6. Procedural Aspects of Expert Evidence

Updates and background for this project (Digest)

• Introduction
• The context of active case management
• The permission rule
• RECOMMENDATION 6.1
• Disclosure and other measures to increase transparency
• Requirements for experts to consult before hearing
• Concurrent evidence
• Restriction on a party’s ability to object
• RECOMMENDATION 6.2
• “Attributed histories” and section 60 of the Evidence Act

INTRODUCTION

6.1 This chapter first proposes that there should be a general rule that parties require the court’s permission in order to lead expert evidence (the “permission rule”). The effect of such a rule would be to provide the court with an unqualified power to control the expert evidence which can be adduced and the manner of doing so. Other rules concerning expert evidence would then be read as particular instances of that overarching power.

6.2 Secondly, the chapter considers the merits of certain measures intended to increase transparency, namely the early exchange of experts’ reports, disclosure of instructions given to experts, and the disclosure of expert reports obtained but not intended to be used as evidence. The Commission considers that the existing provisions about these matters are satisfactory and recommends no change.

6.3 Thirdly, the chapter considers the requirement that experts consult before the hearing, and fourthly, the desirability of taking concurrent evidence. The Commission’s view is that each of these measures is valuable in appropriate circumstances and that the existing law is satisfactory.

6.4 Finally, the chapter proposes the repeal of a rule of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that restricts the parties’ ability to object to an expert’s qualifications and facts in an expert report – rule 31.19(6) – and mentions a related development, not within the present terms of reference, relating to attributed histories and s 60 of the Evidence Act 1995 (NSW).

6.5 Issues relating to joint expert witnesses and court-appointed witnesses require detailed consideration, and are the subject of Chapters 7 and 8.

THE CONTEXT OF ACTIVE CASE MANAGEMENT

6.6 As is already evident, Australia has participated in the widespread trend referred to by Zukerman as the “shift towards the imposition of a stronger control by judges over the progress of civil litigation”.¹ Much effort by judicial officers and other court personnel now goes into “case management”. In general, the courts are actively involved in making a variety of pre-trial orders associated with the preparation of the case for trial. The primary goals of case management are to minimise delay and reduce public and private costs. The new activism is intended to assist early settlement of cases, by ensuring that mediation or other dispute settlement mechanisms are available, and that the real issues in dispute are identified as clearly and as early as possible. Active case management is now an integral part of the functioning of the civil courts, and forms part of the context for the procedural matters to be considered in the chapter. The close scrutiny of the preparation of the case for trial is designed to ensure, as far as possible, that evidence is available on time and cases are not adjourned because a party is taken by surprise at the last moment, and that the issues have been clearly defined so that time is not wasted with irrelevant or marginally relevant evidence. The processes of case management, well before the date set for the hearing, make it possible for courts to deal at an appropriately early stage with measures such as the engagement of joint expert witnesses (as discussed in Chapter 7) and the application of the “permission rule”, to which we now turn.

THE PERMISSION RULE

RECOMMENDATION 6.1

The Uniform Civil Procedure Rules 2005 (NSW) should be amended to provide that in civil proceedings parties may not adduce expert evidence without the court’s permission. (Appendix C, Sch 1 Item [2].)

Purpose

6.7 For convenience, in this discussion we will use “permission rule” to refer to a rule that parties may not adduce expert evidence without the court’s permission. Such a rule exists in England and in the Family Court of Australia.²

6.8 As described in Chapter 3, under the Civil Procedure Act 2005 (NSW) and the UCPR, courts have wide powers as to practice and procedure generally and as to the conduct of hearings. In particular, the Act gives courts the power to give directions “limiting the number of witnesses (including expert witnesses) that a party may call”.³ The Act provides that rules may be made on various topics, including “the admission and exclusion of evidence and the manner in which evidence is tendered”.⁴ In view of the width of these powers, the other reforms proposed in this report might be achieved without providing for a “permission rule”. Nevertheless, the Commission considers that such a rule would make explicit the court’s ultimate responsibility for ensuring, so far as possible, that in each case the expert evidence is in the most appropriate form for the purpose of doing justice in that case. In particular, the rule would have the following advantages:

• The rule would negate any argument that new provisions relating to the control of expert evidence should be construed restrictively because, for example, they modify hitherto established procedures and practices.

• The rule would negate any argument that such new provisions should be construed restrictively on the ground that such provisions are inconsistent with the longstanding adversarial approach to litigation.

