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Party-Appointed Experts vs Tribunal-Appointed Experts in International Arbitration
The influence of common law and civil law systems has left international arbitration tribunals divided in their procedures for managing expert witness evidence. While arbitration
NAIDOC Week 2022
This week is the Australian National NAIDOC Week, where celebrations are held across Australia to celebrate and recognise the history, culture and achievements of Aboriginal
Expert Evidence in the Depp v Heard Trial
It’s hard to have missed the coverage of the Depp v Heard trial. Our analysis of the testimony of expert psychologist Dr Shannon Curry and
ExpertsDirect in Pro Bono Voco Issue 7
ExpertsDirect is thrilled to be included in Issue 7 of the Australian Pro Bono Centre’s Pro Bono Voco publication. The publication highlights the pro bono contributions
ESG and Director’s Duties Event
ExpertsDirect ESG Litigation and Director’s Duties Event Summary On Thursday 2 June 2022, ExpertsDirect hosted an ESG Litigation and Director’s Duties Panel discussion at The
Top Tips from Leading Class Action Lawyers on Expert Evidence
We’re delighted to introduce this Class Actions special which explores the increasingly prominent impact of expert evidence in class action litigation. In this series of
Craig Allsopp’s Tips on Class Actions and Expert Witnesses
Craig Allsopp, Special Counsel at Shine Lawyers’ national class action team, shares his tips for working with expert witnesses. What tips do you have for
Jason Betts’ Tips on Class Actions and Expert Witnesses
Jason Betts is Disputes Partner and Global Co-head of Class Actions at Herbert Smith Freehills. Having defended some of the largest shareholder class action matters,
Jenny Campbell and Belinda Thompson’s Tips on Class Actions and Expert Witnesses
Belinda Thompson and Jenny Campbell are the co-heads of Allens’ class actions practice. They both have extensive experience in defending class actions in a broad
Richard Skurnik’s Tips on Class Actions and Expert Witnesses
As the leading provider of expert witnesses in Australasia, ExpertsDirect has sourced experts for some of the most prominent class action matters in Australia and
David Taylor’s Tips on Class Actions and Expert Witnesses
David is a Disputes Partner and class action specialist at MinterEllison with particular expertise regarding the quantum of damages in class actions. David has represented
Jeremy Zimet’s Tips on Class Actions and Expert Witnesses
Jeremy Zimet is a Principal Lawyer at Phi Finney McDonald specialising in shareholder and consumer law class actions. He has acted for thousands of complainants
Valuations Evidence in Toyota Class Action
In April 2022, the Federal Court decided in favour of the applicants in a class action against Toyota that may now cost the car manufacturer
Expert Evidence in Landmark Climate Change Litigation
The Court in Minister for the Environment v Sharma [2022] FCAFC 35 recently ruled against a duty of care of the Minister for Environment to
Celebrating International Women’s Day 2022
This International Women’s Day, ExpertsDirect celebrated the achievements of contemporary women in the law and reflected on the contribution of those who laid the groundwork
Getting It Right – tips for letters of instruction to experts
A compelling report prepared by an expert witness can be a useful tool in litigation, both in pre-trial settlement negotiations and also in court. One
Tips for International Experts Working in Australian Jurisdictions
At ExpertsDirect, we regularly engage international experts on behalf of our clients. The rules for expert witnesses in Australia may differ to those for jurisdictions
Short Guide to Executive Summaries in Expert Reports
Who reads Executive Summaries? It’s an obvious point but one worth remembering: decision makers in courts or tribunals are busy people. They may be sitting
Three Years of ExpertsDirect Pro Bono
On the third anniversary of the ExpertsDirect Pro Bono Service, we reflect on the trends that have characterised our pro bono work and thank all
Expert Evidence Critical in Patent Opposition Matter (CSIRO v Cytec Industries Inc. [2021] APO 27)
In July 2021, the Australian Patent Office accepted a patent application from Cytec industries Inc’s against opposition from CSIRO. Both Cytec and CSIRO engaged multiple
Demonstrating Expertise – Structure and Application in Reporting
As courts become increasingly more open to the use of expert witness evidence in complex matters, experts should be particularly mindful to demonstrate the relevance
Are Draft Reports Protected by Legal Professional Privilege? Courts Still Uncertain
