Report 109 (2005) - Expert Witnesses - Law Reform Commission : Lawlink NSW

7.1 This chapter proposes that rules be introduced enabling parties to engage “joint expert witnesses”. The “joint expert witness” envisaged in our proposal is virtually identical with the “single joint expert” in the English Civil Procedure Rules 1998 (“CPR”). We have used the term “joint expert witness” because we think it better expresses the essential features of the role. The difference in terminology does not indicate any difference in substance.

7.2 The chapter sets out the nature of the joint expert witness and the Commission’s reasons for recommending that the rules make provision for it. Later in the chapter, we explain the difference between the joint expert witness and the court-appointed expert, and why we propose separate new rules for the former, while retaining existing rules on court-appointed experts (with minor amendments).

7.3 Making provision for joint expert witnesses involves many particular issues and matters of detail. These are dealt with in Chapter 8, which also sets out the amendments we propose relating to court-appointed experts.

7.4 As we have seen, one of the most significant reforms on expert evidence adopted in recent years by an increasing number of jurisdictions is the concept of the single joint expert witness, which originated in the Woolf reforms introduced in England.¹ Evaluations of the Woolf reforms have found the concept of the single joint expert witness to be working well, and that judges, lawyers and parties to proceedings have displayed a willingness to use single experts, especially in matters that do not involve substantial amounts and where the issues are relatively uncontroversial.² The concept has been adopted by a number of Australian jurisdictions, including the Queensland Supreme Court³ and the Family Court.⁴ The Australian Capital Territory has also adopted the concept in relation to specific proceedings (personal injury matters).⁵

7.5 Different jurisdictions use varying terminology: England uses “single joint expert”, the Family Court and the Queensland Supreme Court use “single expert”, and the ACT Supreme Court uses “agreed expert”. For purposes of this report, the Commission has chosen to use the phrase “joint expert witness”. The word “joint” emphasises that the parties will almost invariably select the person by agreement, while the word “witness” emphasises that the person is indeed a witness, and not, for example an assessor or person to whom the power to make decisions has been delegated. Moreover, the phrase conforms with the ambit of the relevant rule-making power specified in Schedule 3 of the Civil Procedure Act 2005 (NSW), namely “the use of expert witnesses including, in particular, the use of expert witnesses engaged jointly by parties to civil proceedings”.⁶

7.6 In general terms, the idea of the joint expert witness is to limit the expert evidence on a question arising in the proceedings to that of one expert witness, selected jointly by the parties affected, or, if they fail to agree, in a manner directed by the court. If a party is dissatisfied with the expert’s evidence, the court has discretion to allow that party to adduce other expert evidence. While the evidence of the joint expert witness is likely to be of great weight, the joint expert witness has no different status from other witnesses and will be available for examination by any party if required.

7.7 The primary objective of the appointment of a joint expert witness is to assist the court in reaching just decisions by promoting unbiased and representative expert opinion. Another important objective is to minimise costs and delay to the parties and to the court by limiting the volume of expert evidence that would otherwise be presented.

7.8 Not surprisingly, a large number of submissions responded to the invitation in the Issues Paper to address the experience to date with the appointment of court-appointed experts and joint expert witnesses (“single experts” was the term used in the Issues Paper), and the advantages and disadvantages of these measures. These submissions contained a great deal of valuable discussion, and this chapter draws considerably on them.

7.9 The submissions fall fairly readily into two groups, those expressing enthusiasm for joint expert witnesses and stressing their advantages,⁷ and those emphasising reservations and stressing their disadvantages.⁸ Those who supported the measure generally argued that the use of a single expert witness had the potential to save time and money, as well as reduce bias inherent in the adversarial system.⁹ Those who had reservations about the use of joint expert witnesses argued that the claimed benefits might be illusory in practice, as parties would probably employ their own ‘shadow’ expert to brief them on the relevant issues and assist with cross-examination of the single expert.¹⁰ As a result, it was suggested, the appointment of a single expert witness may actually increase costs rather than reduce them. In addition, many submissions expressed concern over the use of a single expert witness when divergent opinions may be justified.¹¹

7.10 The submissions therefore involved a vigorous debate about the merits and demerits of joint expert witnesses. Although some argued that joint expert witnesses should never be used,¹² most of those who expressed reservations about the use of joint expert witnesses conceded, expressly or implicitly, that there might be some cases for which they would be suitable, particularly where the parties agreed to the appointment of a particular expert,¹³ and where the issue on which the expert is required to testify is straightforward, and two experts would be no more beneficial than one.¹⁴ Conversely, even the most enthusiastic supporters of joint expert witnesses did not seek to argue that they should be used in all cases.

