Expert
Witness Guidelines Developed co-operatively by Federal
Court and Law Council (14 October 1998)
(Joint Press
Release by the Federal Court of Australia and the Law
Council of Australia)
In a first
for the Federal Court of Australia and the legal profession,
the Court and the Law Council of Australia have developed
co-operatively a Federal Court practice direction governing
the use of expert witnesses in that Court.
The joint
development of the expert witness practice direction is
an excellent example of the courts and the legal profession
working together in a practical and constructive way to
bring about effective reform to court process.
The development
of the practice direction arose out of a mutual concern
on the part of both the Court and the Law Council, that
expert witnesses may be uncertain as to their role in
giving expert evidence. The purpose of the practice direction
is to define that role to expert witnesses, and to provide
guidelines for legal practitioners and their clients in
relation to the use of expert witnesses.
•an expert witness has an over-riding
duty to assist the Court on matters relevant to the expert’s
area of expertise;
• an expert witness
is not an advocate for a party; and •an
expert witness’ paramount duty is to the Court and
not to the person retaining the expert.
Legal practitioners
will now be required to provide any expert witnesses they
intend retaining for a case, with a copy of the practice
direction.
Amongst other
things, the practice direction requires expert witnesses
to qualify findings in their reports (where they believe
their report may be incomplete or inaccurate without some
qualification), and to give reasons for their opinions.
Expert witnesses
are now also required to disclose all instructions given
to them which define the scope of their report, and to
disclose the facts, matters and assumptions upon which
their report proceeds.
Expert witnesses
must now also disclose if their opinions are not fully
researched because they consider that insufficient data
is available, and if a particular question or issue falls
outside their field or expertise.
In another
major change, the practice direction provides that if
expert witnesses retained by parties in a case meet at
the direction of the Court, it would be improper conduct
for an expert to be given or to accept instructions not
to reach agreement in that meeting. The direction instructs
that if the expert witness cannot reach agreement on matters
of expert opinion, they must provide reasons for this
to the Court.
The development
of the practice direction is one of a number of projects
on which the Court and the legal profession are working
together, with the objective of streamlining court procedures
and processes, without compromising the procedural fairness
of Australia's civil litigation system.
Media
contact:
• for
Chief Justice Michael Black AC (Chief Justice, Federal
Court of Australia): Bruce
Phillips on (03) 8600 3270 5448 (bh) or 0419 341
506.
• for Bret Walker SC (President, Law Council of Australia):
Patrick Daley on (02)
6247 3788 (bh) or 0419 269 855.
