EXPERT EVIDENCE PRACTICE NOTE (GPN-EXPT)

General Practice Note

1. INTRODUCTION
1.1 This practice note, including the Harmonised Expert Witness Code of Conduct (“Code”) (see
Annexure A) and the Concurrent Expert Evidence Guidelines (“Concurrent Evidence
Guidelines”) (see Annexure B), applies to any proceeding involving the use of expert
evidence and must be read together with:
(a) the Central Practice Note (CPN-1), which sets out the fundamental principles
concerning the National Court Framework (“NCF”) of the Federal Court and key
principles of case management procedure;
(b) the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”);
(c) the Evidence Act 1995 (Cth) (“Evidence Act”), including Part 3.3 of the Evidence Act;
(d) Part 23 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”); and
(e) where applicable, the Survey Evidence Practice Note (GPN-SURV).
1.2 This practice note takes effect from the date it is issued and, to the extent practicable,
applies to proceedings whether filed before, or after, the date of issuing.

2. APPROACH TO EXPERT EVIDENCE

2.1 An expert witness may be retained to give opinion evidence in the proceeding, or, in certain
circumstances, to express an opinion that may be relied upon in alternative dispute
resolution procedures such as mediation or a conference of experts. In some circumstances
an expert may be appointed as an independent adviser to the Court.
2.2 The purpose of the use of expert evidence in proceedings, often in relation to complex
subject matter, is for the Court to receive the benefit of the objective and impartial
assessment of an issue from a witness with specialised knowledge (based on training, study
or experience - see generally s 79 of the Evidence Act).
2.3 However, the use or admissibility of expert evidence remains subject to the overriding
requirements that:
(a) to be admissible in a proceeding, any such evidence must be relevant (s 56 of the
Evidence Act); and
(b) even if relevant, any such evidence, may be refused to be admitted by the Court if
its probative value is outweighed by other considerations such as the evidence
 being unfairly prejudicial, misleading or will result in an undue waste of time
(s 135 of the Evidence Act).
2.4 An expert witness' opinion evidence may have little or no value unless the assumptions
adopted by the expert (ie. the facts or grounds relied upon) and his or her reasoning are
expressly stated in any written report or oral evidence given.
2.5 The Court will ensure that, in the interests of justice, parties are given a reasonable
opportunity to adduce and test relevant expert opinion evidence. However, the Court
expects parties and any legal representatives acting on their behalf, when dealing with
expert witnesses and expert evidence, to at all times comply with their duties associated
with the overarching purpose in the Federal Court Act (see ss 37M and 37N).

3. INTERACTION WITH EXPERT WITNESSES

3.1 Parties and their legal representatives should never view an expert witness retained (or
partly retained) by them as that party's advocate or “hired gun”. Equally, they should never
attempt to pressure or influence an expert into conforming his or her views with the party's
interests.
3.2 A party or legal representative should be cautious not to have inappropriate
communications when retaining or instructing an independent expert, or assisting an
independent expert in the preparation of his or her evidence. However, it is important to
note that there is no principle of law or practice and there is nothing in this practice note
that obliges a party to embark on the costly task of engaging a “consulting expert” in order
to avoid “contamination” of the expert who will give evidence. Indeed the Court would
generally discourage such costly duplication.
3.3 Any witness retained by a party for the purpose of preparing a report or giving evidence in
a proceeding as to an opinion held by the witness that is wholly or substantially based in the
specialised knowledge of the witness1 should, at the earliest opportunity, be provided with:
(a) a copy of this practice note, including the Code (see Annexure A); and
(b) all relevant information (whether helpful or harmful to that party's case) so as to
enable the expert to prepare a report of a truly independent nature.
3.4 Any questions or assumptions provided to an expert should be provided in an unbiased
manner and in such a way that the expert is not confined to addressing selective, irrelevant
or immaterial issues.

