When may an expert be considered an advocate and no longer of assistance to the court?



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Examples of acts by an expert witness that would constitute advocating for one of the parties.
Australia Litigation, Mediation & Arbitration
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Rifai v Woods [2024] NSWSC 374

In this case, the court gave examples of acts of an expert that constituted advocating for a party. By doing so, the expert ceased to be an expert witness assisting the court.


The plaintiffs and defendants are neighbours. The plaintiffs complained about water flowing onto their property in Glenmore Park (Number 49) from the defendants' property on the high side (Number 47), leading to claims of private nuisance.

Photos and video taken over the last few years show water consistently seeping and flowing through a retaining wall between the properties, attributed to various sources such as storms, pool usage and inadequate drainage. The plaintiffs sought to stop this water ingress, proposing that the defendants implement drainage systems to manage the water flow. The defendants argued the water was natural or a result of reasonable property use.

Expert Evidence

To support their claim that the stormwater flow is primarily caused by Number 47's inadequate drainage system, the plaintiffs relied on the expert evidence of civil and environmental engineer Prof. JB and Mr LG, a plumber.

Prof. JB's evidence as to the most likely causes of the flow of stormwater from Number 47 to Number 49 was accepted by the court. The court found Prof. JB a credible witness, with the appropriate expertise to give evidence on these matters. [37]

The defendants contended that weight should not be given to the evidence of Mr LG because during cross-examination he indicated that he did not know what the Expert Witness Code of Conduct was. However, Mr LG had previously attached the Code to his affidavit and agreed to follow it, a point that was not discussed during his testimony.

The court found Mr LG to be a reliable and straightforward witness. While much of his testimony focused on factual observations, such as what he saw and the video footage he provided of blocked stormwater pipes, the court held that it still qualifies as expert evidence.[41]

The expert relied on by the defendants, however, is another matter.

Mr PB, a structural engineer, was engaged by the defendants. Mr PB was found by the court to have, at times, ceased being an expert witness assisting the court, adopting the role of an advocate for the defendants.[37]

The court gave the following examples [55]:

  • When asked by one of the plaintiffs if water seepage had caused damage to the retaining wall, Mr PB avoided the question and instead suggested that the plaintiffs should have installed a path and drainage on their side of the property
  • The plaintiffs questioned whether the swimming pool should have been certified if certain development conditions had not been met. Mr PB declined to entertain the hypothetical scenario, stating that he was not responsible for certifying the pool's compliance, hinting that the conditions might have been met after the fact. When Peden J later posed a similar question, Mr PB admitted that the pool should not have been certified under those conditions
  • When directly asked by the court if Mr PB agreed that the retaining wall was bowing, he sidestepped and began discussing broader issues he perceived with the wall.

In addition, Mr PB was found not to have meaningfully challenged Prof. JB's evidence, because he did little more than assert that he had not been "supplied with proof of a pipe in the easement" and was "not aware of any problems with the grate", without engaging in the substance of Prof. JB's evidence.[37]

During cross-examination, Mr PB was found not to know the significance of the water in the inspection pipe and did not appear to consider the issue of pool leakage, in the context of the water seepage into Number 49.[58] The court held that Mr PB did not directly contradict Mr LG's evidence, nor did he provide competing evidence about the purpose of the inspection pipe or the reason for the water in it. Mr PB also did not undertake the inspections that the plaintiffs' experts did.[59]

Ultimately, the court found that the defendants are liable for nuisance in relation to the flow of both stormwater and pool water into the plaintiffs' property.

Key Takeaways:

  • Experts should provide impartial expert testimony, not avoid direct questions or offer responses that support one party's position. To do so is to go from being a neutral assistant to the court, to an advocate for a party
  • The court accepts the acknowledgment of the Expert Witness Code of Conduct in the affidavit of an expert, even if it was not discussed in the expert's testimony.

Read the full decision here.

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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