New Expert Witness Code of Conduct for proceedings in NSW courts – are you complying?

By Timothy Webb

02 Feb 2017

If you don't comply with the new Expert Witness Code of Conduct, your expert evidence will not be admissible.

In December 2016 the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) was amended to take into account a national code for expert witnesses approved by the Council of Chief Justices of Australia and New Zealand.

The UCPR applies to certain kinds of civil proceedings in the Supreme Court, Industrial Court, Industrial Relations Commission, Land and Environment Court, District Court, Dust Diseases Tribunal and Local Court. An expert engaged or appointed for the purpose of providing an expert's report or giving opinion evidence in these proceedings must comply with the revised Expert Witness Code of Conduct.

What has changed for expert witnesses?

Most of the changes are of form rather than of substance.

However, there are three key changes to be aware of:

  1. an expert report prepared by an expert witness for use in court must now 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;
  2. the report must now include 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 (a declaration which might be familiar for those who have complied with a similar requirement in the Federal Court); and
  3. if there is a conference of experts and the experts fail to reach agreement on any issue in dispute between them, each expert witness must endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.

What do I need to do to ensure my expert evidence is admissible?

The change that will probably require the greatest focus is the new requirement that experts identify the extent to which their opinion involves the acceptance of another person’s opinion.

Experts (and the solicitors engaging them) will need to be very alive to this, as it can be very easy to gloss over the distinction between one's own opinion and another's, particularly if that opinion is one that is commonly accepted in the field. Any report that has been prepared since December 2016 should be scrutinised carefully to ensure all opinions are properly attributed.

More generally, solicitors acting in NSW proceedings should ensure that any expert witnesses already retained, or to be engaged, are provided with a copy of revised Expert Witness Code of Conduct.

Expert witnesses engaged for the purposes of NSW proceedings should ensure they receive a copy of the revised Expert Witness Code of Conduct and comply with its requirements, including these new obligations.

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