Section 79 and Part 23 of the Federal Court Rules
34 In terms, it is not a requirement of s 79(1) that a witness be described as an "expert" for her or his evidence to be admissible. However in substance, that is precisely the matter to which the two preconditions in s 79(1) are directed. They are directed to the existence of a connection between a person's expertise (however obtained) and the opinion expressed. See, generally, Dasreef at [31]-[37].
35 It is also true that, in terms, s 79(1) does not impose a precondition that opinion evidence, as expert evidence, be given by a witness who is "independent" of the party calling her or him. In proceedings outside this Court and in the absence of provisions such as Part 23, there may be circumstances in which s 79(1) could render admissible opinion evidence where the two preconditions in s 79(1) were satisfied, even if the witness could not be said to be "independent" of the party calling her or him. In those (theoretical) circumstances, the issue of independence might well be only a matter going to the weight to be given to the evidence.
36 However, the scenario above cannot occur in a proceeding in this Court, where Part 23 of the Federal Court Rules applies, and there is wholesale non-compliance with Part 23. That is because Part 23 deliberately links its subject matter - "expert" evidence - with the terms of s 79(1). That is, for the purposes of proceedings in this Court, an express and deliberate link is made, and s 79(1) has no operation separately from Part 23 and therefore also the Court's Practice Note on Expert Evidence.
37 Part 23 of the Rules applies to evidence from an "expert", which is a term defined in the Dictionary in Sch 1 to the Rules. That definition is:
expert means a person who has specialised knowledge based on the person's training, study or experience.
38 "Expert evidence" is defined in the Dictionary as:
expert evidence means the evidence of an expert that is based wholly or substantially on the expert's specialised knowledge.
Note: For the admissibility of the evidence of the opinion of an expert, see section 79 of the Evidence Act.
39 This language is the language of s 79(1) of the Evidence Act. This is the express and deliberate link to which I referred.
40 Next, it is important to recall that the key provisions in Part 23 are expressed in mandatory terms. Rule 23.11 provides that a party may call an expert witness at trial "only if" the two preconditions in r 23.11 are met. The words "only if" must be given work to do: they indicate that the matters in paragraphs (a) and (b) are essential preconditions to a party being able to call an expert witness at trial. The party seeking to call expert evidence must have:
(a) delivered an expert report that complies with rule 23.13 to all other parties; and
(b) otherwise complied with this Division.
41 Insofar as the applicant relied upon s 79(1) of the Evidence Act, Dr Livingstone is an "expert" as defined in the Dictionary in the Federal Court Rules. That is because the applicant must, and does, rely on his training, study or experience as the matters which qualify him to express the opinions he does, which the applicant contended are within his expertise.
42 Insofar as the applicant relied upon s 79(1) of the Evidence Act, there is no conclusion available but that the applicant was required to comply with Part 23 and r 23.11 in particular.
43 A party "must" give a copy of the Court's Practice Note on Expert Evidence to the expert: r 23.12. Rule 23.13 then sets out what an expert report "must" contain. The expert report must acknowledge that the expert witness has "read, understood and complied with the Practice Note" (my emphasis). The report itself must comply with the Practice Note.
44 Thus, through the Court's Rules, the Practice Note (and its attachments, including the Harmonised Code of Conduct) is given legal force, at least to the extent the Rules impose requirements or obligations about the Practice Note.
45 The particular aspects of the Practice Note which should be emphasised are as follows. After setting out the Court's approach to expert evidence and what constitutes appropriate and inappropriate interaction between parties, legal representatives and their expert witnesses, the Practice Note then turns (in paragraph 4) to the role and duties of expert witnesses.
46 Paragraph 4.1 states:
4.1 The role of the expert witness is to provide relevant and impartial evidence in his or her area of expertise. An expert should never mislead the Court or become an advocate for the cause of the party that has retained the expert.
47 The Harmonised Code attached to the Practice Note contains a similar statement:
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.
48 Both the Practice Note and the Harmonised Code also impose specific requirements about the content of the expert report, along the same lines as r 23.13, but not in identical terms.
49 When the express and deliberate link between Part 23 and s 79(1) of the Evidence Act is understood, and seen in its context, it is apparent that a capacity for a witness whose evidence is said to fall within s 79(1) of the Evidence Act to identify herself or himself as a person who can "assist the Court impartially" and not to be an "advocate for the cause of" a party, are core preconditions to the calling of that witness by a party, and to the admission of that witness' evidence pursuant to s 79.
50 In my opinion this means, at a minimum, that there must be substantial, at least purportedly substantial, compliance with Part 23, or a capacity substantially to comply with Part 23, by both a party and that party's proposed witness, including a preparedness and capacity to acknowledge the necessity for an expert witness to be independent in the sense set out in the authorities, the Practice Note and the Harmonised Code.
