Opinions based on specialised knowledge

9.25 In contrast to most other kinds of witness, expert witnesses are permitted to offer opinions to the court as to the meaning and implications of facts and opinions. The basic distinction between lay and expert opinion evidence is that, of the two categories of opinion evidence, only expert opinion evidence is based on ‘specialised knowledge’ in a sense peculiar to this branch of the law.

9.26 So far as the common law of expert opinion evidence is concerned, views differ about the rules that control admissibility. Freckelton and Selby formulate the following list as rules of admissibility at common law.[29]

  • The field of expertise rule: The claimed knowledge or expertise should be recognised as credible by others who are capable of evaluating its theoretical and experiential foundations;

  • The expertise rule: The witness should have sufficient knowledge and experience to entitle him or her to be held out as an expert who can assist the court;

  • The common knowledge rule: The information sought to be elicited from the expert should be something upon which the court needs the help of a third party, as opposed to relying upon its general knowledge and common sense;

  • The ultimate issue rule: The expert’s contribution should not have the effect of supplanting the function of the court in deciding the issue before it; and

  • The basis rule: The admissibility of expert opinion evidence depends on proof of the factual basis of the opinion.

9.27 However, the authors recognise that these ‘rules’ have been applied with varying degrees of rigour. To some, analysis in search of rules of this kind is misleading and may oversimplify issues which are inherently complex.

9.28 The starting point for discussion is the expert opinion exception to the general exclusionary rule for opinion evidence. The exception is found in s 79 of the uniform Evidence Acts.

Section 79 of the uniform Evidence Acts

9.29 Section 79 provides:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.[30]

9.30 The first part of this chapter focuses on aspects of s 79, including:

  • the ‘specialised knowledge’ requirement and the related ‘field of expertise’ requirement;

  • the requirement that expert opinion evidence be based on the ‘training, study or experience’ of the expert witness; and

  • the extent of the requirement under the uniform Evidence Acts to show that expert opinion evidence is ‘based on’ the application of specialised knowledge to relevant facts or factual assumptions.[31]

‘Specialised knowledge’ and ‘field of expertise’

9.31 At common law, there has been an ongoing debate as to whether and to what extent the law should require the demonstration of a field of expertise or acceptance of a particular discipline or some other requirement as a condition of admissibility of expert opinion on a matter. The uniform Evidence Acts do not contain any such express requirement but require the demonstration of specialised knowledge before expert opinion can be given in evidence. Should they contain some such additional requirement as a ‘field of expertise’?

9.32 Whether there is a field of expertise in relation to which an expert in the area may give opinion evidence is a question that has arisen in relation to fingerprinting evidence, the use of seat belts, the causes of traffic accidents, voice identification, stylometrics, the use of polygraphs, bushfire behaviour, DNA profiling and the ‘battered woman syndrome’.[32] What suffices as a field of expertise for the purposes of the common law of evidence is arguably not settled in Australia.[33] But it is said that the expert witness must be ‘qualified by training or practical experience in an area of knowledge beyond that possessed by the trier of fact, and of apparent assistance to it’.[34] The ‘specialised knowledge’ required of the expert by s 79 must be in this area of expert learning.

A variety of tests

9.33 New and developing knowledge poses a difficulty. At what point in the development of the learning is there an area of expertise for the purposes of the law of expert evidence? Courts sometimes look to whether a body of expert knowledge has ‘general acceptance’ in the relevant—usually scientific—discipline. This approach is sometimes known as the ‘Frye test’, after a decision of that name delivered by the Supreme Court of the United States.[35] South Australian case law asks whether the expert knowledge is ‘sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience’—which points to acceptance by the court rather than by a professional community.[36] In Victoria, it has been said:

Provided the judge is satisfied that there is a field of expert knowledge … it is no objection to the reception of the evidence of an expert within that field that the views which he puts forward do not command general acceptance by other experts in the field.[37]

9.34 Debate in Australia about the appropriate test for an area of expert knowledge has more recently been influenced by the 1993 decision of the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals.[38]Daubert decided that, when applying Rule 702 of the Federal Rules of Evidence,[39] a court must make an assessment of whether the reasoning or methodology underlying expert opinion evidence is scientifically valid.[40]

9.35 Discussion about the possible influence of the Daubert approach on Australian evidence law has centred on whether the adoption of similar criteria would usefully restrict the admission of evidence based on ‘junk’ science. While some have supported the application in Australia of the Daubert approach as setting more rigorous admissibility criteria,[41] others have concluded that it would be unlikely to lead to any significant improvement in the quality of scientific expert opinion evidence.[42]

9.36 Current High Court authority does not apply Frye or Daubert style tests to specialised knowledge in an identified area. Rather, in HG v The Queen,[43] Gaudron J (Gummow J agreeing) referred to the need, at common law, for the expert’s knowledge or experience to be in an area ‘sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience’.[44] Her Honour said there was no reason to think that the expression ‘specialised knowledge’ in s 79 of the uniform Evidence Acts ‘gives rise to a test which is in any respect narrower or more restrictive than the position at common law’—that is, there is no reason to think that s 79 imposes additional thresholds on admissibility.[45]

9.37 Together with the comments of Gummow and Callinan JJ,[46] this leads a commentator to conclude that, while recognition may be one basis for a conclusion of reliability, under the uniform Evidence Acts ‘it appears clear that the ultimate test is reliability’ of the expert’s knowledge or experience in an area.[47]

9.38 The ALRC expressed concerns in its original reports about how the area of specialised knowledge should be identified, and at the possibility that the identified area of specialised knowledge might be tested by general acceptance or similar theories.[48] It rejected identification of the area of specialised knowledge through application of a ‘general acceptance’ test or a ‘reputable body of opinion’ test of reliability because this was too strict, and would cause much useful and reliable evidence to be excluded. It would result in courts lagging behind advances in science and other learning.

