January 20, 2025
Once a party has retained any expert witness for a civil proceeding, they are bound by the rules prescribed in Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). This week, we explore the duties & responsibilities of an expert witness under the UCPR and considerations when finding the ‘right’ expert.
UNIFORM CIVIL PROCEDURE (EXPERT EVIDENCE) AMENDMENT RULE 2022
In 2022, the Uniform Civil Procedure (Expert Evidence) Amendment Rule 2022 (‘the amendment rule’) came into effect in Queensland, which sought to align the pre-existing expert evidence rules of the UCPR with current and best practice. In particular, the amendment rule affirmed the duties and responsibilities of experts, including compliance with a new Code of Conduct. The amendments apply consistently across the Supreme Court, the District Court and the Magistrates Courts (except for minor civil claims).
DUTIES & RESPONSIBILITIES OF AN EXPERT WITNESS
Rules surrounding the giving of evidence by experts and related matters are prescribed under Division 4 of the UCPR. Accordingly, this division applies if an expert is appointed in relation to a proceeding, whether under Division 5 (‘appointment of experts by parties jointly and by court’) or otherwise.[1] Against this backdrop, Rule 429F(1) expressly states that the expert has a duty to assist the court, where the expert is: (a) not an advocate for a party to the proceeding; and (b) must not accept instructions from any person to adopt or reject a particular opinion.[2] Furthermore, the expert must comply with the requirements under the code of conduct (see below).[3] Importantly, the expert’s duties under Rule 429F override any obligation the expert may have to any party to the proceeding or any person who is liable for the expert’s fees or expenses.[4]
Nature of Expert Evidence
Subject to Rule 429G(5), which posits that the expert may give oral evidence-in-chief in the proceeding only if the court gives leave, the expert may give evidence-in-chief in the proceeding only by a report.[5] The report may be tendered as evidence in the proceeding only if the report has been disclosed under this part or the court gives leave.[6] In addition to this rule, the report may be admitted in evidence in the proceeding only if the report confirms the expert has read, and agrees to be bound by, the code of conduct.[7]
Rule 429H sets out the requirements for the expert report, which inter alia includes the expert’s qualifications, all material facts, references to any literature or other material relied on by the expert to prepare the report, a summary of the conclusions reached by the expert, and a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.[8]
Under Rule 429H(4), the expert must also confirm in the report that:
(a) they have read, and agrees to be bound by, the code of conduct;
(b) the factual matters stated in the report are, as far as the expert knows, true;
(c) the expert has made all inquiries considered appropriate;
(d) the opinions stated in the report are genuinely held by the expert;
(e) the report contains reference to all matters the expert considers significant; and
(f) the expert understands their duty to the court and has complied with the duty.
Supplementary Report
If the expert changes, in a material way, an opinion included in an earlier report, they must, as soon as practicable after the change of opinion, give written notice of the change of opinion as well as the reason for the change to the registrar (if the expert is a court-appointed expert) or otherwise, the party who appointed the expert.[9]
Code of Conduct
The Code of Conduct for Experts (‘Code of Conduct’) is contained in Schedule 1C of the UCPR, which applies to an expert who is appointed to give opinion evidence, whether orally or in a report, in a proceeding.[10] Beyond duties to comply with court orders and directions, and rules surrounding experts’ conferences and joint reports, the Code of Conduct restates Rules 429F, 429H and 429K.
CONSIDERATIONS WHEN FINDING THE ‘RIGHT’ EXPERT
Most importantly, when engaging the ‘right’ expert, that person must be, by reason of training, study of experience, an expert in a field of specialised knowledge. Although it may not always be a straightforward endeavour to work out who actually is the ‘right’ expert (particularly in new and emerging fields such as cryptocurrency), instructing solicitors can still minimise the chances of retaining an unsuitable expert by clearly explaining the issues in relation to which an opinion is sought and have the expert confirm that those issues actually fall within their area of expertise. Other considerations may include whether the expert can express themselves clearly when speaking and writing, whether they will be easy to work with, their ability to meet timelines or prior experience as an expert witness.
Stay tuned for the final instalment of this series, which will cover joint expert reports and the conclaving process.
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge and experience dealing with expert evidence. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advice for litigation of all scopes and sizes.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Cliff Mei
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Level 2, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064
[1] Uniform Civil Procedure Rules 1999 (Qld) r 429D (‘UCPR’).
[2] UCPR r 429F(2).
[3] UCPR r 429F(3).
[4] UCPR r 429F(5).
[5] UCPR r 429G(1).
[6] UCPR r 429G(2).
[7] UCPR r 429G(4).
[8] UCPR r 429H(2).
[9] UCPR r 429K.
[10] UCPR schedule 1C, r 2(1).