Uniform Civil Procedure Rules (Amendment No 12) 2006 (NSW)

2006 No 717

New South Wales

Uniform Civil Procedure Rules

(Amendment No 12) 2006

under the

Civil Procedure Act 2005

The Uniform Rules Committee made the following rules of court under the Civil

Procedure Act 2005 on 4 December 2006.

Jennifer Atkinson

Secretary of the Uniform Rules Committee

Explanatory note
The object of these Rules is to amend the Uniform Civil Procedure Rules 2005 so as:

(a)	to replace the existing rules concerning the appointment and engagement of expert witnesses with new rules, and
(b)	to replace the existing code of conduct for expert witnesses with a new code of conduct.
Published in Gazette No 175 of 8 December 2006, page 10468	Page 1
2006 No 717
Clause 1	Uniform Civil Procedure Rules (Amendment No 12) 2006

Uniform Civil Procedure Rules (Amendment No 12) 2006

under the

Civil Procedure Act 2005

1      Name of Rules

These Rules are the Uniform Civil Procedure Rules (Amendment No 12)
2006.

2 Amendment of Uniform Civil Procedure Rules 2005

The Uniform Civil Procedure Rules 2005 are amended as set out in
Schedule 1.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments	Schedule 1
Schedule 1	Amendments

(Rule 2)

[1]      Part 31, Division 2

Omit Divisions 2 and 3. Insert instead:

Division 2 Provisions applicable to expert evidence
generally

Note. The provisions of this Division replace those of former Divisions 2 and 3, as in force immediately before 8 December 2006. The numbering of the individual provisions of this Division varies considerably from that of the provisions of the former Divisions. The following Table identifies the new rules corresponding to former rules 31.17–31.35.

Table

Former rule	New rule
Rule 31.17	Rule 31.18
Rule 31.18	Rule 31.28
Rule 31.18A	Rule 31.29
Rule 31.19	Rule 31.30
Rule 31.20	Rule 31.31
Rule 31.21	Rule 31.32
Rule 31.22	Rule 31.33
Rule 31.23	Rule 31.27
Rule 31.24	Rule 31.34
Rule 31.25	Rules 31.24 and 31.26
Rule 31.26	Rule 31.35
Rule 31.27	Rule 31.36
Rule 31.28	Rule 31.18
Rule 31.29	Rule 31.46
Rule 31.30	Rule 31.23
Rule 31.31	Rule 31.49
Rule 31.32	Rule 31.51
Rule 31.33	Rule 31.52
Rule 31.34	Rule 31.53
Rule 31.35	Rule 31.54

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

Subdivision 1 Preliminary

31.17 Main purposes of Division (cf Queensland Uniform Civil Procedure Rules
1999, rule 423; United Kingdom Civil Procedure Rules 1998, rule 35.1)

The main purposes of this Division are as follows:

(a)	to ensure that the court has control over the giving of expert evidence,
(b)	to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,
(c)	to avoid unnecessary costs associated with parties to proceedings retaining different experts,
(d)	if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,
(e)	if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,
(f)	to declare the duty of an expert witness in relation to the court and the parties to proceedings.

31.18 Definitions (cf SCR Part 36, rules 13A and 13C; DCR Part 28, rule 8; LCR
Part 23, rule 1D)

In this Division:
court-appointed expert means an expert appointed pursuant to
rule 31.46.
expert, in relation to any issue, means a person who has such
knowledge or experience of, or in connection with, that issue, or
issues of the character of that issue, that his or her opinion on that
issue would be admissible in evidence.
expert witness means an expert engaged or appointed for the

purpose of:

(a)	providing an expert’s report for use as evidence in proceedings or proposed proceedings, or
(b)	giving opinion evidence in proceedings or proposed proceedings.

expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

parties’ single expert means an expert engaged pursuant to rule

31.37.

Subdivision 2 Expert witnesses generally

31.19	Parties to seek directions before calling expert witnesses
(1) Any party:

(a)	intending to adduce expert evidence at trial, or
(b)	to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2)

Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3)

Unless the court otherwise orders, expert evidence may not be
adduced at trial:

(a)	unless directions have been sought in accordance with this rule, and
(b)	if any such directions have been given by the court, otherwise than in accordance with those directions.

