3. The Uniform Civil Procedure Rules 2005
Updates and background for this project (Digest)
INTRODUCTION
3.1 This chapter sets out the existing rules and procedures of courts in New South Wales relating to expert witnesses. The governing legislation is very recent. It comprises the Uniform Civil Procedure Rules 2005 (“UCPR”), which consolidate the civil procedure rules for the Supreme, District and Local Courts, and which will also apply to a number of tribunals. The UCPR are attached as Schedule 7 to the Civil Procedure Act 2005 (NSW), which was introduced into Parliament on 6 April 2005 and was assented to on 2 June 2005. At the time of writing this report, most of the provisions of the Civil Procedure Act 2005 (NSW) and the UCPR are expected to come into force in August 2005.1
3.2 The UCPR contain provisions on expert witnesses, which are divided into
3.3 After a brief consideration of the background, this chapter will summarise these provisions.
BACKGROUND
3.4 This section briefly discusses a number of developments prior to the UCPR. The first development relates to a specific category of cases, namely litigation involving claims for professional negligence. In 1999, the Supreme Court established a Professional Negligence List in the Common Law Division.2 A new Part 14C was inserted in the Supreme Court Rules 1970 to govern such matters. Among other things, the new rules required a person instituting a medical or legal professional negligence claim to file and serve an expert’s report with the statement of claim. This was intended to facilitate the reduction of delay in the assessment of a claim and to avoid the precipitate commencement of proceedings.3 More significantly for present purposes, Part 14C was supplemented by a new Practice Note (No 104), which contained the following provisions concerning expert witnesses:
• A declaration that the paramount duty of expert witnesses is to the court, which overrides their obligation to the party engaging them;
• A prescription concerning the form and contents of an expert’s report;
• Provision for the court to direct parties to request expert witnesses to hold conferences among themselves with a view to agreeing on any issue and to make a joint statement on any agreements; and
• A requirement that any party engaging an expert witness should notify such witness of the above requirements.
3.5 In January 2000, the Supreme Court introduced substantial changes to its rules on expert witnesses, in substance expanding the provisions in Practice Note No 104 and applying them generally to civil cases in the Supreme Court. Subsequently, the District and Local Courts emulated the Supreme Court reforms, and thus the rules of court of these courts became substantially similar as regards expert witnesses. The main elements of these rules are reflected in the UCPR and described below. In brief, they contain a definition of expert witness;4 a code of conduct for expert witnesses;5 requirements in relation to the code of conduct;6 requirements as to the form and content of an expert’s report;7 procedures for conferences among expert witnesses;8 disclosure of the expert’s report and supplementary report;9 admissibility of expert’s report or oral evidence;10 the right of parties to cross-examine or re-examine expert witnesses;11 and court-appointed experts.12
3.6 The UCPR were the product of the Attorney General’s Department’s Civil Procedure Working Party (“working party”), constituted in 2003 for the purpose of producing common civil procedure rules for the Supreme, District and Local Courts. The working party consisted of representatives of the various courts, the Bar Association, the Law Society and the Attorney General’s Department.13 Its aim was to consolidate provisions on civil procedure into a single instrument and to develop a common set of rules, simplified where possible, but without radical changes in substance or in form. Accordingly, the UCPR involve little substantive change, and generally replicate the substance of the previous rules of the Supreme, District and Local Courts.
3.7 In early 2005, there was another development relating to a particular category of matters, this time personal injury cases. Practice Note 128, Single Expert Witness, provided for a standard “single expert witness direction” to be given in all personal injury cases unless cause is otherwise shown. The “standard direction” applied only to expert evidence relating to the quantification of damages, not that in relation to liability. It incorporated some of the elements of the single joint expert under the English Civil Procedure Rules.14
EXPERTS ENGAGED BY PARTIES
Definitions
3.8 The UCPR define an expert, in relation to any question, as a person who has such knowledge or experience of that question that his or her opinion on that question would be admissible in evidence. An expert witness is defined as 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.15
Expert witness code of conduct
3.9 Schedule 7 of the UCPR consists of an expert witness code of conduct. It provides for the duties of experts to the court, the form of an expert’s report and the obligation of expert witnesses to comply with any direction to confer and produce a joint report. The code essentially replicates the provisions of the codes of conduct in the previous rules of the Supreme, District and Local Courts.