Submissions and consultations on IP 28

9.39 In IP 28 comments were sought on whether significant problems are caused by the admission of expert evidence from novel scientific or technical fields and whether reform of the uniform Evidence Acts might address these problems.[49]

9.40 In DP 69 the Commissions set out the responses received. They noted that most stakeholders consulted were reasonably satisfied with the way s 79 has been interpreted and applied.[50] Having reviewed the responses, the Commissions stated the following views:

  • that s 79 was not intended to enact, and does not enact, a ‘field of expertise’ test based on ‘general acceptance’ or similar requirements; and

  • that the concerns as to probative value of evidence admitted under s 79, its potential to mislead, and the time and cost that have given rise to more stringent rules are best addressed by the discretion under s 135 for a court not to admit evidence in certain cases, and by the discretion under s 136 to limit the use which can be made of evidence by the tribunal of fact.[51]

9.41 It was suggested that evaluation of new and developing areas of knowledge will continue to pose a challenge for the courts due to the nature of the exercise, and that adding new criteria to the uniform Evidence Acts would not simplify the task and might introduce new uncertainties.[52]

Submissions and consultations on DP 69

9.42 Submissions and consultations on DP 69 have not revealed particular difficulties with the application of the ‘specialised knowledge’ component of s 79. Notably, no comment was addressed to the Frye, Daubert and related tests of acceptance of the field of specialised knowledge.

The Commissions’ view

9.43 The Commissions remain of the view that it is unnecessary to recommend an amendment to import any of the tests, such as the Frye test, that have been considered necessary at common law, or to clarify any aspects of the ‘specialised knowledge’ requirement of s 79.

Training, study or experience

9.44 It has been held that the term ‘specialised knowledge’ is not restrictive and expressly encompasses specialised knowledge based on experience.[53] Because of that, questions arise about so-called ‘ad hoc’ experts. An ad hoc expert is a person who, while not having formal training or qualifications in a particular area of expertise, has acquired expertise based on particular experience in that area, such as by listening to tape recordings which are substantially unintelligible to anybody who has not played them repeatedly, or by becoming familiar with the handwriting of another person.

9.45 The concept of an ad hoc expert was recognised at common law by the High Court in R v Butera.[54] Cases since the enactment of the uniform Evidence Acts have recognised that s 79 is sufficiently broad to encompass ad hoc experts. In R v Leung, the prosecution sought to lead evidence from an interpreter, who had listened repeatedly to listening device tapes and tapes of police interviews with the accused, that the voice on the listening device tapes was that of the accused. It was held that, even if such evidence fell outside the scope of s 78, it was covered by s 79 because the interpreter’s expertise and familiarity with the voices and languages on the tapes qualified him as an ad hoc expert.[55]

The uniform Evidence Acts

9.46 In IP 28 the view was noted that the current approach to ad hoc experts might create problems in that it gives a ‘very broad, indeed almost unlimited’ scope to s 79 and to the concepts of ‘specialised knowledge’ and ‘training, study or experience’.[56] Another view is that the ‘essentially pragmatic’ scope of the opinion rule demands an equally pragmatic approach to its exceptions. Therefore, the lay opinion and expert opinion exceptions should be construed as broadly as possible, allowing borderline cases to be dealt with through the exercise of the discretion to exclude prejudicial evidence.[57]

9.47 It was asked in IP 28 whether concerns exist with regard to the admission of so-called ‘ad hoc’ expert opinion evidence and whether any concerns should be addressed through amendment of the uniform Evidence Acts.[58]

Submissions and consultations

9.48 The Commissions have not received many comments on this question, which raises similar concerns about the reliability and probative value of evidence as were discussed above in relation to the concept of specialised knowledge. Again, the Commissions’ overall impression has been that this element of s 79 has not caused significant concern in practice.

9.49 However, the Law Society of South Australia submits that s 79 should be amended to replace the words ‘the person’s training, study or experience’ with ‘the person’s training and experience’ or, alternatively, ‘the person’s study and experience’. It is said that this would limit the number of those who could be classified as ad hoc experts.[59]

The Commissions’ view

9.50 The Commissions agree that this would limit the numbers of persons who could be classified as ad hoc experts, but disagree with the suggestion. Changing the criteria ‘training’, ‘study’ and ‘experience’ from alternative criteria to cumulative criteria would rule out the admission of opinion evidence based on specialised knowledge obtained solely through training, solely through study, and solely through experience. To do so would render the expertise requirement of s 79 stricter than that at common law. Any problems arising in particular cases because of the broad scope of the words ‘training, study or experience’ can be addressed under ss 135 and 136. In criminal cases, s 137 will also apply.

9.51 The Commissions do not recommend any amendment in relation to the training, study or experience element of s 79.

The factual basis of expert opinion evidence

9.52 At common law, the admissibility of expert opinion evidence is said to depend on proper disclosure and proof of the factual basis of the opinion. As noted above, this has been called the ‘basis rule’. Under the ‘rule’, the expert must disclose the facts or assumptions upon which his or her opinion is based; those facts and assumptions must be capable of proof by admissible evidence; and evidence must be admitted to prove the facts and assumptions upon which the opinion is based.[60]

9.53 Submissions received and consultations held throughout the inquiry show that there is substantial uncertainty about the existence and effect of a ‘basis rule’ under the uniform Evidence Acts. There is also uncertainty about the effect of the decision of the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sprowles,[61] and in particular the status of the criteria advanced by Heydon JA as bearing on the admissibility of expert opinion evidence under the uniform Evidence Acts and, in particular, a basis rule. A range of comments on the topic was set out in DP 69.[62] In further submissions and consultations, those sentiments—ranging from disapproval to acceptance of a basis rule—were repeated.[63] Given the substantial practical importance of the question, further discussion is merited, building on what was said in DP 69.