31.20

Court may give directions regarding expert witnesses

(1)	Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.
(2)	Directions under this rule may include any of the following:

(a)	a direction as to the time for service of experts’ reports,
(b)	a direction that expert evidence may not be adduced on a specified issue,
(c)	a direction that expert evidence may not be adduced on a specified issue except by leave of the court,
(d)	a direction that expert evidence may be adduced on specified issues only,
(e)	a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

(f)	a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,
(g)	a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,
(h)	a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,

(i)      any other direction that may assist an expert in the exercise of the expert’s functions,

(j) a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

31.21 Expert evidence in chief to be given by way of experts’ reports

Unless the court otherwise orders, an expert witness’s evidence in chief must be given by the tender of one or more expert’s reports.

31.22	Expert witness to provide details of contingency fees or deferred payment schemes
(1) A person who is engaged as an expert witness in relation to any proceedings must include information as to any arrangements under which:

(a)	the charging of fees or costs by the expert witness is contingent on the outcome of the proceedings, or
(b)	the payment of any fees or costs to the expert witness is to be deferred,

in, or in an annexure to, any report that he or she prepares for the

purposes of the proceedings.

(2) If a report referred to in subrule (1) indicates the existence of any such arrangements, the court may direct disclosure of the terms of the engagement (including as to fees and costs).

31.23

Code of conduct (cf SCR Part 39, rule 2; DCR Part 28A, rule 2; LCR Part
38B, rule 2)

(1)	An expert witness must comply with the code of conduct set out in Schedule 7.
(2)	As soon as practicable after an expert witness is engaged or appointed:

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(a)	in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or
(b)	in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,

must provide the expert witness with a copy of the code of

conduct.

(3)	Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.
(4)	Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

31.24	Conference between expert witnesses (cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)
(1) The court may direct expert witnesses:

(a)	to confer, either generally or in relation to specified matters, and
(b)	to endeavour to reach agreement on any matters in issue, and
(c)	to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and
(d)	to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert

witnesses have furnished their experts’ reports.

(2)

The court may direct that a conference be held:

(a)	with or without the attendance of the parties affected or their legal representatives, or
(b)	with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or
(c)	with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

(3)	An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.
(4)	Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.
(5)	An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.
(6)	Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.

31.25 Instructions to expert witnesses where conference ordered before
report furnished

If a direction to confer is given under rule 31.24 (1) (a) before the expert witnesses have furnished their reports, the court may give directions as to:

(a)	the issues to be dealt with in a joint report by the expert witnesses, and
(b)	the facts, and assumptions of fact, on which the report is to be based,

including a direction that the parties affected must endeavour to agree on the instructions to be provided to the expert witnesses.

31.26

Joint report arising from conference between expert witnesses (cf
SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)

(1)	This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c).
(2)	The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.
(3)	The joint report may be tendered at the trial as evidence of any matters agreed.
(4)	In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.
(5)	Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

Subdivision 3 Experts’ reports and expert evidence

31.27	Experts’ reports (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)
(1) An expert’s report must (in the body of the report or in an annexure to it) include the following:

(a)	the expert’s qualifications as an expert on the issue the subject of the report,
(b)	the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),
(c)	the expert’s reasons for each opinion expressed,
(d)	if applicable, that a particular issue falls outside the expert’s field of expertise,
(e)	any literature or other materials utilised in support of the opinions,
(f)	any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
(g)	in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
(2)	If an expert witness who prepares an expert’s report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.
(3)	If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
(4)	If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1	Amendments
31.28	Disclosure of experts’ reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)
(1) Each party must serve experts’ reports and hospital reports on each other active party:

(a)

in accordance with any order of the court, or

(b)

if no such order is in force, in accordance with any relevant practice note, or

(c)

if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2)

An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3)

Except by leave of the court, or by consent of the parties:

(a)	an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and
(b)	without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and
(c)	the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4)

Leave is not to be given as referred to in subrule (3) unless the
court is satisfied:

(a)	that there are exceptional circumstances that warrant the granting of leave, or
(b)	that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

31.29	Admissibility of expert’s report (cf SCR Part 36, rule 13B)
(1) If an expert’s report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible:

(a)	as evidence of the expert’s opinion, and
(b)	if the expert’s direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(2)

Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served.

