The Commission invites submissions on the extent of partisanship or bias on the part of expert witnesses, and the value of the measures considered in Chapter 2 in reducing such a problem.

ISSUE 2.2

The Commission would welcome comments on the contents and effectiveness of codes of conduct for expert witnesses, and on other ways in which to convey guidelines and principles to expert witnesses, litigants, and lawyers.

ISSUE 2.3

The Commission invites comments on the existence and operation of any accreditation schemes in New South Wales or other jurisdictions relating to the role of expert witnesses and on their effectiveness and desirability.

ISSUE 2.4

The Commission invites comments on the extent to which ‘no win no fee’ arrangements are currently used, and whether any of the measures indicated, or other measures, would be desirable.

ISSUE 2.5

How serious is the problem of inappropriate or unethical conduct by experts? Again, the Commission would welcome comments, both on the extent of the problem and on ways in which it might be sanctioned or controlled.

ISSUE 3.1

The Commission would welcome any submissions on the effectiveness of current measures relating to expert witnesses that are designed to increase transpaency and any issues that they are seen to raise.

ISSUE 4.1

It is the Commission’s impression that rules requiring experts to consult are generally seen as desirable. The Commission would welcome submissions on this topic.

ISSUE 4.2

The Commission invites submissions on the experience with the use of different methods of receiving expert evidence, and on whether the rules should generally make provision for such methods to be available in suitable cases.

ISSUE 5.1

The Commission would welcome comments on the experience of appointing (non-exclusive) Court Experts, and the advantages and disadvantages of this measure.

ISSUE 5.2

The Commission invites submissions on the experience to date with rules providing for appointment of single experts, and the advantages and disadvantages of this measure. In particular, the Commission invites comments on the following:

(a) To what extent can it be said that existing problems relating to expert witnesses make it necessary or appropriate that the courts (or some courts) should have the power to appoint a Single Expert?

(b) Is it objectionable in principle (because it is contrary to the adversary system or to justice), that the Court should ever be able to appoint a Single Expert?

(c) Are rules providing for single experts authorised by a legislative rule-making power relating to ‘practice and procedure’, or is it necessary that there be a clearer statutory basis?

(d) If the Court is to have power to appoint a Single Expert, what guidelines should the rules provide as to the circumstances in which a Single Expert should be appointed? Should the rules merely provide that it is one of the options available to the court, or provide lists of factors to be taken into account, or go further and create a presumption favouring (or disfavouring) the appointment of a single expert?

(e) How should the appointment be made? Is it generally appropriate for the rules to provide for an appointment based on the parties’ consent, or, where there is no consent, on the Court’s own motion? How is the appointment best managed within case management rules?

(f) How is the single expert to be instructed? What version of the facts should be given? If the facts change between the report and the trial, what is to happen? What communications can there be between the parties and the expert leading up to the hearing? Can a party object to something in a report, or have the expert consider a possible error, before the hearing? Can the expert seek further information, or raise some issue about the nature of his or her brief?

ISSUE 6.1

The Commission would welcome comments on the use of assessors, referees and expert assistants, on their effectiveness and acceptability, and on whether they are particularly appropriate in particular types of cases.