The critical issues

9.54 The Commissions are of the view that no amendment of the uniform Evidence Acts is necessary in order to clarify this aspect of the expert opinion exception. In summary, this is because:

  • no ‘basis rule’ exists at common law;

  • no ‘basis rule’ exists under the uniform Evidence Acts, and Makita does not attempt to create one; and

  • identification and proof of the factual basis of the opinion goes to the issues of; (i) whether evidence of the opinion is relevant; and (ii) if so, what weight it carries.

In the paragraphs that follow, these conclusions are explained.

No ‘basis rule’ at common law

9.55 In its previous Evidence inquiry, the ALRC said:

It has been implied in some cases and asserted in some academic writing that there is a rule of evidence that for expert opinion testimony to be admissible it must have as its basis admitted evidence. The better view is that there is no such rule.[64]

9.56 The Commissions affirm this view. On this view, recent authorities cannot be read as applying a common law ‘basis rule’ to cases decided under the uniform Evidence Acts simply as a matter of logic: for if no ‘basis rule’ exists, it cannot be applied. But the issues require more substantial analysis. If there is no common law ‘basis rule’, upon what principles and ideas do cases apparently establishing a common law basis rule rest?

A shorthand explanation?

9.57 It is arguable that the ‘basis rule’ is a shorthand explanation of the interaction of two processes that are involved in cases where the factual basis of expert opinion evidence is not proved (or is incompletely proved) by independent evidence. One is determining whether the evidence of expert opinion is relevant. The other is the forensic process of determining what weight the tribunal of fact can or should give the expert opinion. Confusion can arise because the processes overlap: where the factual basis of expert opinion is not proved, evidence of the opinion might lack any weight or carry very little weight and so have no probative value. Evidence carrying no weight will be inadmissible because it is irrelevant.

9.58 Recognising this overlap helps explain why courts in cases on the common law often do not say whether failure to disclose and prove the factual basis of expert opinion evidence goes only to weight, only to admissibility, or goes to both weight and admissibility.[65] They do not identify consequences in general terms because the consequences of failure to disclose and prove the factual basis of the opinion depend on the facts. In some cases, the only consequence will be that the weight of the opinion evidence is lessened; in some cases, the consequence will be that the evidence is inadmissible. Importantly, in some cases the evidence might be admitted by agreement, even though it is otherwise inadmissible. If so, the evidence will simply carry little or no weight.[66]

The High Court decision in Ramsay v Watson

9.59 Ramsay v Watson[67] emphasises the point. A question arose in this case whether expert opinion evidence of a doctor that was based on a history narrated to the doctor by a patient was admissible. If it was admissible, the further question arose: what use could be made of it? The High Court (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ) held that evidence of the history was admissible to show the basis of the opinion, although not for the purpose of proving the truth of the patient’s narrative.

9.60 For present purposes, two features of the High Court’s reasoning in Ramsay v Watson are notable. First, the court said that if the history is not supported by admissible evidence, the expert opinion ‘may have little or no value, for part of the basis of it is gone’—that is, failure to prove the factual basis of the opinion lessened the weight of the expert opinion evidence. It is also notable, however, that the High Court dismissed the appeal in Ramsay v Watson, endorsing the trial judge’s orders refusing to admit expert opinion testimony because, although based on facts that were identified, the underlying facts were not proved. Thus, failure to prove the facts underlying the expert opinion went both to weight and to admissibility—as recognised in ALRC 26.[68] Underpinning the High Court’s reasoning on the common law is the proposition that the less weight an expert opinion has, the less relevance it has. Evidence that has no weight will not be relevant, and so will be formally inadmissible.

9.61 The common law was summarised by the High Court in Paric v John Holland (Constructions) Pty Ltd, where it was said:

It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal (Wigmore on Evidence 3rd ed, vol II, §680, p 800; 2 Wigmore, Evidence §680 (Chadbourn rev 1979), p 942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.

As Wigmore states (at pp 941–2, Chadbourn rev), ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’.[69]

9.62 Similar terms were used by Heydon JA in Makita to describe the interaction at common law between weight (a forensic consideration) and relevance (an evidentiary concern). Heydon JA said:

The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material.[70] One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.[71]

Conclusion on common law ‘basis rule’

9.63 There is no formal ‘basis rule’ at common law. Rather, the label ‘basis rule’ acts as a shorthand for two orthodox propositions: that (1) the lower the correlation between the facts proved and the facts assumed, the less weight can be given to the expert opinion evidence;[72] and (2) where the facts proved and the facts assumed are substantially different, the point might be reached where the opinion evidence carries so little weight that it is not probative, and hence inadmissible.[73]

Is there a ‘basis rule’ under the uniform Evidence Acts?
The interplay of relevance and weight under the Acts

9.64 The next questions to consider are whether the forensic and evidentiary issues just discussed arise under the uniform Evidence Acts and, if so, whether their interaction is the same as at common law. The uniform Evidence Acts establish a new standard of relevance. Nonetheless, the Acts require that weight and relevance interact as at common law.

