Australian Capital Territory Current Regulations

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Schedule 1     Expert witness code of conduct

(see r 1201)

1.1     Application of code

This code of conduct applies to any expert witness engaged or appointed—

        (a)     to provide an expert's report for use as evidence in a proceeding or proposed proceeding; or

        (b)     to give opinion evidence in a proceeding or proposed proceeding.

1.2     General duty to court

    (1)     An expert witness has a paramount duty to assist the court impartially on matters relevant to the expert's area of expertise.

    (2)     This paramount duty to the court, overrides any duty to a party to the proceeding or other person retaining the expert.

    (3)     An expert witness is not an advocate for a party.

1.3     Content of report

Every report prepared by an expert witness for use in court must state the opinion of the expert and state or provide the following:

        (a)     the expert's name and address;

        (b)     an acknowledgment that the expert has read this code and agrees to be bound by it;

        (c)     the expert's qualifications to prepare the report;

        (d)     the material facts and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed);

        (e)     the reasons for each opinion expressed and references to any literature or other materials used by the expert to support each opinion;

        (f)     if applicable, that a particular question, issue or matter falls outside the expert's area of expertise;

        (g)     any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and the person's qualifications;

        (h)     to the extent that any opinion expressed by the expert involves the acceptance of another person's opinion, the identification of the other person and the opinion expressed by the person;

              (i)     a declaration that—

              (i)     the expert has made all the inquiries which the expert believes are desirable and appropriate, other than for any matters identified specifically in the report; and

              (ii)     no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the court;

        (j)     any qualification of an opinion expressed in the report without which the report is, or may be, incomplete or inaccurate;

        (k)     whether any opinion expressed in the report is not a concluded opinion because of insufficient research, or insufficient data or for any other reason;

        (l)     if the report is lengthy or complex, a brief summary of the report at the beginning of the report.

1.4     Supplementary report following change of opinion

    (1)     This section applies if an expert witness has provided a report for use in court to a party, or the party's legal representative (the earlier report ) and the expert witness subsequently changes their opinion on a material matter.

    (2)     The expert witness must immediately provide a supplementary report to the party, or the party's legal representative, stating or providing the information mentioned in rule 1.3 (a), (d), (e), (g) to (l) and, if applicable, rule 1.3 (f).

    (3)     In any subsequent report, whether prepared under subrule (2) or not, the expert witness may refer to material contained in the earlier report without repeating it.

1.5     Duty to comply with court's directions

If directed by the court, an expert witness must—

        (a)     confer with any other expert witness; and

        (b)     give the court a report identifying—

              (i)     the matters on which the experts agree; and

              (ii)     the matters on which the experts disagree; and

              (iii)     the reasons for the experts not agreeing; and

        (c)     comply with any direction of the court in a timely way.

1.6     Experts' conference etc

An expert witness must—

        (a)     exercise independent judgement in relation to every conference held, or report prepared, under the court's direction under rule 1.5, and must not act on any instruction or request to withhold or avoid agreement; and

        (b)     try to reach agreement with the other expert witness, or witnesses, on any issue on which they disagree, or failing agreement, try to identify and clarify the reasons why.

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