10. Future Review of the Rules Relating to Expert Witnesses

Updates and background for this project (Digest)

• RECOMMENDATION 10.1

RECOMMENDATION 10.1

A review of the rules relating to expert witnesses should be planned and undertaken to coincide with the review of the Civil Procedure Act 2005 (NSW) in five years time.

10.1 Section 7 of the Civil Procedure Act 2005 (NSW) provides that, within five years from the date of assent of the Act, the Minister is to review the Act to determine whether the policy objectives of the Act remain valid, and whether the terms of the Act remain appropriate for securing those objectives.

10.2 The policy objectives of the Act have been referred to in this report.¹ They are specified in s 56 of the Act. In that section, it is stated that the overriding purpose of the Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

10.3 While s 7 of the Act does not appear to contemplate a mandatory review of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR”) as it does in the case of the Act, there is the same reason for reviewing the rules relating to expert witnesses as there is for reviewing the Act, namely, to determine whether the UCPR, insofar as they relate to expert witnesses, are effective to serve the statutory objective of facilitating the just, quick and cheap resolution of the real issues in civil proceedings.

10.4 The appropriate agency to institute such a review would, we suggest, be the Rules Committee constituted under the Act. The Committee might, of course, engage some other agency to plan the review and to carry it out on its behalf.²

10.5 We expect that the methodology for such a review would need to be designed by appropriate experts, and well in advance. By way of illustration, we expect that statistics and case by case evaluations of various procedures (such as the use of joint expert witnesses) would need to be generated more or less from the start, if not in all cases, then in a proportion of them. That would be likely to involve the use of questionnaires to be completed by the court, by the legal representatives of the parties, and by expert witnesses, which would need to be designed with an eye to the overall methodology of the process of review.

10.6 Obviously enough, as in the case of the review of the Act itself, any review of the rules relating to expert witnesses would have to be appropriately resourced.

10.7 It is to be expected that the need for ad hoc amendment to the rules will become apparent to the Rules Committee from time to time and that amendments will be made. However, we believe that an over-all review of the rules relating to expert witnesses also needs to be programmed and undertaken in order to ensure that, in the broad view and in particular respects comprehensively, the rules are serving the purpose of facilitating the just, quick and cheap resolution of the real issues in civil proceedings. Otherwise, any evaluation of the effectiveness of the rules would have to depend on anecdotal information and vague impressions.

2. One institution that is currently doing work on expert witnesses is the University of Sydney Faculty of Law. Professors Barbara MacDonald and Patrick Parkinson are conducting a study on court-directed expert witness conferences in medical negligence cases in New South Wales.