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Expert Blog

Increasing Adoption of Harmonised Expert Witness Code of Conduct – Towards a Nationwide Approach

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As outlined in our November 2016 blog, Sweeping Changes for Federal Court Practice Notes, the Federal Court, in late 2016, issued 26 updated practice notes for use in federal litigation. The previously used Practice Note CM7 Expert Witnesses in Proceedings in the Federal Court of Australia was replaced with the considerably lengthier Expert Evidence Practice Note (GNP-EXPT) which included 2 annexures, the Harmonised Expert Witness Code of Conduct in Annexure A and the Concurrent Expert Evidence Guidelines in Annexure B.

In this blog, we consider the approach taken in the Harmonised Expert Witness Code of Conduct and the adoption of this Code by a number of states.

Content of the Harmonised Code

The Harmonised Expert Witness Code of Conduct covers issues which are commonly covered by the state based expert witness codes of conduct including:

  • The application of the code;
  • An expert witnesses’ duties to the court;
  • Requirements concerning the content of the report;
  • Protocol for when an expert changes their opinion;
  • Duty to comply with the court’s directions; and
  • Expert requirements when participating in expert witness conferences.

Adoption by the states

Currently, 4 states and territories have adopted the Harmonised Expert Witness Code of Conduct: ACT, NSW, Tasmania, and Victoria. As a result, these states have a uniform approach to expert witness conduct when compared with the approach in the Federal Courts.

Advisory firm KordaMentha have provided the following summary of the approach taken by each state with respect to their expert witness codes of conduct[1]:

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The benefits of a uniform approach to expert witness conduct are widespread. From the perspective of the expert witness, a uniform standard of expert witness obligations creates a greater level of consistency across jurisdictions, which will in turn reduce the complexity for experts operating in different jurisdictions. It will also enable experts to produce reports more efficiently, with less time spent complying with state-specific rules and more time focusing on the content of the report.

From the perspective of legal counsel and the client, a uniform system of expert witness guidelines reduces the need for state-specific guidance for expert witnesses, which should reduce time spent providing guidance to expert witnesses who give testimony in multiple jurisdictions. Less time spent by legal counsel on any one task translates to lower fees for the client and as such, a harmonisation of expert witness codes of conduct should lead to lower fees in relation to preparing expert witnesses for trial.

Non-Adopting States

While the expert witness codes of conduct utilised in the 4 states which have not adopted the Harmonised Expert Witness Code of Conduct are fairly similar to the harmonised code, differences do exist which add to the requirements with which expert witnesses must comply. For example, the South Australian code of conduct includes a requirement that an expert witness report ‘identify the differences (if any) in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’. Such a requirement is not present in the harmonised code of conduct.

Conclusion

The harmonisation of expert witness codes of conducts reflects an exciting step forward for both expert witnesses and legal counsel responsible for ensuring that the witnesses are aware of the requirements to which they must adhere in the jurisdiction in which they are testifying. A uniform approach across the nation’s jurisdictions increases efficiency and productivity in the legal industry and is, without a doubt, a positive step forward for expert witnesses and the legal industry.

[1] Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha, http://kordamentha.com/publications/expert-matters-only-some-experts-in-harmony?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

 

  • http://FMEngineers.com.au Tim White

    So does this mean that for jobs in the harmonised states, the Expert should acknowledge/declare compliance with the new Federal Code, rather than a State one, even if the instructing lawyer’s letter specifies a State Code?