FEDERAL CIRCUIT COURT RULES THAT APPLY TO COURT EXPERTS
Division 15.2 Expert evidence
15.06A Definition
In this Division:
expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.
15.07 Duty to Court and form of expert evidence
For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:
· an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise
· an expert witness is not an advocate for a party
· the overriding duty of an expert witness is to the Court and not to the person retaining the expert
· if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.
15.08 Expert evidence for 2 or more parties
(1) This rule applies if 2 or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question.
(2) The Court may give any direction that it thinks fit in relation to:
(a) the preparation by the expert witnesses (in conference or otherwise) of a joint statement of how their opinions on the question agree and differ; or
(b) the giving by an expert witness of an oral or written statement of:
(i) his or her opinion on the question; or
(ii) his or her opinion on the opinion of another expert on the question; or
(iii) whether in the light of factual evidence led at trial, he or she adheres to, or wishes to modify, any opinion earlier given; or
(c) the order in which the expert witnesses are to be sworn, are to give evidence, are to be cross‑examined or are to be re‑examined; or
(d) the position of witnesses in the courtroom (not necessarily in the witness box).
Example
The Court may direct that the expert witnesses be sworn one immediately after another, and that they give evidence after all or certain factual evidence has been led, or after each party’s case is closed (subject only to hearing the evidence of expert witnesses) in relation to the question.
15.09 Court expert
(1) The Court may, at the request of a party or of its own motion:
(a) appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and
(b) give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and
(c) give further directions, including to extend or supplement the inquiry or report.
(2) If possible, the court expert should be a person agreed upon between the parties.
15.10 Report of court expert
(1) The court expert must give the report to the Registrar together with the number of copies the Registrar directs.
(2) The Registrar must send a copy of the report to each party.
(3) The Court may:
(a) receive the report in evidence; or
(b) allow the examination of the court expert; or
(c) give other directions as to the use of the report.
(4) A party wishing to cross‑examine the court expert:
(a) must arrange for the attendance of the court expert; and
(b) may issue a subpoena requiring his or her attendance; and
(c) unless the Court otherwise directs, must pay the reasonable expenses of the attendance.
15.11 Remuneration and expenses of court expert
Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.
15.12 Further expert evidence
If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court.