• The rule would ensure an untrammelled exercise of discretion in the application of such provisions, having regard to the saving of time and costs and the interests of justice in the circumstances of the case.

• The rule would cover any gaps in the operation of particular provisions. Particular rules cannot deal definitively with every eventuality that might arise. It may be arguable, for example, whether the provision allowing the court to limit the number of witnesses a party may call⁵ permits the court to limit the number of expert witnesses a party may call, as distinct from the total number of witnesses a party may call. Again, there may be room for argument about whether the court has power to prevent a party from calling expert evidence of a kind which the court regards as superfluous. There should be no question about the court’s capacity to control expert evidence in those respects.

• The rule would encourage the courts to determine how the power over expert evidence should, in broad terms, be exercised, by practice decisions and/or practice notes. That is what has occurred in the United Kingdom (although some would argue that the courts there have been unduly conservative in that regard) and to a limited extent in the New South Wales Supreme Court. In that way, the courts would develop policies in relation to the control of expert evidence pursuant to the rules, drawing on their experience with new or relatively new provisions. That would be a valuable contribution to these developments.

6.10 Such a permission rule would not require the courts to consider the matter of expert evidence closely on a case by case basis. As has occurred in England, any such requirement is obviated by practice decisions, practice notes and model directions incorporating broad policy positions in relation to various classes of cases. In the course of case management, the parties then present draft directions, including draft orders in relation to expert evidence, which the court needs only to review in broad terms unless there is some dispute about what should occur in the particular case. There have already been developments in the New South Wales Supreme Court and District Court in relation to practice notes and model directions that would provide a good start in this direction.

Conclusion

6.11 In the Commission’s view, the courts should, for these reasons, have comprehensive control over expert evidence. That should be unequivocally stated and widely understood. The permission rule would achieve these objectives.

DISCLOSURE AND OTHER MEASURES TO INCREASE TRANSPARENCY

6.12 For the reasons set out in this section, the Commission believes that the existing provisions of the UCPR are appropriate in relation to disclosure and other measures to increase transparency, and accordingly makes no recommendation.

Introduction

6.13 The topic relates to communications between parties and persons they approach with a view to being expert witnesses called by that party. Somewhat similar questions arise in the case of court-appointed experts and joint expert witnesses, and will be considered in Chapter 7.

6.14 The measures to be considered in this section are:

• exchange of advance copies of expert reports to be used as evidence;

• disclosure of instructions and other communications between client and expert witness; and

• disclosure of any expert reports that a party obtains, whether or not to be used in the case.

6.15 The requirement that parties exchange all reports that are to be used as evidence was strongly supported in the submissions, many expressing the view that copies of all reports from opposing experts should be exchanged as soon as possible and in advance of the trial.⁶

6.16 The submissions were divided over whether all reports obtained, including those not being used as evidence, should be disclosed. Some submissions suggested that requiring parties to disclose all reports would assist transparency by allowing the court access to a range of views rather than only the single view of the expert retained by a party.⁷

6.17 Other submissions identify a variety of reasons why compulsory disclosure of all reports should not be recommended.⁸ Thus the Australian Lawyers Alliance submitted:⁹

Requiring disclosure of a report upon which a party does not intend to rely may prolong or complicate litigation. The decision not to use a report may be based on fundamental errors in the report, a misunderstanding of the facts or instructions. A witness may have become unavailable for the trial or to complete the report so as to render the qualifying of a new expert desirable.

6.18 The disclosure of instructions given to an expert witness was largely supported by the submissions.¹⁰ However, although some submissions also supported the disclosure of all communications between the client and the expert,¹¹ several of the submissions indicated that such a requirement would be “unduly burdensome and potentially inappropriate”.¹²

Exchange of expert reports that are to be used as evidence

6.19 In its review of civil procedure, the Australian Law Reform Commission (“ALRC”) pointed out that an important way in which courts or tribunals control the use of expert evidence is by ordering early disclosure of expert evidence to the opposing party and to the court or tribunal. This is intended to prevent the confusion and time wasting that can occur when, at or on the brink of the hearing, it appears that the experts are proceeding on different assumptions of fact, or are addressing different issues:

Early disclosure of expert reports can enable the parties and decision makers to identify the issues, the relative merits of claims and areas in which agreement may be reached between the parties at a timely stage in proceedings. For those matters which proceed to a hearing, such disclosure helps ensure that the parties are less likely to be taken by surprise at the hearing. Disclosure of reports may facilitate settlement of part or all of the issues, or where settlement is not possible, allow the preparation of focussed, relevant expert evidence for trial. Such outcomes are capable of reducing costs and delay and improving decision making.¹³

Disclosure of instructions and other communications with expert witness

The present law and practice

6.21 An expert’s opinion is inadmissible without specification of the assumptions of fact made by the witness as a basis for the opinion. That is uncontroversial. The question is whether the law should go further and require disclosure of all communications with the expert.