7.11 Thus, if one posed the question “Should joint expert witnesses be an option for the court?” most would answer yes, even if one group thought that the option should be used in a minority of cases. As a result, despite the significant differences, there is an important element of common ground among many of the submissions, namely that joint expert witnesses should be an option available to the courts, to be used in suitable cases.

7.12 As will be seen, the Commission’s approach is to recommend the creation of machinery provisions enabling the courts to make orders for joint expert witnesses in appropriate circumstances, rather than rules specifying that joint expert witnesses should be used in particular classes of cases, or setting out guidelines for their appointment.¹⁵ It will be open to the courts to develop such guidelines, whether by decisions or by practice directions. In the future, experience may suggest that the rules should make more detailed provision relating to the use of joint expert witnesses, perhaps in some jurisdictions or some categories of cases. However, the Commission does not consider that there is, at this stage, a sound basis for such rules.

7.13 This section discusses the reasons why the Commission believes that the rules should be amended to provide for joint expert witnesses. As explained in Chapter 4, the essential issue is whether enabling the court to use joint expert witnesses in appropriate cases would “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.¹⁶ It is convenient first to consider the significance of joint expert witnesses in relation to a just resolution, and then to consider their impact on speed and cost. The chapter will then discuss two arguments sometimes advanced against the use of joint expert witnesses: first, that it involves an inappropriate delegation of decision-making power from the court to the joint expert witness, and secondly, that it is unsatisfactory or unfair in cases where there are different schools of thought among experts on the issue involved.

7.14 Perhaps the major reason for the appointment of a joint expert witness is that doing so will assist the court in arriving at decisions that are just, by reducing or eliminating adversarial bias, and thereby improving the quality of the expert evidence that comes before the court.¹⁷

7.15 Under the adversarial model, it is the contesting parties that gather evidence and seek witnesses to support their respective cases. Each party puts their selected witnesses before the judge, who normally needs to decide between them in determining the case. Parties select their expert witnesses in the expectation that the expert’s opinion will advance the party’s case. The objective is to maximise a party’s chance of persuading the court to decide in its favour.

7.16 As explained in Chapter 5, this process encounters the familiar problems of what we have called adversarial bias, namely that the experts engaged by each party will tailor their evidence to support that party, whether deliberately or as a result of more subtle pressures to support those who engaged them; and also that the court will hear only from experts selected by each party in the expectation that their evidence would advance that party’s cause. Thus the traditional process creates pressures apt to result in partisan and polarised expert evidence.

7.17 Within the adversarial model, such problems will ideally be mitigated by effective cross-examination. However, in practice, cross-examination may not take place at all.¹⁸ When it does, it is sometimes not directed at rectifying any problems with, or omissions in, the discussion of the expert issue. It is, as the adversarial system dictates, aimed at discrediting the opinion of the opposing expert, in order to support the other party’s case. Even effective cross-examination may not address the problem of polarised evidence, and may leave the court unable to ascertain whether any of the expert evidence given is in fact a reasonable representation of the general opinion in the discipline, or even whether it addresses all the factors relevant to the issue in question.

7.18 As we have seen, while the extent of these problems is difficult to determine with precision, and is no doubt affected by various factors, it is the Commission’s view that, under the present system, the problems of adversarial bias are pervasive and persisting.¹⁹

7.19 The use of joint expert witnesses goes to the heart of the problem of adversarial bias and has the potential to redress these failings. The jointly selected expert will not have been selected because he or she supports a party’s cause, and, after selection, will be under no pressure to support one party rather than another. Agreement on the selection will be reached only if both sides regard the candidate as being well qualified, and as being a fair and reasonable professional. The court is then likely to have the benefit of sound professional testimony, reasonably representative of thinking in the discipline.

7.20 To summarise, although it is impossible to quantify the extent to which bias and polarisation distorts the evidence given by expert witnesses called on behalf of a party, the Commission believes it is a serious problem. Because the use of joint expert witnesses removes or reduces adversarial bias, and because such information as is available generally supports the value of giving the parties and the courts the option of having joint expert witnesses, the Commission considers that the use of joint expert witnesses in appropriate cases is likely to help the courts achieve a just outcome.

