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Expert Blog

When Does an Expert Report Need to Be Served as an Affidavit?


Generally expert witness reports do not need to be served as an affidavit. The only jurisdiction which requires an affidavit to be provided in conjunction with an expert report is the Family Court. This is not to say that other courts and jurisdictions do not accept affidavits in relation to expert evidence (for example, the Federal Court provides guidance on the preparation of expert witness affidavits); rather, the Family Court is the only court to mandate that expert witnesses verify their reports with an affidavit.

Furthermore, the Federal Court Rules 2011 (Cth), the Uniform Civil Procedure Rules 2005 (NSW), the Court Procedure Rules 2006 (ACT), and the Supreme Court Rules (NT) contemplate situations where it may be required that an affidavit be served in relation to expert evidence. Set out below is a consideration of whether an expert report needs to be filed as an affidavit in each Australian jurisdiction.

Family Court

Under rule 15.62(1)(c) of the Family Law Rules 2004 (Cth), an expert report must be verified by an affidavit of the expert witness.

Pursuant to section (2) of rule 15.62 this affidavit must state the following:

“I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.

I believe that the facts within my knowledge that have been stated in this report are true.

The opinions I have expressed in this report are independent and impartial. I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.

I have complied with the requirements of the following professional codes of conduct or protocol, being [ state the name of the code or protocol].

I understand my duty to the court and I have complied with it and will continue to do so.”

The Family Court provides a form for this affidavit on their website. There is no filing fee for this affidavit.

High Court

The High Court Rules 2004 (Cth) do not contain a requirement that an expert report be served as an affidavit.

Federal Court

The Federal Court Rules 2011 (Cth) do not require that an expert report be served as an affidavit. However, consideration should be given to Rule 23.15 of the Federal Court Rules if two or more parties intend to call expert witnesses to give opinion evidence about a similar issue. Under this rule, if this occurs any of those parties may apply to the Court for an order that all factual evidence relevant to any expert’s opinion be adduced before the expert is called to give evidence. On completion of such factual evidence each expert is required to swear an affidavit stating:
a) whether the expert adheres to the previously expressed opinion; or
b) if the expert holds a different opinion:
    I. the opinion; and
   II. the factual evidence on which the opinion is based.

NSW

There is no requirement under either the Uniform Civil Procedure Rules 2005 (NSW) or the Criminal Procedure Act 1986 (NSW) that an expert report be served as an affidavit.

However, under Regulation 31.35 of the Uniform Civil Procedure Rules 2005 (NSW), if two or more parties call an expert witness to opine about the same or similar issues (or indicate an intention to do so) the court may direct that after all factual evidence relevant to the issue (or such evidence specified by the court), has been adduced, each expert witness must file an affidavit or statement indicating:
a) Whether the expert witness adheres to any opinion given earlier; or
b) Whether in light of any such evidence, the expert witness wishes to modify any opinion given earlier.

Victoria

Neither the Civil Procedure Act 2010 (VIC), the Supreme Court (General Civil Procedure) Rules 2005 (VIC) nor the Criminal Procedure Act 2009 (VIC) provide that an expert report must be served as an affidavit.

Queensland

Neither the Uniform Civil Procedure Rules 1999 (QLD) nor the Criminal Practice Rules 1999 (QLD) require that an expert report be served as an affidavit.

Western Australia

Neither the Magistrates Court (Civil Proceedings) Act 2004 (WA), the District Court of Western Australia Act 1969 (WA), the Supreme Court Act 1935 (WA), nor the Criminal Procedure Act 2004 (WA) contain a requirement that an expert report be served as an affidavit.

South Australia

There is no requirement under the Supreme Court Act 1935 (SA), District Court Act 1991 (SA), Magistrates Court Act 1991 (SA), or the Summary Procedure Act 1921 (SA) that an expert report be served as an affidavit.

The Supreme Court Act 1935 (SA) is supplemented by the Supreme Court Practice Directions 2006. This direction does not contain a requirement that an expert report be served as an affidavit.

Tasmania

Neither the Supreme Court Civil Procedure Act 1932 (TAS), the Magistrates Court (Civil Division) Act 1992 (TAS), nor the Criminal Code Act 1924 (TAS) contain a requirement that an expert report be served as an affidavit.

Australian Capital Territory

Under the Court Procedures Act 2004 (ACT) nor the Court Procedure Rules 2006 (ACT) there is no requirement that an expert report be served as an affidavit.

However, consideration should be given to Regulation 1211 of the Court Procedure Rules 2006 (ACT) if two or more parties to a civil proceeding call (or intend to call) expert witnesses to give opinion evidence about the same (or similar) issue at trial. If this occurs, then the Court (either on its own initiative or at the application of a party to the proceeding) may give a direction that, after all or certain factual evidence has been given, a party who called an expert witness must file and serve on each active party to the proceeding an affidavit or statement by the expert witness stating:
a) Whether the expert witness adheres to any opinion given earlier; or
b) Whether in the light of any such evidence, the expert witness wishes to modify any opinion given earlier.

Northern Territory

Neither the Supreme Court Act (NT), Supreme Court Rules (NT), nor the Local Court Act (NT) contain a requirement that an expert report be served as an affidavit.

However, Regulation 44.05 of the Supreme Court Rules (NT) includes a provision akin to Regulation 1211 of the Court Procedures Rules 2006 (ACT) contemplating the possibility of an expert witness being required to prepare an affidavit upon request of the court where there is more than one expert witness giving evidence on a particular issue.

As can be seen, there is only a strict requirement that expert witness reports be filed as affidavits in the Family Court. However, legal practitioners should be aware of the requirements in the Federal Court, NSW, ACT, and NT courts which may require that an affidavit be produced in conjunction with expert testimony.