51 For the reasons I set out at [56] below, neither the applicant nor Dr Livingstone have a capacity substantially to comply with Part 23. Dr Livingstone has no capacity because he has, candidly, disclosed that he is an advocate for the cause of the applicant, and has been assisting her and her legal representatives. The applicant has no capacity substantially to comply with the obligation imposed on her by Part 23 because she could not do, knowing Dr Livingstone's position. I infer that is why there was, in my opinion quite properly, no attempt to comply with Part 23 in the first place.
52 I do note that, in principle, two matters advanced by the applicant can be accepted. First, there may be situations where it is appropriate to waive compliance with the Court's Rules under r 1.34 in relation to Part 23 and an expert witness. If, for example, some of the requisite acknowledgments are missing from a report, compliance may be waived and the expert can be asked about those matters in the witness box. In some circumstances, omissions from a report of some of the matters set out in r 23.13 might be excused. Other examples might be given. However it is difficult to imagine a situation where it will be in the interests of the administration of justice to waive compliance with the entire regime in Part 23 and the Practice Note, so that a person can give expert evidence which purports to be admissible under s 79(1). I allow for the possibility of such a situation, but repeat it is difficult to imagine what it might be. That is because the requirements of Part 23 are expressly linked to s 79(1) and concern the basic premises for the reception of expert opinion evidence, as set out in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 at 81-82, and endorsed by many Australian courts. The widespread acceptance of such a uniform approach is demonstrated by the Harmonised Code issued by the Australian Council of Chief Justices, which is Appendix A to this Court's Practice Note on Expert Evidence.
53 Second, I accept there may be situations, such as that dealt with by Dodds-Streeton J in the Ananda Marga case, where the question of an expert's independence will go to weight but not admissibility of her or his report. Those circumstances will generally be where there has been at least purported or substantial compliance with Part 23, and a purported acknowledgment by an expert of the need for independence, and a purported assertion of her or his actual independence. That was the case before her Honour: see [30]. The primary objection to the two witnesses in the Ananda Marga case was lack of specialised knowledge, for the purposes of the first precondition in s 79 of the Evidence Act. Her Honour rejected that objection. Having done so, her Honour then considered a further submission from the defendants that the two witnesses were "disqualified" by a lack of independence. Her Honour's view that the two witness' opinion evidence was admissible is expressed at [35]:
In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert's evidence, but rather, the significant risk that it will fail to persuade.
54 At [35]-[54], her Honour discussed the authorities which supported that view. Her Honour saw the position at common law and under s 79 of the Evidence Act as the same: see [45]. At [47], her Honour noted a qualification to this proposition: namely, that a lack of objectivity may justify exclusion of expert evidence under s 135 of the Evidence Act. At [46], her Honour said:
Protocols or judicial statements requiring independence in expert witnesses thus do not constitute a precondition of competence, but rather, a preferred practice.
55 In Ananda Marga, her Honour was not faced with a proposed tender of opinion evidence under s 79(1) in circumstances where there had been no compliance at all with Part 23 of the Court's Rules. In the circumstances facing her Honour, it is unsurprising her Honour saw the question of independence as one going to weight rather than admissibility.
56 In the present situation, quite unlike the Ananda Marga case, and given what he has already deposed, I fail to see how Dr Livingstone could promise to comply with and recognise the matters required by the Part 23, the Practice Note and the Harmonised Code. He is plainly well aware, and prepared to state, that he is an advocate for the cause of the applicant. I add I have no reason to believe Dr Livingstone would even consider attempting to proffer the declarations of independence required, or the acknowledgments of the need for independence. His candidness in his affidavit suggests he would not. I should also make it clear that there is no inherent criticism to be made of Dr Livingstone in the position he has taken in support of the applicant's cause. The legal question is how that position affects his capacity to comply with Part 23 and the underlying core requirements for expert evidence.
57 Thus, Dr Livingstone is placed in a position of being incapable of complying with Part 23, insofar as his opinion evidence is concerned. Waiver of the entirety of Part 23 under r 1.34 might bypass his incapacity, but it does not change the fact of it.
58 In those circumstances, it would be inimical to the structure and purpose of Part 23 to waive the requirements of that Part entirely; or of r 23.11. This Court's Rules do not intend that there are two kinds of expert evidence admissible in proceedings in this Court - independent and non-independent; substantially compliant with Part 23 and wholly non-compliant. The purpose of Part 23 as a whole is to regulate the form and preconditions to admissibility of opinion evidence within the terms of s 79(1) of the Evidence Act. That is why substantial compliance (at least purported), or the capacity substantially to comply, with Part 23 must be, in this Court at least, a precondition to admissibility of evidence within s 79(1) of the Evidence Act.
59 Dr Livingstone's assistance to the applicant, and his belief in the underlying tenets of her case, may properly be the subject of cross-examination in relation to the evidence I have determined should be admitted. That is a matter for the respondents. On those limited matters, his assistance to the applicant does not, in the circumstances of this case, preclude any reliance by the applicant on his affidavit.