Australia: NSW Supreme Court reminds experts of their obligations and warns of adverse costs orders for non-compliance

When an expert accepts a brief to provide evidence in Court they have a duty to deliver their report on time.

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 expert reports.

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 directions.³

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 proceedings.⁴

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 zones.

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.

Footnotes

¹[2013] NSWSC 970.

²Civil Procedure Act 2005 (NSW) s 61(2)(c).

³Uniform Civil Procedure Rules 2005 (NSW) sch 7 ('Expert Witness Code of Conduct' cl 3).

⁴Civil Procedure Act 2005 (NSW) s 56(3).

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