The Rationale for the Expert Evidence Rules – The Hon Geoffrey Davies AO

Perhaps curiously, the true starting point, and in my opinion the most important part of these rules is Division 4 headed “Experts appointed before proceedings started”.  This Division enables the parties to a dispute, or one of them, to have an independent expert appointed before any action is commenced, preferably before either party has chosen to engage its own expert.  This enables the parties to deal with one another, including in negotiating for settlement, in the confidence that, if the dispute goes to court, the opinion of the expert so appointed is likely to be accepted by the court. That is because, if the matter does go to court, the judge will probably admit the evidence of that witness and exclude the evidence of any experts engaged by the respective adversaries.

It is in the context of Division 4 that Division 3 should be read.  Division 3 is headed “Experts appointed after proceedings started”.  Courts have long had the power to appoint their own experts.  However that power was rarely exercised because, by the time that question usually arose, well into the proceedings, the parties would have already engaged their own experts, often batteries of them.  Consequently any expert so appointed would simply add to their number, increase costs and, possibly, add to the confusion of multiple differing opinions. Now it can be seen that Divisions 4 and 3 operate as a carrot and a stick.  Division 4, as I have shown in the preceding paragraph, provides the carrot; the incentive to have a court expert appointed before litigation. Division 3 provides the stick because, if parties have chosen to ignore Division 4 but have chosen, instead, to engage their own experts, the court may nevertheless appoint its own expert to give evidence in lieu of the party engaged ones.

Justice McMeekin adverted to this when he said, in Stewart v Fehlberg and anor [2008] QSC 2003:

“Parties who chose to ignore the rules do so at the risk that the evidence may be rejected when it comes to the attention of the Court that the intent behind the rules and practice direction has been ignored.”

The intent to which his Honour referred is the intent that any expert called to give evidence will, other than in exceptional cases, be a witness agreed by the parties or appointed by the Court.  And Division 4 gives the parties the opportunity to give effect to that intent, before proceedings have started, rather than wasting time and money in engaging their own adversarial experts whose evidence the court may, and usually should refuse to admit.

From this, I hope it can be seen that these rules have two principal purposes.  The first is, as far as reasonably possible, to eliminate the evidence of adversarial expert witnesses; that is, those engaged by one party or the other whose evidence often tends to be impaired by adversarial bias.  And the second is, as far as reasonably possible, to reduce the number of expert witnesses being called on any one issue, thus reducing the high cost of litigation.

In 2004, when these rules were about to be introduced, I gave a paper at the Annual Supreme and Federal Court Judges Conference in which I set out, in more detail than above, the rationale of these rules and how I thought they should be implemented.  That paper, and a later version of it, were published, respectively, in the Civil Justice Quarterly ([2004] 23 CJQ 367) and in the QUT Law Journal ((2005) 5(1) QUTLJJ 89).  Those of you with a further interest in this topic may find one or other of these useful.

The Hon Geoffrey Davies AO

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