The recent case of Malone v La Playa Nominees Pty Ltd [2021] VSC 271 shows that some courts are more likely to consider reports privileged
The Scope of Admissible Lawyer-Expert Communications
Whilst courts are empowered to exclude prejudiced expert reports, parties may nonetheless advise experts on proper reporting practices and case theories. We examine comments by Justice Riordan
Client in Focus: Susanna Taylor
Susanna Taylor Head of Investments – APAC, LCM Susanna is the Head of Investments (APAC) at Litigation Capital Management (LCM), a leading international litigation funder,
The Right Expert and the Right Approach in ASIC v Big Star Energy Limited (No 3) [2020] FCA 1442
In ASIC v Big Star Energy Limited (No 3) [2020] FCA 1442, Justice Banks-Smith’s clarified key issues surrounding requisite expertise in materiality matters and highlighted what
Federal Court Appoints Assessor for Monsanto Class Action
The Federal Court in McNickle v Huntsman Chemical Company Australia Pty Ltd (Assessors) [2021] FCA 780 (25 June 2021) recently decided to appoint an assessor
UK Court of Appeal rules against establishing a Fiduciary Duty of Loyalty for Expert Witnesses
Can two sides of a dispute engage the same expert witness? The decision in Secretariat Consulting PTE Ltd & Ors v A Company [2021] (EWCA
How to Engage and Work with a Construction Expert as a Junior Lawyer
Jason Feng is an Associate at Pinsent Masons where he specialises in Projects and Infrastructure projects and legal matters. He has worked closely with contractors
5 Things to Consider When Working with Expert Evidence
David Talintyre is a barrister at Level 22 Chambers. He has over 20 years of experience at the bar taking on diverse commercial, construction, engineering,
Reliance on Expert Evidence in Google Federal Court Decision
In April 2021, the Federal Court handed down a decision in favour of the Australian Competition and Consumer Commission (ACCC) against Google LLC. The ACCC
Observations on Expert Witnesses in the Derek Chauvin Trial
On Thursday 21 April 2021, a 12-member jury in the US District Court of Minnesota found Former Minneapolis Police Office Derek Chauvin guilty of the
Federal Court Warns Against Experts who Criticise without Reporting their Alternative Findings
Lawyers commonly ask experts to critique other experts’ reports, a move which recently received criticism in the Federal Court. We review Justice Yates’ comments on
Expert Witness Independence: Reputation and Partisan Opinions
Does a history of giving evidence for or against a plaintiff/defendant rule an expert witness as partisan? The issue recently arose in the Monsanto Class
ExpertsDirect Celebrates Women’s History Month 2021
This Women’s History Month, ExpertsDirect would like to celebrate the contributions and achievements of women who have significantly influenced our ideas of a more inclusive
Quality Assurance at ExpertsDirect
Experts and lawyers who are familiar with expert witness work will know that the process of producing an expert report involves more than simply engaging
Joint Expert Reports: Important Reminders
Some standard orders in Australian courts ask expert witnesses, who may each have already produced a report in a matter, to ‘confer’ with one another
Irrelevant or Misleading?
In Long v IS Industry Fund Ptd Ltd (No 2) [2020] NSWSC 1541, the NSW Supreme Court addressed complaints of irrelevance and prejudice levelled at an expert
The Right Expert and the Right Approach in ASIC v Big Star Energy Limited (No 3) [2020] FCA 1442
Background Facts and Key Issues In ASIC v Big Star Energy Limited (No3) [2020] FCA 1442, ASIC accused Big Star Energy Ltd, previously known as
ExpertsDirect Pro Bono: Anniversary and Interviews
On 12 November, ExpertsDirect celebrated the second anniversary of its Pro Bono Service and partnership with the Australian Pro Bono Centre. To commemorate the date,
Expert Evidence Issues in Bushfire Survivors Action
In April, the Environmental Defenders Office brought proceedings on behalf of the advocacy group Bushfire Survivors for Climate Action (a group which includes bushfire survivors,
Court Managed Expert Evidence in the Land Court of Queensland
In most circumstances, parties who have asked their experts irrelevant questions run the risk of receiving expert evidence which comments on matters outside of the
General FAQ about Court Attendance
Attending court to be cross-examined as an expert witness can be a stressful experience, made more difficult by the complexity of the environment. We have
Three Takeaways from Blackmores Ltd v Jestins Enterprises Pty Ltd [2020] NSWSC 1177
Background facts: The Defendant, Jestins Enterprises, entered into an agreement with Blackmores that allowed the Defendant to order and obtain products from Blackmores on credit.
