Back to list of Practice Directions
in the Supreme Court of South Australia
| general duty to the Court | form
of expert report |
| further obligations of an expert and the party
retaining the expert |
| expert’s evidence | consequences
of non-disclosure |
| experts’ conference | experts
employed by a party to the action |
1. These guidelines apply to all actions in which
the pleadings have closed on or after 3 June 2000.
2. These guidelines are not intended to address exhaustively all
aspects of an expert’s report and an expert’s duties.
3. These guidelines, however, must be complied with for an expert
to comply with r 38.01A(2)(d).
4.1 An
expert witness has an overriding duty to assist the Court on matters relevant
to the expert’s area of expertise.
4.2 An
expert witness is not an advocate for a party.
4.3 An expert witness’s paramount duty is to the Court and not to the
person retaining the expert.
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5. The form of the expert
report:
5.1 An
expert’s written report will set out with reasonable particularity all of the qualifications
of the expert which are relied upon to qualify the expert to give the report.
5.2 It
will set out separately all of the factual findings or assumptions upon which
any opinion is based.
5.3 The
report will give particulars identifying the material upon which the expert
bases his or her expert opinion.
5.4 If
any tests or experiments are relied upon by the expert in compiling the report,
the report should contain details of the qualifications of the person who
carried out any such tests or experiments.
5.5 Where
an expert’s report refers to photographs, plans, calculations, analyses,
measurements, survey reports or other extrinsic matter, these must be provided
to the opposite party at the same time as the delivery of the report.
5.6 The report should set out separately from
the factual findings or assumptions each of the opinions which the expert
expresses.
5.7 The
expert should give reasons for each opinion.
5.8 If
an expert opinion is not fully researched because the expert considers that
insufficient data is available - or for any other reason, this must be stated
with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a
report believes that it may be incomplete or inaccurate without some
qualification, that qualification must be stated in the report.
5.9 The
expert should make it clear when a particular question or issue falls outside
his or her field of expertise.
5.10 The
expert’s report will contain an acknowledgement at the commencement of the
expert’s report that the expert has been provided with this practice direction
prior to preparing the expert’s report and that the expert has read it and
understood it.
5.11 At the end of the report the expert should
declare that (the expert) has made all the inquiries which “(the expert)
believes are desirable and appropriate and that no matters of significance
which (the expert) regards as relevant have, to (the expert’s) knowledge, been
withheld from the Court.”
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6. The further obligations
of an expert and the party retaining the expert:
6.1 If,
after exchange of reports or at any other stage, an expert witness changes his
or her view on a material matter, having read another expert’s report or for
any other reason, the change of view should be communicated in writing (through
legal representatives) without delay to each party to whom the expert witness’s
report has been provided and, when appropriate, to the Court.
6.2 The
party who has retained the expert will, if requested by a party to whom an
expert’s report has been delivered, deliver to that party:
6.2.1 a list of all documents which have been referred to, or prepared by
or at the direction of the expert in the course of preparing the report.
6.2.2 copies of any documents in the list delivered pursuant to 6.2.1.
6.2.3 details of any fee, disbursement or benefit received, or receivable,
by the expert or anyone on his or her behalf, for the preparation of the report
and for services provided, or to be provided, by the expert or by any one on
his or her behalf in connection with the expert giving evidence for the party
in the action;
6.2.4 a list of all conversations in which the expert has taken part with
any party, any legal representative of a party or any other expert consulted in
relation to the matter relevant to the opinions expressed in the report stating
when and with whom each such conversation occurred and the topics discussed;
6.2.5 copies of all notes made by or on behalf of the
party or by or on behalf of the expert concerning any of the conversations
referred to in a list provided under the previous obligation.
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An expert’s evidence in
chief at the trial unless the Trial Judge otherwise allows is to be given only
by tendering the reports from the expert which comply with r 38 and the expert
swearing that the reports are correct.
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8. Consequences
of non disclosure:
If a party fails to comply with the
Rules of Court or this Practice Direction in respect of an expert’s report:
8.1 The
Court may adjourn the hearing or trial at the cost of the party in default or
his or her solicitor.
8.2 The Court may direct that evidence from that expert
not be adduced by that party at the trial in the action.
8.3 The
Trial Judge may award costs to the other parties or reduce costs otherwise to
be awarded to the party in default.
8.4 The Trial Judge may take that failure, if it be by a plaintiff, into
account in assessing the award of damages to the plaintiff.
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9.1 If experts retained by the parties meet at the direction of the
Court, or at the request of solicitors for the parties it would be improper
conduct for an expert to be given or to accept instructions not to reach
agreement. If, at a meeting directed by
the Court, the experts cannot reach agreement on matters of expert opinion,
they should specify their reasons for being unable to do so.
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10. Experts
employed by a party to the action:
The provisions and
requirements of r 38 and this Practice Direction apply to any person called as
an expert in the action, even if the expert is employed by a party to the
action.
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DATED 17th May 2002.
(Ruth
Blenkiron)
REGISTRAR