• The role of assessors, referees, expert assistants

THE ROLE OF ASSESSORS, REFEREES, EXPERT ASSISTANTS

6.1 There has long been provision for courts to be assisted by assessors, referees, or expert assistants (a recent term). The role of such persons is in some ways similar to that of witnesses, in that they provide information and opinions that the Court takes into account. Sometimes a panel is used, sometimes an individual. However although they may provide a report to the Court, they do not give evidence, and they are not subject to cross-examination.

6.2 A recent example of this approach can be found in the Federal Court. Under the rules of that Court, an ‘Expert Assistant’ may be appointed to assist the Court. The Expert Assistant must give a report, and may at the Court’s direction make other comments. The Expert Assistant must give the report to each party. The Court must give each party reasonable opportunity to comment and to adduce evidence on the issue, but not to examine or cross-examine the expert assistant. The parties are not to communicate with the Expert Assistant without leave. The Expert Assistant may not give evidence.

6.3 The Commission’s preliminary inquiries suggest that measures of this sort are relatively uncommon, but that in some jurisdictions they are used for particular sorts of specialised problems.

ISSUE 6.1

The Commission would welcome comments on the use of assessors, referees and expert assistants, on their effectiveness and acceptability, and on whether they are particularly appropriate in particular types of cases.