6.22 If the expert has been engaged for the purpose of legal proceedings, communications with the expert are prima facie protected by client legal privilege, in particular, by s 119 of the Evidence Act 1995 (NSW). That privilege may, however, be waived by express or implied waiver. There is no problem about express waiver. The privilege will be waived by implication where it would be unfair to allow the privilege to be maintained in the circumstances of the case.¹⁴

6.23 A practice commonly adopted is for letters of instruction to be freely made available, and for a party who wishes to investigate the matter further to issue a subpoena to the witness and a notice to produce to the retaining party, requiring production of any further written communications, and of any notes of any oral communications. When the documents are produced, discussion between counsel may narrow the ambit of a claim for privilege. Any residual dispute is decided by the judge, who examines the material in order to decide whether privilege has been waived in relation to particular documents. Sometimes, a trial judge will refer the question to another judge to decide in order to avoid any perception that the trial judge may have been influenced by documents which are held to be protected from disclosure.

An alternative approach

6.24 The application of the privilege in relation to expert witnesses has been modified in South Australia, where the Supreme Court rules provide that a party which has engaged an expert must provide to any other party “a list of all conversations in which the expert has taken part with any party, any legal representative of a party or any other expert consulted in relation to the matter relevant to the opinions expressed in the report stating when and with whom each such conversation occurred and the topics discussed”.¹⁵

Submissions

6.25 The submissions were divided on whether it is desirable for the law to require disclosure of all communications between the party and the expert. A number of submissions argued that the privilege serves important policy purposes and should be retained: it is important, and useful both to the administration of justice and to the parties, that parties should be able to obtain confidential expert advice as they prepare their cases. The Institute of Chartered Accountants wrote that “to create a regime which requires the production of all iterations of instruction may discourage legal advisors or their clients from seeking appropriate advice in a timely manner”.¹⁶ Freehills wrote that to go beyond the waiver of privilege entailed by tendering the report “is an unnecessary cutting-down of privilege and likely to increase the discovery burden on parties with little real benefit.”¹⁷

Conclusion

6.26 No doubt one purpose behind a rule requiring disclosure would be to reveal any improper behaviour, such as a litigant exerting improper pressure on an expert, or misleading the expert as to the facts, or, conversely, an expert indicating a willingness to dishonestly tailor expert evidence to suit the client’s cause. While this may succeed in some cases, as a number of submissions pointed out, such a rule would be easily circumvented, for example, by using oral rather than written communications.

6.27 The ALRC was not persuaded that a change was warranted in relation to the Federal Court or the Family Court:¹⁸

The view is widely held that narrowing the scope of legal professional privilege adds to the documentary burden of litigation without any necessary improvement in the quality of the evidence adduced before the court. The Commission considers that, in most circumstances, it would be unfair to expose experts to cross-examination on the contents of draft reports (which may be no more than the ‘preliminary musings’ of the expert). Experts often modify their views as they carry out more work.

6.28 On balance, the Commission is not persuaded that the existing law on legal professional privilege should be changed by requiring disclosure of communications between a party and a person who becomes an expert witness on behalf of that party.

Disclosing any expert reports that a party obtains

6.29 The rule of legal professional privilege, previously discussed, would normally apply to reports and advice obtained by a party in anticipation of litigation, but not actually used in the litigation. In some jurisdictions, however, the goal of transparency has been seen as overriding the goal of protecting the confidentiality of such communications, and thus legal professional privilege has been modified. In particular, the South Australian Supreme Court Rules require mandatory disclosure to an opponent of expert reports prepared for the purposes of litigation and which would, but for the rules, be protected from inspection by client legal privilege.¹⁹ All expert reports, whether favourable or unfavourable, must be exchanged between the parties. A similar scheme has been advocated by the Law Reform Commission of Western Australia (LRCWA), which recommended that, where a party calls on its expert adviser to give evidence, there should be a waiver of legal professional privilege in respect of all communications with the expert, except communications consisting of statements and other communications from other witnesses.²⁰ In Queensland, the court rules provide that a party to a proceeding has a duty to disclose to each other party each document: (a) in the possession or under the control of the first party; and (b) directly relevant to an allegation in issue in the pleadings; and (c) if there are no pleadings, directly relevant to a matter in issue in the proceeding.²¹ While this duty of disclosure does not apply to a document in relation to which there is a valid claim to privilege from disclosure, the rules provide that “[a] document consisting of a statement or report of an expert is not privileged from disclosure”.²² However, instructions and documents provided to the expert by a lawyer for the preparation of the expert’s report are protected from disclosure by legal professional privilege.²³

