1. Introduction

Updates and background for this project (Digest)

• Terms of reference
• The conduct of the reference
• Overview of the report

1.1 In a letter to the Commission received on 16 September 2004, the Attorney General, the Hon R J Debus MP requested the Commission:

1. To inquire into and report on the operation and effectiveness of the rules and procedures governing expert witnesses in New South Wales.

2. In undertaking this inquiry, the Commission should have regard to:


• recent developments in New South Wales and other Australian and international jurisdictions in relation to the use of expert witnesses, including developments in the areas of single or joint expert witnesses, court-appointed expert witnesses, and expert panels or conferences;

• current mechanisms for the accreditation and accountability of expert witnesses for the purposes of court proceedings, including the practice of expert witnesses offering their services on a “no win, no fee” basis;

• the desirability of sanctions for inappropriate or unethical conduct by expert witnesses; and any other related matter.


3. The Commission to report no later than 31 March 2005.

1.2 On receipt of the reference, the Commission called for preliminary submissions, which were received in October 2004.¹ The Commission published Issues Paper 25 in November 2004, which identified some of the major issues and encouraged people to make submissions on any aspect of the reference, including any issues of importance that may not have been addressed in the Issues Paper. It was circulated widely not only in the legal community but also among professional organisations and individuals known to have an interest in the issues, seeking their comments and assistance.

1.3 From December to March 2005, the Commission received a very large number of submissions in response to the Issues Paper – nearly 100 submissions comprising about 1,000 pages in total.² At the same time, the Commission conducted a number of consultations with legal practitioners, judges and individuals who regularly appear in court proceedings as expert witnesses not only in New South Wales but also interstate.³ Comments and suggestions from the written submissions and consultations have been taken into account in the formulation of the Commission’s conclusions and recommendations.

1.4 At the time of the preparation of this report, the Civil Procedure Working Party established by the New South Wales Attorney General’s Department was finalising its work on the Civil Procedure Bill 2005 and the Uniform Civil Procedure Rules (“UCPR”).⁴ The UCPR, which consolidate the rules of court concerning civil procedure in the Supreme, District and Local Courts and some tribunals, contain provisions on expert witnesses. The bill and rules became law on 2 June 2005 (although the rules have not yet come into effect as at the time of the writing of this Report). The Commission held several meetings with the secretariat of the working party to ensure that the Commission’s report would take account of these developments.

1.5 The Attorney General extended the time for this report at the Commission’s request.

1.6 To assist in its deliberations and to facilitate the implementation of this report, the Commission sought the assistance of the parliamentary counsel who has produced a draft Uniform Civil Procedure Rules (Amendment No*) 2005, a copy of which is contained in Appendix C of this report. It incorporates the principal recommendations made in this report in the form of proposed amendments to the UCPR.

OVERVIEW OF THE REPORT

Structure

1.7 This report consists of 10 chapters:

Chapter 1 provides the background to the reference and an overview of the scope of the report.

Chapter 2 provides a historical background to the use of expert witnesses.

Chapter 3 reviews the current rules of court of the NSW Supreme, District and Local Courts relating to expert witnesses.

Chapter 4 reviews reform developments in other jurisdictions, including England and Wales, Queensland, the Federal Court, the Family Court, and the Australian Capital Territory.

Chapter 5 examines the problem of “bias” in relation to expert witnesses and sets out the general approach the Commission takes in evaluating the various reform issues to be considered in Chapters 6-10.

Chapter 6 deals with general procedural aspects of expert evidence including: the so called “permission rule”, disclosure obligations, conference requirements for experts, concurrent evidence (“hot-tubbing”), assumptions in expert evidence, and restrictions on a party’s ability to object to an expert’s qualifications and to the facts in an expert’s report.

Chapter 7 proposes that the UCPR be amended to provide for joint expert witnesses, explaining the reasons for this measure and the relationship between joint expert witnesses and court-appointed experts.

Chapter 8 contains proposed rules for incorporation in the UCPR to govern the use of joint expert witnesses. It also includes proposed amendments to the UCPR provisions concerning court-appointed experts.

Chapter 9 deals with issues relating to standards of conduct for the expert witnesses, in particular: the code of conduct, “no win no fee” arrangements, accreditation of expert witnesses, and sanctions for inappropriate or unethical conduct.

Chapter 10 deals with the future review of the rules relating to expert witnesses.

1.8 The Commission’s recommendations are listed at the beginning of this report and have been cross-referenced to the relevant provisions of the draft amendments to the UCPR (Appendix C). In addition, they are included at the beginning of relevant parts of particular chapters so that the reader can identify the reasoning that forms the basis of the specific recommendation.

Matters not included

Criminal law procedures

1.9 Although the terms of reference are not expressly limited to civil law, it is clear that the reference was not intended to include criminal law. The developments referred to in paragraph 2 of the terms of reference all relate to developments in the area of civil law, and many would be inappropriate in criminal law.

Assessors and referees

1.10 An assessor (in the present context) is a person appointed by the court to give it expert advice, but who is neither sworn nor subject to cross-examination, and whose advice need not be disclosed to the parties.⁵ Assessors are experts available to the judge to consult if the judge requires assistance in understanding technical evidence.⁶ A referee (in the present context) is an expert who makes inquiries, evaluates competing information, makes findings of facts, and reports his or her findings to the court. The court may (and usually does) adopt the referee’s report, which then forms part, or even all, of the court’s reasons for decision.⁷ In New South Wales, the courts’ powers to appoint assessors and referees and the related procedures are contained in the UCPR.⁸ The terms of reference require the Commission to inquire into and report on the operation and effectiveness of the rules and procedures governing expert witnesses, and thus do not encompass assessors and referees. Accordingly, although the Commission has had regard to the provisions for assessors and referees, they are not the subject of recommendations in this report.

2. Appendix H is a list of submissions the Commission received after the publication of Issuer Paper 25.

3. Appendix I is a non-exhaustive list of the consultations the Commission undertook.

4. See para 3.6 of this Report.

5. The Queen Mary (1949) 82 LlL Rep 609; The Ship Sun Diamond v The Ship Erawan (1975) 55 DLR (3d) 138.

6. Richardson v Redpath [1944] AC 62 at 70 (Viscount Simon LC).

7. I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2nd edition, LawBook Co, Pyrmont NSW, 2002) at 626.

8. See Uniform Civil Procedure Rules 2005 (NSW) r 31.35, r 20.13-20.24.