7.21 The second reason for making joint expert witnesses available is that, in appropriate cases, their use has the potential to reduce the costs and delay of litigation.²⁰ It must be said at once that the Commission is not aware of systematic evidence on this matter, and inevitably the consequences are likely to depend on the circumstances of each case and other variables. It seems likely that the potential advantages in terms of speed and reduction of costs are likely to increase as the use of joint expert witnesses, and the procedures involved,become increasingly familiar to the courts and legal practitioners.

7.22 There are obvious ways in which the use of joint expert witnesses could reduce delay. Usually, expert reports secured by each side have to be submitted to a party’s own expert witnesses for comment and further report. That takes time. If the parties have confidence in the skill and reasonableness of the jointly chosen expert – as is likely - the expert’s report should encourage settlement. Similarly, for cases that do proceed to trial, the time taken to examine, and cross-examine, will be significantly less than it would be if there were two or more experts called.

7.23 These benefits may be reduced, or even offset, in particular circumstances. For example, the process of identifying and agreeing on a suitable expert may take time, especially if the subject-matter is unusual, and there may be delays if the parties consider it necessary to seek their own expert advice on whether to challenge a report by a joint expert witness.

7.24 Turning to the question of costs, the appointment of a joint expert witness has the potential to reduce costs significantly. There would only be one expert witness, not several, to give evidence on a topic. This will avoid the onset of a protracted disagreement between experts and increase the likelihood that parties will either settle, or go on to conduct a shorter hearing. The prospect of early settlements and shorter hearings also has the potential to reduce the substantial public costs that are incurred in the running of cases in the civil justice system.

7.25 On the other hand, in particular cases, some additional costs may be incurred as a result of the use of the joint expert witness. There may be controversy about the selection of a joint expert witness, or about the instructions to be given to the expert. Then there is the cost of “shadowing”. Particularly in large cases, parties may think it necessary to retain their own expert notwithstanding that only a joint expert witness will be called. This may be done in order to decide whether to apply for leave to call other evidence. It may be done to assist in the preparation of cross-examination. It is unlikely, however, that “shadowing” costs would be anything like as much as the costs of calling the retained expert as a witness.

7.26 As previously mentioned, it is not possible to calculate the net effects of engaging joint expert witnesses on delays and on public and private costs. They will no doubt vary greatly from case to case. However, experience suggests that, in the majority of cases, the appointment of a joint expert witness is likely to have positive consequences in terms of time and cost reduction, especially as the steps involved become increasingly routine. With experience, the courts and the legal profession will become increasingly skilled at identifying the cases in which it is appropriate to appoint a joint expert witness.

7.27 Arguments are raised in opposition to the greater use of joint expert witnesses on the ground that this would involve an inappropriate delegation of decision-making power from the court to the joint expert witness. It is said that the prospect of a judge rejecting the evidence of a joint expert witness is so unlikely that the process effectively transfers the decision-making authority on the issue requiring expert opinion from the judge to the expert.²¹

7.28 In the Commission’s view, the appointment of a joint expert witness does not involve a delegation of decision-making power. The parties have a right to examine the expert orally, the right to make submissions about the weight of the evidence and about its bearing on the ultimate result, and the right to apply for leave to call other expert evidence. The ultimate decision is made by the court. The opinion of a joint expert witness might be persuasive, but it is not determinative.

7.29 It is also sometimes objected that the use of joint expert witnesses can lead to injustice where the expert issues are subject to legitimate differences of opinion, or schools of thought, among professionals in the field. This issue pertains to cases that may involve a dispute as to the method chosen, from a number of equally accepted methods, to accomplish a particular task (for example the valuation of a business). Alternatively (but more rarely) there may be cases where the issue in question is itself novel and the subject of intense debate within that particular field of expertise. In such cases, it is argued, the use of a joint expert witness would select out other legitimate views that the court should hear if it is to reach a just determination.²²

7.30 In the Commission’s view, this is an important point, but it is an objection to the appointment of a joint expert witness in those cases, not an objection to the court having the option of a joint expert witness in appropriate cases. Lord Woolf recognised this problem and conceded, that for some cases, including those involving issues on which “there are several tenable schools of thought, or where the boundaries of knowledge are being extended”, the oral cross-examination of opposing experts selected by the parties may be the best way of producing a just result.²³ The court’s decisions in relation to the use of a joint expert witness, like other procedural decisions, must conform to the principles of justice articulated in the Civil Procedure Act. Orders that precluded a party from calling evidence would be wrong, and subject to appeal, if, in the particular case justice required that the evidence could be tendered.