(3)

Unless the court otherwise orders, such a requirement may not be
made later than:

(a)	in the case of proceedings for which the court has fixed a date for trial, 35 days before the date so fixed, or
(b)	in any other case, 7 days before the date on which the court fixes a date for trial.

(4)

The parties may not by consent abridge the time fixed by or under
subrule (3).

(5)

If the expert’s attendance for cross-examination is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.

(6)

The party using the report may re-examine the expert if the expert attends for cross-examination pursuant to a requirement under subrule (2).

(7)

This rule does not apply to proceedings in the District Court or a
Local Court or to proceedings on a trial with a jury.

31.30

Admissibility of expert’s report in District Court and Local Courts
(cf DCR Part 28, rule 9; LCR Part 23, rule 2)

(1)	This rule applies to proceedings in the District Court or a Local Court.
(2)	If an expert’s report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible:

(a)	as evidence of the expert’s opinion, and
(b)	if the expert’s direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

(3)	Unless the court orders otherwise:
(a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert’s report has been prepared to procure that attendance, and

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

(b)

the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which attendance is required.

(4)

Except for the purpose of determining any liability for conduct money or witness expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party.

(5)

A party who requires the attendance of a person as referred to in
subrule (2):

(a)	must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and
(b)	must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.

(6)

If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.

(7)

The party using an expert’s report may re-examine an expert who attends for cross-examination under a requirement under subrule (2).

(8)

This rule does not apply to proceedings on a trial with a jury.

31.31

Fees for medical expert for compliance with subpoena (cf SCR Part
36, rule 13BA)

(1)	If a subpoena is served on a medical expert who is to give evidence of medical matters but is not called as a witness, the expert is, unless the court orders otherwise, entitled to be paid, in addition to any other amount payable to the expert, the amount specified in item 2 of Schedule 3.
(2)	The amount payable under subrule (1) must be paid to the expert by the issuing party within 28 days after the date for the expert’s attendance.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(3)	A party that requires an expert’s attendance under rule 31.29 (2), but subsequently revokes it, must pay to the issuing party any amount paid by the issuing party under subrule (2), but otherwise such an amount is not recoverable by the issuing party from any other party unless the court so orders.
(4)	In this rule, issuing party means the party at whose request a subpoena is issued.

31.32

Service of subpoena on medical expert (cf SCR Part 36, rule 13BB)

(1)	Service of a subpoena on a medical expert may be effected, at any place at which the expert’s practice is carried on, by handing it over to a person who is apparently engaged in the practice (whether as an employee or otherwise) and is apparently of or above the age of 16 years.
(2)	If a person refuses to accept a subpoena when it is handed over, the subpoena may be served by putting it down in the person’s presence after he or she has been told of its nature.
(3)	If a subpoena requires a medical expert to attend court on a specified date for the purpose of giving evidence on medical matters, it must be served on the expert not later than 21 days before the date so specified unless the court orders otherwise.
(4)	The parties may not by consent abridge the time fixed by or under subrule (3).

31.33

Subpoena requiring production of medical records (cf SCR Part 36,
rule 13BC)

(1)	A subpoena for production may require a medical expert to produce medical records or copies of them.
(2)	A person is not required to comply with a subpoena for production referred to in subrule (1) unless the amount specified in item 3 of Schedule 3 is paid or tendered to the person at the time of service of the subpoena or a reasonable time before the date on which production is required.
(3)	Rule 33.6 (Compliance with subpoena) does not apply to a subpoena to which subrule (1) applies.
(4)	Rule 33.7 (Production otherwise than on attendance) applies to the photocopies in the same way as it applies to the records.
(5)	If, after service of a subpoena for production referred to in subrule (1), the party who requested the issue of the subpoena requires production of the original medical records without the

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

option of producing copies of them, the party must request the issue of, and serve, another subpoena requiring production of the original medical records.

