Australia: Changing places: is a new opinion by experts in a joint report admissible?

Last Updated: 23 May 2019
Article by Andrew Ross

A recent judgment in the NSW Supreme Court considered the admissibility of new opinions arising out of joint expert conferences. In this article, Andrew Ross examines the judgment and its potential broader implications for expert opinions expressed in joint reports and concurrent evidence.

Bezer v Bassan [2019] NSWCA 50 (21 March 2019)


On 2 September 2012, the father of Christopher Bezer ('Chris') and his step-brother, Troy Bassan died in a car accident. Four days later, Chris and Troy set out from Mendooran in rural New South Wales to see a lawyer in Dubbo about their father's funeral.

At about 10.15 am, the ute Chris and Troy were travelling in ran off the road about 20 kilometres south-west of Mendooran. It travelled around 50 metres before tumbling end on end and coming to rest. Chris was severely injured and had to be extracted from the ute by emergency workers. Troy was only slightly injured and was able to climb out. There were no signs of braking on the road or roadside, suggesting that the driver had fallen asleep.

Chris and Troy had different stories about the trip and the crash.

Chris said that initially he was driving, but he soon asked Troy to drive because he felt tired. They changed positions, put their seatbelts on and recommenced their journey, with Chris having his seat reclined to enable him to sleep. The next Chris knew was that the vehicle left the road and crashed.

Troy said that, when they left Mendooran, he was in the passenger seat, which was reclined. He fell asleep. When he awoke, the vehicle had crashed and was on its side. Chris's foot was "slightly across" his face. Troy moved it off, unbuckled his seatbelt and climbed out. He had 'bits of conversation' with Chris, who was in great pain and could not feel his legs. Chris said to him, amongst other things:

"Mate, can you – I don't have a licence, can you say you were driving for insurance reasons."

Troy agreed. As a result, Troy told a witness at the scene, an ambulance officer, police officers, nurses and a doctor that he had been driving the vehicle when it crashed.

Chris subsequently claimed damages from Troy in proceedings commenced in the District Court, alleging that Troy was the driver. Troy said that Chris was the driver.

At first instance, the District Court found that, on the balance of probabilities, Chris was the driver. This finding was based on a variety of lay and expert evidence, much of which (the Court found) suggested that Troy was in the passenger seat and was wearing his seatbelt whereas Chris was driving without his seatbelt. That evidence included bruising to Troy's left shoulder and torso, which Troy's expert concluded indicated he was both wearing a seatbelt and that he was in the passenger seat. It also included evidence on the extent to which the passenger side seatbelt had been extended, which the same expert concluded was not far enough to fit around Chris's waist. Chris was described as "a large man who was aged 29 and weighed in the range of 110 to 140 kilograms at the time of the accident", while Troy was aged 19 and weighed less than 50 kilograms.

Chris appealed.


The issues on appeal related mostly to the primary judge's approach to dealing with the evidence on the main issue in contention. However, one of the grounds of appeal was somewhat novel. It related to the treatment by the primary judge of a joint expert report prepared by the two traffic accident experts. This ground was described as follows:

The Primary Judge erred in law by over-ruling an objection by the appellant to the tender by the respondent of material in joint experts' reports going beyond matters that were the subject of agreement by the experts, contrary to UCPR 31.26(4) and thereafter erroneously had regard to such material when making her central findings of fact such that the process of fact finding engaged in by her miscarried.

That joint expert report had been prepared in the usual way, and included each expert's views on whether, on the evidence, the identity of the driver could be established. The primary judge admitted the joint report into evidence and referred to it in her reasons.

The Court dealt with this issue in the following terms1 :

[The appellant's] submission contended that the primary judge erred in admitting those parts of the Joint Expert Report of Mr Keramidas and Dr Gibson which did not record agreements between them. The only such material identified in the submission as being, of itself, of any materiality was Mr Keramidas' opinion as to whether the driver's seatbelt was being worn at the time of the accident. In a passage in the Joint Expert Report that was not tendered, Dr Gibson said that there was insufficient evidence to reach that conclusion.
The appellant relied upon the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 31.26 [set out below].
The opinion of Mr Keramidas which was the focus of the appellant's submission was, by the time of the tender of the Joint Report, already in evidence as part of Mr Keramidas' supplementary report of 30 March 2017. As the admission of that evidence of the opinion was not challenged on appeal, it is sufficient to regard the matters leading to that admission as equally justifying the admission of the further expression of it. Rule 31.26(4) was thus applicable to render the evidence admissible.
The appellant's supplementary submission then contended that 'almost all the rest of the joint report concerned answers to questions that were not the subject of agreement' and ought not to have been admitted. He conceded however that none of these answers were of themselves critical to the outcome of the case.
The opinions of Mr Keramidas expressed in the Joint Report largely, if not wholly, simply reflected opinions that he had expressed in his earlier individual reports, both of which had been admitted into evidence. In the absence of any specification by the appellant of any opinion that went beyond what Mr Keramidas had earlier said, the appellant's submission should be rejected.

Rule 31.26 of the UCPR, referred to in the judgment above, is as follows:

31.26 Joint report arising from conference between expert witnesses

  1. This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1)(c).
  2. The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.
  3. The joint report may be tendered at the trial as evidence of any matters agreed.
  4. In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.
  5. Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.

Broader application

The preparation of joint expert's reports is now commonplace in many jurisdictions in Australia. The Federal Court has described the purpose of joint meetings of experts (that being the context in which joint expert reports are typically prepared) as follows2:

The purpose of the conference of experts is for the experts to have a comprehensive discussion of issues relating to their field of expertise, with a view to identifying matters and issues in a proceeding about which the experts agree, partly agree or disagree and why.

The purpose of the joint expert report is expressed in similar terms3:

At the conclusion of the conference of experts, unless the Court considers it unnecessary to do so, it is expected that the experts will have narrowed the issues in respect of which they agree, partly agree or disagree in a joint-report. The joint-report should be clear, plain and concise and should summarise the views of the experts on the identified issues, including a succinct explanation for any differences of opinion, and otherwise be structured in the manner requested by the judge or registrar.

Given the process discussed in these statements, it would not be surprising (and, indeed, it might be thought to be desirable) that experts who have engaged constructively in a 'comprehensive discussion of issues relating to their field of expertise' may alter some of their previously expressed opinions. While one likely outcome might be the envisaged 'narrowing' of the issues in contention, another might be the clarification of the bases for residual differences in opinions or, indeed, the expression of a new opinion on a relevant matter.


While the Court in this matter did not reject the admissibility of the joint report, the argument raised may have more force in other cases. Lawyers may need to consider whether joint reports prepared in their matters meet the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 31.26 or other similar provisions, especially where new opinions appear in those reports or the bases given for previously stated opinions change. During many joint expert conferences and the associated preparation of joint reports, communication with lawyers is not permitted. There is therefore limited opportunity for deficiencies in the admissibility of joint reports to be rectified before they are signed. Reminding experts of the UCPR requirements prior to joint conferences may limit problems later.

Of course, yet further issues relating to the admissibility of expert opinions may also arise after the tendering of the joint report, particularly in the context of the less structured approach to the provision of expert evidence in the context of concurrent evidence.


1 At paragraphs 57-61

2 Expert Evidence Practice Note (GPN-EXPT), paragraph 7.4

3 Expert Evidence Practice Note (GPN-EXPT), paragraph 7.10

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions