Commonwealth Consolidated Regulations Commonwealth Consolidated RegulationsSchedule 5 Experts’ Conferences —
Guidelines for expert witnesses and those instructing them in cases in the
Family Court of Australia
1.1 Purpose of guidelines
These guidelines are
intended to encourage compliance with the provisions of Part 15.5 of the
Family Law Rules 2004 and should be read with those Rules.
1.2 Effect of Division 15.5.7 of Rules
Division 15.5.7 of the
Family Law Rules 2004 provides that if 2 or more parties intend to tender an
expert’s report or adduce evidence from different expert witnesses about
the same, or a similar, question:
(a) the parties must
arrange for the expert witnesses to confer at least 14 days before the
pre-trial conference; and
(b) each party must
give to the expert witness the party has instructed, a copy of these
guidelines.
2.1 Object of experts’ conference
The objects of an
experts’ conference include:
(a) the just, quick
and cost effective disposal of the case to which the conference relates;
(b) identifying and
narrowing issues for determination;
(c) shortening the
trial and enhancing the prospects of settlement;
(d) requiring the
expert witnesses to reach a conclusion on the evidence (the joint statement
given under paragraph 15.69 (3) (e) of the Family Law Rules 2004 may
be used in cross-examination of an expert witness at the trial); and
(e) avoiding or
reducing the need for the expert witnesses to attend court to give evidence.
2.2 Preparation for an experts’ conference
(1) Separate
experts’ conferences may be required between experts in different
specialities in relation to different issues arising in the case.
(2) Subrule
15.69 (2) of the Family Law Rules 2004 provides that the court may, in
relation to an experts’ conference, order:
(a) which expert
witnesses are to attend;
(b) where and when the
conference is to occur;
(c) which issues the
expert witnesses must discuss;
(d) the questions to
be answered by the expert witnesses; and
(e) the documents to
be given to the expert witnesses, including:
(i) Part 15.5 of the
Family Law Rules 2004 ;
(ii) relevant
affidavits;
(iii) a joint
statement of the assumptions to be relied on by the expert witnesses during
the conference, including any competing assumptions; and
(iv) all
expert’s reports already disclosed by the parties.
(3) Any questions to
be answered by the expert witnesses at an experts’ conference should be:
(a) questions
specified by the court or agreed to by the parties and any other question a
party wishes to submit for consideration; and
(b) framed to resolve
an issue or issues in the case.
(4) If possible,
questions should be capable of being answered with a ‘yes’ or
‘no’ response or, if not, by a very brief response.
(5) The documents
mentioned in paragraph (2) (e) and any other documents agreed to by the
parties should be given to the expert witnesses at least 7 days before the
experts’ conference.
2.3 Convening an experts’ conference
(1) If the court has
not fixed a place and date for an experts’ conference, the parties
should fix a mutually convenient date, time and place for the conference.
(2) The party who
appointed an expert witness must ensure that the expert witness is given a
reasonable opportunity to prepare for the experts’ conference and, in
particular, the party must ensure that the expert witness is given:
(a) an opportunity to
clarify with the instructing lawyers or the court any question put to the
expert witness; and
(b) access to any
additional material that the parties are able to provide and that the expert
witness considers relevant.
(3) The conference
should not normally take place until at least 7 days after the expert
witnesses have received the documents mentioned in paragraph
2.2 (2) (e) and any other documents agreed to by the parties.
2.4 The role of expert witnesses at an
experts’ conference
(1) Each expert
witness should respond to the questions asked.
(2) Each answer by an
expert witness must:
(a) be based on the
facts in the witness statements or affidavits; and
(b) set out the
assumption on which it is based.
(3) For paragraph (2)
(b), if there is an alternative result on a different assumption, the expert
witness must state this in his or her answer.
(4) The expert
witnesses may specify in the joint statement required by paragraph
15.69 (3) (e) of the Family Law Rules 2004 , other questions that
the expert witnesses believe would be useful for them to consider.
(5) If an expert
witness has a contrary view to another expert witness, the expert witness
should express it.
(6) An expert witness
should accept as fact the matters stated in witness statements or assumptions
submitted to the expert witness.
(7) It is not an
expert witness’s role to decide any disputed question of fact or the
credibility of any witness.
(8) If there are
competing assumptions, alternative answers may have to be given to a question
or questions, specifying which of the assumptions are adopted for each answer.
2.5 Conduct of experts’ conference
(1) An experts’
conference should be conducted in a manner that is flexible, free from undue
complexity and fair to all parties.
(2) The expert
witnesses may:
(a) appoint one of
their number as a chairperson; or
(b) if one of the
expert witnesses so requests and the parties agree or the court orders,
appoint another person to act as chairperson.
(3) If secretarial or
administrative assistance is requested by the expert witnesses, the parties
should provide that assistance.
(4) If the expert
witnesses agree, one of them or a secretarial assistant may be appointed to
take notes at the conference about matters agreed, matters not agreed and
reasons for disagreement.
(5) The conference may
be adjourned and reconvened as necessary.
(6) Subrule 15.69 (3)
of the Family Law Rules 2004 provides that, at the experts’ conference,
the expert witnesses must:
(a) identify the
issues that are agreed and not agreed;
(b) if practicable,
reach agreement on any outstanding issue;
(c) identify the
reason for disagreement on any issue;
(d) identify what
action (if any) may be taken to resolve any outstanding issues; and
(e) prepare a joint
statement specifying the matters mentioned in paragraphs (a) to (d) and
deliver a copy of the statement to each party.
2.6 Joint statement
(1) The joint
statement required by paragraph 15.69 (3) (e) of the
Family Law Rules 2004 should:
(a) be written by the
expert witnesses participating in the experts’ conference (the
participating expert witnesses ); and
(b) be signed by all
participating expert witnesses immediately after the conference ends or as
soon as practicable after the conference.
(2) The participating
expert witnesses should not seek advice or guidance from the parties or their
lawyers before signing the joint statement.
(3) Subrule
15.69 (4) of those Rules provides that if the participating expert
witnesses reach agreement on an issue, the agreement does not bind the parties
unless the parties expressly agree to be bound by it.
(4) Subrule
15.69 (5) of those Rules provides that the joint statement may be
tendered by consent as evidence of matters agreed on and to identify the
issues on which evidence will be called.
2.7 Role of lawyers
(1) Lawyers attending
a conference by order of the court or who are approached for advice by an
expert witness participating in an experts’ conference should respond
jointly and not individually, unless authorised to do so by the lawyers for
all other parties with an interest in the conference.
(2) Advice may be
provided by:
(a) responding to any
questions in relation to the legal process applicable to the case;
(b) identifying
documents relevant to the case or experts’ conference;
(c) providing further
materials on request; and
(d) correcting any
misapprehensions of fact or any misunderstanding concerning the conference
process.