On 25 October 2016, the Federal Court issued 26 updated practice notes that will apply to future cases and cases currently underway. The new practice notes cover specific issues including: employment and industrial relations, taxation, class actions, cost orders, and cross-border insolvency. This blog will delve into the new practice notes for expert evidence and intellectual property. The Federal Court have also issued a Central Practice Note which details a national court framework and case management. This Central Practice Note covers issues such as: the purpose of proceedings, alternative dispute resolution, principles of allocation, case management objectives (such as reducing issues in contest), discovery, and evidence and witnesses.
Updates to the Expert Evidence Practice Note
The previously used Practice Note CM7 Expert Witnesses in Proceedings in the Federal Court of Australia has now been replaced with the considerably more lengthy Expert Evidence Practice Note (GNP-EXPT). This updated note also includes 2 annexures, the Harmonised Expert Witness Code of Conduct in Annexure A and the Concurrent Expert Evidence Guidelines in Annexure B.
The majority of provisions from the prior practice note feature in the newly updated note. These provisions include requirements to: acknowledge the practice note, identify the training, study, and experience by which the expert acquired their specialised knowledge, and set out the reasons for the opinion.
In addition, the Federal Court has included provisions dealing with practices which, prior to this updated note, constituted common practice among veteran experts but had not been formally recognised. These requirements include:
– Including the expert’s name and address in the expert report;
– Including a concise summary of the report at the beginning if the report is complex or lengthy;
– Identifying the extent to which an expert’s report involves the acceptance of another opinion (including identifying that person and their opinion); and
– Identifying examinations, investigations, and tests relied on by the expert as well as the person who carried out such tests and their qualifications.
Concurrent Expert Evidence Guidelines
The Federal Court’s concurrent expert evidence guidelines provide guidance as to the Court’s approach to concurrent evidence and the procedures by which such evidence may be given. The guidelines note as follows:
– The determination of whether concurrent expert evidence is appropriate is a matter for the Court to decide after giving consideration to the circumstances of the case.
– The use of concurrent expert evidence is not suitable in all circumstances. As an example of such a case in which concurrent evidence is of no assistance, the court discusses a patent case where the entire dispute centred on conflicts within fields of expertise.
– Where appropriate, the use of concurrent evidence:
– Allows experts to more effectively hone in on the key points of disagreement and resolve such issues more quickly;
– Allows evidence to be provided at once rather than over the course of several days for each expert, allowing the judge to assess the expert evidence more readily; and
– Reduces the confrontational nature of expert witnesses, transforming experts into assistants of the court rather than advocates for opposing parties.
– When concurrent evidence is deemed appropriate the Court will likely make orders requiring either a conference of experts or the preparation of a joint report to enable concurrent evidence to be given at trial.
– At trial, the giving of concurrent evidence is to be flexible, allowing consideration of the nature of evidence and the case itself. Additionally, the judge will guide the process of evidence, for example ensuring that each expert is given sufficient opportunity to deal with the issues at hand and allowing each expert to summarise their views at the end of giving their evidence.
Intellectual Property Practice Note
The new suite of practice notes also includes an intellectual property specific practice note which applies in relation to a variety of intellectual property related proceedings including:
– Patents granted under the Patents Act 1990 (Cth);
– Trade marks registered under the Trade Marks Act 1995 (Cth);
– Copyrights registered under the Copyright Act 1968 (Cth);
– Certain layout rights under the Circuits Layout Act 1989 (Cth);
– Geographical indications or other terms registered under the Australian Grape and Wine Authority Act 2013 (Cth); and
– Certain tort claims under consumer law.
The practice note also provides guidance in relation to case management procedures. For example, at the initial case management hearing, the practice note provides that the court will consider the following issues in relation to expert witnesses in patent proceedings:
– The manner in which experts are introduced to the relevant patent; and
– Whether the nature of the technology in question requires a tutorial via expert written evidence.
The practice note also provides that in patent infringement cases the parties should consider a court appointed expert, particularly in cases which raise issues requiring “scientific testing or analysis or products of processes” (section 6.25 of the practice note).
The practice note also specifically addresses the issue of expert evidence in intellectual property cases in section 10.2 noting:
“Parties intending to rely on expert evidence at trial are expected to consider between them and inform the Court at the earliest opportunity of the best way to efficiently manage and adduce expert evidence, including such matters as the use of joint-reports, concurrent evidence, and how evidence may best be given (orally or in writing) and so on.”
The new Federal Court practice notes provide a heightened set of guidelines for legal counsel dealing with expert witnesses. They also provide expert witnesses with a more detailed summary of the process of giving expert evidence and their role during the process. While this blog has dealt only with the updated guidelines for expert witnesses and intellectual property, it should be emphasised that these practice notes cover a wide variety of practice areas with which legal counsel and expert witnesses should familiarise themselves as soon as possible.