6.30 Justice Davies has supported measures for transparency:

In some jurisdictions reports obtained from experts, intended for use in litigation, have been made disclosable. This has resulted in greater frankness between parties though, if the existing system of party appointment of experts were to be retained, it would be vastly improved if parties were obliged to disclose not only the reports of experts whom they proposed to call but also those of other experts whom they had engaged but did not intend to call and the names and addresses of those other experts whom they had approached for an opinion but did not intend to call.²⁴

6.32 Conversely, if the rule were to prove effective, it would be likely to inhibit parties in the way they seek advice about technical matters involved in their potential litigation. Thus one organisation that provides expert witnesses submitted that its experience of the operation of this rule in Queensland is that it tends to encourage the parties to obtain reports only from “experts where they are absolutely sure of the opinion the expert will provide”.²⁵ It encourages litigants to choose experts at the extreme ends of the spectrum rather than those perceived to be more moderate, and to be “careful not to obtain any opinion which may be adverse to their position”. According to this view, the rule exacerbates rather than resolves the perceived problems of “shopping for expert witnesses”.

6.33 In the Commission’s view, there is insufficient evidence to conclude that the positive consequences of such a rule would be likely to outweigh its negative effects. In these circumstances, the Commission is not persuaded that the law should be changed to erode significant aspects of the long-standing law of legal professional privilege.

REQUIREMENTS FOR EXPERTS TO CONSULT BEFORE HEARING

Introduction

6.34 In recent times, it has become routine for courts to require expert witnesses to consult before the date set for the hearing, and, often, to prepare a document setting out the matters on which they agree and those on which they disagree. Such a requirement is intended to save time and money by identifying before the trial the real issues of disagreement, and the common ground relating to the relevant matters. In its 2000 report, the ALRC supported the further development of federal court and tribunal procedures to encourage pre-hearing conferences and other communication and contact between relevant experts.²⁶

6.35 UCPR rule 31.25 makes provision for the court to give directions concerning such a conference between experts and for the preparation of a report on the conference.²⁷

Submissions

6.36 The majority of submissions supported the requirement for experts to consult before hearing.²⁸ Those who supported the process suggested that the main perceived benefits would be that requiring consultation would allow experts to determine the areas of agreement/disagreement, and by eliminating matters agreed from trial, cost and time savings could be achieved. There was also support for the requirement that, at the conclusion of the consultation process, the experts prepare a joint summary or report of the issues that they agree upon, so that these issues do not then need to be further examined through processes such as cross-examination.²⁹

6.37 Several submissions, however, cautioned against making consultation between experts mandatory. A R Abadee submitted that although there is anecdotal evidence that when such procedures have been invoked they have proved successful, there is no clear evidence as to the cost and time savings that such an approach may achieve.³⁰ Similarly, the medical negligence department of Maurice Blackburn and Cashman Lawyers submitted that, in their experience, expert consultation has not “proved effective in narrowing the issues or explaining the basis of the expert’s views”.³¹

6.38 Another concern in several submissions was that the process would not be beneficial in cases where one expert has entrenched or inflexible views or where the expert is easily influenced, as there is the potential for “the loudest voice” to dominate proceedings.³²

Discussion

6.39 There appears to be considerable support for experts’ meetings in England. A survey by the Expert Witness Institute in late 2001 indicated that a majority felt that such meetings were useful for advancing settlement.³³ The ALRC also took a favourable view:

Conferences and other communication between experts which may help to identify and narrow issues in dispute and facilitate settlement, are needed at an earlier stage in proceedings.³⁴

I have found the court-directed conference a particularly useful exercise with accounting evidence. A conference can produce from a bewildering barrage of figures a concise statement as to the underlying concepts or assumptions which are really at issue. And in one very complicated case about predatory pricing a conference of accountants produced complete agreement on a wide range of pricing data, complete with coloured graphs and overlays.

6.41 On the other hand, as indicated in some of the submissions to the Commission, in some circumstances, the effectiveness of such conferences may be compromised. Hostility between experts might undermine real communication; more senior or experienced experts may dominate and intimidate more junior colleagues; and the conference may be unsuccessful where one or more of the experts are uncertain about their role as expert witnesses, or about the nature and purpose of the conference.

