…independent expert’s report – entirety of expert evidence rejected
In New Aim Pty Ltd v Leung [2022] FCA 722 (23 June 2022), the Federal Court (McElwaine J) refused to accept the entirety of an expert’s evidence, due to the lack of the expert’s independence, and after the expert and the instructing solicitors failed to abide by their duties and responsibilities in relation to expert evidence.
The witness was engaged for the applicant (at [45]), and attached numerous documents to their witness statement, including the instruction letter from the applicant’s law firm dated 7 March 2022. The expert witness’s report was dated 8 March 2022. This meant the witness purportedly produced the 16-page expert report the day after receiving their letter of instruction (at [47]).
During cross examination, the witness admitted that (among other things):
- the report was “a collaboration” between the witness and the applicant’s lawyers (at [60])
- one version of the draft report had been put together by a lawyer from the applicant’s law firm (at [48])
- parts of the report had not been written by the witness (at [49]).
The court found that parts of the report were similar to a paragraph in another applicant witness statement because, in both instances, the applicant’s lawyers had drafted the text (at [60]).
The court rejected the witness’s expert report (at [70]), and could not ascertain who had drafted which parts of the expert report. The court found that the ‘Expert Evidence Practice Note’ (the note) and the ‘Harmonised Expert Witness Code of Conduct’ (the code of conduct) had not been complied with.
The court referred specifically to clause 3.2 of the note which states: “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.”
The court also referred to clause 2 of the code of conduct which provides that 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”.
The court was highly critical of the witness’s failure to disclose that the report had been drafted by the applicant’s lawyers. The court held that the suppression of information about the report’s preparation process meant that the expert had failed to provide the court with impartial assistance [at [70]-[73]).
The court was also highly critical of the “misleading” conduct of the applicant’s lawyers. The court criticised the fact that the letter of instruction to the expert witness indicated the expert witness would be engaged to consider questions posed in that letter. The court found that the applicant’s lawyers had already drafted a copy of the expert report prior to that letter of instruction.
The court held that it was “wrong” for the letter of instruction to be written as it was when the applicant’s lawyers were “plainly aware not only of what the answers would be, but also, as to the form of the opinion and the fact that its expression was the product of drafting” by the lawyers.
The letter of instruction made the “false representation” that the expert witness would commence preparation of the expert report on the receipt of the letter of instruction. The failure to disclose the truth to the court (and, when pressed, to the respondent’s solicitors) fundamentally undermined the impartial independence required of an expert witness (at [74]).
The court refused to make findings of fact on the basis of the witness’s oral evidence. The court did not have confidence in the independence or credibility of the witness’s oral evidence, given the court’s rejection of the expert report (at [78]).
The court provided clear authority on the involvement of lawyers and expert evidence, including:
- any permissible drafting by lawyers of an independent expert witness statement for consideration must be disclosed in the expert report, pursuant to the note and the code of conduct
- all correspondence about the manner of preparation of an expert report should be disclosed, including oral correspondence (at [76]).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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