Australia: Non-compliant expert affidavit admitted into evidence by NSW Supreme Court

In brief - Expert reports should comply with rule 31.23 of Uniform Civil Procedure Rules, but the Court may exercise a discretion to overcome non-compliance in certain circumstances

The recent decision in Hoffmann v Challis [2016] NSWSC 268 to admit an expert affidavit despite the fact that the expert witness had neither read the expert witness code of conduct nor acknowledged his compliance with it in his affidavit, gives an illustration of some of the circumstances in which courts may exercise their discretionary power to admit such evidence. In this instance, it was because the court considered that the expert evidence was impartial and the expert willing to comply with his overriding duty to assist the court, rather than the party by whom he was engaged.

Compliance with expert witness code is expected but courts may exercise discretionary power

On 26 February 2016, the Supreme Court of New South Wales in Hoffman v Challis admitted an affidavit by an expert witness, Mr John Rotunno, as expert evidence, despite the fact that Mr Rotunno was not given the expert witness code of conduct upon being engaged as an expert and did not acknowledge his compliance with the code in his affidavit.

Rule 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) states that an expert witness must be given, as soon as practicable after engagement, the code, which is in the form of Schedule 7 to the rules and must comply with it. Absent compliance, an expert's report may not be admitted into evidence unless the court otherwise orders.

In the context of Mr Rotunno's engagement, Justice Campbell considered the reasons given by Ball J in Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160, which outlined some of the criteria that the court will take into consideration when determining whether to exercise its discretion to admit a non-compliant expert report into evidence, namely:

  • the nature of the instructions that were given to the expert
  • the expert's prior familiarity with the code of conduct
  • the extent to which, on its face, the report appears to comply with the code
  • evidence subsequently given by the expert as to whether he or she complied with the code at the time of preparing the report
  • whether the expert's opinions have been affected by non-provision of the code

Expert evidence must be impartial and expert must recognise overriding duty to assist the court

Mr Rotunno's evidence was served in support of an application for security for costs in a defamation action brought in proceedings where the plaintiff was a foreign resident. There was no issue that Mr Rotunno was sufficiently qualified to give expert evidence – the Court accepted that he had been an active practitioner in the state of Illinois since 1976, was an experienced litigator and speaker to professional organisations, including the Northwestern University School of Law in Chicago. The affidavit of Mr Rotunno provided evidence about the law of enforcing foreign judgments in the state of Illinois.

Justice Campbell observed that "...a lawyer giving opinion evidence about foreign law for the purpose of an action in New South Wales is in a different category from perhaps some other branches of expertise." (at [5]) This is because a lawyer can be taken to know two of the primary considerations underpinning the giving of expert evidence: the importance of impartiality; and the overriding duty of an expert to provide assistance to the court rather than the party by whom the expert is engaged.

In these circumstances, his Honour was satisfied that, from the outset, Mr Rotunno approached his task in a manner entirely consistent with the code and accordingly, was prepared to exercise the Court's discretion to admit the report into evidence despite the non-compliance with the code.

Basic conditions for the admissibility of expert evidence

In coming to his decision, Justice Campbell helpfully referred to the well-known case of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, the essence of which has since been distilled in section 79(1) of the Evidence Act 1995 (NSW), which relevantly states that expert evidence will be admitted where:

  • the expert has specialised knowledge based on their training, study or experience, and
  • the expert expresses an opinion that is wholly or substantially based on that knowledge

Tips for writing expert reports

Well drafted, reliable expert evidence is invaluable as it can facilitate early settlement of a matter or significantly bolster a party's position during the hearing. This case is a timely reminder of the delicacies of expert reports. Here are a few key tips to keep in mind in relation to expert reports.

Expert reports should:

  • be the independent product of the expert uninfluenced as to form or content by the demands of litigation
  • provide objective, unbiased opinion in relation to matters within the expert's expertise
  • state the facts, assumptions and materials upon which the expert's opinion is based
  • make it clear when a particular question or issue falls outside the expert's expertise
  • state instances where there is insufficient data to properly reach a conclusion
  • include all photographs, plans, calculations, analyses, measurements, survey reports or other similar documents that the expert relied upon in coming to his or her conclusion
  • include reference to the relevant expert witness code of conduct and the expert's agreement to be bound by it
Andrew Murray Nick Crennan
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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