1
Such a witness includes a “Court expert” as defined in r 23.01 of the Federal Court Rules. For the definition of
"expert", "expert evidence" and "expert report" see the Dictionary, in Schedule 1 of the Federal Court Rules.

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4. ROLE AND DUTIES OF THE EXPERT WITNESS
4.1 The role of the expert witness is to provide relevant and impartial evidence in his or her area
of expertise. An expert should never mislead the Court or become an advocate for the
cause of the party that has retained the expert.
4.2 It should be emphasised that there is nothing inherently wrong with experts disagreeing or
failing to reach the same conclusion. The Court will, with the assistance of the evidence of
the experts, reach its own conclusion.
4.3 However, experts should willingly be prepared to change their opinion or make concessions
when it is necessary or appropriate to do so, even if doing so would be contrary to any
previously held or expressed view of that expert.
Harmonised Expert Witness Code of Conduct
4.4 Every expert witness giving evidence in this Court must read the Harmonised Expert Witness
Code of Conduct (attached in Annexure A) and agree to be bound by it.
4.5 The Code is not intended to address all aspects of an expert witness' duties, but is intended
to facilitate the admission of opinion evidence, and to assist experts to understand in
general terms what the Court expects of them. Additionally, it is expected that compliance
with the Code will assist individual expert witnesses to avoid criticism (rightly or wrongly)
that they lack objectivity or are partisan.

5. CONTENTS OF AN EXPERT’S REPORT AND RELATED MATERIAL

5.1 The contents of an expert’s report must conform with the requirements set out in the Code
(including clauses 3 to 5 of the Code).
5.2 In addition, the contents of such a report must also comply with r 23.13 of the Federal Court
Rules. Given that the requirements of that rule significantly overlap with the requirements
in the Code, an expert, unless otherwise directed by the Court, will be taken to have
complied with the requirements of r 23.13 if that expert has complied with the
requirements in the Code and has complied with the additional following requirements. The
expert shall:
(a) acknowledge in the report that:
(i) the expert has read and complied with this practice note and agrees to be
bound by it; and
(ii) the expert’s opinions are based wholly or substantially on specialised
knowledge arising from the expert’s training, study or experience;
(b) identify in the report the questions that the expert was asked to address;
(c) sign the report and attach or exhibit to it copies of:
(i) documents that record any instructions given to the expert; and

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 (ii) documents and other materials that the expert has been instructed to
consider.
5.3 Where an expert’s report refers to photographs, plans, calculations, analyses,
measurements, survey reports or other extrinsic matter, these must be provided to the
other parties at the same time as the expert’s report.

6. CASE MANAGEMENT CONSIDERATIONS

6.1 Parties intending to rely on expert evidence at trial are expected to consider between them
and inform the Court at the earliest opportunity of their views on the following:
(a) whether a party should adduce evidence from more than one expert in any single
discipline;
(b) whether a common expert is appropriate for all or any part of the evidence;
(c) the nature and extent of expert reports, including any in reply;
(d) the identity of each expert witness that a party intends to call, their area(s) of
expertise and availability during the proposed hearing;
(e) the issues that it is proposed each expert will address;
(f) the arrangements for a conference of experts to prepare a joint-report (see
Part 7 of this practice note);
(g) whether the evidence is to be given concurrently and, if so, how (see
Part 8 of this practice note); and
(h) whether any of the evidence in chief can be given orally.
6.2 It will often be desirable, before any expert is retained, for the parties to attempt to agree
on the question or questions proposed to be the subject of expert evidence as well as the
relevant facts and assumptions. The Court may make orders to that effect where it
considers it appropriate to do so.

