Untitled document

County Court (Chapters I and II Miscellaneous Amendments) Rules 2016

S.R. No. 43/2016

TABLE OF PROVISIONS

Rule  Page

Part 1—Preliminary

1Object

2Authorising provisions

3Commencement

Part 2—Chapter I amended

4Rule 20.06 substituted

5Report of expert

6Form 44A substituted

Part 3—Chapter II amended

7Application for leave to appear and to defend and for leave to commence more than one proceeding on 2 or more bills

8Endorsement of decision

9Registrar to inform parties

10Application for leave to appear and to defend

11Application for leave to commence more than one proceeding on 2 or more bills

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Endnotes

STATUTORY RULES 2016

S.R. No. 43/2016

County Court Act 1958

County Court (Chapters I and II Miscellaneous Amendments) Rules 2016

A majority of the Judges of the County Court makes the following Rules:

Part 1—Preliminary

1Object

The object of these Rules is to amend—

(a)Chapter I of the Rules of the County Court—

(i)to provide for the Australian Government Solicitor to be exempt from the requirement to file a notice of change of solicitor in the case of death, retirement or otherwise ceasing to hold office;

(ii)to provide for a code of conduct for expert witnesses which is harmonised with other like jurisdictions;

(b)Chapter II of the Rules of the County Court in relation to proceedings under the Instruments Act 1958.

2Authorising provisions

These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.

3Commencement

These Rules come into operation on 1 June 2016.

Part 2—Chapter I amended

4Rule 20.06 substituted

For Rule 20.06 of the County Court Civil Procedure Rules 2008[1] substitute—

"20.06   Death, retirement etc., of Victorian Government Solicitor or Australian Government Solicitor

It shall not be necessary to file and serve notice under Rule 20.01 where—

(a)the person who occupies or acts in the office of Victorian Government Solicitor or the person who occupies or acts in the office of Australian Government Solicitor acts as solicitor for a party in a proceeding; and

(b)the person so acting dies or retires or otherwise ceases to occupy or act in that office.".

5Report of expert

(1)In Rule 44.03(1)(b) of the County Court Civil Procedure Rules 2008, for "paragraph (2)" substitute "clause 3 of the code".

(2)Rule 44.03(2) of the County Court Civil Procedure Rules 2008 is revoked.

6Form 44A substituted

For Form 44A of the County Court Civil Procedure Rules 2008 substitute—

"Rule 44.01

FORM 44A

EXPERT WITNESS CODE OF CONDUCT

Application of Code

1.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.

General Duties to the Court

2.An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.

Content of Report

3.Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide—

(a)    the name and address of the expert;

(b)    an acknowledgment that the expert has read this code and agrees to be bound by it;

(c)    the qualifications of the expert to prepare the report;

(d)    the assumptions and material facts on which each opinion expressed in the report is based (a letter of instructions may be annexed);

(e)    the reasons for and any literature or other materials utilised in support of each such opinion;

(f)     (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise;

(g)    any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;

(h)    to the extent to which any opinion which the expert has expressed involves the acceptance of another person's opinion, the identification of that other person and opinion expressed by that other person;

(i)     a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, (save for any matters identified explicitly in the report) and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;

(j)     any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;

(k)    whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason; and

(l)     where the report is lengthy or complex, a brief summary of the report at the beginning of the report.

Supplementary Report Following Change of Opinion

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

5.In any subsequent report (whether prepared in accordance with clause 4 or not) the expert may refer to material contained in the earlier report without repeating it.

Duty to Comply with the Court's Directions

6.If directed to do so by the Court, an expert witness shall—

(a)   confer with any other expert witness;

(b)   provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing; and

(c)   abide in a timely way by any direction of the Court.

Conference of Experts

7.Each expert witness shall—

(a)   exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement; and

(b)   endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.".

Part 3—Chapter II amended

7Application for leave to appear and to defend and for leave to commence more than one proceeding on 2 or more bills

In Rule 4.05(1) of the County Court Miscellaneous Rules 2009[2], after "Judge" insert "or a judicial registrar".

8Endorsement of decision

In Rule 4.06 of the County Court Miscellaneous Rules 2009, after "Judge" (where twice occurring) insert "or judicial registrar".

9Registrar to inform parties

In Rule 4.07 of the County Court Miscellaneous Rules 2009—

(a)after "Judge" insert "or judicial registrar";

(b)after "Judge's" insert "or judicial registrar's".

10Application for leave to appear and to defend

In Form 2–4B of the County Court Miscellaneous Rules 2009—

(a)omit "PART 1—";

(b)Part 2 is revoked.

11Application for leave to commence more than one proceeding on 2 or more bills

In Form 2–4C of the County Court Miscellaneous Rules 2009—

(a)omit "PART 1—";

(b)Part 2 is revoked.

Dated:    13 May 2016

P. B. KIDD, Chief Judge	P. G. MISSO
M. G. McINERNEY	K. L. BOURKE
M. B. HARBISON	J. M. J. PATRICK
C. D. DOUGLAS	P. M. E WICHUSEN
G. R. ANDERSON	P. M. TAFT
R. A. LEWITAN	F. SACCARDO
G. G. HICKS	G. P. MULLALY
S. M. COHEN	K. E. KINGS
M. E. SEXTON	J. D. MONTGOMERY
I. E. LAWSON	J. L. PARRISH
R. F. PUNSHON	M. H. TINNEY
G. T. CHETTLE	G. T. CANNON
F. MILLANE	J. F. CARMODY
S. S. DAVIS	R. J. H. MAIDMENT
F. P. HAMPEL	M. F. MACNAMARA
P. D. GRANT	W. E. STUART
S. E. PULLEN	J. A. JORDAN
A. J. HOWARD	C. J. RYAN
L. A. HANNAN	P. J. COSGRAVE
M. D. MURPHY	R. W. DYER
M. E. KENNEDY	A. J. CHAMBERS
C. M. O'NEILL	A. J. TSALAMANDRIS

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Endnotes

[1] Rule 4: S.R. No. 148/2008. Reprint No. 3 as at 1 March 2016. Reprinted to S.R. No. 162/2015.

[2] Rule 7: S.R. No. 56/2009. Reprint No. 1 as at 1 March 2016. Reprinted to S.R. No. 35/2015.