County Court (Chapter I Amendment No. 11) Rules 2003 (Vic)

County Court (Chapter I Amendment No. 11) Rules

2003

ts	S.R. No. 109/2003
n
e
m
u	TABLE OF PROVISIONS
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o Rule Page

D	1.	Object	1
ry	2.	Authorising provisions	1
3.	Commencement	1
ta	4.	Principal Rules	1
5.	Office hours	1
n	6.	Definition of expert	2
e	7.	New Rule 41.08.1	2
m	41.08.1 Confidentiality of deposition	2
ia	8.	Subpoena before Registrar	2
rl	9.	Affidavit sworn before party	5
10.	Substitution of Order 44	5
a
ORDER 44	5
P
EXPERT EVIDENCE	5
d
n	44.01	Definitions	5
a	44.02	Application	6
44.03	Report of expert	6
n	44.04	Other party's report as evidence	8
o
ti	44.05	No evidence unless disclosed in report	9
44.06	Conference between experts	9
la	11.	Amendment to Forms 42E and 42F—Subpoena before Registrar	10
is	12.	New Form 44A	11

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g	ENDNOTES	14
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STATUTORY RULES 2003

ts	S.R. No. 109/2003
n
e	County Court Act 1958
m
u	County Court (Chapter I Amendment No. 11) Rules
c	2003
o
D	A majority of the Judges of the County Court makes the
ry	following Rules:
ta
n	1. Object
e	The object of these Rules is to make
m	miscellaneous amendments to the Principal Rules.
ia
rl	2. Authorising provisions
a	These Rules are made under section 78 of the
P	County Court Act 1958 and all other enabling
d	powers.
n	3. Commencement
a
n	These Rules come into operation on 1 November
o
ti
2003.

4. Principal Rules

la

is In these Rules, the County Court Rules of

1

g	Procedure in Civil Proceedings 1999	are called
e	the Principal Rules.

L	5. Office hours
n
a	In Rule 3.09 of the Principal Rules, for
ri	"9.30 a.m." substitute "9 a.m.".
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6. Definition of expert

In Rule 34A.19.1(1) of the Principal Rules, for the

ts	definition of "expert", substitute—
n	' "expert" means a person who has specialised
e	knowledge based on the person's training,
m	study or experience;'.
u
c	7. New Rule 41.08.1
o	After Rule 41.08 of the Principal Rules insert—
D

"41.08.1 Confidentiality of deposition

ry	Unless the Court gives leave, a deposition
ta	taken or recorded under this Part shall not be
n	disclosed to any person not a party before it
e	has been admitted into evidence.".
m
ia
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8. Subpoena before Registrar

(1) In Rule 42.10(1) of the Principal Rules omit "in

a	writing".
P	(2) In Rule 42.10(6) of the Principal Rules for
d	"The person named" substitute "Subject to
n	paragraph (6.1), the person named".
a

(3) After Rule 42.10(6) of the Principal Rules

n

insert—

o
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"(6.1) If the document is not in writing, then,

la	provided the original is held by the person
is	named until trial, a copy only need be
g	produced to the Registrar and, if a copy is
e	produced, it shall be clearly marked as such
L	and may be used by the Registrar for the
n	purposes of inspection and, if necessary,
a
ri	copying.".
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(4) For Rule 42.10(8) of the Principal Rules

substitute—

ts	"(8) If—
n	(a) the person named has any objection to
e	producing a document identified in the
m	subpoena or to its being inspected by
u	any one or more of the parties to the
c	proceeding; or
o
D	(b) a person having a sufficient interest, other than a party, has any objection to
ry	the production of a document identified
ta	in the subpoena or to its being
n	inspected by any one or more of the
e	parties to the proceeding—
m	that person shall notify the Registrar in
ia	writing of that objection before the day
rl	specified in the subpoena.".
a
P	(5) In Rule 42.10(9) of the Principal Rules for "If a party" substitute "Subject to paragraph (9.1), if a
d
n	party".
a	(6) After Rule 42.10(9) of the Principal Rules
n	insert—
o
ti	"(9.1) If a party other than the plaintiff seeks by
la	subpoena the production of any hospital or
medical file or record concerning the
is	plaintiff or his condition, the plaintiff may,
g	before taking objection under paragraph (9),
e	inspect the file or record produced to the
L	Registrar and notify the Registrar thereafter
n	of any objection the plaintiff has to
a
ri	inspection by any other party, provided that the plaintiff makes that inspection and
to	notifies that objection in writing within
ic	seven days after the day specified in the
V	subpoena for production of the file or record to the Registrar.".