7.31 It seems likely, however, that in the majority of cases the issues requiring expert evidence will fall within substantially established areas of knowledge. The most common issues for expert evidence in civil proceedings are questions of causation, and the nature and extent of loss. Such issues rarely involve competing schools of thought, but are rather matters of evaluation and judgment.

7.32 In short, the concept of the joint expert witness is only one of the ways by which courts can effectively manage the use of expert evidence to achieve just decisions. The fact that it may not be appropriate to use joint expert witnesses in some cases (including where it is necessary for the court to have a range of opinions) is not an argument that joint expert witnesses should not be available as an option.

7.33 The Commission believes that, under the present system, there exist significant problems with the way expert evidence comes before the court. These problems form a powerful argument in favour of amending the rules to provide a further option to the court, namely to order the use of a joint expert witness. The Commission believes that the use of joint expert witnesses can reduce the partisanship that is today so closely associated with expert witnesses called by each party, and encourage the use of experts with balanced, representative, views. Similarly, the use of joint expert witnesses has the potential, in many cases, to reduce the public and private costs and the delays associated with civil litigation. For these reasons, adding the possibility of a joint expert witness to the array of options available to the court is likely to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

7.34 In this section, we consider the relationship between the Commission’s proposal to introduce joint expert witnesses (basically the English “single joint expert”) and the existing provisions relating to court-appointed experts. In particular, we explain why, in our view, the work to be done by our proposed joint expert witness cannot be done satisfactorily by persons appointed under the existing rules providing for court-appointed experts.

7.35 A joint expert witness and a court-appointed expert are similar in that neither has been engaged by only one of the conflicting parties, and thus, in each case, the expert is free from adversarial bias. In some instances, the appointment of a court expert may result in a saving in time and costs. It might be, therefore, that new provisions for joint expert witnesses will render the traditional court-appointed expert obsolete. This was presumably the view taken in the UK, where the older provisions were not repeated in the CPR that implemented the Woolf reforms.²⁴

7.36 Nevertheless, the Commission does not recommend the abolition of the court-appointed expert. There are fundamental differences between the two roles, and there may continue to be cases in which the courts wish to appoint an expert as they have done in the past. What has happened in recent years, however, is that the rules in this state relating to court-appointed experts have been amended with a view to accommodating elements of the English joint single expert. The process has not, as we will explain, been a comfortable fit. It has not done justice to either concept because of irreconcilable differences between the two roles. We will review these developments.

7.37 The starting point is with the rules relating to court-appointed experts in the Supreme Court Rules 1970 (NSW), being the rules in Part 39, Division 1, Court expert. The essential features of this kind of expert witness are apparent from those rules. The main provisions, as at 1970, can be summarised as follows.

7.39 Conformably, the rules were framed to place the control of the process in the court’s hands. Although the process could be initiated by a party, it is the court which had control and management of the process from start to finish. There was no provision for selection of the expert otherwise than by the court. The expert’s report went to the registrar, with a copy to the parties, and was admissible in evidence unless the court otherwise ordered. The court fixed the expert’s remuneration. The parties could cross-examine the expert.

7.40 These provisions show that the court-appointed expert was not, in concept or in fact, the parties’ or any party’s witness. The expert was, in concept and in fact, the court’s witness. The title to the division, Court expert, recognised that.

7.41 Other provisions were of a practical nature, unrelated to the underlying concept. There had to be provision for payment of the expert’s remuneration. The rule in that regard was practical and equitable. The parties were each limited to one expert witness of their own on the relevant question. That provision, too, was a practical and equitable one in view of a further expert witness having been brought into the proceedings in addition to those whom the parties wished to call on their own account. These provisions did not derogate from the role of the expert as the court’s witness rather than the parties’ witness, or from the court’s control over the appointment and management of the process.

7.42 By contrast, Lord Woolf’s single joint expert – our proposed joint expert witness – has a quite different role. The concept of such an expert focuses on the inherent problems associated with parties calling their own expert witnesses, selected, as they are, for the purposes of the case: adversarial bias, multiple expert witnesses, and the consequences in relation to time and cost of the proceedings.

7.43 The concept of the joint expert witness is designed to avoid or at least to minimise these problems. Once an order is made for a joint expert witness, the objectives of the concept are met. From there on, the court has no interest in the control and management of the process except as may be necessary to keep it going. The parties select the expert. The court becomes involved only if there is a problem about agreeing on a suitable candidate for the role. The parties instruct the expert. The expert’s report goes to them. They may put written questions to the expert to clarify the expert’s report if that is necessary. What they do with the expert’s report is their concern. A party might tender it. It might be decided that there is no need for the evidence after all and no one might tender it. The expert may apply for directions if he or she finds it necessary to involve the court further in the process. In the first instance at least, the joint expert witness’s evidence will be the only expert evidence on the relevant question, the parties being allowed to call other expert evidence on the question only by leave.

7.44 Under this regime, the expert is not the court’s witness. The expert is the parties’ witness, to deal with as is expedient in their respective interests. It is necessary and appropriate that the parties, rather than the court, should have control and management of the process. And it is fundamental that, in the first instance at least, the parties should be precluded from calling other expert evidence on the same question.

7.45 Amendments to the New South Wales rules from 1999 have attempted to modify the provisions relating to court-appointed experts to accommodate elements of the single joint expert idea, but, as will be seen, have not been kind to either concept.

7.46 In 1999, a new Part 39, Division 1, Court Appointed Expert, was substituted, by amendment to the Supreme Court Rules 1970 (NSW), for the original Division, Court expert. The substantive changes were as follows.

7.48 The rules of the District Court and the Local Court mirrored those of the Supreme Court up to and including the 1999 amendments. Those courts did not adopt the 2003 amendment to the Supreme Court rules. In the result, there is a stricter restriction on adducing other evidence in the Supreme Court than in the District Court and in the Local Court.

7.49 As we have said, it is evident that a number of these amendments were designed to bring into the rules relating to court-appointed experts some of the elements of the single expert witness concept. These were the provision that the court could appoint an expert selected by the parties and the further provision in the Supreme Court that the parties were precluded from calling other expert evidence on the question unless by leave. The former provision retained the option of selection by the court, but the latter provision was an unnecessary and inappropriate restriction in relation to the concept of a court-appointed expert.

7.50 Furthermore, the new rules relating to the court-appointed expert did not contain elements which would have been necessary to provide fully for the role of Lord Woolf’s single joint expert, but which would have been inimicable to the concept of a court-appointed expert. These elements related to the role of the parties in the control and management of the process: that the parties rather than the court would instruct the expert, and that the parties would decide in their respective interests what, if anything, was to be done with the expert’s report.

7.51 In 2005, Practice Note 128, Single Expert Witness, was introduced in the Supreme Court. It provides for a standard “single expert witness direction” to be given in all personal injury cases unless cause is otherwise shown. The standard direction applies only to such expert evidence relating to the quantification of damages as is customarily given by non-medical expert witnesses. When the direction is given, evidence of that kind is restricted to expert witnesses jointly engaged by the parties.

7.52 We have made enquiries concerning the use in recent years of the provisions relating to court-appointed experts. We are informed that the Supreme Court rules and the practice note have been utilised only infrequently. In the District Court, we were told, the rules relating to court-appointed experts have been used very rarely. We expect that the situation would be similar in the Local Court. Neither the Supreme Court nor the District Court keeps a record of the cases in which the provisions have been used or of the number of cases in which the provisions have been used. We do not expect that the Local Court would have done so.

7.53 The provisions of the UCPR are virtually identical with those of the Supreme Court in relation to court-appointed experts. There is no other provision making separate provision for Lord Woolf’s concept of a single joint expert as incorporated in the English CPR.

7.54 As noted in Chapter 3, the New South Wales Land and Environment Court is exceptional in that it routinely uses court-appointed experts. The court thus has the benefit of hearing from at least one expert witness who is unaffected by adversarial bias, without preventing the parties from calling their own expert evidence if they wish. However, as mentioned in Chapter 3, 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, or an unacceptable increase in costs.

7.55 Having regard to these considerations, we regard the recent use of court-appointed experts by the Land and Environment Court as a special case. It does not, in our view, demonstrate that the current Supreme Court rules concerning court-appointed experts (or the virtually identical UCPR) are satisfactory for the more usual kinds of litigation where an expert witness in the role of the English single joint expert would be useful.