7. CONFERENCE OF EXPERTS AND JOINT-REPORT

7.1 Parties, their legal representatives and experts should be familiar with aspects of the Code
relating to conferences of experts and joint-reports (see clauses 6 and 7 of the Code
attached in Annexure A).
7.2 In order to facilitate the proper understanding of issues arising in expert evidence and to
manage expert evidence in accordance with the overarching purpose, the Court may require
experts who are to give evidence or who have produced reports to meet for the purpose of
identifying and addressing the issues not agreed between them with a view to reaching
agreement where this is possible (“conference of experts”). In an appropriate case, the
Court may appoint a registrar of the Court or some other suitably qualified person
(“Conference Facilitator”) to act as a facilitator at the conference of experts.

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7.3 It is expected that where expert evidence may be relied on in any proceeding, at the earliest
opportunity, parties will discuss and then inform the Court whether a conference of experts
and/or a joint-report by the experts may be desirable to assist with or simplify the giving of
expert evidence in the proceeding. The parties should discuss the necessary arrangements
for any conference and/or joint-report. The arrangements discussed between the parties
should address:
(a) who should prepare any joint-report;
(b) whether a list of issues is needed to assist the experts in the conference and, if so,
whether the Court, the parties o r the experts should assist in preparing such a list;
(c) the agenda for the conference of experts; and
(d) arrangements for the provision, to the parties and the Court, of any joint-report or
any other report as to the outcomes of the conference (“conference report”).
Conference of Experts
7.4 The purpose of the conference of experts is for the experts to have a comprehensive
discussion of issues relating to their field of expertise, with a view to identifying matters and
issues in a proceeding about which the experts agree, partly agree or disagree and why. For
this reason the conference is attended only by the experts and any Conference Facilitator.
Unless the Court orders otherwise, the parties' lawyers will not attend the conference but
will be provided with a copy of any conference report.
7.5 The Court may order that a conference of experts occur in a variety of circumstances,
depending on the views of the judge and the parties and the needs of the case, including:
(a) while a case is in mediation. When this occurs the Court may also order that the
outcome of the conference or any document disclosing or summarising the experts’
opinions be confidential to the parties while the mediation is occurring;
(b) before the experts have reached a final opinion on a relevant question or the facts
involved in a case. When this occurs the Court may order that the parties exchange
draft expert reports and that a conference report be prepared for the use of the
experts in finalising their reports;
(c) after the experts' reports have been provided to the Court but before the hearing
of the experts' evidence. When this occurs the Court may also order that a
conference report be prepared (jointly or otherwise) to ensure the efficient hearing
of the experts’ evidence.
7.6 Subject to any other order or direction of the Court, the parties and their lawyers must not
involve themselves in the conference of experts process. In particular, they must not seek to
encourage an expert not to agree with another expert or otherwise seek to influence the
outcome of the conference of experts. The experts should raise any queries they may have
in relation to the process with the Conference Facilitator (if one has been appointed) or in

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 accordance with a protocol agreed between the lawyers prior to the conference of experts
taking place (if no Conference Facilitator has been appointed).
7.7 Any list of issues prepared for the consideration of the experts as part of the conference of
experts process should be prepared using non-tendentious language.
7.8 The timing and location of the conference of experts will be decided by the judge or a
registrar who will take into account the location and availability of the experts and the
Court's case management timetable. The conference may take place at the Court and will
usually be conducted in-person. However, if not considered a hindrance to the process, the
conference may also be conducted with the assistance of visual or audio technology (such as
via the internet, video link and/or by telephone).
7.9 Experts should prepare for a conference of experts by ensuring that they are familiar with all
of the material upon which they base their opinions. Where expert reports in draft or final
form have been exchanged prior to the conference, experts should attend the conference
familiar with the reports of the other experts. Prior to the conference, experts should also
consider where they believe the differences of opinion lie between them and what
processes and discussions may assist to identify and refine those areas of difference.
Joint-report
7.10 At the conclusion of the conference of experts, unless the Court considers it unnecessary to
do so, it is expected that the experts will have narrowed the issues in respect of which they
agree, partly agree or disagree in a joint-report. The jointreport should be clear, plain and
concise and should summarise the views of the experts on the identified issues, including a
succinct explanation for any differences of opinion, and otherwise be structured in the
manner requested by the judge or registrar.
7.11 In some cases (and most particularly in some native title cases), depending on the nature,
volume and complexity of the expert evidence a judge may direct a registrar to draft part, or
all, of a conference report. If so, the registrar will usually provide the draft conference
report to the relevant experts and seek their confirmation that the conference report
accurately reflects the opinions of the experts expressed at the conference. Once that
confirmation has been received the registrar will finalise the conference report and provide
it to the intended recipient(s).

