Latest decision by the Full Court of the Federal Court: New Aim Pty Ltd v Leung [2023] FCAFC 67 (10 May 2023)

Expert Advice

Most cases require a party to submit an expert report in legal proceedings. There are strict rules about instructing and submitting expert reports to Court. What is an expert?  An expert is a witness who has specialised knowledge in a particular field. Their role is to objectively assist a court in informing the Court as to the relevant facts and technical issues. An example may include a doctor who is called as an expert witness by the court, for instance, to discuss the issue and explain medical terms.

At the trial, the trial judge excluded the expert evidence because the lawyers were too involved in the report-writing process. The Full Federal Court revisited the law on the role of the lawyers in preparing an expert report.

HOW FAR ARE LAWYER’S ABLE TO ASSIST IN THE PrePARATION OF AN EXPERT’S REPORT?

The Full Court of the Federal Court of Australia decided that lawyer assistance in the preparation of expert evidence can be justified in certain circumstances. The Court noted that there is no one-size-fits-all standard for all experts and that legal practitioners may be lawfully be involved in preparing expert evidence. However, the Full Court emphasised that, aside from formal matters, instructions, or assumptions required by the expert, it is difficult to imagine a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.

The Full Court was reviewing the criticisms of the trial judge who took issue with the expert’s oral evidence given at trial. The expert purportedly prepared the report within 24 hours after receiving a final letter of instruction and that the second draft, being the copy filed with the Federal Court, was put together by the lawyers.  The trial judge was not satisfied that the opinions expressed in the report by the expert truly represented the expert’s honest and independent opinions. The expert’s report was rejected in its entirety.

The Full Court held it is not unusual for a final letter of instruction to be prepared shortly before the report’s completion and it was clear from the email evidence that the expert had been engaged by the lawyers some two weeks prior to the finalisation of the report.  While the Full Court agreed with the trial judge’s emphasis on the need for transparency in the process of retaining and communicating with expert witnesses, they determined that the lawyers involvement and contribution to the report was not  in breach of the Expert Practice Note.

The Full Court concluded there is not one rule or practice which covers all experts or all situations when it comes to lawyer involvement. The circumstances where lawyers may be involved in drafting expert reports was also considered by the Full Court:

“There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is.”

The Full Court otherwise declined to identify a specific role for lawyers in the preparation of expert reports. They emphasised the importance of transparency in what the expert was asked to undertake but did not address the disclosure of withdrawn questions specifically.

You can read the full judgment here.