The following memorandum is provided explain your duties and responsibilities as an expert witness appearing in the Supreme Court of Victoria. Below I have refereed to the relevant provisions contained in
the Supreme Court Rules, Practice Notes, Codes of Conduct (all of which are attached) as well as numerous common law examples in order to provide you with a general overview of your expectations and responsibilities as an expert witness.
The court requires that as an expert witness, you posses the relevant qualifications and experience necessary to demonstrate that you are an expert in the subject in which you are being asked to express an opinion, (refer to Order 44.01 Supreme Court (General civil procedure) Rules 2005 for a definition of “expert.”). Experts obtain a privileged position among witnesses in the court system. They are allowed to present specialist evidence in the form of opinion in much broader circumstances than the lay witness. This is so long as the opinion is bona fide, or involves a matter squarely falling within the expert’s expertise. In addition to this, it is vital to ensure that your observations do not cross your barrier of expertise. I refer you to the cases of Peisley v R (1990) and R v MacKenney & Pinfold(1983), in which an expert opinion was dismissed for this very reason. Furthermore, in Duke Group Ltd v Pilmer (1998) , Mullighan J was very critical of the expertise of an accountant on the basis that he had never been called upon to value businesses such as merchant banking or insurance broking (relevant in this case), nor had he practiced as an accountant in such businesses. This led him to conclude that the accountant involved did not warrant sufficient expertise in regards to the issue in which he was offered as an expert witness.
Therefore, please ensure that you do not discuss issues that evidently fall outside the scope of what the court would consider you to be qualified. This rule was well summed up in R v Beland (1987) who stated that “the function of an expert is to provide for the jury proved facts in a field in which the expert witness possesses special knowledge and experience going beyond that of the trier of fact.” It is also worth noting that no scope exists for expert evidence where an ordinary person is capable of forming a correct view on a particular subject. For example, it is obvious that the court would not require an expert accountant like yourself to add and subtract simple number values.
As an expert witness, there are various roles that you, or the party retaining you, may wish to adopt. However, the Code of Conduct, Form 44A(1) states that those who are engaged as an expert witness have a paramount obligation to assist the court, rather than the party retaining them (see also s.11.2 Practice Note 2004) I therefore advise that you refrain from misrepresenting your expertise in order to assist the party to which you have been appointed, often refereed to as a “hired gun.” Conceivably, someone who misguidedly believes that his/her duty is to adopt an ethical stance for their own, or for their parties, private purpose, may embrace the “hired gun” role. However, whilst a lawyer may have a duty to argue for a standpoint he or she does not
personally believe in, this is completely contrary to the role of an expert witness. It should be clear by now that the only role suitable to adopt as an expert witness is that of an educator. This involves providing the court and the jury with the appropriate knowledge and information relevant to the particular case in which the ordinary person would be unacquainted.
An issue often raised by expert witnesses relates to the extent to which a legal party may assist in forming their expert opinions and assumptions. The foremost principal is for the expert witness to ensure that their independence is not at any stage undermined. I refer you to the case of Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd (2005), which involved a solicitor amending the draft report provided to him by an expert witness. An investigation of this claim led to Wilcox J concluding that the expert was willing to concede his independence for the sake of the party retaining him, therefore forbidding the expert’s opinion to be relied on in any contentious matter. Please note that providing your solicitor with a draft report to ensure that no facts or assumptions have been falsely relied on is, by all means, acceptable.
Due to the above statements, I strongly advise that regardless of any pressure placed on you from a legal party, you uphold your independence at all times. If not, the court is likely to identify any bias through further expert reports from the opposing party or during cross-examination. The court may also order that the opposing party be entitled to all notes, drafts and emails between the expert and the legal team retaining them in order to determine whether the independence of the expert has been undermined. In addition to this, the expert shall disclose any bias or conflict of
interest that may arise. If the above advice is ignored, it may inevitably lead to your credibility and reputation as a future expert witness being severely tarnished. Should any doubt arise in the above matter, I advise that you ask yourself the question, would my expert opinion have been unaffected had the opposing party retained my expert knowledge to enhance their case? If the answer is no, then you must seriously consider your credibility as an expert witness.
Reports and Conference
Order 44.03(2), s11.3, Form 44A(3) of the Supreme Court Rules, Practice Notes and Codes of Conduct (respectively) each contain provisions stating that an expert witness is to submit a report stating their opinion no later than 30 days before the trial. Along with providing your name, address and qualifications, the report must acknowledge that the code of conduct has been read and adhered to. If such acknowledgement is absent, the expert evidence will be deemed invalid. The fundamental aspect of the expert report requires that you state the facts and assumptions on which each opinion is based.