3.10 The provisions of the expert witness code of conduct in the rules of court have been strongly influenced by the common law, including the principle that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation.16 The provisions of the expert witness code of conduct are not to be treated as rules of admissibility of expert opinion evidence, but as a code of conduct designed to improve the quality of expert opinion evidence.17
Requirements relating to the code of conduct
3.11 A party who engages an expert witness must provide such witness with the expert witness code of conduct at or as soon as practicable after such engagement. Unless the court otherwise orders, an expert’s report or oral evidence is not to be admitted in evidence if the expert does not acknowledge in the report (or in writing in the case of oral evidence) that he or she has read the code and agrees to be bound by it.18
3.12 In Commonwealth Development Bank v Cassegrain,19 Justice Einstein held that the court should not, “without exceptional cause”, exercise its discretion to allow the admission of expert evidence without the required acknowledgement from the expert that he or she has read and agrees to be bound by the code of conduct. He suggested a strict compliance with the rules on expert witnesses.20 Nevertheless, the court has excused non-compliance with the acknowledgement requirement where it was satisfied that the failure to comply was “technical”, in the sense that the report was in fact prepared in compliance with the code,21 or that the witness had sufficiently confirmed the report after being apprised of the contents of the code22 or where the court was otherwise satisfied of the likely impartiality of the opinions expressed in the report.23
Paramount duty to the court
3.13 An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert’s area of expertise. His or her paramount duty is to the court and not to the person retaining the expert. An expert witness is not an advocate for a party.24
Conferences and joint reports
3.14 The court may, on application by a party or of its own motion, direct an expert witness to:
a) confer with any other expert witness,
b) endeavour to reach agreement on outstanding matters, and
c) provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for any non-agreement.25
3.15 In exercising its discretion to direct a meeting of experts, the court may consider the extent to which the meeting is likely to narrow issues, reduce the scope of evidence, and resolve differences of expert opinion. In addition, the court may take into account the costs of the meeting and its potential impact on the parties, including any risk that any extra costs it involves (including preparation and experts’ fees) might prejudice a party’s ability to conduct the proceedings effectively and at the least cost.26
3.16 An expert who is directed to hold conferences with other experts may apply to the court for further directions. The court may direct that the conference be held with or without the attendance of lawyers. The content of the conference between the expert witnesses cannot be referred to at the hearing or trial unless the parties agree. Where expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the court, adduce expert evidence inconsistent with the matter agreed.27
Expert’s report
3.17 A report by an expert witness must specify:
• the person’s qualifications as an expert;
• the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed) and the reasons for each opinion expressed;
• if applicable, that a particular issue falls outside his or her field of expertise;
• any literature or other materials utilised in support of the opinions; and
• any examinations, tests or other investigations on which he or she has relied.28
3.18 If the expert who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report. If he or she considers that his or her opinion is not a concluded opinion because of insufficient research or data or some other reason, this must be stated when the opinion is expressed.29
3.19 An expert witness who, after communicating an opinion to the party engaging him or her, changes an opinion on a material matter must provide the engaging party with a supplementary report to that effect.30
Disclosure
3.20 The UCPR require each party to serve experts’ reports and hospital reports on each other party in accordance with any order of the court or practice note or, 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.31 This is a change from the former court rules which, in general, do not require a party to disclose the expert’s report unless the court directs such disclosure on application of a party or of its own motion.32 However, since the consequence of non-disclosure is that a report cannot be tendered in evidence, the effect of the new provisions in the UCPR is to require disclosure of those reports which are to be tendered, but not other reports that the party might have obtained.33
3.21 Except by leave of the court or by consent of the parties, an expert’s report or hospital report is not admissible unless it has been served in accordance with the rules. Leave is not to be granted unless the court is satisfied that there are exceptional circumstances that warrant the granting of leave, or that the report concerned merely updates an earlier version of a report that has been served in accordance with the rules.34
3.22 The duty to disclose also applies to supplementary reports. If an expert witness furnishes the engaging party with a supplementary report, including a report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report, the engaging party must serve the supplementary report on all parties on whom the earlier report was served. Failure to serve the supplementary report will bar the use of the earlier report in the proceedings.35
Cross-examination and re-examination
3.23 In a trial without a jury, where an expert’s report is served on each of the parties in accordance with the relevant rules, the report is admissible as evidence of the expert’s opinion. In such cases, a party may require the attendance of the expert witness for cross-examination and the party using the report may then re-examine the expert.36
Conduct of trial with experts
3.24 The UCPR contain a new rule dealing with the manner of giving expert evidence.37 It gives a court the power to direct:
• that 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;
• that each party intending to call one or more expert witnesses close its case in relation to the question or questions concerned, subject only to adducing evidence of the expert witnesses later in the trial;
• 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 must file an affidavit or statement. This affidavit or statement is to indicate whether the expert witness adheres to any opinion earlier given or whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given;
• that the expert witnesses be sworn one immediately after another (so as to be capable of making statements, and being examined and cross-examined), and, when giving evidence, occupy a position in the courtroom (not necessarily the witness box) that is appropriate to the giving of evidence;
• that each expert witness give an oral exposition of his or her opinion, or opinions, on the question or questions concerned;
• that each expert witness give his or her opinion about the opinion or opinions given by another expert witness;
• that each expert witness be cross-examined in a particular manner or sequence; and
• that any expert witness giving evidence be permitted to ask questions of any other expert witness together with whom he or she is giving evidence.
3.25 The rule is based on Order 34A rule 3 of the Federal Court Rules 1979 (Cth).38 It enables what is known as “hot-tubbing”, that is, calling all of the expert witnesses on the same question at the same time. It is a procedure that has been successfully adopted by the NSW Land and Environment Court.39 The provisions in the UCPR are wider than the Federal Court rule on which they are based in that they allow for the experts to ask each other questions.
COURT-APPOINTED EXPERTS
3.26 Like other Australian jurisdictions,40 for many years New South Wales has had rules providing for court-appointed expert witnesses. The UCPR provide that 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,
b) authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question,
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.41
Selection and appointment
3.27 The court may appoint as a court expert a person selected by the parties, or a person selected by the court or selected in a manner directed by the court.42 An example of the last method of appointment would be where the court directs that the expert be a person nominated by a professional body.
Code of conduct
3.28 A copy of the code of conduct must be provided to the expert by the registrar or as the court may direct. The expert’s evidence cannot be admitted unless he or she has acknowledged that he or she has read the code and agrees to be bound by it.43
Expert’s report
3.29 A court-appointed expert is, like an expert engaged by parties, required to comply with the provisions of the code of conduct relating to the expert’s report.44 While an expert engaged by a party gives the report to the party, a court-appointed expert must send his or her report to the registrar, who must send a copy of the report to each party affected. The report is then deemed to have been admitted into evidence in the proceedings, unless the court orders otherwise.45
Cross-examination
3.30 Any party affected may cross-examine the court-appointed 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.46
Prohibition against other expert evidence
3.31 Except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any question arising in proceedings if an expert has been appointed under these rules in relation to that question.47
Remuneration
3.32 The court is required to fix the remuneration of the court-appointed expert. As a general rule, subject to the court’s over-riding discretion as to costs, the parties specified by the court are to be jointly and severally liable to pay the amount fixed by the court for the expert’s remuneration.48
Use of court-appointed experts
3.33 A judge of the Supreme Court has observed that the appointment of a court expert may save the court and the parties time and expense in having complex technical issues clarified,49 and there have been instances of court-appointed experts in recent times. Examples include:
• psychiatrists in claims for damages in the Chelmsford Private Hospital (deep sleep therapy) cases;50
• an expert on hydrology (water drainage) in a right of way action;51
• an expert who had to determine the amount of royalties due under a lease of a quarry;52 and
• an expert who was directed to examine the reasonableness of steps taken to remove stains from a concrete floor.53
3.34 Nevertheless, in Australia, as in England, such appointments have been very much the exception rather than the rule.54 In 1962, Lord Denning referred to the difficulties in using court-appointed experts:
I suppose that litigants realise that the court would attach great weight to the report of a court expert, and are reluctant thus to leave the decision of the case so much in his hands. If his report is against one side, that side will wish to call its own expert to contradict him, and then the other side will wish to call one too. So it would only mean that the parties would call their own experts as well. In the circumstances, the parties usually prefer to have the judge decide on the evidence on either side, without resort to a court expert. 55
3.35 The Family Court’s recent review on expert witnesses identified the following criticisms of or perceived problems relating to court-appointed experts:
• There is a perception that the appointment by the court of an expert witness is contrary to the adversarial system, whereby parties have the right to call and present witnesses of their choice;
• There is a lack of certainty that a court-appointed expert will be objective;
• The role of the judge may be usurped if the expert effectively decides the case; and
• The parties may incur further costs as they are likely to call their own experts to reduce these concerns.56
3.36 A recent survey of Australian judges has confirmed that courts use their power to appoint expert witnesses very rarely. One of the reasons given by the judges in the study for their reluctance to use this power was that they are troubled by its implications for the adversarial system of litigation and that it impinges on the decision-making role of judges. Mostly, though, the judges said that they had not used court-appointed experts either because they had not been asked to do so by the advocates appearing before them or because they had determined such a course to be unnecessary.57 Nevertheless, the judges in the survey expressed strong support for the power to appoint court experts.
