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Court practice notes and procedural rules The rules of court are in addition to the rules of admissibility, and have a different purpose. Their aim is to:- - require the early disclosure of expert evidence in written form between the parties; - require disclosure to be made in such a way that clearly reveals the admissibility of otherwise of the evidence; and - to impress upon the expert and the parties that the principal role of an expert is to assist the court in reaching a more reliable decision rather than to advance in a partisan way the interests of a particular party, and that experts should provide independent reports. The Victorian Supreme Court, the County Court and the Magistrates Court Order 44 of the Supreme Court Rules regulates the adducing at trial of the evidence of a person as an expert. An expert is defined as a person who has specialised knowledge based on the person's training, study or experience (Order 44.01). Order 44 applies to expert evidence in any proceedings, however commenced, except:- - any expert retained before 1 November 2003 (in which case the former regime applies); - the evidence of a party who would, if called as a witness at the trial, be qualified to give evidence as an expert in respect of any question in the proceeding; and - medical reports governed by Order 33 (other than medical reports in medical negligence proceedings which express opinions on the liability of the defendant, to which Order 44 does apply). Order 44.03 provides as follows:- (1) Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall- (a) as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the code; and Page 15 of 31
(b) not later than 30 days before the day fixed for trial, serve on each other party, a report by the expert in accordance with paragraph (2) and deliver a copy for the use of the Court. (2) The report shall state the opinion of the expert and shall state, specify or provide- (a) the name and address of the expert; (b) an acknowledgement that the expert has read the code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed); (e)(i) the reasons for; (ii) any literature or other materials utilised in support of; (iii) a summary of- the opinion; (f) if applicable, that a particular question, issue or matter falls outside the expert's field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications; (h) a declaration- (i) that the expert has made all the enquiries which the expert believes are desirable and appropriate; and (ii) that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (j) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. Page 16 of 31
Page 1 and 2: RECENT DEVELOPMENTS IN COMMERCIAL L
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Page 5 and 6: Example Orders • On or before ___
Page 7 and 8: • Counsel for a party to cross‐
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Page 16 and 17: The legislation Until recently Vict
Page 18 and 19: Section 80 is also important to rem
Page 20 and 21: Further, Professor Morton gave evid
Page 22 and 23: The High Court refused leave to app
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Page 30 and 31: - expert evidence means the evidenc
Page 32 and 33: (A) the opinion; and (B) the factua
Page 34 and 35: (2) The Court may give any directio
Page 36 and 37: Preparing expert evidence So, again
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Page 42 and 43: Conclusion Preparing and presenting
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GORDON & JACKSON DISCLAIMER OF RESP
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