Part 5 Expert evidence

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Division 1 Preliminary

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423 Purposes of Part 5

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The main purposes of this part are to

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(a) declare the duty of an expert witness in relation to the court and the parties; and

(b) ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and

(c) avoid unnecessary costs associated with the parties retaining different experts; and

(d) allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.

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424 Application of Part 5

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(1) This part does not apply in relation to a witness giving evidence, whether orally or in writing, in a proceeding who is

     (a) a party to the proceeding; or

     (b) a person whose conduct is in issue in the proceeding; or

     (c) a doctor or another person who has given or is giving treatment or advice in relation to an injured person if the evidence is limited to 1 or            more of the following matters in relation to the injured person

          (i)the results of any examination made;

          (ii)a description of the treatment or advice;

          (iii)the reason the treatment or advice was, or is being, given;

          (iv)the results of giving the treatment or advice.

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(2)This part also does not apply in relation to a proceeding for a minor claim in a Magistrates Court.

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425 Definitions for Part 5

 

In this part

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appointed expert means an expert appointed under division 3 or 4, including a court appointed expert.

court appointed expert means an expert appointed by the court under division 3 or 4.

expert means a person who would, if called as a witness at the trial of a proceeding, be qualified to give opinion evidence as an expert witness in relation to an issue arising in the proceeding.

report, for a proceeding, means a document giving an expert’s opinion on an issue arising in the proceeding.

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Division 2  Evidence given by an expert

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426 Duty of expert

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(1) A witness giving evidence in a proceeding as an expert has a duty to assist the court.

(2) The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.

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427 Expert evidence

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(1) Subject to subrule (4), an expert may give evidence-in-chief in a proceeding only by a report.

(2) The report may be tendered as evidence only if

     (a)the report has been disclosed as required under rule 429; or

     (b)the court gives leave.

(3) Any party to the proceeding may tender as evidence at the trial any expert’s report disclosed by any party, subject to producing the                   expert for cross-examination if required.

(4) Oral evidence-in-chief may be given by an expert only—

     (a) in response to the report of another expert; or

     (b) if directed to issues that first emerged in the course of the trial; or

     (c) if the court gives leave.

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428 Requirements for report

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(1) An expert’s report must be addressed to the court and signed by the expert.

(2) The report must include the following information—

     (a) the expert’s qualifications;

     (b) all material facts, whether written or oral, on which the report is based;

     (c) references to any literature or other material relied on by the expert to prepare the report;

     (d) for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report—

          (i) a description of what was done; and

          (ii) whether the inspection, examination or experiment was done by the expert or under the expert’s supervision; and

          (iii) the name and qualifications of any other person involved; and

          (iv) the result;

     (e) if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert                     adopted a particular opinion;

     (f) a summary of the conclusions reached by the expert;

     (g) a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable                       conclusion.

(3) The expert must confirm, at the end of the report—

     (a) the factual matters stated in the report are, as far as the expert knows, true; and

     (b) the expert has made all enquiries considered appropriate; and

     (c) the opinions stated in the report are genuinely held by the expert; and

     (d) the report contains reference to all matters the expert considers significant; and

     (e) the expert understands the expert’s duty to the court and has complied with the duty.

 

429 Disclosure of report

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A party intending to rely on a report must, unless the court otherwise orders, disclose the report

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(a) if the party is a plaintiff—within 90 days after the close of pleading; or

(b) if the party is a defendant—within 120 days after the close of pleading; or

(c) if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party.

 

429A Supplementary report

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(1) If an expert changes in a material way an opinion in a report that has been disclosed, the expert must, as soon as practicable, provide a           supplementary report stating the change and the reason for it.

(2) The supplementary report must comply with rule 428 and be disclosed as soon as practicable.

 

429B Court may direct experts to meet

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(1) The court may, at any stage of a proceeding, direct experts to meet and—

     (a) identify the matters on which they agree; and

     (b) identify the matters on which they disagree and the reasons why; and

     (c) attempt to resolve any disagreement.