3.37 Exceptionally, the Land and Environment Court of New South Wales has, in recent times, made extensive use of court-appointed experts. This has occurred in a particular class of proceedings which consist of environmental planning and protection appeals. A government agency, such as a local government entity, is ordinarily a party to proceedings of this kind. By rule of court, certain of the rules of the Supreme Court of New South Wales apply to such proceedings, including the rules which relate to court-appointed experts.58
3.38 Typically, in this class of cases, matters relating to noise, traffic, parking, overshadowing, engineering, hydrology, contamination issues, among others, are seen as suitable for a court expert. Increasingly, court-appointed experts are also dealing with issues relating to heritage, urban design and general planning, usually at the request of the parties.59
3.39 Between March 2004 and April 2005, the court has appointed 474 court experts. In all but 10 instances or thereabouts, the parties have selected the expert by mutual agreement. This accords with the experience in England where, as we are informed, it is extremely rare for the parties to fail to agree on the selection of a single joint expert once an order for a single joint expert is made.
3.40 Under the Supreme Court rules utilised by the Land and Environment Court, the court has a discretion to permit the parties to call their own expert evidence notwithstanding that an order has been made for a court-appointed expert.60 In the line of cases to which we have referred, the Land and Environment Court has, ordinarily, allowed the parties to call their own expert evidence if they wish, granting leave to do so virtually as a matter of course. However, in the class of case involved, a government agency, as we have said, is usually a party. The government agency frequently elects not to call its own expert evidence, accepting the evidence of the mutually agreed expert even if adverse. Private litigants, on the other hand, usually call their own expert evidence if the opinion of the court-appointed expert is adverse to them. In the result, the court has the benefit of hearing from at least one expert witness who is unaffected by adversarial bias and the number of expert witnesses is mostly not increased. In those cases where the number of expert witnesses is increased by the process, the additional cost may be seen as justified by the public interest factor in litigation of this kind.
3.41 In these cases, the Land and Environment Court has been able to utilise the Supreme Court Rules to obtain expert evidence from at least one expert on the matter in question unaffected by adversarial bias, without preventing litigants from calling their own expert evidence if they wish. Because of the special nature of the proceedings, that has been achieved without incurring the penalty of an unacceptable increase in the number of expert witnesses.
3.42 Although no statistics are available on the matter, it would appear that the appointment of court experts in the Land and Environment Court has led to a significant reduction in hearing time. Moreover, the feedback from judges, commissioners and legal practitioners is that the evidence from persons appointed as court experts reflects a more thorough and balanced consideration of the issues than was previously the case.61
FOOTNOTES
1. Civil Procedure Act 2005 (NSW) s 8 and s 7 and Sch 2 commenced on 24 June 2005.
2. It was around this time that reforms on the use of expert witnesses were adopted in other jurisdictions such as England and the Federal Court of Australia: See Chapter 4.
3. See J Abadee, “Commentary: The Professional Negligence List in the Common Law Division of the Supreme Court” «http://www.agd.nsw.gov.au/sc/sc.nsf/pages/abadee_1».