9.65 The Acts do not create a formal and independent rule that requires proof of the factual basis of an expert opinion before the opinion will be admissible. The relevance provision is of primary importance. Section 55(1) defines relevant evidence as follows:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.[74]

9.66 In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd,[75] Branson J described the significance of relevance to the admissibility of expert opinion evidence under the uniform Evidence Acts, stating:

To be admissible the evidence [of expert opinion] must … be relevant. It is the requirement of relevance … that, as it seems to me, most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not … proved, or substantially proved (see Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846), it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding to which the evidence is directed.[76]

9.67 Thus, failure to acknowledge the practical effects of s 79 in requiring attention to be paid to matters of form—particularly the identification and proof of facts about which the opinion is given—may also affect whether or not the evidence satisfies the test of relevance under s 55 and, therefore, whether it is admissible. Elsewhere in her reasons for judgment, Branson J made it clear that failure to disclose and prove the factual basis of an expert opinion goes to the weight that can be given to the evidence when admitted.[77] Branson J’s approach was followed by Sackville J in ­ Jango v Northern Territory (No 4).[78] More will be said below about how relevance may be established under the uniform Evidence Acts.

The Makita criteria

9.68 Notably, as mentioned above, Heydon JA in Makita did not say that the common law has a ‘basis rule’ that consists of any more than the interaction between considerations of weight and relevance, as emerges from Ramsay v Watson, and as supported by Paric, HG v The Queen and Red Bull. The following elements of the common law, however, were said by Heydon JA to be enacted by s 79:

  • it must be agreed or demonstrated that there is a field of ‘specialised knowledge’;

  • there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;

  • the opinion proffered must be ‘wholly or substantially based on the witness’ expert knowledge’;

  • so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert;

  • so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way;

  • it must be established that the facts on which the opinion is based form a proper foundation for it; and

  • the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.[79]

9.69 Read alone, these points might be understood as establishing independent rules governing admissibility. In particular, the fourth and fifth points include what some might understand to be a ‘basis rule’. It is suggested, however, that those points simply underscore the relationship between relevance and weight emphasised earlier. That is, the reason there is a need to identify and prove the factual basis of an expert opinion is that incomplete proof of material facts will reduce the weight that can or should be given to the expert opinion evidence. Where the facts proved and the facts assumed are substantially different, the point might be reached where the opinion evidence carries so little weight that it is not relevant, and therefore is inadmissible. In Makita itself, the listed criteria went only to weight because the expert’s report was admitted without objection.[80] However, Heydon JA said the factors above had more than forensic significance because ‘[e]vidence not complying with the principles described … might be inadmissible as irrelevant (s 56(2)), as not complying with s 79, or on discretionary grounds (s 135)’.[81]

9.70 It should also be noted that s 79 itself does not, and cannot by its terms, require the factual basis of the expert opinion to be proved before the opinion can be admissible. Instead, s 79 has the practical effect of directing attention to the form in which the opinion is expressed so that it is possible to answer whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience. As Branson J accepted in Red Bull, in applying s 79 the factual basis of the expert opinion will also need to be identified ‘in order to differentiate between the assumed facts upon which the opinion is based, and the opinion in question’.[82] In taking this approach, Branson J adopted the words of Gleeson CJ in HG v The Queen.[83] In each case, s 79 requires the expert to ‘expose[] … the facts upon which the opinion is based … sufficient[ly]’ to enable the court to decide whether the opinion satisfies the requirements of the section.[84]

9.71 Since actual proof of the factual basis of the opinion is not necessary at the time of tender, the provisions of the Acts are not disruptive of the smooth running of trials. Following this approach arguably makes it simpler to rule whether the expert opinion is admissible and thus provides parties to the litigation the certainty needed to be able to run their case.[85]

Consideration of the factual basis of opinion under the Acts
Establishing relevance

9.72 The process of establishing the relevance of opinion evidence requires the tendering party to identify and to prove, or foreshadow the proof of, the facts relied on by the expert to an extent sufficient to persuade the court that the evidence of opinion, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[86]

9.73 Precisely how it is decided whether expert opinion evidence is admissible in a particular case depends on the point in the trial at which the evidence is sought to be adduced. That in turn depends on factors including the subject matter of the proceeding, the adversarial strategies of the parties, the conditions of the locality in which the court sits, and expense.

9.74 Where it would be prohibitively expensive to the party seeking to adduce the evidence to pay for an expert to remain for the whole of a trial, or the expert is otherwise unable to remain for the whole of a trial, opinion testimony may be received from the expert early in each party’s case. Where the subject matter of the dispute is complex—such as a dispute arising under Part IV of the Trade Practices Act 1974 (Cth), or as to possible breaches of duty by company directors—expert evidence might only be adduced late in the relevant party’s case. These differences of timing affect how the admissibility of the expert evidence is addressed.

9.75 Expert opinion evidence led late in a party’s case will generally be led once the relevant party has led evidence of all matters which it bears the onus of proving. Facts upon which the expert is asked to opine fall under this category. The expert will state his or her opinion and the matters upon which the expert bases his or her opinion. In that situation, the court will be in a position to rule on the admissibility of the opinion evidence—in terms of relevance, the requirements of s 79, and any potential application under Part 3.11—immediately, before the close of the relevant party’s case. Should the opinion evidence be ruled inadmissible, the party might lead other evidence of the fact with a view to tendering further expert opinion evidence. This also allows opposing litigants to determine what matters to cross-examine on, what witnesses to call and whether to submit that there is no case to answer.