6.42 No doubt it was for such reasons that the ALRC wrote that it is not enough for courts and tribunals to direct experts to confer; they may need to set certain ground rules for the aims, conduct and outcomes of these conferences.³⁶

6.43 In many cases, it may be appropriate simply to direct that the experts consult and prepare a joint report on their consultation by a particular date, leaving it to the experts to organise the exercise. In others, there might be reasons for the process to be more closely regulated in order to deal with anticipated difficulties. The directions may, for example,

• provide that the lawyers should be present (or absent);³⁷

• set a detailed agenda;

• arrange for an independent chair for the conference;³⁸ or

• set a specific time for the conference (holding a conference early might save time and money if issues can be resolved at that time; on the other hand, in some situations, an early conference may be unfruitful because the factual basis of the issues may not be clear until shortly before the date for hearing).

Conclusion

6.45 In the Commission’s view, the existing provisions of the UCPR provide appropriately for expert conferences³⁹ and accordingly it does not recommend any change.

CONCURRENT EVIDENCE

Introduction

6.46 Expert evidence is normally contained in a written form (for example, a report or affidavit) filed on behalf of each of the parties, and disclosed to the other party before the hearing. The experts are normally made available for cross-examination at the hearing if required by the opposing party. In addition, it is not uncommon for the court to permit experts to give brief oral evidence as necessary before cross-examination commences.

6.47 At the hearing, the usual approach has been that each expert gives any oral evidence in chief, and is then cross-examined in the course of the presentation of each party’s case. Sometimes, it is convenient to take expert witnesses out of sequence, so that they give evidence one after another.

6.48 In recent years, however, there has been considerable interest in a different approach, in which the relevant experts in a particular area are sworn in at one time and remain together in court.⁴⁰ The giving of evidence becomes a discussion rather than a series of exchanges between a lawyer and a witness. In the discussion, questions may be asked not only by the lawyers and the judge, but also by one expert of another, a departure from the traditional approach in which only the cross-examining lawyer asks questions. The discussion is focussed, highly structured, and controlled by the judge.

The New South Wales Land and Environment Court

6.49 The taking of evidence of experts concurrently, called ‘hot-tubbing’, but more appropriately referred to as concurrent evidence, has been increasingly used in certain jurisdictions. In New South Wales, it has become the prevailing approach in the Land and Environment Court, and the Commission is grateful to the Chief Judge of that Court for discussing the approach and providing relevant information. The Land and Environment Court was created with two primary functions: (1) to declare and enforce environmental law; (2) to review the merits of the decisions of various bodies relating to land and environment. It relies extensively on the information, analysis and opinions that experts can provide. It has therefore taken a significant role in the development of practices designed to facilitate the optimum use of expert witnesses.

6.50 The Land and Environment Court has changed the process by which expert evidence is given in court. This is now commonly done concurrently, that is, all experts in relation to a particular topic are sworn to give evidence at the same time.⁴¹ The process enables experts to answer questions from the court, the advocates and, most importantly, from their professional colleagues. It allows the experts to express in their own words the view they have on a particular subject. The procedure followed is typically as follows:

The issues which were ultimately defined in the proceedings required resolution of the different views of experts in relation to a number of significant matters. As will become commonplace in proceedings in this Court, the oral testimony of the experts was taken by a process of concurrent evidence. This involved the swearing in of the experts with similar expertise, who then gave evidence in relation to particular issues at the same time. Before giving evidence, the experts had completed the joint conferencing process, which enabled the court to identify the differences which remained and which required resolution through the oral evidence. Each witness was then given an opportunity to explain their position on an issue and provided with an opportunity to question the other witness or witnesses about their position. Questions were also asked by counsel for the parties. In effect, the evidence was given through a discussion in which all of the experts, the advocates and the Court participated.⁴²

6.52 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority⁴⁴ provides an example of a successful use of the procedure. Among the major issues in contention between the parties and the witnesses was the extent of development potential for the land the subject of the case, for which residential use was being contemplated. The oral evidence of the six expert witnesses in respect of town planning issues and development potential was taken concurrently. This took only two days of hearing time. Other expert evidence given concurrently related to a planning instrument, contamination, design modelling and value. Altogether, the experts’ oral evidence occupied only four days of the 13-day hearing.

