here - Gordon & Jackson

Other civil procedure obligations
In both the federal and state courts there have been relatively recent amendments to civil
procedure generally by the imposition of express statutory duties and obligations in the
conduct of proceedings. In the Federal Court these are found in sections 37M and 37N of
the Federal Court of Australia Act 1976 (Clth) . Section 37M states that the overarching
purpose of the civil practice and procedure provisions is to facilitate the just resolution of
disputes according to law and as quickly, inexpensively and efficiently as possible. Section
37N(1) imposes duties on the parties to act in a way that is consistent with the overarching
purpose, and section 37N(2) imposes duties on lawyers to take account of the duty imposed
on their client and to assist their client to comply with it. The sanction for failure to comply is
a costs penalty.
In state courts the Civil Procedure Act 2010 (Vic) imposes on parties, their lawyers and on
experts a series of overarching obligations. The specific obligations are set out in sections
16-27 of the Act. These include a duty not to mislead or deceive (section 21) which, when
coupled with an expert's required statement under the Order 44 practice note, introduces a
regime of full disclosure by experts and a duty not to mislead by silence or omission.
Ultimately, while there is some debate as to whether the Civil Procedure Act and Federal
Court Act impose a more rigorous standard on experts than existed before their introduction,
they are principally important because they reinforce the practice note requirements. In
VCAT Practice Note PNVCAT 3 contains similar provisions.
Remember that the expert evidence guidelines have been imposed because courts are
aware how vulnerable they are in making decisions in specialist areas and are concerned
not to be taken for a ride. This means that if an expert is found to have been less than frank
with the court or to have made a mistake in his or her report then they are less likely to be
accepted by the court on other matters, even if they are a leading expert whose ultimate
conclusions are well reasoned, logical and completely correct.
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