TABLE OF CONTENTS

Updates and background for this project (Digest)

Terms of reference
Participants
RECOMMENDATIONS

TERMS OF REFERENCE
THE CONDUCT OF THE REFERENCE
OVERVIEW OF THE REPORT
Structure
Recommendations
Matters not included

INTRODUCTION
THE EXPERT JURY
ASSESSORS
THE EXPERT WITNESS

INTRODUCTION
BACKGROUND
EXPERTS ENGAGED BY PARTIES
Definitions
Expert witness code of conduct
Disclosure
Cross-examination and re-examination
Conduct of trial with experts
COURT-APPOINTED EXPERTS
Selection and appointment
Code of conduct
Expert’s report
Cross-examination
Prohibition against other expert evidence
Remuneration
Use of court-appointed experts

INTRODUCTION
THE “WOOLF” REFORMS IN ENGLAND AND WALES
Greater control of the use of expert evidence
Experts’ overriding duty to the court
Experts’ request for directions from the court
Discussions among experts
Written report
Written questions
Single joint expert
AUSTRALIAN JURISDICTIONS
Introduction
Queensland
The Federal Court
The Family Court
Australian Capital Territory

INTRODUCTION
THE PROBLEM OF “BIAS” IN EXPERT WITNESSES
Introduction
Adversarial bias
Addressing the problem of adversarial bias
ASSESSING PROPOSALS AND THE CIVIL PROCEDURE ACT 2005
Introduction
Justice
Speed
Minimising public and private costs
Conclusion

INTRODUCTION
THE CONTEXT OF ACTIVE CASE MANAGEMENT
THE PERMISSION RULE
RECOMMENDATION 6.1
Purpose
Conclusion
DISCLOSURE AND OTHER MEASURES TO INCREASE TRANSPARENCY
Introduction
Submissions
Exchange of expert reports that are to be used as evidence
Disclosure of instructions and other communications with expert witness
Disclosing any expert reports that a party obtains
REQUIREMENTS FOR EXPERTS TO CONSULT BEFORE HEARING
Introduction
Submissions
Discussion
Conclusion
CONCURRENT EVIDENCE
Introduction
The New South Wales Land and Environment Court
Submissions
Conclusion
RESTRICTION ON A PARTY’S ABILITY TO OBJECT
RECOMMENDATION 6.2
“ATTRIBUTED HISTORIES” AND SECTION 60 OF THE EVIDENCE ACT

RECOMMENDATION 7.1
Introduction
JOINT EXPERT WITNESSES
Introduction
Submissions
Discussion
Conclusion
JOINT EXPERT WITNESSES AND COURT–APPOINTED EXPERTS
Introduction
The Supreme Court and the District Court
The UCPR
The Land and Environment Court
CONCLUSION

RECOMMENDATION 8.1
INTRODUCTION
PROPOSED DIVISION 3: EXPERTS ENGAGED BY THE PARTIES JOINTLY
Proposed Rule 31.27B: Selection and engagement
Proposed Rule 31.27C: Instructions to the expert
Proposed Rule 31.27D: Expert may apply to the court for directions
Proposed Rule 31.27E: Code of conduct
Proposed Rule 31.27F: Expert’s report to be sent to parties
Proposed Rule 31.27G: Parties may seek clarification of report
Proposed Rule 31.27H: Tendering reports and answers to questions;
Examination In Court
Proposed Rule 31.27I: Prohibition of other expert evidence
Proposed Rule 31.27J: Remuneration of expert
PROPOSED AMENDMENTS RELATING TO COURT–APPOINTED EXPERTS
RECOMMENDATION 8.2
Existing Rule 31.29: Election and appointment
Existing Rule 31.32: Cross-examination of expert
Existing Rule 31.33: Prohibition of other expert evidence

INTRODUCTION
THE CODE OF CONDUCT
RECOMMENDATION 9.1
Introduction
Submissions
The value of codes of conduct
The code of conduct in the UCPR
“NO WIN NO FEE” ARRANGEMENTS
RECOMMENDATION 9.2
Introduction
Submissions
The incidence of contingent fee arrangements
Discussion
Conclusions
ACCREDITATION
Introduction
Current accreditation schemes
Submissions
Preference for accredited expert witnesses
Lists of accredited experts or schemes of accreditation
Conclusion
SANCTIONS
RECOMMENDATION 9.3
Submissions
Discussion

RECOMMENDATION 10.1

Appendix A: Civil Procedure Act 2005 – extracts
Appendix B: Uniform Civil Procedure Rules 2005 (NSW) - extracts
Appendix C: Draft amendment rules
Appendix D: UCPR provisions on court-appointed experts with proposed amendments
Appendix E: Joint expert witnesses and court-appointed expert witnesses
Appendix F: Expert witness code of conduct
Appendix G: Preliminary submissions
Appendix H: Submissions
Appendix I: Consultations

Table of cases
Table of legislation