4. Supreme Court Rules 1970 (NSW) Pt 36 r 13C(1); District Court Rules 1973 (NSW) Pt 28 r 9C(1); Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 1D(1).
5. Supreme Court Rules 1970 (NSW) Sch K; District Court Rules 1973 (NSW) Sch 1; Local Courts (Civil Claims) Rules 1988 (NSW) Sch 1.
6. Supreme Court Rules 1970 (NSW) Pt 36 r 13C(2); District Court Rules 1973 (NSW) Pt 28 r 9C(2); Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 1D(2).
7. Supreme Court Rules 1970 (NSW) Sch K cl 5; District Court Rules 1973 (NSW) Sch 1 cl 5-8; Local Courts (Civil Claims) Rules 1988 (NSW) Sch 1 cl 5-8.
8. Supreme Court Rules 1970 (NSW) Pt 36 r 13CA(1); District Court Rules 1973 (NSW) Pt 28 r 9E; Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 1E.
9. Supreme Court Rules 1970 (NSW) Pt 36 r 13A(1) and 13C(3); District Court Rules 1973 (NSW) Pt 28 r 8 and 9C(3); Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 3 and 1D(3).
10. Supreme Court Rules 1970 (NSW) Pt 36 r 13A(5); District Court Rules 1973 (NSW) Pt 28 r 9(1); Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 2(2).
11. Supreme Court Rules 1970 (NSW) Pt 36 r 13A(5); District Court Rules 1973 (NSW) Pt 28 r 9(2)-(6); Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 2(3)-(6).
12. Supreme Court Rules 1970 (NSW) Pt 36; District Court Rules 1973 (NSW) Pt 28A; Local Courts (Civil Claims) Rules 1988 (NSW) Pt 38B.
13. Its members are: The Hon Justice Hamilton; Judge Garling; Magistrate Cloran; Mr Michael McHugh, Mr Greg George and Mr Hamish Stitt (the Bar Association’s representatives); Mr Peter Johnstone (the Law Society’s representative); and Mr Tim McGrath, Ms Jenny Atkinson, Mr Steve Jupp, Mr Stephen Olischlager, Mr Peter Ryan, Mr Peter Shiels and Ms Pam Wilde (Departmental representatives).
14. See Chapter 4, particularly para 4.16 – 4.26.
15. Uniform Civil Procedure Rules 2005 (NSW) r 31.17.
16. See National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68.
17. Australian Securities and Investments Commission v Rich [2005] NSWSC 149 at para 333 (Justice Austin’s statement on this matter is not affected by the successful appeal from the judgment: see Australian Securities and Investments Commission v Rich [2005] NSWCA 152).
18. Uniform Civil Procedure Rules 2005 (NSW) r 31.23.
19. Commonwealth Development Bank v Cassegrain [2002] NSWSC 980.
20. “To my mind, considerable significance attaches to enforcing strict compliance in the expert witness provisions now found in Pt 36 rule 13C. Questions of the significance of the opinions of experts have been mooted over a very extended period of time and the schedule K and Pt 36 rule 13 C (1) Expert Witness Code Of Conduct was promulgated with the clear intent that only reports by experts who have proceeded in accordance with the stated norms of conduct, should be relied upon and may be admitted into evidence. The significance of the Code Of Conduct emerges clearly from the whole of the Code as well as from the ‘general duty to the court’ section of schedule K as well as from the stipulations as to the form of expert’s reports”: [2002] NSWSC 980 at para 9.
21. Barack Pty Ltd v WTH Pty Ltd [2002] NSWSC 649.
22. Langbourne v State Rail Authority [2003] NSWSC 537; Jermen v Shell Co of Australia Ltd [2003] NSWSC 1106.
23. United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870.
24. Uniform Civil Procedure Rules 2005 (NSW) Sch 7 cl 2. See Australian Securities and Investments Commission v Rich [2005] NSWSC 149 at para 334 where Justice Austin stated that the fact that an expert is aligned to the party engaging him or her, and biased or not independent, is not a bar to the admissibility of the expert’s opinion evidence, though it may go to the weight of the evidence.