9.76 Expert evidence led early in the relevant party’s case will often be led before the tendering party has led evidence of the matters on which the expert bases his or her opinion. At that point in the trial, so little of the factual basis of the opinion might be in evidence that the court might be unable to assess whether the opinion could rationally affect the assessment of the probability of the existence of a fact in issue in order to be relevant under s 55. Hence large parts of the expert opinion evidence, if not all of it, will be based on factual assumptions. However, the opinion may be admitted conditionally and subject to an undertaking from the tendering party under s 57. If the party later adduces full evidence of the factual basis of the opinion, the opinion may be admitted unconditionally: its weight will be judged at the end of the trial.[87] If less than full evidence of the factual basis of the opinion is adduced, the opinion might be admitted unconditionally but be given little weight forensically, or be subject to a limiting order under s 136. If the relevant party later adduces no or insufficient evidence of the factual basis of the opinion, the opinion may be ruled irrelevant and excluded under s 56(2). As discussed earlier, if the opinion is admitted without objection, failure to identify and prove the factual basis of the opinion will go only to weight.[88]

9.77 These are relatively clear examples, although a range of intermediate situations might arise, calling for more complex analysis. In each case, s 79 requires the expert to ‘expose[] … the facts upon which the opinion is based … sufficient[ly]’ to enable the court to decide whether the opinion satisfies the requirements of the section.[89] Since proof of the factual basis of the opinion is not necessary at the time of tender—and all that has to be shown is that the opinion is relevant and complies with s 79, or that it is reasonably open to the court to find the evidence relevant, or that it is relevant subject to further evidence being admitted which will make it reasonably open to find the evidence relevant—the provisions of the Act are not disruptive of the smooth running of trials.

The discretions in ss 135 and 136

9.78 It is also important to bear in mind that the identification and proof of the facts relied on in expressing an expert opinion are matters potentially relevant to the exercise of the discretions in ss 135 and 136. Section 135 provides that a court:

… may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

9.79 Section 136 provides:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

9.80 Section 135 articulates the ‘discretion’ contained in the common law requirement of ‘sufficient’ relevance.[90] It can be brought into play at the outset of the admissibility enquiry to exclude evidence of an opinion that satisfies the s 55 relevance requirement. In addition, s 136 can be used in appropriate cases to limit the use of the expert opinion evidence so that it cannot be used as evidence of the truth of the facts to which it relates. This is a popular technique used by courts in uniform Evidence Act jurisdictions when evidence is tendered in circumstances where the court forms the view that the opinion evidence should be received but only for limited purposes. Experience suggests that s 136 is likely to provide the main control of the admissibility and use of expert opinion evidence and the facts to which the opinion relates.

Factual basis: conclusion on the interaction of the common law and the uniform Evidence Acts

9.81 Cases such as Makita, Red Bull and HG v The Queen do not transplant a common law ‘basis rule’ into a statutory context. Under the uniform Evidence Acts, as at common law, the lower the correlation between the facts proved and the facts assumed, the less weight can be given the expert opinion evidence; where the facts proved and the facts assumed are substantially different, the opinion might carry so little weight that it could not, if accepted, rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.[91]

9.82 Experience has shown that, provided ss 55 and 79 (and, where appropriate, ss 135 and 136) are applied when objection is taken to the admissibility of expert opinion evidence, the issues of admissibility can be resolved sensibly. To seek to introduce a ‘basis rule’ or other inflexible criteria is unnecessary, and distracts attention from the pertinent statutory provisions. At the same time, as the Commissions noted in the DP 69,[92] a party preparing expert opinion evidence would be well advised to do so on the basis of the criteria listed in Makita because, if they are complied with not only will any admissibility problems be avoided, the expert testimony is likely also to be compelling. Indeed, compliance with the Makita criteria is frequently encouraged by rules of court.

9.83 In the Commissions’ view the admissibility of expert opinion evidence should be approached simply by reference to the provisions of the uniform Evidence Acts. The proper approach is to follow the overall scheme of the uniform Evidence Acts, applying the relevance test, followed by the opinion rule and its exceptions and, finally, the discretionary provisions.[93] This structured approach is encouraged by the diagram in the Introductory Note to Chapter 3 of the Acts.

9.84 Accordingly, in the Commissions’ view there is no need for any amendment to clarify the operation of s 79 in this regard.

Expert opinion evidence in practice

9.85 It was noted in IP 28 that some judges are concerned that there is insufficient understanding among experts and some legal practitioners of the need to demonstrate that expert opinion evidence is the product of applying specialised knowledge to relevant facts or factual assumptions.[94] For example, a particular problem is said to be presented by expert reports in native title cases. Jango v Northern Territory of Australia (No 2) involved two expert reports in respect of which the government party made at least 1,100 objections. Sackville J said it was apparent the reports had been prepared with ‘scant regard’ for the requirements of the uniform Evidence Acts and that this was not a new phenomenon.[95]

9.86 Earlier in the Inquiry, it was asked whether there is insufficient understanding among legal practitioners of the need to demonstrate under s 79 of the uniform Evidence Acts that a particular opinion is ‘based on’ the application of specialised knowledge to relevant facts or factual assumptions.[96]

9.87 In response, the NSW Young Lawyers’ Civil Litigation Committee submitted that

legal practitioners generally have sufficient understanding of the need to have an expert demonstrate that their opinion is based on the application of specialised knowledge to facts or factual assumptions. This is buttressed by a growing number of judgments and academic literature and also by court rules which make similar requirements for expert witnesses.[97]

9.88 In this context, the decision in Makita[98] was seen as ‘reinforcing the view that trial judges should be careful only to pay regard to the evidence of sound experts who can state the reasons that support their views’.[99]

9.89 In submissions and consultations, the Commissions received many comments favouring stricter enforcement of rules of evidence in relation to expert opinion.[100] It is clear that serious concerns exist among judicial officers and legal practitioners about lenient approaches to the admission of expert evidence. These include, but are not limited to, concerns that the relevant specialised knowledge of experts might not be adequately demonstrated (for example, the formal or informal expert qualifications of the expert might be overlooked); and that the facts or assumptions relied on by the expert are not adequately identified.