31.34	Supplementary reports by expert witness (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)
(1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use:

(a)	the supplementary report, or
(b)	any earlier report affected by the supplementary report,

unless all of those reports have been served on all parties

affected.

(2)	For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.
(3)	This rule does not apply to a report prepared by a court-appointed expert.

31.35 Opinion evidence by expert witnesses (cf Federal Court Rules, Order
34A, rule 3)

In any proceedings in which two or more parties call expert witnesses to give opinion evidence about the same issue or similar issues, or indicate to the court an intention to call expert witnesses for that purpose, the court may give any one or more of the following directions:

(a)

a direction that, at trial:

(i)	the expert witnesses give evidence after all factual evidence relevant to the issue or issues concerned, or such evidence as may be specified by the court, has been adduced, or
(ii)	the expert witnesses give evidence at any stage of the trial, whether before or after the plaintiff has closed his or her case, or

(iii) each party intending to call one or more expert witnesses close that party’s case in relation to the issue or issues concerned, subject only to adducing evidence of the expert witnesses later in the trial,

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(b)

a direction that, after all factual evidence relevant to the issue, or such evidence as may be specified by the court, has been adduced, each expert witness file an affidavit or statement indicating:

(i)	whether the expert witness adheres to any opinion earlier given, or
(ii)	whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given,

(c)

a direction that the expert witnesses:

(i)	be sworn one immediately after another (so as to be capable of making statements, and being examined and cross-examined, in accordance with paragraphs (d), (e), (f), (g) and (h)), and
(ii)	when giving evidence, occupy a position in the courtroom (not necessarily the witness box) that is appropriate to the giving of evidence,

(d)

a direction that each expert witness give an oral exposition of his or her opinion, or opinions, on the issue or issues concerned,

(e)

a direction that each expert witness give his or her opinion about the opinion or opinions given by another expert witness,

(f)

a direction that each expert witness be cross-examined in a particular manner or sequence,

(g)

a direction that cross-examination or re-examination of the expert witnesses giving evidence in the circumstances referred to in paragraph (c) be conducted:

(i)	by completing the cross-examination or re-examination of one expert witness before starting the cross-examination or re-examination of another, or
(ii)	by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete,

(h)

a direction that any expert witness giving evidence in the circumstances referred to in paragraph (c) be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to,

(i)      such other directions as to the giving of evidence in the circumstances referred to in paragraph (c) as the court thinks fit.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1	Amendments
31.36	Service of experts’ reports in professional negligence claims (cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)
(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:

(a)	the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and
(b)	the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and
(c)	the causal relationship alleged between such breach of duty or obligation and the damage alleged.
(2)	In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.
(3)	If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.
(4)	In this rule: professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (such as dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister. professional negligence claim means a claim for damages, indemnity or contribution based on an assertion of professional negligence.

Subdivision 4 Parties’ single experts

31.37

Selection and engagement

(1)	If an issue for an expert arises in any proceedings, the court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected.
(2)	A parties’ single expert is to be selected by agreement between the parties affected or, failing agreement, by, or in accordance with the directions of, the court.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(3)

A person may not be engaged as a parties’ single expert unless he
or she consents to the engagement.

(4)

If any party affected knows that a person is under consideration
for engagement as a parties’ single expert:

(a)	the party affected must not, prior to the engagement, communicate with the person for the purpose of eliciting the person’s opinion as to the issue or issues concerned, and
(b)	if the party affected has previously communicated with the person for that purpose, he or she must notify the other parties affected as to the substance of those communications.

31.38

Instructions to parties’ single expert

(1)	The parties affected must endeavour to agree on written instructions to be provided to the parties’ single expert concerning the issues arising for the expert’s opinion and concerning the facts, and assumptions of fact, on which the report is to be based.
(2)	If the parties affected cannot so agree, they must seek directions from the court.

31.39

Parties’ single expert may apply to court for directions

(1)	The parties’ single expert may apply to the court for directions to assist the expert in the performance of the expert’s functions in any respect.
(2)	Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.
(3)	A parties’ single expert who makes such an application must send a copy of the request to the parties affected.