7.56 We conclude that the existing provisions in the UCPR relating to court-appointed experts should be retained, but with amendments designed to restore the core concept of enabling the court to obtain expert assistance which it believes it would otherwise not receive, and providing unequivocally for the court’s control over that process. We further conclude that there is a need for a separate and coherent set of rules to provide independently for joint expert witnesses, where the objectives are to reduce adversarial bias and to reduce time and cost having regard to the expert evidence which would otherwise have been adduced by the parties individually.

7.57 As we have mentioned, a provisional prohibition against calling other expert evidence is integral to the concept of a joint expert witness but not to the concept of a court-appointed expert. On the other hand, selection of the expert by the parties is integral to the concept of the joint expert witness, but not to the concept of the court-appointed expert. In the case of the court-appointed expert, the court should have control of the process, including the use to be made of the expert’s report. In the case of the joint expert witness, the contrary is the case.

7.58 There is also the matter of presentation and acceptance. The rules providing for joint expert witnesses should convey in clear and positive terms the features of that concept. These should include the following: that it is for the parties affected to select and engage the expert, with the intent (in the first instance at least) that this will be the only expert evidence to be adduced by any of them on the question; that it is accordingly to the parties that the expert will send his or her report; that it is for the parties to clarify the expert’s opinion as may be necessary; and that it is for them to decide in their respective interests what use (if any) they wish to make of the expert’s evidence.

7.59 The existing provisions relating to court-appointed experts do not present these elements in clear and positive terms. In some respects, they do not do so at all. This is not possible in view of the fundamental differences between the two concepts. Even the terminology of the existing provisions – that the expert is appointed as a court expert – emphasises the court’s control over the process, as is inescapable and appropriate in relation to a court-appointed expert, rather than the parties’ control over the process, as is appropriate in relation to a joint expert witness.

7.60 If the idea of the joint expert witness is to gain acceptance and currency in the ordinary run of civil litigation, there needs to be a set of rules which clearly and directly convey the essential features of the concept.

Table of contents

2. United Kingdom, Department of Constitutional Affairs, Emerging Findings: An early evaluation of the Civil Justice Reform (2001) at para 4.16; Further Findings: A continuing evaluation of the Civil Justice Reforms (2002) at para 4.21; United Kingdom, Department of Constitutional Affairs, Further Findings: A continuing evaluation of the Civil Justice Reforms (2002) at para 4.27-4.28.

7. Royal Australasian College of Surgeons, Submission at 2; Engineers Australia, Submission at 3; Rodney Meeve, Submission at 1; New South Wales Police - Forensic Services Group, Submission at 2; Association of Consulting Surveyors, Submission at 4.

8. David Watt, Submission at para 3; Joy Consulting Group, Submission at 1; Carroll and O’Dea Lawyers, Submission at 1; IMO, Submission at 2; Mark Patterson, Submission at 2; Law Society of New South Wales, Submission at 2; Australian College of Clinical Psychologists, Submission at 3; Dial an Angel, Submission at 2, Padraic Grattan-Smith, Submission at 3; Royal Australian Institute of Architects, Submission at 6-7; Human Factors and Ergonomics Society, Submission at 7, Australian Institute of Quantity Surveyors, Submission at 5; Association of Consulting Surveyors, Submission at 4-6; Maurice Blackburn Cashman Lawyers, Submission at 10; Australian Lawyers Alliance, Submission at 18-22; Professions Australia, Submission at 7; George Cooper, Submission at 11; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 3-4; United Medical Protection, Submission at 7-8; Gary Edmond, Submission at 19; Freehills, Submission at 7-9; A R Abadee, Submission at 14-17; Australian & New Zealand Association of Psychiatry Psychology and the Law, Submission at 8; Geoffrey Markham, Submission at para 26; Christopher Clarke, Submission at 5; Adrian Howie, Submission at 3; Medical Consumers Association, Submission at 13; Jack Goldring, Submission at 1; Expert Experts, Submission at para 15.2; Mike Talbot-Wilson, Submission at 9; Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Submission at 4; For Legally Abused Citizens, Submission at 4; Association of Consulting Engineers, Submission at 7; National Institute of Forensic Science, Submission at 6; Australian College of Legal Medicine, Submission at 6; Institute of Arbitrators and Mediators, Submission at 5; Australian College of Private Consulting Psychologists, Submission at 2; Michael Enders, Submission at 1; Royal Australian and New Zealand College of Psychiatrists, Submission at 3; New South Wales Bar Association, Submission at para 44; Neil Adams, Submission at 4; Forensic Services Group, Submission at 2.