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(7) In Rule 42.10(10) of the Principal Rules, for

"paragraph (8) or (9)" substitute "paragraph (8),

ts	(9) or (9.1)".
n	(8) In Rule 42.10(12) of the Principal Rules, for
e	"paragraph (8) or (9)" substitute "paragraph (8),
m	(9) or (9.1)".
u	(9) For Rule 42.10(16) of the Principal Rules
c	substitute—
o
D	"(16) Subject to any order of the Court, the
ry	Registrar—
ta	(a) may in his discretion return to the

person named any document produced

n	by him in compliance with the
e	subpoena;
m
ia	(b) shall, upon returning the document,
rl	inform the person named that the
a	subpoena for production remains in
P	force until the trial or other determination of the proceeding; and
d
n	(c) may specify a date by which the
a	document is to be produced again to the
n	Registrar in compliance with the
o
ti	subpoena.".
la	(10) In Rule 42.10(17) of the Principal Rules, for "The

Registrar" substitute "Subject to paragraph

is	(17.1), the Registrar".
g
e	(11) After Rule 42.10(17) of the Principal Rules
L	insert—
n	"(17.1) In an urgent case and at the request of—
a
ri	(a) the person named; or
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S.R. No. 109/2003

(b) in the case of any hospital or medical file or record concerning the plaintiff or

ts	his condition, the plaintiff—
n	the Registrar may return a document under
e	paragraph (16) without first giving notice
m	under paragraph (17), but in such a case,
u	after returning the document, the Registrar
c	shall give notice to the party who filed the
o	subpoena that the document has been
D	returned.".
ry	(12) In Rule 42.10(18) of the Principal Rules, for
ta	"paragraphs (16) and (17)" substitute
"paragraphs (16), (17) and (17.1)".
n
e	9. Affidavit sworn before party
m	Rule 43.10 of the Principal Rules is revoked.
ia
rl	10. Substitution of Order 44
a	For Order 44 of the Principal Rules substitute—
P
d	'ORDER 44
n
a	EXPERT EVIDENCE
n
o	44.01 Definitions
ti
la	In this Order, unless the context or subject-
is	matter otherwise requires—
g	"expert" means a person who has
e	specialised knowledge based on the
L	person's training, study or experience;
n	"opinion" includes more than one opinion;
a
ri	"the code" means the expert witness code of
to	conduct in Form 44A.
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44.02 Application

(1) This Order applies to a proceeding however

ts	commenced.
n	(2) This Order does not apply—
e

(a) to the evidence of a party who would, if

m

u	called as a witness at the trial, be
c	qualified to give evidence as an expert
o	in respect of any question in the
D	proceeding; or

ry	(b)	to a person engaged as an expert before
ta	1 November 2003 and Order 44, as in
force immediately before 1 November
n
e	2003, continues to apply to that person.

(3) With respect to the opinion of a medical

m

ia	practitioner, in a proceeding for medical
rl	negligence in which the plaintiff claims
a	damages for or in respect of bodily injury
P	this Order applies to an opinion on the liability of any party but does not otherwise
d
n	apply to a medical report to which Order 33
a	applies.
n	44.03 Report of expert
o
ti	(1) Unless otherwise ordered, a party who
la	intends at trial to adduce the evidence of a
is	person as an expert shall—

(a) as soon as practicable after the

g

e	engagement of the expert and before
L	the expert makes a report under this
n	Rule, provide the expert with a copy of
a
ri
the code; and

(b) not later than 30 days before the day

to	fixed for trial, serve on each other
ic	party, a report by the expert in
V	accordance with paragraph (2) and deliver a copy for the use of the Court.