Submissions

6.53 Opinions on the issue of possible alternative methods of experts providing testimony were varied. Some submissions indicated that the current procedures for provision of expert testimony are adequate.⁴⁵ The majority of submissions, however, indicated that other methods of presenting evidence should be considered. Some of these submissions suggested that the method of presentation of expert evidence should be flexible depending upon the needs of the individual case.⁴⁶ In this regard, the New South Wales Bar Association submitted:

It is undesirable to lay down any general rules about how expert evidence should be heard. Rather, it is a matter about which many judges have strongly held views about what best assists them. It should be left to the court or tribunal concerned to best regulate its own procedure.⁴⁷

6.55 Some members of the Commission had the opportunity to observe the conduct of proceedings in the Land and Environment Court and were favourably impressed by the manner in which the court obtained concurrent expert evidence.

Conclusion

6.56 In the Commission’s view, the giving of concurrent evidence has very significant potential advantages. Especially where there are more than two relevant experts, the process can save time, minimising the time spent on preliminaries and allowing the key points to be quickly identified and discussed. Perhaps more importantly, the process moves somewhat away from lawyers interrogating experts towards a structured professional discussion between peers in the relevant field. The experience in the Land and Environment Court indicates that the nature of the evidence is affected by this feature, and that experts typically make more concessions, and state matters more frankly and reasonably, than they might have done under the traditional type of cross-examination. Similarly, it seems that the questions may tend to be more constructive and helpful than the sort of questions sometimes encountered in traditional cross-examination.

6.57 The taking of expert evidence concurrently will no doubt be more successful in some situations than in others. An important factor is the structuring and control of the discussion by the judge. This requires considerable skill, and often a significant amount of preparation, so that the issues are identified and arranged in a way that lends itself to a fruitful discussion. The conduct of the discussion needs to encourage some freedom of exchanges, but nevertheless ensure that all points of view are aired, and that counsel have an adequate opportunity to test opposing experts. The overall success of the technique must also depend on the skills, preparedness and co-operation of the lawyers and experts involved. Various technical issues need to be addressed (for example, ensuring that each speaker is identified for the purpose of the transcript; and arranging for multiple experts to be available at the same time for the court hearing), but the experience of the Land and Environment Court indicates that these can generally be managed.

6.58 It seems clear that, in the case of some judges and some types of cases, concurrent taking of evidence is very successful. It is difficult to predict how successful it would be if used more extensively. On the face of it, the benefits of the system would seem to exist in a wide range of cases. However, its wider successful implementation may well depend on the extent to which it is embraced by judicial officers. Experience suggests that experts and lawyers quickly adapt to it where it is conducted with skill and enthusiasm by judicial officers.

6.59 Addressing the criteria identified for assessing the measures being considered in this report, the following comments can be made. If used effectively, concurrent evidence has considerable potential to increase the likelihood of the court achieving a just decision. It seems more likely to decrease costs and delay than to increase them.

6.60 The Commission is satisfied that the taking of expert evidence concurrently has proved effective and successful. It is not possible to say with confidence whether it should be applied more generally, although it seems likely that its wider application would be beneficial.⁵¹ Indeed, it may well be that, in the future, the taking of expert evidence concurrently will become the norm rather than the exception. For the purpose of this report, it is not fruitful to speculate unduly on these matters, since, in the Commission’s view, it is clear that the rules should make provision for the giving of concurrent expert evidence where the presiding judge considers it appropriate.

6.61 The Commission has considered whether the rules should give any preference to this method, for example, by providing that it should be used unless the court otherwise orders, either in general or in particular types of case. On balance, however, at this stage, the experience with concurrent evidence is insufficient to justify such an approach. Nor does it seem appropriate to attempt to regulate the process in more detail, since the arrangements for concurrent evidence should reflect the experience and particular circumstances in each jurisdiction.

6.62 Accordingly, the Commission is of the view that rules of court should facilitate the taking of concurrent expert evidence. The existing provisions of the UCPR⁵² deal appropriately with the matter.

RESTRICTION ON A PARTY’S ABILITY TO OBJECT

RECOMMENDATION 6.2

Rule 31.19(6) of the Uniform Civil Procedure Rules 2005 (NSW) should be repealed. (Appendix C, Sch 1 Item [4].)

6.63 We anticipate, following consultation with the Civil Procedure Working Party, that the subrule will be repealed. It is unnecessary, in these circumstances, to mention our reasons for the recommendation.

“ATTRIBUTED HISTORIES” AND SECTION 60 OF THE EVIDENCE ACT

6.64 “Attributed histories” pertain to accounts of the background facts told to experts, accepted by them for the purpose of the report, and stated in the report.

