When is an expert not an expert witness?

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Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937

This case considers the issue of when a witness provides expert testimony but does not fall within the definition of an “expert witness” under the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) and as such is not bound by the Expert Witness Code of Conduct in Schedule 7 of the UCPR.

Background

The issue under consideration centres around evidence given by Ken Pankhurst in the course of a dispute, the facts of which are not relevant to the current discussion. During his testimony, Pankhurst demonstrated specialised knowledge based on his training and experience as a rigger. These opinions were admissible by virtue of s79(1) of the Evidence Act 1995 which provides as follows:

Exception: opinions based on specialised knowledge
(1)  If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

However, Pankhurst’s evidence was objected to on the basis that the Expert Witness Code of Conduct found in Schedule 7 of the UCPR had not been complied with.

The Relevant Law 

Under rule 31.23(1) of the UCPR, an expert witness is required to comply with the Expert Witness Code of Conduct which is set out in Schedule 7 to the UCPR.

Additionally, rule 31.23(3) of the UCPR provides that an expert’s report may not be admitted in evidence unless the report contains “an acknowledgement by the expert witness…that [he] has read the code of conduct and agrees to be bound by it.”

In a similar manner, oral evidence from an “expert witness” may not be received unless the court is satisfied that the expert witness has acknowledged that he agrees to be bound by the code of conduct that he has read (rule 31.23(4)).

It is relevant to note that the Court has a discretionary power to dispense with either of these requirements provided there is good reason to do so. Exceptional circumstances are not required (Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [56] – [62]).

“Expert” and “expert witness” are defined in rule 31.18 of the UCPR as follows:

“Expert” means “in relation to any issue, … a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.”

“Expert witness” means:

an expert engaged or appointed for the purpose of: 

  • (a)  providing an expert’s report for use as evidence in proceedings or proposed proceedings,

or

  • (b)  giving opinion evidence in proceedings or proposed proceedings.

Findings

Price J held that while Pankhurst fell within the UCPR definition of “expert”, he did not fall within the definition of “expert witness”. This was by virtue of the fact that he was an employee of the NSW Roads and Traffic Authority (the RTA) in the capacity of a surveillance officer on the Batemans Bay Bridge. His role was to replace wires on that bridge, which was of a similar design and construction to the Hexham Bridge, which was the subject of the current dispute.

Critically, the RTA had instructed Pankhurst to attend a site meeting at the Hexham Bridge concerning the management of counterweight ropes, an issue which was in his area of expertise and on which he gave his views of the aspects of work he was requested to consider. At this time, court proceedings were not contemplated and as a result Pankhurst was not engaged for the purpose of providing an expert witness report or for giving opinion evidence in a proceeding of proposed proceeding.

As such, it was held that Pankhurst did not fall within the UCPR definition of “expert witness” by swearing an affidavit in the proceedings. Rather, the expert opinion evidence he provided was handed down in his capacity as an employee of the RTA. Since Pankhurst was not engaged or appointed for the purpose of providing opinion evidence in a proceeding or proposed proceeding (Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 at [11]), it was held that the expert witness code of conduct did not apply to him.

Lessons Learned

This case provides a clear example of when a witness, despite providing expert testimony, is not subject to the Expert Witness Code of Conduct found in Schedule 7 of the NSW UCPR. Prudent legal counsel would most likely ensure that all expert witnesses, regardless of categorisation under the UCPR, adhere to the Code of Conduct. However, it is critical for legal counsel to be aware that in situations such as the above, the Code of Conduct does not always apply in order to avoid unnecessary delays to trial caused by ill-informed objections to an expert’s conduct.

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