Untitled document

Supreme Court (Chapter I Amendment No. 23)

ts	Rules 2003
n	S.R. No. 95/2003
e
m
u	TABLE OF PROVISIONS
c

o Rule Page

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

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ENDNOTES 15

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STATUTORY RULES 2003

ts

n	S.R. No. 95/2003
e	Supreme Court Act 1986
m
u
c	Supreme Court (Chapter I Amendment No. 23)
o	Rules 2003
D
ry	The Judges of the Supreme Court make the following Rules:
ta	1. Object
n	The object of these Rules is to make
e	miscellaneous amendments to the Principal Rules.
m
ia	2. Authorising provisions
rl	These Rules are made under section 25 of the
a	Supreme Court Act 1986 and all other enabling
P	powers.
d	3. Commencement
n
a	(1) These Rules (except Rules 6 and 11) come into
n	operation on 1 August 2003.
o
ti	(2) Rules 6 and 11 come into operation on
la	1 September 2003.
is	4. Principal Rules
g	In these Rules, the Supreme Court (General Civil
e	Procedure) Rules 19961 are called the Principal
L	Rules.
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Supreme Court (Chapter I Amendment No. 23) Rules 2003

r. 5 S.R. No. 95/2003

5. New Rule 41.08.1

After Rule 41.08 of the Principal Rules insert—

ts	"41.08.1 Confidentiality of deposition
n
e	Unless the Court gives leave, a deposition
m	taken or recorded under this Part shall not be
u	disclosed to any person not a party before it
c	has been admitted into evidence.".
o	6. Subpoena before Prothonotary
D

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

ry	writing".
ta	(2) In Rule 42.10(6) of the Principal Rules for "The
n	person named" substitute "Subject to paragraph
e	(6.1), the person named".
m
ia	(3) After Rule 42.10(6) of the Principal Rules
rl	insert—
a	"(6.1) If the document is not in writing, then,
P	provided the original is held by the person
d	named until trial, a copy only need be
n	produced to the Prothonotary and, if a copy
a	is produced, it shall be clearly marked as
n	such and may be used by the Prothonotary
o	for the purposes of inspection and, if
ti	necessary, copying.".
la	(4) For Rule 42.10(8) of the Principal Rules
is	substitute—
g
e	"(8) If—
L	(a) the person named has any objection to
n	producing a document identified in the
a
ri	subpoena or to its being inspected by
any one or more of the parties to the
to	proceeding; or
ic	(b) a person having a sufficient interest,
V	other than a party, has any objection to the production of a document identified

Supreme Court (Chapter I Amendment No. 23) Rules 2003

S.R. No. 95/2003	r. 6
in the subpoena or to its being inspected by any one or more of the

ts	parties to the proceeding—
n	that person shall notify the Prothonotary in
e	writing of that objection before the day
m	specified in the subpoena.".
u	(5) In Rule 42.10(9) of the Principal Rules for "If a
c
o	party" substitute "Subject to paragraph (9.1), if a
D	party".

(6) After Rule 42.10(9) of the Principal Rules

ry	insert—
ta	"(9.1) If a party other than the plaintiff seeks by
n	subpoena the production of any hospital or
e	medical file or record concerning the
m	plaintiff or his condition, the plaintiff may,
ia	before taking objection under paragraph (9),
rl	inspect the file or record produced to the
a	Prothonotary and notify the Prothonotary
P	thereafter of any objection the plaintiff has to
d	inspection by any other party, provided that
n	the plaintiff makes that inspection and
a	notifies that objection in writing within
n	seven days after the day specified in the
o
ti	subpoena for production of the file or record
la	to the Prothonotary.".

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

is

g	"paragraph (8) or (9)" substitute "paragraph (8),
e	(9) or (9.1)".
L	(8) In Rule 42.10(12) of the Principal Rules, for
n	"paragraph (8) or (9)" substitute "paragraph (8),
a
ri	(9) or (9.1)".
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r. 6 S.R. No. 95/2003