9.90 In this context, the Commissions consider that, rather than new rules of admissibility, the best way forward is through rules of court and education and training of lawyers and expert witnesses. There is a risk that, in placing emphasis on formal admissibility rules, courts may ‘concentrate on technical formal compliance without proper regard to the purpose of the formal rules’.[101] That purpose is, in words used in Makita, to address, ‘whether the trier of fact (the court, where there is no jury) has been supplied with criteria enabling it to evaluate the validity of the expert’s opinions’.[102]

9.91 The Issues Paper noted that judicial officers have developed practices to help ensure that expert opinion evidence is presented in a way that assists them in assessing whether it complies with the requirements of s 79, including by requiring parties to prepare schedules describing explicitly how each component of expert opinion is connected to the specialised knowledge of the expert.[103] The increased use of such schedules[104] was favoured in several consultations.[105]

9.92 In addition, rules of court now require expert witnesses to prepare expert reports so as to promote transparency as to the basis of expert opinion. For example, the Federal Court’s Practice Direction Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia states, among other things, that:

  • an expert’s written report must give details of the expert’s qualifications, and of the literature or other material used in making the report;

  • all assumptions of fact made by the expert should be clearly and fully stated;

  • the report should identify who carried out any tests or experiments upon which the expert relied in compiling the report, and state the qualifications of the person who carried out any such test or experiment;

  • the expert should give reasons for each opinion;

  • there should be included in or attached to the report: (i) a statement of the questions or issues that the expert was asked to address; (ii) the factual premises upon which the report proceeds; and (iii) the documents and other materials which the expert has been instructed to consider; and

  • the expert should make it clear when a particular question or issue falls outside the relevant field of expertise.[106]

9.93 Compliance with these requirements will in most cases go a long way towards supplying the trier of fact with criteria enabling it to evaluate the validity of the expert’s opinion.

The role of lawyers

9.94 The Issues Paper noted some judicial comments suggesting that, in order to ensure that the legal tests of admissibility are addressed, lawyers should be more involved in the writing of reports by experts.[107] In Harrington-Smith v Western Australia, Lindgren J said:

Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert’s particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in s 82(1) of the [Native Title Act 1992 (Cth)], the requirements of s 79 (and of s [55] as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.[108]

9.95 The Commissions received a number of divergent views about the involvement of lawyers in the preparation of expert reports. The dominant view is that lawyers should be involved in order to ensure that expert reports are admissible.[109] Lawyers are involved in drafting affidavits for lay witnesses, so there is no logical reason why they should be excluded from assisting in the preparation of expert reports.[110]

9.96 While some express concerns that this may increase the risk that expert evidence will adopt an overly partisan position,[111] this problem can be seen as an ethical question that should be addressed through rules of court, legal practitioners’ rules of professional conduct and expert witness codes of conduct, rather than by eliminating necessary contact between lawyers and experts. In a submission on DP 69, the Law Society of South Australia submits that a move to greater involvement for lawyers in the writing of expert reports ‘will counteract the move of the last decade or so to increase the independence of experts’, but, in line with what is said above, conclude that ‘[t]he court rules and ethical rules should ensure that “the line of independence” is not crossed’.[112]

Procedural and other concerns

9.97 Many of the concerns expressed in relation to opinion evidence are primarily procedural in nature, including those relating to costs or delay attributable to the adducing of expert opinion evidence; or concerns not relating to admissibility, such as undue partisanship or bias on the part of expert witnesses. For example, concerns were expressed that measures to limit the number of expert witnesses or allowing the use of court-appointed experts[113] may operate to prevent the adducing of relevant evidence, for example, in personal injury cases.[114]

9.98 The Commissions consider that these issues do not directly concern the operation of the uniform Evidence Acts. Issues relating to the control of expert evidence in federal civil proceedings were considered in depth in the ALRC’s 2000 Report, Managing Justice: A Review of the Federal Civil Justice System.[115]

9.99 More recently, the NSW Law Reform Commission (NSWLRC) has concluded an inquiry on the operation and effectiveness of the rules and procedures governing expert witnesses in New South Wales. The inquiry examined issues including the extent of partisanship or bias on the part of expert witnesses and possible measures to reduce the problem, including through the formulation of standards and codes of conduct, accreditation schemes for experts, restricting the use of ‘no-win no-fee’ arrangements and sanctions for inappropriate or unethical conduct by expert witnesses.[116] Recommendations were made that the Uniform Civil Procedure Rules 2005 (NSW) should provide that in civil proceedings parties may not adduce expert evidence without the court’s permission, and should include provision for ‘joint expert witnesses’ in addition to the existing provisions for court-appointed experts. Recommendations were also made regarding examination of experts, remuneration of experts, and other matters going to bias and the ability of parties to test the opinion.[117] These are matters that can be advanced consistently with the approach of the uniform Evidence Acts.

9.100 A specific issue relating to the partisanship of expert evidence is raised by the New South Wales Young Lawyers Civil Litigation Committee. The Committee submits that the Commissions should consider recommending that the uniform Evidence Acts be amended ‘to exclude parties from being able to give expert evidence, or that evidence be prima facie inadmissible’.[118] It is said that expert evidence adduced from a party to proceedings is likely to be biased and in breach of obligations to assist the court impartially.

9.101 The Committee refers to Mulkearns v Chandos Developments Pty Ltd,[119] in which a party, who was a licensed real estate agent, sought to give expert evidence under s 79 of the Evidence Act 1995 (NSW) as to the market value of a property. In that case, Young CJ in Eq noted that while the position has been taken in England that where a person is a party, or a close friend of a party, the evidence should not be received, expert evidence is admissible in New South Wales from a party or close associate where the criteria of admissibility (particularly s 79) in the Evidence Act 1995 (NSW) are made out.[120] Young CJ in Eq noted, however, that:

when one gets the situation where a party, without even paying lip service to [the expert witness code of conduct], gets into the box and tries to give expert evidence, when there is no reason why the availability of first class expert evidence has not been presented, then that party starts behind scratch.[121]

9.102 The Commissions are not convinced that it is necessary to amend the uniform Evidence Acts to deal with this issue. Such concerns can be addressed through regulating the appointment of expert witnesses in ways such as those discussed by the NSWLRC, and when evaluating the weight to be given to expert opinion evidence. The Commissions do not consider that amendment of s 79 in relation to these aspects of the expert opinion exception is necessary.