9. Royal Australian College of Surgeons, Submission at 4; Rodney Meeve, Submission at 1.

10. David Hibbert, Submission at 3; Expert Experts, Submission at para 16.8; Institute of Arbitrators and Mediators, Submission at 5; Freehills, Submission at para 33.1; New South Wales Bar Association, Submission at para 44; Neil Adams, Submission at 4; Geoffrey Markham, Submission at 5; Law Society of New South Wales, Submission at 3; Human Factors and Ergonomics Society, Submission at 7, Australian Institute of Quantity Surveyors, Submission at 5; Professions Australia, Submission at 7.

11. Dial an Angel, Submission at 2; Human Factors and Ergonomics Society, Submission at 7; Professions Australia, Submission at 7; Christopher Clarke, Submission at 5; David Watt, Submission at 3; Adrian Howie, Submission at 3; Maurice Blackburn Cashman Lawyers, Submission at para 52; Australian Lawyers Alliance, Submission at 20; Mike Talbot-Wilson, Submission at 9; United Medical Protection, Submission at 8; National Institute of Forensic Science, Submission at 6; Royal Australian and New Zealand College of Psychiatrists, Submission at 3.

12. Australian College of Clinical Psychologists, Submission at 3; Dial an Angel, Submission at 2; Padraic Grattan-Smith, Submission at 3; Human Factors and Ergonomics Society, Submission at 7; Australian Institute of Quantity Surveyors, Submission at 2; Christopher Clarke, Submission at 5; Medical Consumers Association, Submission at 13; Mike Talbot-Wilson, Submission at 9; Institute of Arbitrators and Mediators, Submission at 5; Australian College of Private Consulting Psychologists, Submission at 4; Royal Australian and New Zealand College of Psychiatrists, Submission at 3.

13. Association of Consulting Surveyors, Submission at 4; George Cooper, Submission at 11; A R Abadee, Submission at 17; Royal Australian Institute of Architects, Submission at 7; Maurice Blackburn and Cashman Lawyers, Submission at para 59; Law Society of New South Wales, Litigation Law and Practice Committee, Submission at 4; Michael Enders, Submission at 1; New South Wales Bar Association, Submission at para 44; Geoffrey Markham, Submission at para 28.

14. Professions Australia, Submission at 7; David Hibbert, Submission at 3; Association of Consulting Surveyors, Submission at 5; For Legally Abused Citizens, Submission at 4; Roy Beran, Submission at 6; New South Wales Bar Association, Submission at para 46.

15. Compare, for example, the rules of the Queensland Supreme Court and those of the Family Court: see Chapter 4 of this Report, in particular para 4.40 and 4.61.

17. For a discussion of this issue, see for example G Davies, “Expert Evidence: Court Appointed Experts” (2004) 23 Civil Justice Quarterly 367; H D Sperling, “Expert Evidence: The Problem of Bias and Other Things” (2000) 4 Judicial Review 347 at 429.

18. It is common in personal injury cases that there is no cross-examination of expert testimony. Rather, in the interests of economy, reports are simply tendered into the Court.

19. G Davies, “Expert Evidence: Court Appointed Experts” (2004) 23 Civil Justice Quarterly 367 at 368.

20. See Australian Law Reform Commission, Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at ch 13; G L Davies and J S Lieboff, “Reforming the Civil Litigation System: Streamlining the Adversarial Framework” (1995) 25(2) Queensland Law Society Journal 111; R Scott, “Court Appointed Experts” (1995) 25 Queensland Law Society Journal 87; 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 137-140.

21. See, for example, R Scott, “Court Appointed Experts” (1995) 25 Queensland Law Society Journal 87.

22. See, for example, Australian Law Reform Commission, Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at ch 13; P Heerey, “Recent Australian Developments” (2004) 23 Civil Justice Quarterly 386; A May “The English High Court and Expert Evidence” (2004) 6 Judicial Review 353; 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 141.

23. 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 139-141.

24. This has been the approach of the Family Court of Australia: the Family Law Rules 2004 (Cth) provide for a single expert witness but do not preserve the older rules for a court-appointed expert (although the general power of the court to call its own witnesses is preserved: r 15.71.