New Aim and Difficulties with the Admissibility of Expert Evidence

The decision of the Full Court of the Federal Court of Australia (comprising a bench of five judges) in New Aim Pty Ltd v Leurng [2023] FCAFC 67 (10 May 2023),[1] focuses on the admissibility of expert evidence, and in particular, the involvement of legal practitioners in the preparation of expert reports.

At the first instance an expert report was held to be inadmissible in its entirety as a consequence of the significant level of involvement of the legal practitioners in the drafting of the same. On appeal that decision was overturned and a new trial ordered, with certain parts of the expert found potentially to be admissible.

The Court relevantly said:[2]

… We observe that it is not unusual in a number of contexts not to finalise the formulation of the question asked of the expert without first discussing the issues with the expert. It would be expected, for example, that a solicitor would engage with an expert in a specialised field of scientific knowledge about how to frame a question so as not to give rise to a nonsensical question or one which misses the real issues or one which fails to engage with all of the issues. This is not an inversion of a process which must be necessarily followed of first asking a question and then having its inadequacies pointed out. The laborious following of such a process is likely to result in increased costs and delay for the parties and ultimately a waste of the Court’s time.

The importance to not influence witnesses, whether lay or expert is highlighted, the Court said, with reference to the FCA Expert Evidence Practice Note and the Harmonised Expert Witness Code of Conduct:[3]

… There are various ethical requirements on legal practitioners involved in the process of gathering or putting evidence into an appropriate form for hearing. At the core of these is a requirement not to influence a witness’s evidence. This applies both to witnesses of fact and expert witnesses providing opinion evidence. Legal practitioners commonly take proofs of evidence from, or draft affidavits of, witnesses of fact. These are commonly drafted from oral communications which occur in conference or written material provided by the witness or which are otherwise available. It is less common for this to occur in the preparation of expert evidence, but there are reasons why it might occur. Where a legal practitioner takes responsibility for the drafting of evidence, the perception may arise that the drafter may have influenced the content of the evidence, even subconsciously.

The decision of Dalton J (as her Honour then was) in Landel Pty Ltd & Anor v Insurance Australia Ltd [2021] QSC 247 (11 October 2021) is noteworthy on this issue as well, including at [19]:

….. while lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. Draft expert reports are disclosable so that the effect of any such input will be obvious to the other parties to the litigation – see r 212(2) and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board.

New Aim also involves the issue as to whether certain information held on an employee’s mobile phone WeChat application was confidential in nature.

A link to the New Aim decision is at:  New Aim Pty Ltd v Leung [2023] FCAFC 67 (fedcourt.gov.au)

[1] This case at first instance was referred to in the article contained in Hearsay Issue 90 – Expert Evidence in Civil Litigation – Formulation and Management.

[2] At [89], after making reference to the comments of Lee J in BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited [2017] FCA 1268; (2017) 252 FCR 450 at [70] – [71].

[3] At [119].