Victoria Embraces Expert Witness Code of Conduct

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As of June 1, 2016, the Victorian Supreme Court (General Civil Procedure) Rules 2015 (the Rules) were updated to include an expert witness code of conduct which is uniform with other Australian jurisdictions.

The amendments remove the previous requirements for an expert witness report found in regulation 44.03(2). This provision provided that an expert witness report must contain the following:

  “    (a)     the name and address of the expert;

        (b)     an acknowledgement that the expert has read the code and agrees to be bound by it;

        (c)     the qualifications of the expert to prepare the report;

        (d)     the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed);

        (e)     in respect of the opinion—

              (i)     the reasons for it;

              (ii)     any literature or other materials utilised in support of it; and

              (iii)     a summary of it;

        (f)     if applicable, that a particular question, issue or matter falls outside the expert’s field of expertise;

        (g)     any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications;

        (h)     a declaration—

              (i)     that the expert has made all the enquiries which the expert believes are desirable and appropriate; and

              (ii)     that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;

        (i)    any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;

        (j)     whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.”

The previous requirements set out in regulation 44.03(2) have been replaced by Form 44A of the Rules. This new form, which is extracted below, sets out an expert witness code of conduct which goes beyond the prior requirements which dealt only with the content of an expert witnesses’ report. The new code of conduct, in addition to setting out requirements in relation to content, also sets out the following:

  • to whom the code applies (being expert witnesses who will provide either a report or evidence in proceedings or proposed proceedings);
  • an expert witnesses’ general duties to the Court;
  • when a supplementary report, following a change of opinion, is required;
  • an expert witnesses’ duty to comply with the Court’s directions including in relation to conferring with other expert witnesses and providing a joint report; and
  • the requirements of expert witnesses when participating in expert witness conferences (for more information on concurrent evidence by expert witnesses see our blog NSW District Court – Joint Conferences for Expert Witnesses).

While not identical in form, the new Victorian expert witness code of conduct brings Victoria more closely in line with the expert witness requirements set by NSW (pursuant to Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)), the ACT (pursuant to Schedule 1 of the Court Procedure Rules 2006 (ACT)), Western Australia (pursuant to Annexure C of Consolidated Practice Direction – Civil Jurisdiction, dated 19 July 2005), South Australia (pursuant to Part 9, Division 2 of the Supreme Court Civil Supplementary Rules 2014 (SA)), Tasmania (pursuant to sections 514-517 of the Supreme Court Rules 2000 (TAS)), and the Northern Territory (pursuant to Practice Direction No 4 of 2009).

It is important to note that these state-based codes of conduct, while similar, are not identical and consideration must be given to the state specific code of conduct before briefing an expert witness.

Form 44A—Expert witness code of conduct

Rule 44.01

expert witness code of conduct

Application of Code

  1. This Code of Conduct applies to any expert witness engaged or appointed—

(a)  to provide an expert’s report for use as evidence in proceedings or proposed proceedings; or

(b)  to give opinion evidence in proceedings or proposed proceedings.

General Duties to the Court

  1. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.

Content of Report

  1. Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide—

(a)  the name and address of the expert;

(b)  an acknowledgment that the expert has read this code and agrees to be bound by it;

(c)   the qualifications of the expert to prepare the report;

(d)  the assumptions and material facts on which each opinion expressed in the report is based (a letter of instructions may be annexed);

(e)   the reasons for and any literature or other materials utilised in support of each such opinion;

(f)   (if applicable) that a particular question, issue or matter falls outside the expert’s field of expertise;

(g)  any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications;

(h)  to the extent to which any opinion which the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and opinion expressed by that other person;

(i)   a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, (save for any matters identified explicitly in the report) and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;

(j)   any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;

(k)   whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason; and

(l)   where the report is lengthy or complex, a brief summary of the report at the beginning of the report.

Supplementary Report Following Change of Opinion

  1. Where an expert witness has provided to a party (or that party’s legal representative) a report for use in Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (l) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 
  2. In any subsequent report (whether prepared in accordance with clause 4 or not) the expert may refer to material contained in the earlier report without repeating it.

Duty to Comply with the Court’s Directions

  1. If directed to do so by the Court, an expert witness shall—

(a) confer with any other expert witness;

(b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing; and

(c)  abide in a timely way by any direction of the Court.

Conference of Experts

  1. Each expert witness shall—

(a) exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement; and

(b) endeavour to reach an agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.”.

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