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S.R. No. 109/2003

(2) The report shall state the opinion of the

expert and shall state, specify or provide—

ts	(a) the name and address of the expert;
n	(b) an acknowledgement that the expert has
e	read the code and agrees to be bound by
m	it;
u
c	(c) the qualifications of the expert to
o	prepare the report;
D	(d) the facts, matters and assumptions on
ry	which the opinion is based (a letter of
ta	instructions may be annexed);
n	(e) (i) the reasons for,
e	(ii) any literature or other materials
m	utilised in support of,
ia
rl	(iii) a summary of—
a	the opinion;
P	(f) (if applicable) that a particular question,
d	issue or matter falls outside the expert's
n	field of expertise;
a

(g) any examinations, tests or other

n

o	investigations on which the expert has
ti	relied, identifying the person who
la	carried them out and that person's
is	qualifications;
g	(h) a declaration that the expert has made
e	all the enquiries which the expert
L	believes are desirable and appropriate,
n	and that no matters of significance
a
ri	which the expert regards as relevant
have, to the knowledge of the expert,
to	been withheld from the Court;
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(i)

any qualification of an opinion the report is or may be incomplete or

ts	inaccurate;
n
e	(j) whether an opinion expressed in the
m	report is not a concluded opinion
u	because of insufficient research or
c	insufficient data or for any other
o	reason.
D	(3) If the expert provides to a party a
ry	supplementary report, including a report
ta	indicating that the expert has changed his
opinion on a material matter expressed in an
n
e	earlier report—
m	(a) that party shall forthwith serve the
ia	supplementary report on all other
rl	parties; and
a	(b) in default of such service, the party and
P	any other party having a like interest
d	shall not use the earlier report or the
n	supplementary report at trial without
a	the leave of the Court.
n	(4) Any report provided by the expert pursuant
o
ti	to this Rule shall be signed by the expert and
la	shall be accompanied by clear copies of any photographs, plans, calculations, analyses,
is	measurements, survey reports or other
g
e	extrinsic matter to which the report refers.
L	44.04 Other party's report as evidence
n	Unless otherwise ordered, a party may put in
a
ri	evidence a report served on him by another
to	party under this Order.
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44.05 No evidence unless disclosed in report

Save with the leave of the Court or by

ts	consent of the parties affected, a party shall
n	not except in cross-examination adduce any
e	evidence from a person as an expert at the
m	trial of a proceeding unless the substance of
u	the evidence is contained within a report or
c	reports which the party has served under this
o	Order.
D	44.06 Conference between experts
ry	(1) The Court may direct expert witnesses—
ta	(a) to confer; and
n
e	(b) to provide the Court with a joint report
m	specifying matters agreed and matters
ia	not agreed and the reasons for their not
rl	agreeing.
a	(2) The Court may specify the matters on which
P	the experts are to confer.
d	(3) An expert witness may apply to the Court for
n
a	further directions.
n	(4) The Court may direct the legal
o
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representatives of a party—

(a) to attend the conference;

la

is	(b) not to attend the conference;
g	(c) to attend or not to attend at the option
e	of the party whom they represent.
L

(5) Subject to paragraph (1)(b), except as the

n

a	parties affected agree in writing, no evidence
ri	shall be admitted of anything said or done by
to	any person at the conference.
ic	(6) An agreement reached during the conference

shall not bind a party except in so far as the

V party agrees in writing.'.

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11.  Amendment to Forms 42E and 42F—Subpoena before Registrar

ts	(1) In Form 42E to the Principal Rules, after the
n	paragraph commencing "If this subpoena"
e	insert—
m	"If compliance with the subpoena requires the production of
u	a document which is not in writing (such as a photograph,
c	computer disk, diskette, audio-tape, video-tape etc.—see
o	Interpretation of Legislation Act 1984, section 38) then, provided the original is held by you until trial, a copy only
D	need be produced to the Registrar. If a copy is produced, it
ry	must be clearly marked as such and it may be used by the Registrar for the purposes of inspection and, if necessary,
ta	copying.".
n	(2) In Form 42F to the Principal Rules, after the
e

paragraph commencing "If this subpoena"

m	insert—
ia
rl	"If compliance with the subpoena requires the production of a document which is not in writing (such as a photograph,
a	computer disk, diskette, audio-tape, video-tape etc.—see
P	Interpretation of Legislation Act 1984, section 38) then,
d	provided the original is held by the corporation until trial, a copy only need be produced to the Registrar. If a copy is
n	produced, it must be clearly marked as such and it may be
a	used by the Registrar for the purposes of inspection and, if
n	necessary, copying.".
o
ti	(3) In Forms 42E and 42F to the Principal Rules, in
la	note 2 of the Further Notes insert—
is	"However, if you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a
g	hospital or medical file or record concerning you or your
e	condition, you may, before taking objection, inspect the file
L	or record produced to the Registrar and, after such
n	inspection, notify any objection you may have to inspection
a	of that file or record by any other party, provided that you
ri	make your inspection and notify your objection, if any, in writing within seven days after the day specified in the
to	subpoena for production.".
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12. New Form 44A