What ExpertsDirect and Our Clients Look for in an Expert Witness
Daniel Sosa is a Research Executive at ExpertsDirect. His experience in sourcing experts for all manner of matters has revealed to him some of the
Expert Insights from Automotive Mechanic David Marston
I am a Master Mechanic with over 40 years of practical experience in repairing and modifying motorcycles, light, heavy, and racing vehicles and boats. I
One Joint Conclave for Many Experts
Can and should experts of different areas of expertise participate in the same expert conclave? In the matter of Budgen v The Congregation of Religious
Forensic Expert Testing in Securities Class Actions: the Application of the Cammer Factors as a Tool to Test Market Efficiency
An “event study” is a useful tool performed by experts to measure the effect of the disclosure of information on the price of a particular
A Short Guide to Privilege in Expert Witness Reporting
Privilege Generally: Common Law and Legislation Client Legal Privilege allows parties in litigation to maintain the confidentiality of client-lawyer communications. A client can claim privilege
A Short Guide to Expert Witness Conclaves
Conclaves allow courts to clarify the divergent and numerous expert opinions they need to address in more technical matters requiring two or more expert opinions.
The Fiduciary Duty of Expert Witnesses
The judgement in this recent case was handed down by the Technology and Construction Court of the UK High Court of Justice. Although it does
Grounds for Adjournment During and After the Pandemic
The social distancing measures put in place these past few months may have affected the work of expert witnesses as they have all Australians. In
The Credibility of Expert Witnesses
Part 3.7 of the Evidence Act 1995 (Cth), which relates to assessments of the credibility of witnesses does not apply to expert witnesses. However, courts
Engaging Expert Witnesses during the Pandemic
With the implementation of social isolation policies, digital communication and eCourtrooms will now become the main format for conducting trials. Whilst Courts have released guides
5 Common Mistakes that Lawyers Make When Working with Expert Witnesses
As expert witness evidence often decides the outcome of the case, it is of prime importance that solicitors ensure clear communication with the expert to
Staying inside the lines – the importance of properly instructing experts
Introduction In the matter of R v BDI [2020] QCA 22, the appellant was convicted at trial of various rape and assault offences, including sexual
Demonstrating Expertise – Structure and Application in Reporting
This case demonstrates that attention to the structure and language used in expert reporting assists courts in clearly identifying that expert opinions satisfy s 79
Subject Matter Experts
The Status Quo ‘Subject Matter Experts’ (SMEs) are given this title within their own institutions to refer to individuals with particular expertise in subject matter
Admissibility and the Loss of Expert Witness Independence
Parties should aim to provide expert evidence from independent witnesses. However, the loss of independence does not in and of itself lead to a finding
The Scope of Admissible Lawyer-Expert Communications
Whilst courts are empowered to exclude prejudiced expert reports, parties may nonetheless advise experts on proper reporting practices and case theories. We examine comments by Justice Riordan
Clarifications on Admissible and Inadmissible Expert Evidence
Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 8) [2019] QSC 255 concerned proceedings that Sanrus Pty Ltd brought
Expert Evidence and Disclosure
Although expert evidence is made exempt from the Opinion Rule by Section 79 of the Evidence Act (NSW) 1995, it is still subject to the
More than Just Fillers: the Utility of Expert Evidence in Jiang v BCDS International P/L t/as Miss Beauty [2019] NSWDC 578
In an age of growing demand for expedient and high-risk cosmetic procedures, we may see an influx of negligence claims soon, if not already. Where
Can Too Many Experts Spoil the Evidence? Court Competency and the Applications of UCPR Rule 31.54
When two experts present evidence, courts may choose to rely on the stronger report. In some instances, however, courts may appoint their own expert witness.
