Time is running out: The importance of timely expert evidence.

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Choosing the right expert can be as difficult as choosing the right lawyer. There is a question of knowledge not just of their chosen field but of the legal requirements for an expert report. There is also a question of expedience. Timeliness in expert reports is essential because of the strict schedule enforced by the court. This schedule is enforced due to the clear disadvantage to other parties if they do not have sufficient time to examine, consider and respond to the observations made in the report. This article casts a glance at the growing frustration of courts with untimely experts and possible repercussions such experts may face. Camellia Properties v Wesfarmers General Insurance[1] is a recent case about the damage caused by a fire to a property owned by the plaintiff. Interestingly, it also examined the effect of replacing an expert at a late stage of the hearing. During the course of the proceedings, the defendants continually attempted to get relevant expert evidence. Despite early failures to serve expert evidence on time, the defendants managed to retain a building expert. His original report was held to be “next to useless” as it did not comply with rules of expert evidence and merely related opinions that had already been sought.[2] Despite further attempts by the defendants to gain the report for some months, it was eventually accepted that a report would not be produced. At this point, another expert was instructed. The question thus became, should the defendants be able to rely on the report of their new expert. The Court held that in the circumstances, the defendant should have terminated their instructions to their original expert earlier, particularly in regard to the “sorry history of correspondence and repeated broken promises”.[3] Though it undoubtedly caused injustice to the defendant to deprive them of evidence they relied upon, the limited ability of the plaintiff to respond to the expert meant they would be more significantly disadvantaged. This serves as a significant warning to parties dealing with unreliable experts. While the temptation exists to put faith in the assurances of an expert, that a report will be produced in the near future and thus avoid the beginning of an undoubtedly arduous process of instructing another expert, there is a risk that parties may be left without expert evidence to rely on. Parties must  ensure they take steps at a reasonable and appropriate time when it becomes clear that experts will not be able to produce their reports in a timely fashion. As importantly, they should take care to choose experts who are reliable and experienced in working to a court timetable. These types of experts are found on Experts Direct where experts are experienced, reliable and aware of their obligations. This article was prepared in conjunction with Susan Flynn. [1] [2013] NSWSC 1093 [2] Camellia Properties v Wesfarmers General Insurance [2013] NSWSC 1093, 10 [3] Camellia Properties v Wesfarmers General Insurance [2013] NSWSC 1093, 13

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