This article was produced by the commission and appeared in the June 2007 issue of the Law Institute Journal.
Expert evidence, who presents it, and how, are central issues in the Victorian Law Reform Commission’s (VLRC) examination of the civil justice system.
Few submissions to the VLRC’s civil justice review have expressed complete satisfaction with the way expert evidence is handled in our courts.
Criticisms centre on the cost of trials that are lengthened by the use of many experts and evidence being too partisan.
Many of the suggestions in submissions have been made in light of the New South Wales Law Reform Commission’s (NSWLRC) 2005 report on expert witnesses, and the subsequent changes to that state’s Uniform Civil Procedure Rules following a further review by a working party established by the Attorney-General. On some key issues the NSWLRC and the working party came to different conclusions.
The NSW rules aim to avoid unnecessary costs arising out of the use of many expert witnesses. The new rules provide that the court controls expert evidence, expert witnesses should only be used when reasonably required, a single expert engaged by the court or parties is desirable, and more experts can be used in the interests of fairness but no more than is necessary.
Under the rules:
• parties will have to seek directions from the court before adducing expert evidence
• the court may give directions on the issues expert evidence can be called on, the number of experts to be called and require experts to confer before or after they complete their reports and produce a joint report
• expert witnesses must disclose fee arrangements that depend on the outcome of the case
• expert witnesses must comply with the stated code of conduct
• the court may direct that opinion evidence given by expert witnesses be “hot tubbed”, that is, their evidence is given concurrently
• expert reports must be filed when a professional negligence claim begins
• the court may appoint an expert to report on an issue.
Submissions to the VLRC review varied on just about every issue encompassed by the NSW reforms.
The Supreme Court supported the ability of a court to direct the parties in regard to expert witnesses and thought concurrent evidence should be used where possible and appropriate.
Many submissions were enthusiastic about “hot tubbing”, while a few were lukewarm about the suggestion, urging a cautionary approach and the use of pilot studies.
The Law Institute of Victoria supported hot tubbing and expert conferences, as did a number of different law firms.
The Victorian Bar endorsed many of the recommendations in the NSWLRC report, including the use of court-appointed and joint experts, an end to the excessive use of experts, disclosure of fee arrangements, notifying experts about sanctions for inappropriate behaviour, and hot tubbing.
Appointment of no-win no-fee experts was opposed by the Transport Accident Commission (TAC), Victorian Workcover Authority, and different law firms.
The need for joint expert reports was doubted in a submission from AXA Australia and Turks Legal and a submission from Maurice Blackburn Cashman, but supported by the Supreme Court and different law firms. The court thought such reports should be produced pre-trial to encourage successful mediation.
Single expert witnesses were supported by the TAC and Mallesons Stephen Jaques but the latter thought parties should not be compelled to use them and separate witnesses should be permitted in complex cases.
A code of conduct for expert witnesses was supported by Mallesons Stephen Jaques, however, it thought sanctions should not be overly punitive. The Institute of Chartered Accountants in Australia agreed and said such a code should be uniform across the states.
The Mental Health Legal Centre called for a broadening of the definition of experts to allow people such as nurses and social workers to comment in mental health cases, rather than just psychiatrists.
While the NSW rules provide a useful model for reform, there are a number of issues where opinion was divided in NSW. These include:
• the question of costs and other sanctions where experts violate the code of conduct
• the question of whether all fee arrangements with experts should be disclosed, not merely those where payment is deferred or contingent upon the outcome of the case
• whether or not privilege should attach to communications with experts and the circumstances in which any such privilege would be expressly or impliedly waived.
The VLRC is due to report on stage one of the civil justice review by September this year. Information about the review is available on the VLRC website: www.lawreform.vic.gov.au.