The Issue of Contemporaneous Letters of Instruction: BrisConnections v Arup
It is a growing trend for letters of instruction to be dated to be contemporaneous with the completion of an expert witness report. In this case, comments were made suggesting that this practice should be avoided.
The Importance of Demonstrating Expertise: Eckford v Six Mile Creek
This case is a timely reminder of the impact that a thorough expert, who explores and considers all avenues of relevant information, can have on a case.
The Impact of Expert Evidence: ASIC v Vocation
This case is a pertinent reminder of the impact expert evidence can have on a matter, and the difficulty of refuting expert evidence without the assistance of an expert witness to offer an opposing view.
Common Mistakes in Expert Witness Reports
What are the common mistakes that can make a report less effective and, at worst, inadmissible in court? This article examines some typical issues that arise when lawyers engage experts, and how to avoid them.
Asking the Right Questions: Uber v Commissioner of Taxation
If an expert is asked a ‘wrong’ question, expensive expert comment may have been enlisted that the court will never hear.
Admissibility of Disagreements in Joint Expert Reports: Bezer v Bassan
This case is a pertinent reminder that lawyers and experts alike should ensure that joint expert reports align with the provisions of the court in which evidence is being given, or else risk expert evidence being rendered inadmissible.
Engaging Experts on a Contingency Basis – What are the Risks?
In most instances, an expert witness will be engaged by a law firm and paid a fee before, or upon delivery, of their expert report. However, there are situations in which an expert will be engaged on a contingency basis or, as it is more popularly known, a ‘no win, no fee’ basis.
The Importance of a Perfect Match: Hawkesbury Sports Council v Martin
When engaging an expert witness, it is of paramount importance that a correct match is made regarding the contentious issue in litigation and the speciality of the expert witness engaged to provide opinion.
Guide to Concurrent Evidence in New South Wales
As concurrent evidence is now the norm in civil trials in New South Wales, it is important for lawyers to be aware of the process, and how best to manage the expert witnesses involved, to ensure things run smoothly and that the best outcome possible is achieved.
Court Attendance Responsibilities for Expert Witnesses
In the event that an expert is required to give evidence in court, it is important to be aware of an expert witness’s responsibilities for court attendance.
Mind Your Drafts: What Types of Expert Evidence are Discoverable Under the UCPR?
Must all expert advice be disclosed, even if it hasn’t been “deployed” in court? Facts The plaintiffs in this Queensland Supreme Court case, Murphy &
What Can the Court Do About Expert Witness Bias?
One ongoing areas of discussion in legal reform is that of unconscious bias in expert witness evidence and how it may be avoided. We discuss the main issues and describe how it can be minimised or avoided.
Expert Evidence Plays Vital Role in Biggest Native Title Decision Since Mabo
This case marks the first time that the High Court has considered the Native Title Act in determining monetary compensation, with this ruling setting a precedent for future native title compensation claims.
Assumptions v Findings: Which Should Prevail?
When experts are briefed with assumptions that contradict their own findings. It is common for lawyers to brief an expert in a letter of instruction
Top 3 Tips from Bicknell v Pickard
Introduction Bicknell v Pickard [1] centered around to what extent the plaintiff’s psychiatric illnesses were caused by a motorcycle collision between the plaintiff and the defendant,
Can Lawyers Edit Expert Witness Reports?
Introduction As outlined in the Expert Witness Code of Conduct in each jurisdiction, an expert’s duty is to the court and the independence of their
Need for Construction Experts on the Rise
As the population of Australian capital cities continues to grow, an increasing number of people are living in apartments. Although the government has spent decades
Can Anyone Be an Expert Witness?
