Expert witnesses - proposed new rules

(an extract from 'The Valuers Notebook', Autum, 2004)

The Federal Court of Australia issued guidelines in 1998 for expert witnesses in proceedings in the Federal Court. Some of the State Courts have issued practice directions providing guidance for expert witnesses in proceedings in the State Courts. The Queensland State Courts are yet to issue any practice direction in this regard.

The use of expert witnesses in Queensland is presently governed by the Uniform Civil Procedure Rules1999 (UCPR) rule 212(2) and rules 423 to 429.

Rule 212(2) of the UCPR provides that a document consisting of a statement or report of an expert is not privileged and must be disclosed during the course of the litigation. Experts should bear in mind that this rule will apply equally to any notes of findings or draft reports prepared by the expert in the process of preparing the final report. In the absence of this rule, such documents may in appropriate circumstances be encompassed by legal professional privilege.

The principal provision relating to expert witnesses is rule 423. This rule provides that a party who intends to call a person to give evidence as an expert witness must within 21 days after the day on which a trial date is set (i.e. after a trial date has been allocated by the Court) serve a statement on the other party/parties giving the name and address of the expert witness; describing the witness’ qualifications to give evidence as an expert; and containing the substance of the evidence it is proposed to adduce from the witness as an expert.

Rules 424 to 429 refer to the appointment of Court experts.

Save for the two provisions referred to above, there is little other guidance given by the UCPR regarding expert witnesses. The Supreme Court Rules Committee is however considering amendments to rules 423-429. The proposed new rules presently encompass:

Confirming and emphasising that the overriding duty of an expert is to the Court and not to the solicitor or client who has engaged his or her services. This duty will be paramount.

The form and content of a report produced by an expert. This should standardise the form of reports provided by experts. The appointment by the court or parties of a sole expert The purpose of this is to ensure that expert evidence is given by one expert only thereby avoiding duplication of costs caused by the engagement of opposing experts, This may become problematic and actually result in parties to litigation incurring additional costs involved in engaging experts to critique the report of the sole expert. Providing for those cases where the use of more than one expert is warranted.

Presumably this is meant to cater for those cases where there are matters of a highly technical nature thatrequire consideration. The provision for experts to apply to the court for directions. This will assist experts to obtain guidance about their role and the work being undertaken in circumstances where the parties cannot agree on the guidance to be given to the expert Experts’ conferences.

Immunity of the expert from liability. This would provide sufficient protection for experts enabling them to undertake their work without fear of being sued subsequent to the litigation.

The proposed amendments to the rules relating to expert witnesses mirror in large the guidelines for expert witnesses issued by the Federal Court of Australia. The Supreme Court Rules Committee have recently withdrawn the draft rules to which the above comments relate and have indicated that they will be issuing a further draft of the rules for consideration. They expect the further draft of the rules to be published towards the end of July 2003. A copy of the further draft rules can be obtained from the Supreme Court web site when published.

Provided the anomaly that has been highlighted above regarding the use of a sole expert is dealt with prior to the finalisation of rules, the new rules should provide additional clarification and certainty for experts, solicitors and their clients when utilising the services of expert witnesses in litigation.

Sarah Frost
General Commercial Litigation – Corrs Chambers Westgarth, Brisbane

Last updated 24 February 2005