert has reached in relation to the issue or issues, on which the expert has been directed to report, such report to be made on or before any date appointed by the Court. If the expert believes an issue could be satisfactorily resolved by an amendment of the plans or by the imposition of suitable conditions this should be stated in any oral or written report.
(f) If so directed by the Court, to provide a written report to the Registrar of the Court and provide a copy to each party, such report to be provided on or before any date appointed by the Court. The report shall express the views the expert has reached in relation to the issue or issues on which the expert has been directed to report in order to assist the Court to determine the proceedings. The report is to be prepared with appropriate efficiency, having regard to the issues in dispute and the nature and likely cost of the proposed development.
(g) Unless advised to the contrary, be available on the date fixed for the hearing of the matter to attend the view and give oral evidence and, if required, be cross-examined. If necessary further directions will be given during the hearing as to the need for further attendance by the expert. An expert appointed by the Court must be available to give evidence even when the outcome of the matter has been agreed between the parties.
(h) If an expert is unsure about any aspect of his or her responsibilities, he or she should contact the Registrar for advice. The Registrar may be contacted on telephone number 9228 8388.
Email: lecourt@agd.nsw.gov.au . The address for filing reports and other correspondence is Land & Environment Court, GPO Box 3565, Sydney, NSW, 2001
(i) Experts are to conduct themselves in a manner which maintains the confidence of the parties in their independence.
Peter David McClellan
Chief Judge
Dear
In X v Y
I am writing to confirm that the Court has appointed you as an expert to give evidence in this matter in relation to …………………
The directions which have been made which are relevant to you are as follows:
(a) appoint…………………as the Court expert to inquire into and report on………………..
(b) the parties are to provide the expert with copies of all relevant documentation by ……………..
(c) the court expert is to consider the matter and confer with the parties and provide an oral/written opinion on relevant matters on or before…………………, and/or
the court expert is to confer with the parties and provide a written report to the Registrar and provide copies to the parties on or before………………..
(d) the court expert's remuneration is fixed at ……………..
(e) the matter is fixed for hearing on………………………. The hearing will commence on site at 9.30am/or will be conducted as an on site hearing or section 34 conference/or will commence at ………………...
I enclose for your information a copy of the expert witness code of conduct together with a copy of Pt 39 of the Rules under which you have been appointed, together with a copy of the Court Appointed Experts Practice Direction.
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