(9) For Rule 42.10(16) of the Principal Rules

substitute—

ts	"(16) Subject to any order of the Court, the
n	Prothonotary—
e	(a) may in his discretion return to the
m	person named any document produced
u
c	by him in compliance with the
o	subpoena;
D	(b) shall, upon returning the document,

inform the person named that the

ry	subpoena for production remains in
ta	force until the trial or other
n	determination of the proceeding; and
e	(c) may specify a date by which the
m	document is to be produced again to the
ia	Prothonotary in compliance with the
rl	subpoena.".
a
P	(10) In Rule 42.10(17) of the Principal Rules, for "The
d	Prothonotary" substitute "Subject to paragraph
n	(17.1), the Prothonotary".
a	(11) After Rule 42.10(17) of the Principal Rules
n	insert—
o
ti	"(17.1) In an urgent case and at the request of—
la	(a) the person named; or
is	(b) in the case of any hospital or medical
g	file or record concerning the plaintiff or
e
L	his condition, the plaintiff—
n	the Prothonotary may return a document
a	under paragraph (16) without first giving
ri	notice under paragraph (17), but in such a
to	case, after returning the document, the Prothonotary shall give notice to the party
ic	who filed the subpoena that the document
V	has been returned.".

Supreme Court (Chapter I Amendment No. 23) Rules 2003

S.R. No. 95/2003 r. 7

(12) In Rule 42.10(18) of the Principal Rules, for

"paragraphs (16) and (17)" substitute "paragraphs

ts	(16), (17) and (17.1)".
n	7. Affidavit sworn before party
e	Rule 43.10 of the Principal Rules is revoked.
m	8. Substitution of Order 44
u
c
o	For Order 44 of the Principal Rules substitute—
D	'ORDER 44
ry
ta	EXPERT EVIDENCE
n	44.01 Definitions
e
m	In this Order, unless the context or subject-
ia	matter otherwise requires—
rl	"expert" means a person who has
a	specialised knowledge based on the
P	person's training, study or experience;
d
n	"opinion" includes more than one opinion;
a	"the code" means the expert witness code of
n	conduct in Form 44A.
o
ti	44.02 Application
la	(1) This Order applies to a proceeding however
is	commenced.
g	(2) This Order does not apply—
e
L	(a) to the evidence of a party who would, if
n	called as a witness at the trial, be
a	qualified to give evidence as an expert
ri	in respect of any question in the
to	proceeding; or

ic	(b)	to a person engaged as an expert before
V	1 November 2003.

Supreme Court (Chapter I Amendment No. 23) Rules 2003

r. 8 S.R. No. 95/2003

(3) With respect to the opinion of a medical
practitioner, in a proceeding for medical

negligence in which the plaintiff claims

ts	damages for or in respect of bodily injury
n	this Order applies to an opinion on the
e	liability of the defendant but does not
m	otherwise apply to a medical report to which
u
c	Order 33 applies.
o	44.03 Report of expert
D	(1) Unless otherwise ordered, a party who
ry	intends at trial to adduce the evidence of a
ta	person as an expert shall—
n	(a) as soon as practicable after the
e	engagement of the expert and before
m	the expert makes a report under this
ia	Rule, provide the expert with a copy of
rl	the code; and
a	(b) not later than 30 days before the day
P	fixed for trial, serve on each other
d	party, a report by the expert in
n	accordance with paragraph (2) and
a	deliver a copy for the use of the Court.
n	(2) The report shall state the opinion of the
o
ti	expert and shall state, specify or provide—
la	(a) the name and address of the expert;
is	(b) an acknowledgement that the expert has
g
e	read the code and agrees to be bound by
L	it;

(c) the qualifications of the expert to

n

ri prepare the report;

a

(d) the facts, matters and assumptions on

to	which the opinion is based (a letter of
ic	instructions may be annexed);
V

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S.R. No. 95/2003 r. 8

(e) (i) the reasons for,

(ii) any literature or other materials

ts	utilised in support of,
n	(iii) a summary of—
e
m	the opinion;
u	(f) (if applicable) that a particular question,
c	issue or matter falls outside the expert's
o	field of expertise;
D

(g) any examinations, tests or other

ry	investigations on which the expert has
ta	relied, identifying the person who
n	carried them out and that person's
e	qualifications;
m	(h) a declaration that the expert has made
ia	all the enquiries which the expert
rl	believes are desirable and appropriate,
a	and that no matters of significance
P	which the expert regards as relevant
d	have, to the knowledge of the expert,
n	been withheld from the Court;
a

(i) any qualification of an opinion

n

o	expressed in the report without which
ti	the report is or may be incomplete or
la	inaccurate;

is	(j)	whether an opinion expressed in the
g	report is not a concluded opinion
e	because of insufficient research or
L	insufficient data or for any other
n	reason.
a

ri (3) If the expert provides to a party a

supplementary report, including a report

to	indicating that the expert has changed his
ic	opinion on a material matter expressed in an
V	earlier report—

