Australia: Expert witness obligations to the Court

The recent decision of Judge Kefford in Cannon Hill Investments et al v. Brisbane City Council and Rivermakers Wellness & Research Centre [2022] QPEC 16 ("Rivermaker's case") provides a salutary warning to those engaged as experts in the P&E jurisdiction but also in the similar Land Court jurisdiction and all other Queensland Court jurisdictions.

Any expert engaged for that purpose should of course be well aware of the obligation of an expert to the Court by virtue of the Uniform Civil Procedure Rules 1999 (Qld) (rule 429F in particular) and the Planning and Environment Court Rules 2018 (Qld) (rule 33 "Duty of an Expert", in particular). Rule 33 stipulates that:

1. The expert has a duty to assist the P&E Court;
2. The expert - (a) is not an advocate for an active party .;

In the Rivermaker's case, a town planner was nominated as an expert for one of the Appellants in a submitter appeal. The town planner had been retained by the Appellant for a period of 6 years, and was still so retained at the time of filing the Appeal, the usual experts' meeting and the Court hearing at which he gave evidence, in advising, developing and protecting the Appellant's interests involving the precinct the subject of the Appeal. Such retainer included specific involvement in advocating against the development proposal the subject of the Appeal. It was submitted during the course of his expert evidence that his engagement as an expert in the Appeal involved a retainer separate from the long-standing retainer.

In her decision, Judge Kefford held that "In an appeal, an expert witness's primary duty is to assist the Court. That duty overrides any obligation that the expert may have to the party that engages them. Where an expert has a past, and continuing, engagement by a client, one would expect an expert to pause and reflect on whether the nature and extent of the engagement is consonant with the independence expected of an expert" and that "The expert who adopts an advocate's approach risks presenting evidence that is regarded by the Court as unhelpful or self-defeating in the sense of the evidence not being reliable".

Pointing to various issues that seemingly tainted the expert's objectivity regarding the issues in dispute, her Honour found that "In this case, the inconsistency between (the expert's) professional obligations to his client associated with his ongoing brief to resist development on the subject land and the independence expected of an expert engaged to assist the Court causes me to be circumspect about reliance on his evidence".

Her Honour's words serve as notice to all experts, their clients and legal advisors, that the Court rules relating to the engagement and involvement of experts are not to be taken lightly no matter the experience and reputation of the expert and his/her honest professional opinion about a matter within their area of expertise. The duty to provide the Court with objective unbiased opinion, without being an advocate, is paramount.

This duty to the Court should be borne in mind when, by way of common example, a consultant is engaged during the development application process (which engagement often includes pre-lodgement meetings with the assessment manager's representatives, engaging consultants in other areas of expertise, public meetings addressing the community about the proposal, representations in response to Information Requests and Submissions, briefing of legal representatives) and then engaged as an expert in Appeal proceedings. It is usually a wiser course to engage an alternative expert in any Appeal proceedings and avoid the risks which became manifest in the Rivermaker's case.