In brief - expert evidence must expressly comply with Schedule 7 to the UCPR and prove more probative than prejudicial to pass the threshold of admissibility

The relevant provisions relied upon in this case are Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and s 135 of the Evidence Act 1995 (NSW).

The UCPR outlines the requirements for the admissibility of expert evidence pursuant to the expert witness code of conduct. 

This case reaffirms the decision in Hodder Rook & Associated v Genworth Financial Mortgage Insurance, that in order for expert evidence to be admissible, the expert must, in accordance with UCPR r 31.23, comply with and explicitly state in their report that they have:

  1. been provided with a copy of the code of conduct by the engaging party;

  2. read the code of conduct; and

  3. agreed to be bound by the code of conduct.

An expert report may also be inadmissible if its 'probative value is substantially outweighed' by the possibility that the evidence might be 'unfairly prejudicial' or 'misleading or confusing', pursuant to s 135 of the Evidence Act.

The expert report in Jones v Murrumbidgee Irrigation

The plaintiff commissioned the Environment Analysis Laboratory (EAL) to identify the soil and surface water characteristics of a specified area and provide a report on potential sources of crop damage and livestock losses. 

The following observations were made by His Honour in considering the report's (in)admissibility, inter alia:

  1. there was no acknowledgment by any of the authors that they had read or complied with the code of conduct.

  2. the report was not signed or "adopted" by any of the authors

  3. no statement as to the authors' expert qualifications was given

  4. the report specifically stated its intention to be for the exclusive use of the defendant and not any third parties, including a Court

  5. it was noted that any conclusions made required further investigation to verify their validity

The plaintiff sought to rely on the report, and the defendant objected to this, stating the report was inadmissible pursuant to UCPR r 31.23 and that the court ought not to 'otherwise order' that the report be admitted. In addition, the defendant contended that the report ought not to be admitted on the basis that the various flaws observed injured it more prejudicial than probative, pursuant to s 135 of the Evidence Act.

In determining why the court should NOT 'otherwise order' that the report be admitted despite the failure to comply with UCPR r 31.23, His Honour referred to the considerations of the Court of Appeal in Hodder Rook & Associates v Genworth Financial Mortgage Insurance. It was subsequently concluded that whilst there is validity in the proposition that the Court may exercise its discretion to admit an expert report where the expert who initially prepared it without the code in mind is then shown the code and swears they did abide by it, this was not such a case as the authors had not later confirmed or endorsed the report as complying with the code of conduct.

Succinctly, the authors of the report commissioned by the plaintiff did not prepare it with a 'conscious appreciation of the obligations imposed by Schedule 7', i.e. the primary obligation of authors providing expert evidence in proceedings is to the court not their client.

The report was ultimately deemed inadmissible by the Court, who reasoned that the various abovementioned flaws rendered it inadmissible, considering UCPR r 31.23 and s 135 of the Evidence Act.

 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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