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r. 8 S.R. No. 95/2003

(a) that party shall forthwith serve the supplementary report on all other

ts	parties; and
n	(b) in default of such service, the party and
e	any other party having a like interest
m	shall not use the earlier report or the
u	supplementary report at trial without
c	the leave of the Court.
o	(4) Any report provided by the expert pursuant
D	to this Rule shall be signed by the expert and
ry	shall be accompanied by clear copies of any
ta	photographs, plans, calculations, analyses,
n	measurements, survey reports or other
e	extrinsic matter to which the report refers.
m	44.04 Other party's report as evidence
ia	Unless otherwise ordered, a party may put in
rl	evidence a report served on him by another
a	party under this Order.
P

44.05 No evidence unless disclosed in report

d

n	Save with the leave of the Court or by
a	consent of the parties affected, a party shall
n	not except in cross-examination adduce any
o	evidence from a person as an expert at the
ti	trial of a proceeding unless the substance of
la	the evidence is contained within a report or
is	reports which the party has served under this
g	Order.
e	44.06 Conference between experts
L

(1) The Court may direct expert witnesses—

n
a

ri	(a) to confer; and
to	(b) to provide the Court with a joint report

specifying matters agreed and matters

ic	not agreed and the reasons for their not
V	agreeing.

Supreme Court (Chapter I Amendment No. 23) Rules 2003

S.R. No. 95/2003 r. 9

(2) The Court may specify the matters on which the experts are to confer.

ts	(3) An expert witness may apply to the Court for
n	further directions.
e	(4) The Court may direct the legal
m	representatives of a party—
u
c	(a) to attend the conference;
o	(b) not to attend the conference;
D
(c) to attend or not to attend at the option
ry	of the party whom they represent.
ta	(5) Subject to paragraph (1)(b), except as the
n	parties affected agree in writing, no evidence
e	shall be admitted of anything said or done by
m	any person at the conference.
ia
rl	(6) An agreement reached during the conference
a	shall not bind a party except in so far as the
P	party agrees in writing.'.
d	9. Defamation claim in wrong court
n	(1) In Rule 63.24(1) of the Principal Rules—
a

(a) for "Where" substitute "Subject to

n

paragraph (1.1), where";

o
ti

(b) for "by judgment or by the acceptance in

la	accordance with Rule 26.03(4) of an offer of
is	compromise recovers" substitute "recovers
g	by judgment or otherwise".
e
L	(2) After Rule 63.24(1) of the Principal Rules
n	insert—
a	"(1.1) Where in a proceeding for libel or slander
ri	the plaintiff recovers by judgment or
to	otherwise an amount (exclusive of costs) not
ic	exceeding $50 000, the plaintiff shall, unless the Court otherwise orders, be entitled only
V	to the costs to which he would have been

Supreme Court (Chapter I Amendment No. 23) Rules 2003

r. 10 S.R. No. 95/2003

entitled if he had brought the proceeding in
the County Court less an amount equal to the

additional costs properly incurred by the

ts	defendant by reason of the proceeding
n	having been brought in the Supreme Court
e	instead of the County Court, but shall not be
m	required to pay the defendant any amount by
u
c	which the additional costs exceed the costs
o	payable to the plaintiff.".
D	(3) In Rule 63.24(4) of the Principal Rules, for
ry	"Paragraph (1) does" substitute "Paragraphs (1)
ta	and (1.1) do".

10. Masters' powers

n

e	In Rule 77.01(b) of the Principal Rules, after the
m	item referring to the Administrative Law Act
ia	1978 insert—
rl	"Associations Incorporation Act 1981,
a	sections 34 and 37(2);".
P

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

d

n	before Prothonotary
a	(1) In Form 42E to the Principal Rules, after the
n	paragraph commencing "If this subpoena"
o	insert—
ti	"If compliance with the subpoena requires the production of
la	a document which is not in writing (such as a photograph,
is	computer disk, diskette, audio-tape, video-tape etc.—see Interpretation of Legislation Act 1984, section 38) then,
g	provided the original is held by you until trial, a copy only
e	need be produced to the Prothonotary. If a copy is
L	produced, it must be clearly marked as such and it may be
n	used by the Prothonotary for the purposes of inspection and,
a
ri	if necessary, copying.".
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S.R. No. 95/2003 r. 12