8. CONCURRENT EXPERT EVIDENCE

8.1 The Court may determine that it is appropriate, depending on the nature of the expert
evidence and the proceeding generally, for experts to give some or all of their evidence
concurrently at the final (or other) hearing.
8.2 Parties should familiarise themselves with the Concurrent Expert Evidence Guidelines
(attached in Annexure B). The Concurrent Evidence Guidelines are not intended to be
exhaustive but indicate the circumstances when the Court might consider it appropriate for

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 concurrent expert evidence to take place, outline how that process may be undertaken, and
assist experts to understand in general terms what the Court expects of them.
8.3 If an order is made for concurrent expert evidence to be given at a hearing, any expert to
give such evidence should be provided with the Concurrent Evidence Guidelines well in
advance of the hearing and should be familiar with those guidelines before giving evidence.

9. FURTHER PRACTICE INFORMATION AND RESOURCES

9.1 Further information regarding Expert Evidence and Expert Witnesses is available on the
Court's website.
9.2 Further information to assist litigants, including a range of helpful guides, is also available on
the Court’s website. This information may be particularly helpful for litigants who are
representing themselves.

J L B ALLSOP
Chief Justice
25 October 2016

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Annexure A
HARMONISED EXPERT WITNESS CODE OF CONDUCT2

APPLICATION OF CODE
1. This Code of Conduct applies to any expert witness engaged or appointed:
(a) to provide an expert's report for use as evidence in proceedings or proposed
proceedings; or
(b) to give opinion evidence in proceedings or proposed proceedings.

GENERAL DUTIES TO THE COURT

2. An expert witness is not an advocate for a party and has a paramount duty, overriding any
duty to the party to the proceedings or other person retaining the expert witness, to assist
the Court impartially on matters relevant to the area of expertise of the witness.

CONTENT OF REPORT
3. Every report prepared by an expert witness for use in Court shall clearly state the opinion or
opinions of the expert and shall state, specify or provide:
(a) the name and address of the expert;
(b) an acknowledgment that the expert has read this code and agrees to be bound by it;
(c) the qualifications of the expert to prepare the report;
(d) the assumptions and material facts on which each opinion expressed in the report is
based [a letter of instructions may be annexed];
(e) the reasons for and any literature or other materials utilised in support of such
opinion;
(f) (if applicable) that a particular question, issue or matter falls outside the expert's
field of expertise;
(g) any examinations, tests or other investigations on which the expert has relied,
identifying the person who carried them out and that person's qualifications;
(h) the extent to which any opinion which the expert has expressed involves the
acceptance of another person's opinion, the identification of that other person and
the opinion expressed by that other person;
(i) a declaration that the expert has made all the inquiries which the expert believes are
desirable and appropriate (save for any matters identified explicitly in the report), and
that no matters of significance which the expert regards as relevant have, to the
knowledge of the expert, been withheld from the Court;
2
Approved by the Council of Chief Justices' Rules Harmonisation Committee
 (j) any qualifications on 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; and
(l) where the report is lengthy or complex, a brief summary of the report at the beginning
of the report.