(2) The court may, for the meeting—

     (a) set the agenda; and

     (b) specify the matters the experts must discuss; and

     (c) direct whether or not legal representatives may be present; and

     (d) give directions about the form of any report to be made to the court about the meeting; and

     (e) give any other directions the court considers appropriate.

(3) Evidence of anything done or said, or an admission made, at the meeting is admissible at a trial of the proceeding only if all parties to the         proceeding agree.

(4) However, subrule (3) does not apply to a report made to the court about the meeting identifying the matters mentioned in subrule (1)(a) or (1)(b).

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429C Immunity

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An expert has the same protection and immunity for the contents of a report disclosed as required under these rules as the expert could claim if the contents of the report were given orally at a trial of the proceeding in which the report is disclosed.

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429D Costs

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When deciding the order to make about the costs of a proceeding, the court may consider, in allowing, disallowing or limiting the costs for an expert’s report prepared for a party on an issue, the extent to which the proceedings may have been facilitated by the appointment of a person as the only expert in relation to the issue.

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Division 3 Experts appointed after proceeding started

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429E Application of div 3

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This division applies only in relation to proceedings in the Supreme Court.

 

429F Definition for div 3

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In this division - court means the Supreme Court.

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429G Appointment of experts

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(1) If, after a proceeding has started, 2 or more parties agree that expert evidence may help in resolving a substantial issue in the proceeding,       subject to rule 429H, those parties may in writing jointly appoint an expert to prepare a report on the issue.

(2) If parties to a proceeding are not able to agree on the appointment of an expert, subject to rules 429I and 429K, any party who considers         that expert evidence may help in resolving a substantial issue in the proceeding may apply to the court for the appointment of an expert to         prepare a report on the issue.

(3) Subject to rules 429J and 429K, the court may, on its own initiative and at any stage of a proceeding, if it considers that expert evidence may help in resolving a substantial issue in the proceeding, appoint an expert to prepare a report on the issue.

 

429H Expert appointed by parties

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(1) An expert may be appointed under rule 429G(1) only if—(a)the parties appointing the expert agree in writing on the following matters—

         (i) the issue in the proceeding the expert evidence may help resolve;

         (ii) the identity of the expert;

         (iii) when the report must be prepared by the expert and given to the parties to the agreement;

         (iv) liability for fees and expenses payable to the expert; and

     (b) the expert has been made aware of the content of this part and consents to the appointment.

(2) A copy of the agreement must be—

     (a) signed by each party to the agreement; and

     (b) filed in the court; and

     (c) after being filed in the court, immediately served on any other party to the proceeding who is not a party to the agreement.

(3) The parties to the agreement must give the expert a statement of facts, agreed to by the parties to the agreement, on which to base the              report.

(4) However, if the parties to the agreement do not agree on a statement of facts, then—

(a) unless the court directs otherwise, each of the parties to the agreement must give the expert a statement of facts on which to base the report; and

(b) the court may give directions about the form and content of the statement of facts to be given to the expert.

(5) The report is taken to be disclosed for this part if—

(a) a copy of the report is given to each party to the agreement; and

(b) within 14 days after the day by which all parties to the agreement have received a copy of the report, each party to the proceeding who is not a party to the agreement is given a copy of the report.

(6) Unless the court otherwise orders, the expert is the only expert who, in relation to the parties to the agreement, may give evidence in the proceeding on the issue.

(7) Unless the court otherwise orders, each party to the proceeding has the right to cross-examine the expert.

 

429I Expert appointed by court on application

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(1) A party applying to the court for appointment of an expert under rule 429G(2) must serve a copy of the application and the supporting               material on each other party to the proceeding.

(2) The supporting material must—

     (a) state the issue in the proceeding that expert evidence may help resolve; and

     (b) name at least 3 experts who—

         (i) are qualified to give expert evidence on the issue; and

         (ii) have been made aware of the content of this part and consent to being appointed; and

     (c) state any connection known to the applicant between an expert named and a party to the proceeding.

