RECOMMENDATIONS

Updates and background for this project (Digest)

RECOMMENDATION 6.2
Rule 31.19(6) of the Uniform Civil Procedure Rules 2005 (NSW) should be repealed. (Appendix C, Sch 1 Item [4].)

RECOMMENDATION 7.1
The Uniform Civil Procedure Rules 2005 (NSW) should be revised to include provision for joint expert witnesses in addition to the existing provisions for court-appointed experts.

RECOMMENDATION 8.1
The Uniform Civil Procedure Rules 2005 (NSW) should be amended to include rules relating to joint expert witnesses as follows:

• A provision for an order that a joint expert witness be engaged by the parties affected;

• A provision for the joint expert witness to be selected by agreement between the parties affected or, failing agreement, by or in accordance with directions of the court;

• A requirement for consent by the expert being engaged as such;

• A prohibition against a party eliciting the opinion of a proposed joint expert witness before engagement, and provision for disclosure of any such communication;

• A provision allowing the joint expert witness to apply for directions, with advance notice to the parties affected;

• The same requirements in relation to the code of conduct as apply in the case of experts engaged by the parties individually;

• A provision allowing an affected party to put questions in writing to the joint expert witness for the purpose of clarifying the witness’s report;

• A provision allowing an affected party to tender the joint expert witness’s report and to tender answers by the joint expert witness to written questions put to the witness by a party, unless the court otherwise orders;

• A provision prohibiting the parties from calling other expert evidence on a question submitted to the joint expert witness, except by leave of the court;

• A provision allowing an affected party to examine the joint expert witness orally in court; and

• A provision for payment of the joint expert witness’s fees. (Appendix C, Sch 1 Item 5.)

• Selection of the court-appointed expert to be by the court or as the court may direct, in place of the existing provision for selection by the parties, by the court or as the court may direct;

• Adding a requirement for the expert’s consent to being appointed;

• A right to examine in chief, cross-examine or re-examine the court-appointed expert as the court may direct, in place of the existing provision for cross-examination only; and

• Repeal of the existing provision which prohibits the parties from calling other expert evidence in relation to a question submitted to a court-appointed expert. (Appendix C, Sch 1 Items [7] – [10].)

• deleting those provisions that relate to matters of form rather than the experts’ duties (those matters to be dealt with in rules or practice directions);

• providing that the duties of disclosure apply to oral evidence as well as to the contents of expert reports. (Appendix C, Sch 1 Items [11] to [13].)

RECOMMENDATION 9.3
There should be a provision, by rule or practice note, requiring that expert witnesses be informed of the sanctions relating to inappropriate or unethical conduct.

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.