SUPPLEMENTARY REPORT FOLLOWING CHANGE OF OPINION

4. Where an expert witness has provided to a party (or that party's legal representative) a
report for use in Court, and the expert thereafter changes his or her opinion on a material
matter, the expert shall forthwith provide to the party (or that party's legal representative) a
supplementary report which shall state, specify or provide the information referred to in
paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (I) of clause 3 of this code and, if applicable,
paragraph (f) of that clause.
5. In any subsequent report (whether prepared in accordance with clause 4 or not) the expert
may refer to material contained in the earlier report without repeating it.

DUTY TO COMPLY WITH THE COURT'S DIRECTIONS

6. If directed to do so by the Court, an expert witness shall:
(a) confer with any other expert witness;
(b) provide the Court with a joint-report specifying (as the case requires) matters agreed
and matters not agreed and the reasons for the experts not agreeing; and
(c) abide in a timely way by any direction of the Court.

CONFERENCE OF EXPERTS
7. Each expert witness shall:
(a) exercise his or her independent judgment in relation to every conference in which the
expert participates pursuant to a direction of the Court and in relation to each report
thereafter provided, and shall not act on any instruction or request to withhold or
avoid agreement; and
(b) endeavour to reach agreement with the other expert witness (or witnesses) on any
issue in dispute between them, or failing agreement, endeavour to identify and clarify
the basis of disagreement on the issues which are in dispute.
ANNEXURE B
CONCURRENT EXPERT EVIDENCE GUIDELINES

APPLICATION OF THE COURT’S GUIDELINES

1. The Court’s Concurrent Expert Evidence Guidelines (“Concurrent Evidence Guidelines”) are
intended to inform parties, practitioners and experts of the Court's general approach to
concurrent expert evidence, the circumstances in which the Court might consider expert
witnesses giving evidence concurrently and, if so, the procedures by which their evidence
may be taken.

OBJECTIVES OF CONCURRENT EXPERT EVIDENCE TECHNIQUE

2. The use of concurrent evidence for the giving of expert evidence at hearings as a case
management technique3 will be utilised by the Court in appropriate circumstances (see r
23.15 of the Federal Court Rules 2011 (Cth)). Not all cases will suit the process. For
instance, in some patent cases, where the entire case revolves around conflicts within fields
of expertise, concurrent evidence may not assist a judge. However, patent cases should not
be excluded from concurrent expert evidence processes.
3. In many cases the use of concurrent expert evidence is a technique that can reduce the
partisan or confrontational nature of conventional hearing processes and minimises the risk
that experts become "opposing experts" rather than independent experts assisting the
Court. It can elicit more precise and accurate expert evidence with greater input and
assistance from the experts themselves.
4. When properly and flexibly applied, with efficiency and discipline during the hearing
process, the technique may also allow the experts to more effectively focus on the critical
points of disagreement between them, identify or resolve those issues more quickly, and
narrow the issues in dispute. This can also allow for the key evidence to be given at the
same time (rather than being spread across many days of hearing); permit the judge to
assess an expert more readily, whilst allowing each party a genuine opportunity to put and
test expert evidence. This can reduce the chance of the experts, lawyers and the judge
misunderstanding the opinions being expressed by the experts.
5. It is essential that such a process has the full cooperation and support of all of the individuals
involved, including the experts and counsel involved in the questioning process. Without
that cooperation and support the process may fail in its objectives and even hinder the case
management process.

3
Also known as the “hot tub” or as “expert panels”.
CASE MANAGEMENT
6. Parties should expect that, the Court will give careful consideration to whether concurrent
evidence is appropriate in circumstances where there is more than one expert witness
having the same expertise who is to give evidence on the same or related topics. Whether
experts should give evidence concurrently is a matter for the Court, and will depend on the
circumstances of each individual case, including the character of the proceeding, the nature
of the expert evidence, and the views of the parties.
7. Although this consideration may take place at any time, including the commencement of the
hearing, if not raised earlier, parties should raise the issue of concurrent evidence at the first
appropriate case management hearing, and no later than any pre-trial case management
hearing, so that orders can be made in advance, if necessary. To that end, prior to the
hearing at which expert evidence may be given concurrently, parties and their lawyers
should confer and give general consideration as to:
(a) the agenda;
(b) the order and manner in which questions will be asked; and
(c) whether cross-examination will take place within the context of the concurrent
evidence or after its conclusion.
8. At the same time, and before any hearing date is fixed, the identity of all experts proposed to
be called and their areas of expertise is to be notified to the Court by all parties.
9. The lack of any concurrent evidence orders does not mean that the Court will not consider
using concurrent evidence without prior notice to the parties, if appropriate.

