Experts
The new UCPR, provide greater flexibility for NSW courts and parties to deal with expert opinion evidence. A trend may even develop towards using a Court appointed expert as the norm.
UCPR Part 31 rule 31.28 allows a court to appoint and authorise an expert to enquire into and report on a question. The parties, the court, or a person selected by the court may choose the expert. This expert then performs their enquiries, prepares a report, sends their report to the court and parties then the parties may cross examine the expert at the trial. Query how the Court expert will be briefed, including who will prepare the assumed facts and briefing bundle, especially in factually complex cases involving disputed facts eg ASIC v Rich. The report is admitted into evidence once received by the court, although the court may decide what parts to accept. Once a court expert is appointed to deal with a question, leave of the court is required for the parties to adduce their own expert’s evidence on that question. The court expert’s fees are fixed by the court and each relevant party becomes automatically jointly and severally liable for their fees. This prima facie liability can be adjusted in later costs orders. The court also has a separate power to appoint an “advisor” who is specially qualified on a matter, to advise it.
UCPR part 31 rules 31.25 and 31.26 also give the NSW courts a greater flexibility in directing how each party’s own expert evidence may be received. The court may direct that both experts confer, endeavor to reach an agreement and report on agreed and disagreed matters. An expert can seek its own directions from the court. The court may direct the experts to be in court together to be cross examined and for each expert in court to ask the other questions in court. These are just some key examples.
Preliminary Discovery
A new broad preliminary discovery power has been introduced in the UCPR. Briefly, a court may order a prospective defendant to provide discovery of any documents relating to the question of whether a potential plaintiff/ cross claimant would be entitled to bring a claim against a prospective defendant.
The applicant for such an order, must satisfy the court that:
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it may be entitled to make a claim against the defendant;
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having made reasonable enquiries, it is unable to obtain sufficient information to decide whether to commence the proceedings; and
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that the defendant may have useful documents which would assist in the above decision, if they were inspected.
For more information contact James Hamilton on (02) 9018 6403 or jhamilton@rbhm.com.au
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