Updates and background for this project (Digest)
REQUIREMENTS FOR EXPERTS TO CONSULT, AND/OR REPORT ISSUES
4.1 In many jurisdictions, there are now rules to the effect that the Court may require experts to consult with each other before the hearing, and produce for the court a statement setting out the matters on which they agree and those on which they disagree.17 The purpose of such rules is to assist the parties to identify misunderstandings and assist the experts to adopt reasonable positions, thereby maximising the chances of settlement and, in the cases that do not settle, reducing the time spent at the trial.18
METHODS OF RECEIVING EXPERTS' EVIDENCE
4.2 Commonly, expert evidence is contained in a written form (for example, a report or affidavit) and filed on behalf of the each of the parties before the hearing. Ideally, this process gives each party the opportunity to consider the issues and consult with their own expert, before the hearing, maximising the chance that agreement may be reached. Typically, the rules provide for this process.19 At the hearing, the experts are normally available for cross-examination. In addition, it is generally open to the court to direct that their evidence in chief may be given orally rather than in writing, and it is not uncommon for experts to give brief oral evidence in chief of an updating kind, before cross-examination commences, as for example where a valuer gives oral evidence of some relevant event that has happened since the written report was filed.
4.3 At the hearing, the usual approach has been that each expert in turn gives any oral evidence in chief and is then cross-examined. In recent years, however, there has been some interest in modifying this approach, so that the relevant experts in a particular area are all sworn in at one time and remain together in court. They then give their evidence by way of answering questions on particular topics, rather than the evidence of each expert being taken separately.20 Such methods, sometimes beguilingly called ‘hot-tubbing’, are seen as having merits in some situations, making it easier for the court to understand the issues quickly.
4.4 Rules that deal with these matters usually provide that the court may make directions for evidence to be given in such ways. The Commission is not aware of any rule that requires evidence to be given in this way, or that such methods have become a routine or usual practice.
FOOTNOTES
17. See eg Supreme Court Rules (NSW) Pt36 r13CA(1), and Practice Note 121, “Joint Conferences of Expert Witnesses”; Federal Court Rules, O34Ar3.
18. Under the NSW Land and Environment Court’s Expert Witness Practice Direction 2003, where the experts in a joint report specify a matter on which they agree, a party may not lead evidence on that matter without the Court’s leave: see especially paragraph 6(6).
19. Some rules deal with such matters in detail. For example, the Federal Court rules provide for obtaining the factual evidence before the experts give evidence, and for the experts to indicate whether their views have changed because of certain evidence: see O34Ar3(2)(c) and (d).
20. For example, under the Federal Court rules (O34Ar3(e), (f), (g), (h), (i)), the court can order that each expert be sworn one immediately after the other; that when giving evidence witnesses are not necessarily in the box; each can give opinion on issue and on other experts; manner and sequence of cross-examination can be organised. An illustration of the process is Re Queensland Independent Wholesalers Ltd (1995) ATPR 41-438 at 40,925 (Lockart J). The process is also used, with as many as six experts sworn in at the same time, by the NSW Land and Environment Court: P McClennan, “Problems with Evidence” (Speech for the Government Lawyers’ Annual Dinner, NSW Parliament House, 7 September 2004).