[29] I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2nd ed, 2002), 2.

[30] Regarding the statutory context, it is useful to keep in mind that s 80 abolishes the ‘ultimate issue rule’ and the ‘common knowledge rule’. Section 80 is discussed later in this chapter.

[31] A related issue concerns the extent to which facts stated by an expert as forming the basis for the expert’s opinion can be admitted as evidence of the facts stated. This issue is discussed in Ch 7, in relation to s 60 of the uniform Evidence Acts.

[32] I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2nd ed, 2002), 53–54.

[33] See Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [743]; S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4260].

[34] A Ligertwood, Australian Evidence (4th ed, 2004), [7.47].

[35]Frye v United States 293 F 1012 (1923). See Australian cases cited in S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4260].

[36]R v Bonython (1984) 38 SASR 45, 47.

[37]R v Johnson (1994) 75 A Crim R 522, 535.

[38]Daubert v Merrell Dow Pharmaceuticals 509 US 579 (US Supreme Court, 1993). See, eg, S Odgers and J Richardson, ‘Keeping Bad Science Out of the Courtroom: Changes in American and Australian Expert Evidence Law’ (1995) 18(1) University of New South Wales Law Journal 108; G Edmond and D Mercer, ‘Keeping “Junk” History, Philosophy and Sociology of Science out of the Courtroom: Problems with the Reception of Daubert v Merrell Dow Pharmaceuticals Inc’ (1997) 20(1) University of New South Wales Law Journal 48.

[39] Rule 702 is similar to s 79 of the uniform Evidence Acts in referring to the need for ‘scientific, technical, or other specialized knowledge’ in order for expert evidence to be admitted. In 2000, Rule 702 was amended in response to the decision in Daubert, providing some general standards that the trial court must use to assess the reliability of expert testimony.

[40] By reference to factors including the ‘falsifiability’ of a theory, the ‘known or potential error rate’ associated with application of a theory and whether the findings have been subject to peer review or publication, as well as the ‘general acceptance’ of the scientific principles: S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4260]. See also Kumho Tire Co Ltd v Carmichael 119 S Ct 1167 (1999); I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2nd ed, 2002), 78–79.

[41] S Odgers and J Richardson, ‘Keeping Bad Science Out of the Courtroom: Changes in American and Australian Expert Evidence Law’ (1995) 18(1) University of New South Wales Law Journal 108.

[42] G Edmond and D Mercer, ‘Keeping “Junk” History, Philosophy and Sociology of Science out of the Courtroom: Problems with the Reception of Daubert v Merrell Dow Pharmaceuticals Inc’ (1997) 20(1) University of New South Wales Law Journal 48, 99.

[43]HG v The Queen (1999) 197 CLR 414, [58].

[44] Ibid, referring to R v Bonython (1984) 38 SASR 45, 46–47; Clark v Ryan (1960) 103 CLR 486, 491; Murphy v The Queen (1989) 167 CLR 94, 111, 130; Farrell v The Queen (1998) 194 CLR 286, 292–294; Osland v The Queen (1998) 197 CLR 316, [53].

[45]HG v The Queen (1999) 197 CLR 414, [58]. See also Velevski v The Queen (2002) 187 ALR 233.

[46]Velevski v The Queen (2002) 187 ALR 233, [154] (Gummow and Callinan JJ).

[47] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4260].

[48] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [356], [743].

[49] For example, it has been suggested that the area of expertise rule should be applied to render evidence of repressed memory syndrome inadmissible: I Freckelton, ‘Repressed Memory Syndrome: Counterintuitive or Counterproductive?’ (1996) 20 Criminal Law Journal 7.

[50] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [8.47]–[8.50].

[51] Ibid, [8.51]–[8.52].

[52] Ibid, [8.53]–[8.55]. Further, s 137 requires evidence adduced by the prosecutor to be excluded by the court if the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.

[53] See ASIC v Vines (2003) 48 ACSR 291, 294–295.

[54]R v Butera (1987) 164 CLR 180.

[55]R v Leung (1999) 47 NSWLR 405. See also Li v The Queen (2003) 139 A Crim R 281.

[56] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.30] citing J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [78.15].

[57] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 235.

[58] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 6–4.

[59] Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005.

[60]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [64].

[61] Ibid.

[62] Confidential, Submission E 31, 22 February 2005; Confidential, Submission E 49, 27 April 2005; Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005; P Greenwood, Submission E 47, 11 March 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005; I Freckelton, Consultation, Melbourne, 17 March 2005; Victorian Bar, Consultation, Melbourne, 16 March 2005.

[63] Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 18 August 2005; The Law Society of South Australia, Submission E 69, 15 September 2005; Justice C Branson, Consultation, Sydney, 25 July 2005; Northern Land Council, Consultation, Darwin, 15 August 2005.

[64] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [750]. See Ramsay v Watson (1961) 108 CLR 642, 649.

[65] See Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [22].

[66] Some cases refer to evidence which is ‘strictly’ inadmissible, but admitted by agreement or without objection. See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, [9], [87]; Neowarra v State of Western Australia (2003) 134 FCR 208, [81]; Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [13]–[15], [17]. Difficulties that arise where strictly inadmissible opinion evidence is admitted are discussed in Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 94, [61]. As to the status of evidence admitted without objection see J Heydon, Cross on Evidence (7th ed, 2004), [1645]–[1680].

[67] Ramsay v Watson (1961) 108 CLR 642.

