Declarations Now Mandatory for Expert Witness Reports

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We have previously reported on the sweeping changes made to the regime of Expert Evidence in the Federal Court following the introduction of the Harmonised Expert Witness Code of Conduct. Now, NSW, ACT, Tasmania, and Victoria have adopted the new code in each of their relevant civil procedure rules. These changes are extremely important as they affect the admissibility of an expert’s report into evidence. Failure to comply with the changes may mean that an expert’s report is rejected and inadmissible.

The New Code

In NSW, the new code is reflected in changes made to Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)[1]. These rules apply to proceedings in the Supreme Court, Industrial Court, Industrial Relations Commission, Land and Environment Court, District Court, Dust Diseases Tribunal, and Local Court.

Prior to these changes, an expert was required to acknowledge that they agreed to be bound by the code and provide certain details of their qualifications and experience (amongst other things). Now, the code has been expanded to include two significant further requirements:

1) the expert must state “the extent to which any opinion which the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and the opinion expressed by that other person”; and

2) A declaration that the expert has “made all the inquiries which the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert been withheld from the court”.

The first change appears designed to force opposing experts to acknowledge agreement with one another on areas in dispute, whilst the second change is aimed at forcing experts to consider all available material, not just that which is helpful to the lawyer’s case. Whilst these changes may appear to be only about the form that a report takes (rather than its substance) it is extremely critical that compliance is made. The below case considers the consequences of not complying with the form of the code.

Non-compliance with the Code

In Armstrong Strategic Management and Marketing Pty Limited v Expense Reduction Analysts Group Pty Ltd (No 8) [2016] NSWSC 384, the report of an expert accountant was sought to be admitted into evidence to assist the plaintiffs to make out their case about the unrealised earning potential of a business. However, the expert witness was not provided with a copy of the code of conduct and did not state that he agreed to be bound by it in his report (an essential requirement under the old and new code).

Later, the expert witness swore an affidavit saying that although he had not read the code prior to preparing his report, he had since read the code and agreed to be bound by it. Justice Ball rejected this reasoning and held that the code of conduct had not been complied with and that the interests of justice were best served by excluding the report.

Whether or not a report will be excluded because of non-compliance with the code depends on the following[2]:

a) the instructions actually given to the expert and the expert’s prior familiarity with the code;

b) whether the expert was subsequently given a copy of the code and agreed to comply with it;

c) the extent to which the expert’s report apparently complies with the code;

d) whether the proceedings have been conducted on the basis that some or all of the report will be admitted into evidence notwithstanding the failure to comply with the code; and

e) the prejudice that may be caused to the party who seeks to rely on the evidence.

The new additions to the code will also need to be viewed in light of cases like Armstrong. In other words, as in Armstrong, the failure to include a declaration that the expert has made all inquiries which they believe are appropriate could now mean that the entire report is inadmissible and that all the costs of that report are thrown away.

As lawyers and experts alike transition from the old to the new code, we recommend increased vigilance to ensure compliance. This is especially important where the report of an expert witness is covered by the old code and a later supplementary report is covered by the new code.

[1] In the other state jurisdictions the changes are reflected in Schedule 1 of the Court Procedure Rules 2006 (ACT); Supreme Court of Tasmania Practice Direction 5 January 2016; Form 44A Supreme Court Victoria Prescribed Forms.

[2] See Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279

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