6.65 Attributed histories in experts’ reports are relevant and admissible evidence to prove the assumptions made by the expert as a basis for the expert’s opinion. By operation of s 60 of the Evidence Act 1995 (NSW), histories recorded in that way also stand as evidence of the truth of the matters stated. There is a serious question, however, as to whether that ought to be a consequence.

6.66 The question is within the scope of a joint reference on the law of evidence involving this Commission, the Australian Law Reform Commission, and the Victorian Law Reform Commission. We have therefore not dealt with the question in this report. However, elsewhere in this report we have suggested that there is scope for a practice note in relation to the form of expert reports.⁵³ Consideration could be given, in that context, to including a requirement that expert reports, prepared for the purpose of legal proceedings, should specify the assumptions made by the expert in the form of assumptions rather than in the form of an attributed history. It would appear that s 60 of the Evidence Act 1995 would not operate to make evidence of assumptions specified in that way evidence of the truth of the matters stated.

2. See Chapter 4, particularly para 4.7 and 4.54.

3. Civil Procedure Act 2005 (NSW) s 61, 62, 62(3)(b).

4. Civil Procedure Act 2005 (NSW) s 9, Sch 3 cl 7 and 25.

5. Civil Procedure Act 2005 (NSW) s 62(3)(b).

6. Australian Institute of Quantity Surveyors, Submission at 4; United Medical Protection, Submission at 6; Association of Consulting Engineers, Submission at 5; National Institute of Forensic Science, Submission at 5; Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 5; New South Wales Bar Association, Submission at para 27; David Hibbert, Submission at 3; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3.

7. Lindsey Browne, Submission at 1; Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 5; Australian College of Private Consulting Psychologists, Submission at 5.

8. Expert Experts, Submission at para 33.5; Australian Lawyers Alliance, Submission at 14, Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3; United Medical Protection, Submission at 6; New South Wales Bar Association, Submission at para 28; Australian Institute of Quantity Surveyors, Submission at 4.

9. Australian Lawyers Alliance, Submission at 14.

10. Australian Institute of Quantity Surveyors, Submission at 4; Australian Lawyers Alliance, Submission at 14; United Medical Protection, Submission at 7; Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 5;

11. Australian Lawyers Alliance, Submission at 14; Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 5.

12. United Medical Protection, Submission at 7; Australian Institute of Quantity Surveyors, Submission at 4; Geoffrey Markham, Submission at 4; Freehills, Submission at 6.

13. Australian Law Reform Commission, Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at para 13.40.

14. See S Odgers, Uniform Evidence Law Pyrmont (Lawbook Co, Pyrmont NSW, 2004) at para 1.3.11060.

15. Supreme Court Rules 1987 (SA) r 38.01A(4)(d).

16. Institute of Chartered Accountants, Submission at 16; Australian Institute of Quantity Surveyors, Submission at 4, expresses a similar view (experts often advise on weaknesses in a client’s case; if such correspondence were discoverable, it would lead to a reluctance to seek such advice, and may thereby increase the amount of avoidable litigation).

17. Freehills, Submission at para 26.

18. However the ALRC considered that a different approach was appropriate for administrative review proceedings: Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 2000) at para 6.84.

19. Supreme Court Rules 1987 (SA) r 38.01; Robinson v Adelaide Raceway (1993) 61 SASR 279.

20. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia (Report 92, 1999) at 190-191, Recommendation 245.

21. Uniform Civil Procedure Rules 1999 (Qld) r 211.

22. Uniform Civil Procedure Rules 1999 (Qld) r 212.

23. Mahoney v Noosa District Community Hospital [2002] QSC 116; Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd [2001] QSC 7.

24. G Davies, “Expert Evidence: Court Appointed Experts” (2004) 23 Civil Justice Quarterly 367.

25. Expert Experts, Submission at 35.

26. Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 2000) Recommendation 62.

27. See Chapter 3 and Appendix B.

28. David Watt, Submission at 3; John Hilton, Submission at 2; Australian College of Clinical Psychologists, Submission at 3; David Hibbert, Submission at 3; Royal Institute of Architects, Submission at 5; PricewaterhouseCoopers, Submission at para 4.1.1; Australian Institute of Quantity Surveyors, Submission at 4; Association of Consulting Surveyors, Submission at 4; Expert Experts, Submission at para 34.2; Australian Lawyers Alliance, Submission at 16; Mike Talbot-Wilson, Submission at 8; Nigel McDonald, Submission at 15; Professions Australia, Submission at 6; Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Submission at 3; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3; United Medical Protection, Submission at 6; Association of Consulting Engineers Australia, Submission at 6; Engineers Australia, Submission at 3; National Institute of Forensic Science, Submission at 5; Institute of Arbitrators and Mediators, Submission at 4; A R Abadee, Submission at 12; Royal Australian and New Zealand College of Psychiatrists, Submission at 2; New South Wales Bar Association, Submission at para 34; Neil Adams, Submission at 10; Geoffrey Markham, Submission at para 20.