CONFERENCE OF EXPERTS & JOINT-REPORT OR LIST OF ISSUES

10. The process of giving concurrent evidence at hearings may be assisted by the preparation of
a jointreport or list of issues prepared as part of a conference of experts.
11. Parties should expect that, where concurrent evidence is appropriate, the Court may make
orders requiring a conference of experts to take place or for documents such as a joint-
report to be prepared to facilitate the concurrent expert evidence process at a hearing (see
Part 7 of the Expert Evidence Practice Note).

PROCEDURE AT HEARING
12. Concurrent expert evidence may be taken at any convenient time during the hearing,
although it will often occur at the conclusion of both parties' lay evidence.
13. At the hearing itself, the way in which concurrent expert evidence is taken must be applied
flexibly and having regard to the characteristics of the case and the nature of the evidence
to be given.
14. Without intending to be prescriptive of the procedure, parties should expect that, when
evidence is given by experts in concurrent session:
 (a) the judge will explain to the experts the procedure that will be followed and that the
nature of the process may be different to their previous experiences of giving expert
evidence;
(b) the experts will be grouped and called to give evidence together in their respective
fields of expertise;
(c) the experts will take the oath or affirmation together, as appropriate;
(d) the experts will sit together with convenient access to their materials for their ease of
reference, either in the witness box or in some other location in the courtroom,
including (if necessary) at the bar table;
(e) each expert may be given the opportunity to provide a summary overview of their
current opinions and explain what they consider to be the principal issues of
disagreement between the experts, as they see them, in their own words;
(f) the judge will guide the process by which evidence is given, including, where
appropriate:
(i) using any joint-report or list of issues as a guide for all the experts to be asked
questions by the judge and counsel, about each issue on an issue-by-issue basis;
(ii) ensuring that each expert is given an adequate opportunity to deal with each
issue and the exposition given by other experts including, where considered
appropriate, each expert asking questions of other experts or supplementing the
evidence given by other experts;
(iii) inviting legal representatives to identify the topics upon which they will cross-
examine;
(iv) ensuring that legal representatives have an adequate opportunity to ask all
experts questions about each issue. Legal representatives may also seek
responses or contributions from one or more experts in response to the
evidence given by a different expert; and
(v) allowing the experts an opportunity to summarise their views at the end of the
process where opinions may have been changed or clarifications are needed.
15. The fact that the experts may have been provided with a list of issues for consideration does
not confine the scope of any cross-examination of any expert. The process of cross-
examination remains subject to the overall control of the judge.
16. The concurrent session should allow for a sensible and orderly series of exchanges between
expert and expert, and between expert and lawyer. Where appropriate, the judge may
allow for more traditional cross-examination to be pursued by a legal representative on a
particular issue exclusively with one expert. Where that occurs, other experts may be asked
to comment on the evidence given.
17. Where any issue involves only one expert, the party wishing to ask questions about that
issue should let the judge know in advance so that consideration can be given to whether
 arrangements should be made for that issue to be dealt with after the completion of the
concurrent session. Otherwise, as far as practicable, questions (including in the form of
cross-examination) will usually be dealt with in the concurrent session.
18. Throughout the concurrent evidence process the judge will ensure that the process is fair
and effective (for the parties and the experts), balanced (including not permitting one expert
to overwhelm or overshadow any other expert), and does not become a protracted or
inefficient process.