(3) When hearing the application, the court may receive other material and make other enquiries to help decide which expert to appoint.

(4) The court may appoint an expert other than an expert named in the supporting material.

(5) The court may appoint an expert only if the expert has been made aware of the content of this part and consents to the appointment.

 

429J Expert appointed by court on court initiative

 

(1) In deciding whether to appoint an expert under rule 429G(3) in relation to an issue in a proceeding, the court may -

     (a) ask each party to name at least 3 experts who -

          (i) are qualified to give expert evidence on the issue; and

          (ii) have been made aware of the content of this part and consent to being appointed; and

     (b) require each party to state any connection between an expert named and a party to the proceeding; and

     (c) receive other material and make other enquiries to help decide which expert to appoint.

(2) The court may appoint an expert other than an expert named by a party to the proceeding.

(3) The court may appoint an expert only if the expert has been made aware of the content of this part and consents to the appointment.

 

429KConsiderations for court when appointing an expert

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(1) In deciding whether to appoint an expert under rule 429G(2) or (3) in relation to an issue in a proceeding, the court may consider—

     (a) the complexity of the issue; and

     (b) the impact of the appointment on the costs of the proceeding; and

     (c) the likelihood of the appointment expediting or delaying the trial of the proceeding; and

     (d) the interests of justice; and

     (e) any other relevant consideration.

(2) If the court considers an expert is the most appropriate expert to help resolve an issue in the proceeding, the court may appoint the expert       even if the expert has already given a report to a party in the proceeding on the issue or on another issue in the proceeding.

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429LReport by court appointed expert given to registrar etc.

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(1) Unless the court otherwise orders -

     (a) a court appointed expert appointed in relation to an issue in a proceeding must—

          (i) prepare a report on the issue; and

          (ii) give the report to the registrar together with sufficient copies of the report for all parties to the proceeding; and

     (b) the registrar must—

         (i) file the report in a sealed envelope; and

         (ii) within 7 days after receiving the report, forward a copy of it to each party to the proceeding.

(2) The report is taken to be disclosed for this part if the registrar forwards copies of the report to all parties as required.

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429M Orders and directions for court appointed experts

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(1)The court may make the orders and give the directions it considers appropriate in relation to a court appointed expert, including, for example, 1 or more of the following orders or directions—

(a)an order or direction to facilitate the expert’s preparation of a report;

(b)a direction about any of the following matters—

(i)a party giving the expert written information relevant to the preparation of the report and forwarding a copy of the written information to each other party;

(ii)the extent a party may communicate with the expert;

(iii)an inspection, examination or experiment by the expert;

(iv)the expert obtaining a report from another expert in a discipline relevant to the issue in relation to which the expert was appointed;

(c)a direction about any of the following matters—

(i)when the expert must give the registrar the report;

(ii)liability for fees and expenses payable to the expert;

(iii)payment of any expenses incurred by the registrar;

(d)an order permitting cross-examination of the expert before an examiner under part 2 or before the trial starts.

(2)If the court directs that a report from another expert may be obtained by a court appointed expert, the other expert’s report must be attached to the court appointed expert’s report when it is given to the registrar.

(3)The court may receive in evidence the report of a court appointed expert on terms the court considers appropriate.

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429N Consequences of court appointment

 

(1) This rule applies if the court appoints an expert in relation to an issue in a proceeding.

(2) Unless the court otherwise orders, the expert is to be the only expert to give evidence in the proceeding on the issue.

(3) However, the court may, on its own initiative or on application by a party, appoint another expert (the other expert) to prepare a report in relation to the issue if—(a)after receiving a report from the expert originally appointed (the first expert), the court is satisfied—

(i) there is expert opinion, different from the first expert’s opinion, that is or may be material to deciding the issue; or

(ii) the other expert knows of matters, not known by the first expert, that are or may be material to deciding the issue; or

(b) there are other special circumstances.