25. Uniform Civil Procedure Rules 2005 (NSW) r 31.25(1) and Sch 7 cl 4.
26. Guerin v Watts [2002] NSWSC 692.
27. Uniform Civil Procedure Rules 2005 (NSW) r 31.25(2)-(7).
28. Uniform Civil Procedure Rules 2005 (NSW) Sch 7 cl 3(1).
29. Uniform Civil Procedure Rules 2005 (NSW) Sch 7 cl 3(2)-(3).
30. Uniform Civil Procedure Rules 2005 (NSW) Sch 7 cl 3(4).
31. Uniform Civil Procedure Rules 2005 (NSW) r 31.18(1). Hospital report means a statement in writing concerning a patient made by or on behalf of a hospital that the party serving the statement intend to adduce in evidence in chief at the trial.
32. See Supreme Court Rules 1970 (NSW) Pt 36 r 13A(1); District Court Rules 1973 (NSW) Pt 28 r 8; Local Courts (Civil Claims) Rules 1988 (NSW) Pt 23 r 3.
33. The question whether the law should be changed to require disclosure of all reports obtained by a party, whether or not intended to be put into evidence, is considered in Chapter 6, in particular para 6.29 – 6.33.
34. Uniform Civil Procedure Rules 2005 (NSW) r 31.18(3).
35. Uniform Civil Procedure Rules 2005 (NSW) r 31.24.
36. Uniform Civil Procedure Rules 2005 (NSW) r 31.19.
37. Uniform Civil Procedure Rules 2005 (NSW) r 31.26.
38. See para 4.48 – 5.51.
39. See para 6.49 – 6.52.
40. See, eg, High Court Rules 1952 (Cth) O 38 r 2; Federal Court Rules 1979 (Cth) O 34 r 2; Rules of the Supreme Court 1971 (WA) O 40 r 2; Supreme Court Rules 1987 (SA) r 82.01.
41. Uniform Civil Procedure Rules 2005 (NSW) r 31.29(1).
42. Uniform Civil Procedure Rules 2005 (NSW) r 31.29(2).
43. Uniform Civil Procedure Rules 2005 (NSW) r 31.30.
44. Uniform Civil Procedure Rules 2005 (NSW) Sch 7 cl 3.
45. Uniform Civil Procedure Rules 2005 (NSW) r 31.31.
46. Uniform Civil Procedure Rules 2005 (NSW) r 31.32.
47. Uniform Civil Procedure Rules 2005 (NSW) r 31.33.
48. Uniform Civil Procedure Rules 2005 (NSW) r 31.34.
49. Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 at para 95 (Palmer J).
50. Salay v The Estate of the Late Harry Bailey (NSW, Supreme Court, No 12427/82, Badgery-Parker J, 24 February 1995, unreported).
51. Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777.
52. Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd [2002] NSWSC 410.
53. Ell v Sisera [2000] NSWSC 768.
54. I Freckelton and H Selby, Expert Evidence: Law Practice, Procedure and Advocacy (2nd edition, LawBook Co, Pyrmont, NSW, 2002) at 608.
55. Re Saxon Deceased (Johnson v Sexon) (1962) WLR 968 at 972 (Lord Denning).
56. Family Court of Australia, The Changing Face of the Expert Witness (2002) at 14.
57. I Freckelton, P Reddy and H Selby, Australian Judicial Perspectives on Expert Evidence: an Empirical Study (Australian Institute of Judicial Administration, 1999) at 8. The study is critically reviewed in G Edmond, “Judging Surveys: Experts, Empirical Evidence and Law Reform” (2005) Federal Law Review 95 at 139.
58. Land and Environment Court Rules 1996 (NSW) Pt 5 r 1.
59. Justice Peter McClellan (Chief Judge of the New South Wales Land & Environment Court) “Expert Witnesses – the Experience of the Land and Environment Court of New South Wales”, Speech at the XIX Biennial Lawasia Conference 2005 (Gold Coast, 20-24 March 2005) at 12-13, 21.
60. Supreme Court Rules 1970 (NSW) Pt 39 r 6. When the UCPR commence, this rule will become Uniform Civil Procedure Rules 2005 (NSW) r 31.33.
61. Justice Peter McClellan (Chief Judge of the New South Wales Land & Environment Court) “Expert Witnesses – the Experience of the Land and Environment Court of New South Wales”, Speech at the XIX Biennial Lawasia Conference 2005 (Gold Coast, 20-24 March 2005) at 19-21.