31.40

Parties’ single expert’s report to be sent to parties

(1)	The parties’ single expert must send a signed copy of his or her report to each of the parties affected.
(2)	Each copy must be sent on the same day and must be endorsed with the date on which it is sent.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1

Amendments

31.41

Parties may seek clarification of report

(1)	Within 14 days after the parties’ single expert’s report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report.
(2)	Unless the court orders otherwise, a party affected may send no more than one such notice.
(3)	Unless the court orders otherwise, the notice must be in the form of questions, no more than 10 in number.
(4)	The party sending the notice must, on the same day as it is sent to the parties’ single expert, send a copy of it to each of the other parties affected.
(5)	Each notice sent under this rule must be endorsed with the date on which it is sent.
(6)	Within 28 days after the notice is sent, the parties’ single expert must send a signed copy of his or her response to the notice to each of the parties affected.

31.42

Tender of reports and of answers to questions

(1)	Subject to rule 31.23 (3) and unless the court orders otherwise, the parties’ single expert’s report may be tendered in evidence by any of the parties affected.
(2)	Unless the court orders otherwise, any or all of the parties’ single expert’s answers in response to a request for clarification under rule 31.41 may be tendered in evidence by any of the parties affected.

31.43

Cross-examination of parties’ single expert

Any party affected may cross-examine a parties’ single expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by a party affected.

31.44 Prohibition of other expert evidence

Except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties’ single expert has been engaged under this Division in relation to that issue.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments

Schedule 1

31.45

Remuneration of parties’ single expert

(1)	The remuneration of a parties’ single expert is to be fixed by agreement between the parties affected and the expert or, failing agreement, by, or in accordance with the directions of, the court.
(2)	Subject to subrule (3), the parties affected are jointly and severally liable to a parties’ single expert for his or her remuneration.
(3)	The court may direct when and by whom a parties’ single expert is to be paid.
(4)	Subrules (2) and (3) do not affect the powers of the court as to costs.

Subdivision 5 Court-appointed experts

31.46	Selection and appointment (cf SCR Part 39, rule 1; DCR Part 28A, rule 1; LCR Part 38B, rule 1)
(1) If an issue for an expert arises in any proceedings the court may, at any stage of the proceedings:

(a)	appoint an expert to inquire into and report on the issue, and
(b)	authorise the expert to inquire into and report on any facts relevant to the inquiry, and
(c)	direct the expert to make a further or supplemental report or inquiry and report, and
(d)	give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert or give directions concerning the giving of such instructions.
(2)	The court may appoint as a court-appointed expert a person selected by the parties affected, a person selected by the court or a person selected in a manner directed by the court.
(3)	A person must not be appointed as a court-appointed expert unless he or she consents to the appointment.
(4)	If any party affected knows that a person is under consideration for appointment as a court-appointed expert:
(a) the party affected must not, prior to the appointment, communicate with the person for the purpose of eliciting the person’s opinion as to the issue or issues concerned, and

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

(b) if the party affected has previously communicated with the person for that purpose, he or she must notify the court as to the substance of those communications.

31.47 Instructions to court-appointed expert

The court may give directions as to:

(a)	the issues to be dealt with in a report by a court-appointed expert, and
(b)	the facts, and assumptions of fact, on which the report is to be based,

including a direction that the parties affected must endeavour to

agree on the instructions to be provided to the expert.

31.48

Court-appointed expert may apply to court for directions

(1)	A court-appointed expert may apply to the court for directions to assist the expert in the performance of the expert’s functions in any respect.
(2)	Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.
(3)	A court-appointed expert who makes such an application must send a copy of the request to the parties affected.

31.49

Court-appointed expert’s report to be sent to registrar (cf SCR Part
39, rule 3; DCR Part 28A, rule 3; LCR Part 38B, rule 3)

(1)	The court-appointed expert must send his or her report to the registrar, and a copy of the report to each party affected.
(2)	Subject to rule 31.23 (3) and unless the court orders otherwise, a report that has been received by the registrar is taken to be in evidence in any hearing concerning a matter to which it relates.
(3)	A court-appointed expert who, after sending a report to the registrar, changes his or her opinion on a material matter must forthwith provide the registrar with a supplementary report to that effect.