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429OCourt may direct access to information

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(1) The court may direct a party to a proceeding who has access to information reasonably necessary for the preparation of a report by an             appointed expert

(a) to give the court or the expert a document stating the information; or

(b) to otherwise make the information reasonably available to the expert.

(2) Subrule (1) does not limit the directions a court may give under rule 429M.

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429P Expert may apply for directions

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(1) An appointed expert may apply to the court for directions to facilitate the preparation of a report.

(2) The application must be served on the parties to the proceeding and on any other person directed by the court.

(3) The court may give the directions the court considers appropriate, including directions about an inspection, examination or experiment for the expert’s report.

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Division 4 Experts appointed before proceeding started

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429Q Definition for div 4

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In this division - court means the Supreme Court.

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429R Expert appointed by disputants

 

(1) This rule applies if, before any proceeding is started, 2 or more persons (the disputants) agree in writing on the following matters—

     (a) there is a dispute between them that will probably result in a proceeding and obtaining expert evidence immediately may help in                        resolving a substantial issue in the dispute;

     (b) the identity of an expert from whom a report should be obtained;

     (c) when the report must be prepared by the expert and given to the disputants;

     (d) liability for fees and expenses payable to the expert.

(2) The disputants may in writing jointly appoint the agreed expert to prepare a report giving an opinion on the issue.

(3) The appointment must be expressed to be made under this rule.

(4) The disputants may appoint the expert only if the expert has been made aware of the content of this part and consents to the appointment.

(5) Rule 428(2) and (3) apply in relation to the report.

(6) Unless the court otherwise orders, in any proceeding started in the court between the disputants in which the issue is relevant, the expert is to be the only expert who, in relation to the disputants, may give evidence on the issue.

 

429S Expert appointed by court on application

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(1)This rule applies if, before any proceeding is started, a person (the first person) believes on reasonable grounds that—

     (a) there is a dispute between the first person and 1 or more other persons that will probably result in a proceeding; and

     (b) obtaining expert evidence immediately may help in resolving a substantial issue in the dispute.

(2) The first person may apply to the court for the appointment of an expert to prepare a report giving an opinion on the issue.

(3) The application and the supporting material must be served on the other person or persons.

(4) The supporting material must—

     (a) describe the nature of the dispute; and

     (b) state the issue in dispute that expert evidence may help resolve; and

     (c) indicate why the report should be obtained immediately; and

     (d) name at least 3 experts who—

         (i) are qualified to give expert evidence on the issue; and

         (ii) have been made aware of the content of this part and consent to being appointed; and

     (e) state any previous connection between an expert named and the first person.

(5) The court, on being satisfied in relation to the matters mentioned in subrule (1)(a) and (b), may appoint an expert to give a report on the             issue.

(6) The court may appoint an expert other than an expert named in the supporting material.

(7) In deciding whether to appoint an expert, the court may consider—

     (a) the complexity of the issue; and

     (b) the impact of the appointment on the costs of the contemplated proceeding; and

     (c) the likelihood of the appointment expediting or delaying the contemplated proceeding; and

     (d) the interests of justice; and

     (e) any other relevant consideration.

(8) The court may give directions as to—

     (a) the time in which the report is to be prepared and given to the first person; and

     (b) any filing of the report.

(9) The court may make orders and give directions to facilitate the expert’s preparation of a report.

(10) Rule 428 (2) and (3) apply in relation to the report.

(11) Unless the court otherwise orders, in any proceeding started in the court between the first person and 1 or more of the other persons in             which the issue is relevant, the expert appointed under this rule is to be the only expert who, in relation to those persons, may give                     evidence on the issue.

(12) The fees and expenses of an expert appointed under this rule, and the costs of the application, are to be borne by the first person, unless          and until the court otherwise orders either on the application or in any proceeding started between the first person and 1 or more of the              other persons in which the issue is relevant.

(13) The court may give directions as to the right to cross-examine an expert appointed under this rule.