Appendix B: Uniform Civil Procedure Rules 2005 (NSW) - extracts

Updates and background for this project (Digest)

Division 2 Experts called by parties

31.17 Definitions (cf SCR Part 36, rules 13A and 13C; DCR Part 28, rule 8; LCR Part 23, rule 1D)

In this Division:

code of conduct means the expert witness code of conduct in Schedule 7.

expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.

expert witness means an expert engaged for the purpose of:


(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or

(b) giving opinion evidence in proceedings or proposed proceedings.


expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion, and the facts on which the opinion is formed, and contains the substance of the expert’s evidence that the party serving the statement intends to adduce in chief at the trial.

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

(1) Each party must serve experts’ reports and hospital reports on each other active party:

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties:

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

(1) If an expert’s report is served in accordance with rule 31.18 or an order made under that rule, the report is admissible:

(a) as evidence of the expert’s opinion, and

(b) if the expert’s direct oral evidence of a fact on which the opinion was formed would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

(2) Unless the court orders otherwise:

(a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert’s report has been prepared to procure that attendance, and

(b) the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which attendance is required.

(3) Except for the purpose of determining any liability for conduct money or witness expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party.

(4) A party who requires the attendance of a person as referred to in subrule (2):

(a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and

(b) pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.

(5) If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.

(6) Unless the court orders otherwise, a party may not in any hearing object to:

(a) the qualifications of the expert by whom an expert’s report has been prepared, or

(b) the facts on which the expert’s opinion, as set out in the report, is based,

unless a notice, detailing the grounds of the objection, has been served on the party by whom the expert’s report was served at least 14 days before the date fixed for the hearing.

(7) The party using an expert’s report may re-examine an expert who attends for cross-examination under a requirement under subrule (2).

(8) This rule does not apply to proceedings on a trial with a jury.

(1) If a subpoena is served on a medical expert who is to give evidence of medical matters but is not called as a witness, the expert is, unless the court orders otherwise, entitled to be paid, in addition to any other amount payable to the expert, the amount specified in item 2 of Schedule 3.

(2) The amount payable under subrule (1) must be paid to the expert by the issuing party within 28 days after the date for the expert’s attendance.

(3) A party that requires an expert’s attendance under rule 31.19 (2), but subsequently revokes it, must pay to the issuing party any amount paid by the issuing party under subrule (2), but otherwise such an amount is not recoverable by the issuing party from any other party unless the court so orders.

(4) In this rule, issuing party means the party at whose request a subpoena is issued.

(1) Service of a subpoena on a medical expert may be effected, at any place at which the expert’s practice is carried on, by handing it over to a person who is apparently engaged in the practice (whether as an employee or otherwise) and is apparently of or above the age of 16 years.

(2) If a person refuses to accept a subpoena when it is handed over, the subpoena may be served by putting it down in the person’s presence after he or she has been told of its nature.

(3) If a subpoena requires a medical expert to attend court on a specified date for the purpose of giving evidence on medical matters, it must be served on the expert not later than 21 days before the date so specified unless the court orders otherwise.

(4) The parties may not by consent abridge the time fixed by or under subrule (3).

(1) A subpoena for production may require a medical expert to produce medical records or copies of them.

(2) A person is not required to comply with a subpoena for production referred to in subrule (1) unless the amount specified in item 3 of Schedule 3 is paid or tendered to the person at the time of service of the subpoena or a reasonable time before the date on which production is required.

(3) Rule 33.6 (Compliance with subpoena) does not apply to a subpoena to which subrule (1) applies.

(4) Rule 33.7 (Production otherwise than on attendance) applies to the photocopies in the same way as it applies to the records.

(5) If, after service of a subpoena for production referred to in subrule (1), the party who requested the issue of the subpoena requires production of the original medical records without the option of producing copies of them, the party must request the issue of, and serve, another subpoena requiring production of the original medical records.

(1) As soon as practicable after engaging an expert as a witness, whether to give oral evidence or to provide an expert’s report, the party engaging the expert must provide the expert with a copy of the code of conduct.

(2) Oral evidence may not be received from an expert witness unless:

(a) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it, and

(b) a copy of the acknowledgment has been served on all parties affected by the evidence.

(3) If an expert’s report does not contain an acknowledgment by the expert witness who prepared it that he or she has read the code of conduct and agrees to be bound by it:

(a) service of the report by the party who engaged the expert witness is not valid service, and

(b) the report is not admissible in evidence.

(4) This rule applies unless the court orders otherwise.

(1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use the earlier report on the question to which the earlier report relates unless the engaging party has served the supplementary report on all parties on whom the engaging party served the earlier report.

(2) For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.