31.50

Parties may seek clarification of court-appointed expert’s report

Any party affected may apply to the court for leave to seek clarification of any aspect of the court-appointed expert’s report.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments	Schedule 1
31.51	Cross-examination of court-appointed expert (cf SCR Part 39, rule 4; DCR Part 28A, rule 4; LCR Part 38B, rule 4)

Any party affected may cross-examine a court-appointed expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by a party affected.

31.52 Prohibition of other expert evidence (cf SCR Part 39, rule 6; DCR Part
28A, rule 6; LCR Part 38B, rule 6)

Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any issue arising in proceedings if a court-appointed expert has been appointed under this Division in relation to that issue.

31.53

Remuneration of court-appointed expert (cf SCR Part 39, rule 5; DCR
Part 28A, rule 5; LCR Part 38B, rule 5)

(1)	The remuneration of a court-appointed expert is to be fixed by agreement between the parties affected and the expert or, failing agreement, by, or in accordance with the directions of, the court.
(2)	Subject to subrule (3), the parties affected are jointly and severally liable to a court-appointed witness for his or her remuneration.
(3)	The court may direct when and by whom a court-appointed expert is to be paid.
(4)	Subrules (2) and (3) do not affect the powers of the court as to costs.

31.54

Assistance to court by other persons (cf SCR Part 39, rule 7; DCR Part
28A, rule 7; LCR Part 38B, rule 7)

(1)	In any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser’s opinion.
(2)	Rule 31.53 applies to and in respect of a person referred to in subrule (1) in the same way as it applies to and in respect of a court-appointed witness.
(3)	This rule does not apply to proceedings in the Admiralty List of the Supreme Court or to proceedings that are tried before a jury.

[2]      Schedule 3 Fees and other prescribed amounts

Omit “31.20” from item 2. Insert instead “31.31”.

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Schedule 1 Amendments

[3]      Schedule 3

Omit “31.22” from item 3. Insert instead “31.33”.

[4]      Schedule 7

Omit the Schedule. Insert instead:

Schedule 7 Expert witness code of conduct

(Rule 31.23)

(cf SCR Schedule K)

1      Application of code

This code of conduct applies to any expert witness engaged or appointed:

(a)	to provide an expert’s report for use as evidence in proceedings or proposed proceedings, or
(b)	to give opinion evidence in proceedings or proposed proceedings.

2      General duty to the court

(1)	An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness’s area of expertise.
(2)	An expert witness’s paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).
(3)	An expert witness is not an advocate for a party.

3      Duty to comply with court’s directions

An expert witness must abide by any direction of the court.

4      Duty to work co-operatively with other expert witnesses

An expert witness, when complying with any direction of the court to confer with another expert witness or to prepare a parties’ expert’s report with another expert witness in relation to any issue:

(a)	must exercise his or her independent, professional judgment in relation to that issue, and
(b)	must endeavour to reach agreement with the other expert witness on that issue, and

2006 No 717

Uniform Civil Procedure Rules (Amendment No 12) 2006

Amendments Schedule 1

(c) must not act on any instruction or request to withhold or avoid agreement with the other expert witness.

5      Experts’ reports

(1)  An expert’s report must (in the body of the report or in an
annexure to it) include the following:

(a)	the expert’s qualifications as an expert on the issue the subject of the report,
(b)	the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),
(c)	the expert’s reasons for each opinion expressed,
(d)	if applicable, that a particular issue falls outside the expert’s field of expertise,
(e)	any literature or other materials utilised in support of the opinions,
(f)	any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
(g)	in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
(2)	If an expert witness who prepares an expert’s report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.
(3)	If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
(4)	If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subclause (1) as is appropriate.

6      Experts’ conference

(1)  Without limiting clause 3, an expert witness must abide by any
direction of the court:

(a) to confer with any other expert witness, or

2006 No 717	Uniform Civil Procedure Rules (Amendment No 12) 2006
Schedule 1	Amendments

(b)	to endeavour to reach agreement on any matters in issue, or
(c)	to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, or
(d)	to base any joint report on specified facts or assumptions of fact.
(2)	An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.

BY AUTHORITY