Monday, November 7, 2011

Expert reports - how important is it that the expert has read the code of conduct?

Rule 44.03 of the Supreme Court (General Civil Procedure) Rules 2005 concerns the instructing of experts to give evidence in a trial, and sets out what matters must be in that expert's report if a party intends to adduce evidence from that expert.

Rule 44.03(1) requires the provision of the Form 44A code of conduct to the expert 'as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule'. Rule 44.03(2)(b) requires the expert, in its report, to acknowledge that he or she has read the code of conduct and agrees to be bound by it.

There seems to be a paucity of authority in Victoria concerning the admissibility of expert reports for failure to read the code before authoring the report. However the New South Wales Supreme Court has dealt with this issue in great detail.

The relevant provisions of the New South Wales Uniform Civil Procedure Rules 2005 provide as follows:
31.23 Code of conduct
(cf SCR Part 39, rule 2; DCR Part 28A, rule 2; LCR Part 38B, rule 2)
(1) An expert witness must comply with the code of conduct set out in Schedule 7.
(2) As soon as practicable after an expert witness is engaged or appointed:
(a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or
(b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,
must provide the expert witness with a copy of the code of conduct.
(3) Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.
(4) Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.
The New South Wales rules are certainly more prescriptive than the Victorian Rules when describing the effect of non-compliance on the admissibility of the evidence referred to in the report. However when a Victorian Court is faced with a similar issue of non-compliance, it is likely to be persuaded by the decisions in the New South Wales Supreme Court.

I have included a summary of several matters dealing with this issue below:
  • Barak v WTH [2002] NSWSC 649 - an expert was called to give evidence in circumstances where his report did not state that he had read and agreed to be bound by the code of conduct. The expert was cross examined and said he was aware of the code and had read it before making the report and in making the report he sought to comply with the code. Barrett J admitted the evidence stating at [5] 'the intent of the rule of ensuring that only reports by experts who have proceeded in accordance with stated norms of conduct should be relied upon can be seen to be satisfied'.
  • Commonwealth Development Bank of Australia Pty Ltd v Claude George Rene Cassegrain [2002] NSWSC 1314 - an expert who had not acknowledged having read or agreed to be bound by the code gave evidence that he adhered to the evidence in his report having regard to the obligations imposed under the code, but there was no evidence that he had read and considered the code before he prepared his evidence. Einstein J rejected the report saying at [5] the 'Expert Witness Code of Conduct was promulgated with the clear intent that only reports by experts who have proceeded in accordance with the stated norms of conduct, should be relied upon and may be admitted into evidence'.
  • United Rural Enterprises Pty Ltd v Lopman Pty Ltd [2003] NSWSC 870 - an expert had not been given a copy of the code before preparing his report but was given it when he swore his affidavit. In that affidavit the expert said that his report complied with the code and he undertook to be bound by it. Campbell J pointed to the risk that an expert might form an opinion without appreciating the full extent of his obligations, but might find it difficult to retreat from or qualify that view upon a full consideration of those obligations. Because there was no real risk that the Court would be misled or the opposite party prejudiced, Campbell J admitted the report.
  • Investmentsource v Knox Street Apartments [2007] NSWSC 1128 - the defendant sought to rely on a report prepared before the litigation which provided a valuation of a property which was prepared without reference to the code of conduct. McDougall J considered it was a business record under s69 Evidence Act, but that it was excluded under the rules because, amongst other things, the expert did not prepare his report with a conscious appreciation of the obligations imposed by the relevant code of conduct.
  • CJD Equipment v A & C Construction [2009] NSWSC 1085 - a report by an expert did not contain an acknowledgement of having read the code, but in a later affidavit of the expert that expert said that the report had been prepared in accordance with the code. McDougall J admitted the report, but warned (at [17]) that the Court was not condoning any practice of ex post facto adoption of the requirements of the code.
  • Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49 - an expert prepared a report which was sought to be tendered in evidence. In the report the expert did not acknowledge the code or agree to be bound by it as the report was prepared before the litigation. Once again referring to quality control issues, Barrett J rejected the report for the particular purpose sought, although the Court partially admitted the report for another limited purpose.
It is likely that a Victorian Court will be guided by s135 Evidence Act 2008 (Vic) when faced with an issue of non-compliance, as there appears to be no express rule dealing with the rejection of expert evidence because of a non-compliant report. The considerations are likely to be those discussed in the New South Wales cases above.

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