After Form 43A to the Principal Rules insert—

ts	"FORM 44A
n
e	Rule 44.01
m
u	EXPERT WITNESS CODE OF CONDUCT
c
o	1. A person engaged as an expert witness has an

overriding duty to assist the Court impartially on

D	matters relevant to the area of expertise of the witness.
ry	2. An expert witness is not an advocate for a party.
ta	3. Every report prepared by an expert witness for the use
n	of the Court shall state the opinion or opinions of the
e	expert and shall state, specify or provide—
m	(a) the name and address of the expert;
ia	(b) an acknowledgement that the expert has read this
rl	code and agrees to be bound by it;

a	(c)	the qualifications of the expert to prepare the
P	report;
d	(d)	the facts, matters and assumptions on which each
n	opinion expressed in the report is based (a letter
a	of instructions may be annexed);

n	(e)	(i)	the reasons for,
o
ti	(ii)	any literature or other materials utilised in
la	support of,
(iii)	a summary of—

is	each such opinion;
g

e	(f)	(if applicable) that a particular question, issue or
L	matter falls outside the expert's field of expertise;
n	(g)	any examinations, tests or other investigations on
a	which the expert has relied, identifying the person
ri	who carried them out and that person's
to	qualifications;
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have, to the knowledge of the expert, been
withheld from the Court;

(i)     any qualification of an opinion expressed in the

ts	report without which the report is or may be
n	incomplete or inaccurate; and

e	(j)	whether any opinion expressed in the report is not
m	a concluded opinion because of insufficient
u	research or insufficient data or for any other
c	reason.

o	4. Where an expert witness has provided to a party (or
D	that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her
ry	opinion on a material matter, the expert shall forthwith
ta	provide to the party (or that party's legal representative) a supplementary report which shall
n	state, specify or provide the information referred to in
e	paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3
m	of this code and, if applicable, paragraph (f) of that
ia
rl
clause.

5.   If directed to do so by the Court, an expert witness

a

shall—

P

(a) confer with any other expert witness; and

d

(b) provide the Court with a joint report specifying

n

(as the case requires) matters agreed and matters

a

not agreed and the reasons for the experts not
agreeing.

n

o

6. Each expert witness shall exercise his or her

ti

independent judgment in relation to every conference

la

in which the expert participates pursuant to a direction
of the Court and in relation to each report thereafter

is

provided, and shall not act on any instruction or

g

request to withhold or avoid agreement.".

e

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Dated: 25 September 2003

n

MICHAEL ROZENES, Chief Judge M. J. STRONG

a

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F. G. DYETT B. STOTT

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JOHN K. NIXON J. H. BARNETT

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W. FAGAN G. D. LEWIS

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T. A. NEESHAM	R. G. WILLIAMS
J. R. HANLON	MARGARET RIZKALLA

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S.R. No. 109/2003

T. G. WODAK	S. M. COHEN
WILLIAM R. WHITE	M. E. SEXTON
A. P. DUCKETT	F. E. HOGAN

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e	J. M. PANNAM	I. E. LAWSON
m	IAN C. ROBERTSON	G. GULLACI
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c	G. R. ANDERSON	P. J. COISH
o	LANSELL PILGRIM	K. R. HOWIE
D
ry	JOHN BOWMAN	J. A. CAMPTON
ta	R. LEWITAN	W. A. WILMOTH
n	J. NICHOLSON

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County Court (Chapter I Amendment No. 11) Rules 2003

Endnotes

S.R. No. 109/2003

ENDNOTES

ts	1
Rule 4: S.R. No. 20/1999. Reprint No. 2 incorporating amendments as at
n	13 March 2003.
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