29. John Hilton, Submission at 2; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3; New South Wales Bar Association, Submission at 7; Australian Lawyers Alliance, Submission at 16.

30. A R Abadee, Submission at 13.

31. Maurice Blackburn Cashman Lawyers, Submission at para 40.

32. Stephen Allnutt, Peter Klug and Bruce Westmore, Submission at 5; Freehills, Submission at para 28; Confidential Submission 4 at 5.

33. See United Kingdom, Department of Constitutional Affairs, Further Findings: A continuing evaluation of the Civil Justice Reforms (2002) at para 4.26. Professors Barbara MacDonald and Patrick Parkinson of the University of Sydney Faculty of Law are currently conducting a study on court-directed expert witness conferences in medical negligence cases in NSW.

34. Australian Law Reform Commission, Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at para 6.86.

35. The Hon Justice Peter Heerey, “Expert Evidence: the Australian Experience” (paper delivered to the WIPO Asia-Pacific Colloquium, New Delhi, 6 February 2002).

36. Australian Law Reform Commission, Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at para 6.89.

37. Lord Woolf noted “widespread support” for his suggestion that experts’ meetings should be encouraged, and recommended that meetings should normally be held in private, that is, without the attendance of the parties or their legal advisers: H K Woolf, Access to Justice (Final Report to the Lord Chancellor on the civil justice system in England and Wales, HMSO, London, 1996) at 147. However, when the court directs a meeting, the parties should be able to apply for any special arrangements, such as attendance by the parties’ legal advisers.

38. In Triden Properties Ltd v Capita Financial Group Ltd (1993) 30 NSWLR 403, the NSW Court of Appeal upheld orders made in a construction dispute that the parties’ experts meet, under the chairmanship of a referee, in the absence of legal representation.

39. Uniform Civil Procedure Rules 2005 (NSW) r 31.25, Sch 7 cl 4.

40. In its 2000 Report, the ALRC recommended that procedures to adduce expert evidence in a panel format should be encouraged whenever appropriate: Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report 89, 2000) Recommendation 67.

41. There is currently no Practice Direction or rule in respect of the matter. At this stage, there is no need for a Practice Direction or rule as the procedure is working very well: Information provided by Justice Peter McClellan, Chief Judge of the Land and Environment Court (10 March 2005). The concurrent giving of evidence by expert witnesses is consistent with the Land and Environment Court’s mandate to conduct proceedings “with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit”: Land and Environment Court Act 1979 (NSW) s 38.

42. BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at para 121.

43. Justice Peter McClellan “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.

44. Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 315.

45. PricewaterhouseCoopers, Submission at para 4.2.1; Australian Institute of Quantity Surveyors, Submission at 4.

46. Maurice Blackburn Cashman Lawyers, Submission at para 46; United Medical Protection, Submission at 7; Freehills, Submission at para 29; New South Wales Bar Association, Submission at para 39; Australian Lawyers Alliance, Submission at 17.

47. New South Wales Bar Association, Submission at para 39.

48. David Hibbert, Submission at 3; Association of Consulting Surveyors, Submission at 4; Expert Experts, Submission at para 34.10; Australian Lawyers Alliance, Submission at 17; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3; National Institute of Forensic Science, Submission at 6; Gary Edmond, Submission at 22; Freehills, Submission at para 29; Institute of Arbitrators and Mediators, Submission at 5; PricewaterhouseCoopers, Submission at para 4.2.2; Rodney Meeve, Submission at 1; New South Wales Bar Association, Submission at para 36; Confidential Submission 4 at 6.

49. Expert Experts, Submission at para 34.10; Association of Consulting Surveyors, Submission at 4; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3; Freehills, Submission at para 30.

50. Gary Edmond, Submission at 22.

51. The Judicial Commission is preparing an educational video, using a transcript of an actual case in the Land and Environment Court, which provides a dramatised introduction to the process.

52. Uniform Civil Procedure Rules 2005 (NSW) r 31.26.

53. See para 9.14-9.17.