(1) The court may direct expert witnesses:

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on outstanding matters, and

(c) to provide the court with a joint report, specifying matters agreed and matters not agreed and reasons for any failure to reach agreement.

(2) An expert so directed may apply to the court for further directions.

(3) The court may direct that a conference be held:

(a) with or without the attendance of the parties affected or their legal representatives, or

(b) with or without the attendance of the parties or their legal representatives, at the option of the parties.

(4) The content of the conference between the expert witnesses must not be referred to at the hearing unless the parties affected agree.

(5) If the parties have agreed to be bound on any specified matter dealt with by the joint report, the report may be tendered at the trial as evidence of the matters agreed.

(6) If the parties have not agreed to be bound on any matter dealt with by the joint report, the report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.

(7) If expert witnesses have conferred and provided a joint report agreeing on any matter, a party affected may not, except by leave of the court, adduce expert evidence inconsistent with the matter agreed.

In any proceedings in which two or more parties call expert witnesses to give opinion evidence about the same question or similar questions, or indicate to the court an intention to call expert witnesses for that purpose, the court may give any one or more of the following directions:

(a) a direction that:


(i) the expert witnesses give evidence at trial after all factual evidence relevant to the question or questions concerned, or such evidence as may be specified by the court, has been adduced, or

(ii) each party intending to call one or more expert witnesses close that party’s case in relation to the question or questions concerned, subject only to adducing evidence of the expert witnesses later in the trial,


(b) a direction that, after all factual evidence relevant to the question, or such evidence as may be specified by the court, has been adduced, each expert witness file an affidavit or statement indicating:

(i) whether the expert witness adheres to any opinion earlier given, or

(ii) whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given,


(c) a direction that the expert witnesses:

(i) be sworn one immediately after another (so as to be capable of making statements, and being examined and cross-examined, in accordance with paragraphs (d), (e), (f), (g) and (h)), and

(ii) when giving evidence, occupy a position in the courtroom (not necessarily the witness box) that is appropriate to the giving of evidence,


(d) a direction that each expert witness give an oral exposition of his or her opinion, or opinions, on the question or questions concerned,

(e) a direction that each expert witness give his or her opinion about the opinion or opinions given by another expert witness,

(f) a direction that each expert witness be cross-examined in a particular manner or sequence,

(g) a direction that cross-examination or re-examination of the expert witnesses giving evidence in the circumstances referred to in paragraph (c) be conducted:


(i) by completing the cross-examination or re-examination of one expert witness before starting the cross-examination or re-examination of another, or

(ii) by putting to each expert witness, in turn, each question relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete,


(h) a direction that any expert witness giving evidence in the circumstances referred to in paragraph (c) be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to,

(i) such other directions as to the giving of evidence in the circumstances referred to in paragraph (c) as the court thinks fit.

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4) In this rule:

professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (such as dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister.

professional negligence claim means a claim in the court for damages, indemnity or contribution based on an assertion of professional negligence.

Division 3 Experts appointed by the court

31.28 Definitions

In this Division:

code of conduct means the expert witness code of conduct in Schedule 7.

expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.

party affected means a party who may be affected by the court’s decision with respect to a question that the court has referred to an expert for inquiry and report.

(1) If a question for an expert arises in any proceedings the court may, at any stage of the proceedings:

(a) appoint an expert to inquire into and report on the question, and

(b) authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question, and

(c) direct the expert to make a further or supplemental report or inquiry and report, and

(d) give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert.

(2) The court may appoint as an expert a person selected by the parties affected, a person selected by the court or a person selected in a manner directed by the court.

(1) A copy of the code of conduct must be provided to the expert by the registrar or as the court may direct.

(2) A report by an expert may not be admitted into evidence unless the report contains an acknowledgment by the expert that he or she has read the code of conduct and agrees to be bound by it.

(3) Oral evidence may not be received from an expert unless the court is satisfied that he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

(1) The expert must send his or her report to the registrar.

(2) The registrar must send a copy of the report to each party affected.

(3) Subject to rule 31.30 and unless the court orders otherwise, the report is taken to have been admitted in evidence in the proceedings when it is received by the court.

Any party affected may cross-examine an expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.

Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any question arising in proceedings if an expert has been appointed under this Division in relation to that question.

(1) The remuneration of an expert is to be fixed by the court.

(2) Subject to subrule (3), the parties specified by the court are jointly and severally liable to an expert to pay the amount fixed by the court for his or her remuneration.

(3) The court may direct when and by whom an expert is to be paid.

(4) Subrules (2) and (3) do not affect the powers of the court as to costs.

(1) In any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser’s opinion.

(2) Rule 31.34 applies to and in respect of a person referred to in subrule (1) in the same way as it applies to and in respect of an expert appointed under this Division.