[68] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 2 (1985), Appendix C, [107]–[108].

[69]Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85, 87–88.

[70] See Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 509–510; Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85, 87.

[71]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [64] (emphasis added).

[72]Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 351.

[73]Pownall v Conlan Management Pty Ltd (1995) 2 WAR 370, 377, 388; R v Anderson (2001) 1 VR 1, [59]; Velevski v The Queen (2002) 187 ALR 233, [165]. See also Arnotts Limited v Trade Practices Commission (No 1) (1989) 21 FCR 297, 300 (Beaumont J), and on appeal: Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 352–353 (Full Court).

[74] Uniform Evidence Acts s 55(1).

[75]Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354.

[76] Ibid, [14]. Branson J accepted in Red Bull ([13]) that the elements of s 79 will often have the practical effect of emphasising the need for attention to requirements of form, including the need to set out the factual basis of the expert opinion ‘in order to differentiate between the assumed facts upon which the opinion is based, and the opinion in question’ (Branson J adopting the words of Gleeson CJ in HG v The Queen (1999) 197 CLR 414, [39]). See Ramsay v Watson (1961) 108 CLR 642; Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 347–348; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, [149].

[77]Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, [8].

[78]Jango v Northern Territory (No 4) (2004) 214 ALR 608, [14]. See also Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [16].

[79]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85].

[80] Ibid, [61], [86]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, [8]. Contrast Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510, [41], [45].

[81]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705,[86]. See Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [25]; Australian Government Solicitor, Consultation, Canberra, 25 August 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 18 August 2005.

[82]Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, [13].

[83]HG v The Queen (1999) 197 CLR 414, [39] citing Ramsay v Watson (1961) 108 CLR 642 and Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 347–348.

[84]Neowarra v State of Western Australia (2003) 134 FCR 208, [24] (Sundberg J).

[85] See also Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300, [669]; Justice C Branson, Consultation, Sydney, 25 July 2005.

[86] Uniform Evidence Acts s 55(1).

[87] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, [16], [87].

[88] In consultations, Branson J noted that conditional rulings under s 57 can be unsatisfactory in removing the certainty parties need to run their case: Justice C Branson, Consultation, Sydney, 25 July 2005.

[89]Neowarra v State of Western Australia (2003) 134 FCR 208, [24] (Sundberg J).

[90] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 2 (1985), Appendix C, [57].

[91] Uniform Evidence Acts, s 55.

[92] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [8.96].

[93] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[94] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.41].

[95]Jango v Northern Territory of Australia (No 2) [2004] FCA 1004, [8]–[9]. The application of the opinion rule to evidence of Aboriginal and Torres Strait Islander traditional laws and customs is discussed in more detail in Ch 19.

[96] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 6–6.

[97] NSW Young Lawyers Civil Litigation Committee, Submission E 34, 7 March 2005.

[98]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

[99] NSW Young Lawyers Civil Litigation Committee, Submission E 34, 7 March 2005, citing Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084, [8].

[100] P Greenwood, Submission E 47, 11 March 2005; P Greenwood, Consultation, Sydney, 11 March 2005; Confidential, Submission E 31, 22 February 2005; Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005; Justice C Einstein, Consultation, Sydney, 6 August 2004; The Law Society of South Australia, Submission E 69, 15 September 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 18 August 2005; Confidential, Consultation, Brisbane, 9 August 2005.

[101]Australian Securities and Investments Commission v Rich (2005) 53 ACSR 623, [259].

[102]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [59].

[103] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.41].

[104] Such schedules are sometimes referred to as ‘Ellicott’ schedules.

[105] Justice C Einstein, Consultation, Sydney, 6 August 2004; I Freckelton, Consultation, Melbourne, 17 March 2005; P Greenwood, Consultation, Sydney, 11 March 2005.

[106]Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia 2004 (Cth) r 2. See also Supreme Court Rules 1970 (NSW), sch 11, r 5.

[107] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.42] citing Jango v Northern Territory of Australia (No 2) [2004] FCA 1004, [8]–[9] (Sackville J); Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [19] (Lindgren J).

[108]Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424, [19] (emphasis original). See Yarmirr v Northern Territory (2001) 208 CLR 1, [84].

[109] P Greenwood, Consultation, Sydney, 11 March 2005; Department of Justice (NT), Consultation, Darwin, 31 March 2005.

[110] B Donovan, Consultation, Sydney, 21 February 2005; Victorian Law Reform Commission Roundtable, Consultation, Melbourne, 18 August 2005.

[111] ACT Bar Association, Consultation, Canberra, 9 March 2005; The Law Society of South Australia, Submission E 69, 15 September 2005.

[112] The Law Society of South Australia, Submission E 69, 15 September 2005.

[113] For example, see Federal Court Rules (Cth) O 24 r 2 and O 34B r 2 (appointment of an expert to assist the Court); O 34 r 6 (restrictions on further expert evidence).

[114] ACT Bar Association, Consultation, Canberra, 9 March 2005.

[115] See Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, ALRC 89 (2000), in which the ALRC made a number of recommendations dealing with the use of expert evidence in Federal Court, Family Court and Administrative Appeals Tribunal proceedings.

[116]New South Wales Law Reform Commission, Expert Witnesses, IP 25 (2004).

[117]New South Wales Law Reform Commission, Expert Witnesses, Report 109 (2005).

[118]NSW Young Lawyers Civil Litigation Committee, Submission E 34, 7 March 2005.

[119]Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084.

[120]Ibid, [14]. The England and Wales approach denies testimonial competence to experts who are parties, or are connected with a party to the proceedings: J Heydon, ‘Comments on May LJ’s Paper at Supreme Court Conference, 22 August 2003’ (Paper presented at Supreme Court Conference, Hunter Valley, 22 August 2003).

[121]Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084, [15].