If you don't comply with the new Expert Witness Code of
Conduct, your expert evidence will not be admissible.
In December 2016 the
Expert Witness Code of Conduct in Schedule 7 of the Uniform
Civil Procedure Rules 2005 (NSW) was amended to take into account a
national code for expert witnesses approved by the Council of Chief
Justices of Australia and New Zealand.
The UCPR applies to certain kinds of civil proceedings in the
Supreme Court, Industrial Court, Industrial Relations Commission,
Land and Environment Court, District Court, Dust Diseases Tribunal
and Local Court. An expert engaged or appointed for the purpose of
providing an expert's report or giving opinion evidence in
these proceedings must comply with the revised Expert Witness Code
What has changed for expert witnesses?
Most of the changes are of form rather than of substance.
However, there are three key changes to be aware of:
an expert report prepared by an expert witness for use in court
must now state the extent to which any opinion which the expert has
expressed involves the acceptance of another person's opinion,
the identification of that other person and the opinion expressed
by that other person;
the report must now include a declaration that the expert has
made all the inquiries which the expert believes are desirable and
appropriate (save for any matters identified explicitly in the
report), and that no matters of significance which the expert
regards as relevant have, to the knowledge of the expert, been
withheld from the court (a declaration which might be familiar for
those who have complied with a similar requirement in the Federal
if there is a conference of experts and the experts fail to
reach agreement on any issue in dispute between them, each expert
witness must endeavour to identify and clarify the basis of
disagreement on the issues which are in dispute.
What do I need to do to ensure my expert evidence is
The change that will probably require the greatest focus is the
new requirement that experts identify the extent to which their
opinion involves the acceptance of another person's
Experts (and the solicitors engaging them) will need to be very
alive to this, as it can be very easy to gloss over the distinction
between one's own opinion and another's, particularly if
that opinion is one that is commonly accepted in the field. Any
report that has been prepared since December 2016 should be
scrutinised carefully to ensure all opinions are properly
More generally, solicitors acting in NSW proceedings should
ensure that any expert witnesses already retained, or to be
engaged, are provided with a copy of revised Expert Witness Code of
Expert witnesses engaged for the purposes of NSW proceedings
should ensure they receive a copy of the revised Expert Witness
Code of Conduct and comply with its requirements, including these
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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