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 in which experts usually appear.
Below is a brief guide for international experts on Australian expert witness laws and regulations, with some specific points of comparison that are relevant to US, UK and NZ lawyers.
Expert Witness Independence and Ethical Codes
Australian Rules on the duties and obligations of expert witnesses require experts to present evidently as transparently as they can. The rules broadly reflect those governing the engagement of expert witnesses in the American Bar Association Model Code of Conduct.
In all Australian courts, experts have an obligation to remain impartial in their reporting and testimony even where it may disadvantage the client’s case. You can find this rule in the Federal Court of Australia Practice Note on Expert Evidence and in the expert witness Codes of Conduct and Practice Notes for all lower court:
An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.
Please keep in mind that it is not in the client’s interest for you not to be independent. Courts dedicate time to understanding the reasoning of an expert report, and any inconsistencies could lead to the exclusion of expert testimony in its entirety or the accrual of additional costs to the client for additional hours of court time devoted to understanding the report in full.
All Australian Codes of Conduct are available here.
Legal Professional Privilege
The Doctrine of Legal Professional Privilege (in some countries, ‘Lawyer-Client Confidentiality’ or ‘Privilege’) protects the confidentiality of documents where those documents relate to legal advice.
Australian law is, however, largely undecided on whether drafts of expert reports or related confidential documents shared with experts are protected by the doctrine, particularly since they may be necessary to interpret the final form of an expert report or court testimony. Therefore, please note that everything you put in an email and any drafts of an expert report are potentially discoverable. We therefore suggest you assume that anything you commit to writing could find itself into the opposition’s hands.
Joint Evidence and Cross-Examination
Conclaves and Joint Reports
In matters involving two or more expert opinions, Australian courts often make orders for the experts to conduct an expert witness conclave and produce a joint report.
At a conclave, expert witnesses compare, discuss, and finalise their opinions. The aim of the conclave is not for experts to reach a consensus of opinions but to clarify the extent of their disagreements and give reasons for them.
Courts employ the conclave as a cost-cutting mechanism. The joint report aims to collate these views and present clearly the precise points of disagreement between the experts without the need for extensive discussion during court time
For more information, read our Short Guide to Expert Witness Conclaves.
Concurrent Evidence or ‘Hot-Tubbing’
Concurrent evidence allows experts to present their evidence in court in a more conversational manner and with openness to questions from both the judge and other experts. The procedure aims to promote efficiency and impartiality by allowing experts to speak openly about their evidence and critique/compare the evidence of other experts.
You could see Hot-Tubbing as a way to satisfy the Daubert principle in the US that requires acceptance by the relevant scientific community of the techniques and theories used by the expert.
Experts would do well to improve their skills in providing concurrent evidence as the process becomes increasingly popular in courts internationally. For more information, read our Short Guide to Concurrent Evidence in New South Wales.
The Substance of Expert Reports and Testimony
Australian standards for expert witness testimony emphasise the expert’s duty to show how their expertise bears on the facts of the matter. Courts will only accept an expert witness’s evidence where the opinions are based “wholly or substantially” on the expert’s “training, study and experience” (section 79, Evidence Act 1995 (Cth)).
Expert reports should therefore be completely transparent – they should not only describe the relevance of the witness’s expertise to the facts of the matter, but also outline all technical concepts the expert is applying as well as how they have been applied. The most persuasive expert reports are ones which can explain complex technical points logically and clearly, and in language that a reasonably intelligent layperson can understand.
Cross-examination of expert evidence will often involve criticism of an expert’s reasoning in their report. Lawyers are therefore likely to be pedantic in their approach to clarifying the content and reasoning in expert testimony.
For US Experts
The above criteria for acceptable expert evidence are like the Daubert Principles in the US: the expert’s specialised knowledge must assist in the determination of a fact in issue and the expert’s evidence must be based on sufficient facts or data as well as reliable principles and methods. However, there are some key differences between the two jurisdictions that experts should take care to note:
Barristers and Solicitors
As an expert witness in Australia, you’re likely to work with both solicitors and barristers.
Barristers or counsel broadly carry out the same work as Trial Attorneys in the United States (advocating for and defending clients in court). Solicitors are able to provide legal advice but their duties are more desk-bound – their work involves the preparation of legal documentation for a case, while barristers present the cases. Solicitors usually do not speak in court.
Solicitors ‘instruct’ barristers when they bring legal cases requiring court representation to barristers. Cases requiring court representation will often require ongoing communication between the solicitor and barrister.
This distinction is important as making the common mistake of referring to solicitors as counsel can be misleading to the court. For example, saying “counsel provided me X document”, which is an unusual practice by barristers, could lead the opposition to raise unnecessary concerns. We therefore suggest you refer to your instructors as “instructing solicitors”.
Unlike in the US, there is no procedure for depositions in Australia. Parties to the dispute will instead take written out-of-court evidence of witnesses in the form of an affidavit.
For UK and NZ Experts
Fortunately for UK based and NZ based experts, they will find the Australian jurisdiction similar to home. Aside from some cultural differences, the only main deviation from UK and NZ law on expert witnesses relates to their immunity.
Expert Witness Immunity
Expert witnesses are afforded immunity from suit in Australia. Experts should however take care to note any changes to this rule, given that the United Kingdom and New Zealand removed the immunity under their laws in 2016.