Expert Matters: Only some experts in harmony

In January last year, the Supreme Court of Tasmania was the first court to adopt rules for expert evidence that are consistent with the harmonised ‘Expert Witness Code of Conduct’. The harmonised code has been developed by a committee established by the Council of Chief Justices.

Insights Expert Matters: Only some experts in harmony

Wednesday, 1 February 2017

Introduction

In January last year, the Supreme Court of Tasmania was the first court to adopt rules for expert evidence that are consistent with the harmonised ‘Expert Witness Code of Conduct’. The harmonised code has been developed by a committee established by the Council of Chief Justices.

Three other Supreme Courts – New South Wales, Victoria and the ACT – as well as the Federal Court - did the same later in the year.

We don’t yet know whether the harmonised code will be adopted in the other Supreme Court jurisdictions: Queensland, Western Australia, South Australia, and the Northern Territory.

Summary of the Harmonised Rules

The harmonised code is largely similar to the pre-existing rules in each jurisdiction. They cover: application of the code, the expert’s overriding duty to the court, prescribed content for expert reports and supplementary reports, and conference with other experts.

When adopted by a jurisdiction, the code applies to any expert witness engaged or appointed to provide an expert’s report for use as evidence in a proceeding or to give opinion evidence in a proceeding. Every expert witness must comply with the code unless the court or a judge orders or directs otherwise.

A copy of the harmonised code can be found here (as Annexure A to the Federal Court Expert Evidence Practice Note).

The current legislation in each jurisdiction is summarised below.

Expert witness guidelines in each jurisdiction

Jurisdiction	Court Rules	Expert Witness guidelines found within the court rules	Date of harmonisation
Supreme Court of the Australian Capital Territory	Court Procedure Rules 2006	Schedule 1 Expert Witness Code of Conduct	1 July 2016¹
Federal Court of Australia	Expert Evidence Practice Note (GPN-EXPT) (‘Practice Note’)	Annexure A: Harmonised Expert Witness Code of Conduct	25 October 2016²
Supreme Court of New South Wales	Uniform Civil Procedure Rules 2005	Schedule 7 Expert Witness Code of Conduct	9 Dec 2016³
Supreme Court of the Northern Territory	Supreme Court Rules	Order 44: Expert Evidence and Practice Direction No 6 of 2015 – Expert Reports	Not harmonised⁴
Supreme Court of Queensland	Uniform Civil Procedure Rules 1999	Division 2: Evidence given by an expert; Rules 426-429.	Not harmonised⁵
Supreme Court of South Australia	Supreme Court Civil Rules 2006	Division 2: Expert reports; Rules 160-161	Not harmonised⁶
Supreme Court of Tasmania	Supreme Court Rules 2000	Expert Witness Code of Conduct; Rules 514-516	6 Jan 2016⁷
Supreme Court of Victoria	Supreme Court (Chapter I Expert Witness Code Amendment) Rules 2016	Form 44A Expert Witness Code of Conduct	1 June 2016⁸
Supreme Court of Western Australia	Consolidate Civil Practice Direction (District Court WA)	Annexure C: Code of Conduct – Expert Witnesses	Not harmonised⁹

Note: The Supreme Court of Western Australia has no guidelines for expert witnesses. The table above shows the guidelines set out by the District Court which, in our experience, are commonly used as an alternative.

Comparison with the harmonised code

The four jurisdictions that have not adopted the harmonised code have broadly similar expert witness rules in place, but with additional requirements:

Western Australia: where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other intrinsic matter, these must be provided to the opposite party at the same time as the delivery of the report.
Queensland: where there is a range of opinions on matters dealt with in the report, the expert must summarise these opinions and justify why a particular opinion has been adopted by him/herself. Experts are also required to state whether access to any ‘readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion’.
South Australia: the report must ‘identify the differences (if any) in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’.
Northern Territory: if any supplementary report prepared by an expert is not served to all interested parties then the earlier report and supplementary report cannot be used at trial¹⁰.

Significance of a Harmonised Expert Witness Code of Conduct

If implemented in all jurisdictions, a harmonised code will lead to a number of benefits including:

Consistency of standards and obligations expected of experts across jurisdictions
Enhanced comparability of expert witness reports across jurisdictions
Larger pool of experts familiar with the obligations of each jurisdiction - greater efficiency in report preparation without any need to adjust for new rules
Reduced compliance costs in ensuring rules are understood and being complied with.

Even with a harmonised code, there remain differences in how experts are managed across Australia, particularly in relation to joint conferences of experts and concurrent evidence.

The Federal Court’s new Expert Evidence Practice Note, including the adoption of the harmonised code, was discussed on our blog, Forensic Spotlight, in October. Click here to read more.