It is imperative that the provisions mentioned above and stated in the attachments are vigilantly abided by. This is as s44.05 of the Supreme Court (General civil procedure) Rules 2005 disallows any further evidence (except by leave of the court, consent by affected parties or through cross-examination) to be heard during the trial unless contained within the report. If an expressed opinion in the report is inaccurate, incomplete or not a concluded opinion (due insufficient research or data, etc), this must be stated via a declaration to be included in the report. This is as Judges will no longer accept an expert opinion without a critical and independent evaluation.
If, for a variety of different reasons, the report is amended by the expert at any stage of the proceeding, that change of opinion is to be made known to the party which has retained your services and ,when appropriate, to the court.
Order 44.06, s11.6 and Form 44A(5) of the Supreme Court Rules, Practice Notes and Codes of Conduct (respectively) contain provisions allowing the court to direct all expert witnesses involved in a case to confer before the trail. I highly recommend that you familiarise yourself with these provisions, as a conference is most likely to be ordered if 2 or more expert opinions are obtained. The experts participating in the conference are required to provide a joint report detailing matters in which they agree, disagree and a summary of the reasons for disagreement. It is vital that all experts in attendance of the conference are acting independently, without any influential assistance from either party involved in the trial (refer to s.11.6(a) and (b) of the Practice Notes attached). Legal representatives shall only play a role in the conference if directed by the court. I refer you to the case of Phosphate Co-operative Co. of Australia Pty Ltd v Shears (1989). This case involved several expert accountants that remained in frequent contact with their legal representatives, and were thus prepared to alter their expert opinions in a favourable fashion towards the party retaining them. Due to this, the expert reports were not permitted as suitable evidence to be admitted in the trial. While this case involved the expert accountants being influenced in their report writing rather than during a conference, the primary principal derived from the case was that care needs to be taken to ensure that the independence of the expert is not unlawfully violated at any time.
The basis rule and awareness of the facts
The facts upon which an expert opinion is based must be available for scrutiny by the Courts. It is not expected that a court act upon an opinion, the basis for which is not explained by the witness expressing it. For an experts view to contain value, the court expects that the facts of their opinion be proved by acceptable means or to state unequivocally the presumptions as to the facts on which the opinion is based.
This point was highlighted by Priestley JA in Makita (Australia) Pty Ltd v Sprowles (2001) who stated that “the expert must either prove by admissible ways the facts on which the opinion is based, or state unambiguously the assumption as to the fact on
which the opinion is based. For example, Bugg v Day (1949) involved an expert witness being criticised as he reached a conclusion in regards to the speed of a vehicle without the necessary data.
Furthermore, it is imperative that the expert witness, either through the party retaining them or some other means, be educated and informed in relation to the facts and circumstances of the case. The above notion was discussed in Makita (Australia) Pty Ltd v Sprowles (2001) and Ronchi v Portland Smelter Services (2005) (which I strongly recommend for further discussion on the following issues). These cases raised the issue of the expert being able to identify the facts of the case relied upon in order to form their opinion. For example, the Full Federal Court in Arnotts Ltd v Trade Practices Commission (1990) stated that Dr Williams, appearing as an expert witness, failed to identify the facts of the case in which his opinion was based. This is as other material presented in the case, in which Dr Williams may not have been aware of, may have altered his expert opinion if they were known. Further, Eames J.A stated in Ronchi that the court does not require the expert to reveal what they were told in order to determine its truth, rather it is to identify how the expert reached his/her opinion. Before the court can assess the value of an opinion, it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration, the opinion is likely to be insignificant. Therefore, it is crucial that as an expert witness, you familiarise yourself with the facts of the case, in order for the court to be able to distinguish on what basis the expert opinion is founded.
At this stage it is worth noting that an expert witness is not to express his/her opinion on the very question on which the court itself is obliged to decide. The expert cannot give an opinion as to the ultimate fact that the court has to decide. Put simply, judges decide case, not experts.
Read in conjunction with the attachments I have included (which I urge that you read and familiarise yourself with), this memorandum shall provide you with the knowledge of the duties that an expert witness owes to the Supreme Court. If you wish to further discuss any of the issues raised, I would advise that you contact the legal party that has retained your services.
Cairns B Australian Civil Procedure 6th edition Pyrmont NSW (2005).
Freckleton I, Hugh S Expert Evidence; law, practice procedure and advocacy (2005) Lawbook.Co, NSW
Gillies H. Law of Evidence in Australia. Pyrmont, NSW (2003)
Golvan G, Each to their own: Addressing the problem of expert witnesses partially (2006) 80(9) Law Institute Journal.
Walters J.M Expert Witnesses that make a difference, Law Society of Western Australia (1997).
Supreme Court (General civil procedure) rules (2005).
Supreme Court (General civil procedure) rules (2005), Codes of Conduct.
Supreme Court of Victoria “Practice Note No.4 of 2004” Commercial List.
Cases (where primary legal source has been cited)
Makita (Australia) Pty Ltd v Sprowles (2001)52 NSWLR 705
Ronchi v Portland Smelter Services (2005) VSCA 83