When an expert accepts a brief to provide evidence in
Court they have a duty to deliver their report on
Courts can penalise experts who fail to meet deadlines,
including ordering costs against them.
Don't let this happen to you or to experts you
engage. Here are some practical tips to ensure your expert reports
are ready when needed.
The NSW Supreme Court recently vented its frustration about
continued non-compliance with the Court timetable for the filing of
The Court made a direction in Macquarie International Health
Clinic Pty Ltd v Sydney Local Health District1
relating to when expert reports must be filed and served, as well
as the form of the reports.
The clear intention was to remind experts that when they accept
a brief to provide evidence to the Court they became personally
responsible for complying with the Court's directions.
The Court's power to give directions regarding the conduct
of expert witnesses is in the Civil Procedure
Act2 and the Expert Witness Code of
Conduct requires experts to comply with Court
The Court stated that, in appropriate cases, it will require
personal explanations from experts where they have not complied (as
opposed to explanations in affidavits from instructing solicitors),
and that it is not acceptable for experts to use reasons of
"other business pressures" for their non-compliance.
The Court also noted that experts could be subject to costs
orders where a party suffers additional costs because of the
expert's non-compliance, so long as it can be attributed to the
fault of the expert, rather than that of their instructors.
So, what steps can experts, and those who engage them, take to
ensure they comply with Court deadlines?
Experts should consider their existing business commitments
before accepting a brief and decide if they have capacity, and if
necessary, access to additional resources to complete the work and
report on time.
Instructors also have a role to play. The Court in the present
case acknowledged that experts depend on their instructors to
provide instructions and information promptly. Parties must assist
the Court to affect the just, quick and cheap resolution of
Briefing experts early and fully is critical. The outcome will
be a better quality report and it allows more time for instructors
to provide additional information if required by the expert.
Instructors should keep in close contact with their experts to
ensure they will meet their deadline. Regular check-ins with the
expert on progress and setting internal milestones are positive
ways to manage the outcome.
Where interstate or overseas experts are engaged, instructors
should consider bringing them to the jurisdiction once drafting has
begun to avoid any delays in the final report. This also overcomes
the practical issues associated with working in different time
The Court's direction in Macquarie International Health
Clinic Pty Ltd v Sydney Local Health District is a clear
message that experts and their instructors should take steps to
comply with Court timeframes to not only avoid poor quality reports
but also avoid the possibility of adverse costs orders.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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