(2) In Form 42F to the Principal Rules, after the

paragraph commencing "If this subpoena"

insert—

ts	"If compliance with the subpoena requires the production of
n	a document which is not in writing (such as a photograph,
e	computer disk, diskette, audio-tape, video-tape etc.—see
m	Interpretation of Legislation Act 1984, section 38) then,
u	provided the original is held by the corporation until trial, a
c	copy only need be produced to the Prothonotary. If a copy
o	is produced, it must be clearly marked as such and it may be
D	used by the Prothonotary for the purposes of inspection and, if necessary, copying.".
ry	(3) In Forms 42E and 42F to the Principal Rules, in
ta	note 2 of the Further Notes insert—
n	"However, if you are the plaintiff in this proceeding and this
e	subpoena seeks from another person the production of a
m	hospital or medical file or record concerning you or your
ia	condition, you may, before taking objection, inspect the file
rl	or record produced to the Prothonotary and, after such inspection, notify any objection you may have to inspection
a	of that file or record by any other party, provided that you
P	make your inspection and notify your objection, if any, in
d	writing within seven days after the day specified in the
n	subpoena for production.".
a	12. New Form 44A
n	After Form 43A to the Principal Rules insert—
o
ti
la	"FORM 44A
is	Rule 44.01
g
e	EXPERT WITNESS CODE OF CONDUCT

L	1.	A person engaged as an expert witness has an
n	overriding duty to assist the Court impartially on
a
ri	matters relevant to the area of expertise of the witness.
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r. 12 S.R. No. 95/2003

(b)	an acknowledgement that the expert has read this code and agrees to be bound by it;
(c)	the qualifications of the expert to prepare the

ts report;

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

u	(e)	(i)	the reasons for,
c
o	(ii)	any literature or other materials utilised in
D	support of,
ry	(iii)	a summary of—

each such opinion;

ta	(f)	(if applicable) that a particular question, issue or
n
e	matter falls outside the expert's field of expertise;
(g)	any examinations, tests or other investigations on
m	which the expert has relied, identifying the person
ia	who carried them out and that person's
rl	qualifications;
a	(h)	a declaration that the expert has made all the
P	inquiries which the expert believes are desirable
d	and appropriate, and that no matters of significance which the expert regards as relevant
n	have, to the knowledge of the expert, been
a	withheld from the Court;
n	(i)	any qualification of an opinion expressed in the
o
ti	report without which the report is or may be
la	incomplete or inaccurate; and
(j)	whether any opinion expressed in the report is not
is	a concluded opinion because of insufficient
g	research or insufficient data or for any other
e	reason.

L	4. Where an expert witness has provided to a party (or
n	that party's legal representative) a report for the use of
a	the Court, and the expert thereafter changes his or her
ri	opinion on a material matter, the expert shall forthwith
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S.R. No. 95/2003 r. 12

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

(a) confer with any other expert witness; and

ts	(b)	provide the Court with a joint report specifying
n	(as the case requires) matters agreed and matters
e	not agreed and the reasons for the experts not
m	agreeing.

u	6. Each expert witness shall exercise his or her
c	independent judgment in relation to every conference
o	in which the expert participates pursuant to a direction
D	of the Court and in relation to each report thereafter provided, and shall not act on any instruction or
ry	request to withhold or avoid agreement.".
ta
n
e	Dated: 31 July 2003
m	J. H. PHILLIPS, C.J.
ia
rl	JOHN WINNEKE, P.
a	W. F. ORMISTON, J.A.
P	JOHN D. PHILLIPS, J.A.
d
n	F. H. CALLAWAY, J.A.
a	J. M. BATT, J.A.
n
o	PETER BUCHANAN, J.A.
ti	F. H. R. VINCENT, J.A.
la
is	G. M. EAMES, J.A.
g	BERNARD G. TEAGUE, J.
e	P. D. CUMMINS, J.
L
n	T. H. SMITH, J.
a
ri	DAVID ASHLEY, J.
to	JOHN COLDREY, J.
ic	DAVID BYRNE, J.
V	D. L. HARPER, J. H. R. HANSEN, J.

Supreme Court (Chapter I Amendment No. 23) Rules 2003

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ROSEMARY BALMFORD, J.

D. J. HABERSBERGER, J.

ts	R. S. OSBORN, J.
n
e	GEOFFREY NETTLE, J.
m	K. WILLIAMS, J.
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Supreme Court (Chapter I Amendment No. 23) Rules 2003

Endnotes

S. R. No. 95/2003

ENDNOTES

ts	1 Rule 4: S.R. No. 19/1996. Reprint (No. 4) incorporating amendments as at
n	20 March 2003.
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