The Honourable Justice Chesterman once defined the role of the expert witness as: “… to educate or inform the court about the relevant aspects of the witness’s specialty to enable the court itself to access evidence, which, without that tuition, the court would be unable to do”. In most circumstances, the court does not admit mere opinion into evidence, as indicated by the opinion rule in s76 of Evidence Act (Cth) 1995 […]
Expert Witnesses Play Vital Role in Determining Driver’s Duty of Care
Lee v McGrath [2018] ACTSC 173, heard in early June, involved the Plaintiff being struck and receiving catastrophic injuries when he attempted to run across a
The Problem with ‘Ultimate Issue’ Questions
When preparing a letter of instruction for an expert witness, it is recommended that legal practitioners abstain from directly asking experts ‘ultimate issue’ legal questions. This is due to the risk that the expert witness’s answer will be deemed as being beyond their expert knowledge and be inadmissible, by virtue of not falling under the Expert Exception Rule in Section 79 of the Evidence Act.
Anti-Vaxxer v Doctor: Who is the Real Expert?
Dr Judy Wilyman, one of Australia’s most notorious anti-vaccination activists, was reported in late September as having been called to act as an expert witness
Case Study: Feral Cat Handling
Background: In order to deal with a feral cat problem, a Melbourne council issued a notice that citizens would be paid for capturing feral cats
Should the Court Intervene in Expert Witness Management?
Background: The pre-trial management by the court of expert witnesses and the evidence they are to prepare can be a tricky issue for judges and
Snapshot: Expert Report Debunks Myth of Australia as a Class Action Haven
A recent report has debunked the myth of an Australian class action boom, providing some perspective to critics’ hysteria over a litigious culture following in
Call for Greater Use of Expert Witnesses to Protect Victims of Sexual Assault
In sexual assault trials, victims are often re-traumatised by the cross-examination received at the hands of defence barristers. This issue has been brought to the
High Court Clarifies the Principles for Preliminary Discovery – Weight of Expert Evidence
The High Court has rejected granting special leave to Samsung Bioepis (‘SB’) to challenge the decision of the Full Federal Court in Pfizer Ireland Pharmaceuticals
GetSwift Beauty Parade: Engaging a Single Expert Witness – Does it Make You More Beautiful?
Phi Finney McDonald will exclusively run the class action against GetSwift, after the two other competing class actions were permanently stayed, as Lee J “was
NCAT Relaxes Rules for Use of Expert Evidence
The NSW Civil and Administrative Tribunal (NCAT) has revised ‘Procedural Direction 3’ which defines how experts must provide evidence before the Tribunal. The recent changes,
Expert witnesses to play vital role in Bourke Street Driver’s fate
This month a jury has been discharged after failing to agree whether Dimitrous Gargasolous, who is accuse of driving into a crowd of people
Expert witness or advocate? The perils of blurring the boundaries
If you have acted as an expert witness, you will know one of the most fundamental rules is that you must be impartial and not
The increasing need for expert witness opinions in cryptocurrency litigation
Cryptocurrency is an increasingly popular alternative currency. Since it is a virtual currency, the laws that govern it differ from those which govern standard (or
Expert Nutritionist says Heinz toddler snacks as sugary as confectionary
A dietitian for food giant Heinz has denied that the company misrepresented snacks for toddlers as health food, despite containing the equivalent of three
Court in Swift Groping case refuses to hear expert Gender Studies professor
David “Jackson” Mueller, the Denver radio host who was found guilty last week of groping pop megastar Taylor Swift, succeeded in an interlocutory motion
Australian Music Expert called in Eminem’s New Zealand IP case
Lawyers for American rapper Marshall ‘Eminem’ Mathers recently called on Australian composer, writer, and radio presenter Dr Andrew Ford as an expert witness in
Declarations Now Mandatory for Expert Witness Reports
We have previously reported on the sweeping changes made to the regime of Expert Evidence in the Federal Court following the introduction of the
The Use of Expert Evidence in Continuous Disclosure Class Actions
This post finishes our recent series on emerging issues and trends in Australian Class Action Litigation. In Australia, there is a steady increase in major
Increasing Adoption of Harmonised Expert Witness Code of Conduct – Towards a Nationwide Approach
As outlined in our November 2016 blog, Sweeping Changes for Federal Court Practice Notes, the Federal Court, in late 2016, issued 26 updated practice
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