Expert evidence
Part 5A — Expert evidence 47B. Terms used In this Part — expert medical evidence means the evidence of a medical expert on medical matters;
3186 GOVERNMENT GAZETTE, WA 7 September 2018 medical expert means a person registered under the Health Practitioner Regulation National Law (Western Australia) in any of these health professions — (a) dental; (b) medical; (c) occupational therapy; (d) optometry; (e) physiotherapy; (f) psychology; medical report means a written report containing expert medical evidence; personal injury case means a case in which a claim is made in respect of — (a) a person’s personal injuries (including any illness or impairment of physical or mental condition); or (b) a person’s death. 47C. RSC Order 36A does not apply The RSC Order 36A does not apply to a case. 47D. General procedural matters (1) Any application made under this Part before trial must be made by summons. (2) A direction given under this Part may be revoked or varied by a subsequent direction given at or before the trial in the case. 47E. Expert medical evidence in personal injury cases (1) This rule applies to expert medical evidence in personal injury cases. (2) Nothing in this rule requires evidence to be disclosed to a defendant who has not entered an appearance. (3) A direction given under this rule may apply to only a part of a medical report or expert medical evidence. (4) Unless the Court directs otherwise, a party must serve on the other parties, in accordance with this rule, a copy of each medical report the substance of which the party intends to rely on at the trial.
7 September 2018 GOVERNMENT GAZETTE, WA 3187 (5) Each copy referred to in subrule (4) must be served — (a) if the medical report is in existence before the case is entered for trial — (i) if the report will be relied on by the party entering the case for trial — before the case is entered for trial; or (ii) if the report will be relied on by another party — before the time for applying under rule 38B for an order countermanding the entry for trial expires, or any later time that may be fixed by an order made on any such application; or (b) if the medical report comes into existence after the case is entered for trial — as soon as practicable thereafter. (6) If a party applies for a direction under subrule (4) — (a) an affidavit supporting the application is not required; and (b) the Court may inspect the medical report the subject of the application without disclosing its contents to any other party. (7) If the Court gives a direction under subrule (4), it may direct that, in lieu of serving a copy of any medical report, the substance of all or any expert medical evidence that a party intends to rely on at the trial be disclosed in writing to such other parties and within such period as the Court specifies. (8) Except with the Court’s leave, or pursuant to a direction of the Court, or where all other parties agree, expert medical evidence cannot be adduced at a trial unless — (a) a copy of a medical report containing the substance of the evidence has been served in accordance with subrules (4) and (5); or (b) the substance of that evidence has been disclosed in writing to all other parties within the time limited by a direction given under subrule (7) or, if no such direction has been given, a reasonable time before the trial; or (c) the Court has permitted the evidence to be given by affidavit.
3188 GOVERNMENT GAZETTE, WA 7 September 2018 (9) Without limiting the Court’s powers under this rule, the Court may give a direction under subrule (4) or (7) or give leave under subrule (8) if a medical report contains — (a) statements by the party against whose interest the evidence is to be led; or (b) hearsay evidence as to the manner in which a personal injury was sustained; or (c) other evidence that would not be admissible at the trial. 47F. Other expert evidence (1) This rule applies to expert evidence other than expert medical evidence in personal injury cases. (2) A direction given under this rule may apply to only a part of the report or evidence of an expert. (3) Expert evidence cannot be adduced at a trial unless — (a) the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under this rule and has complied with any direction given on the application; or (b) all parties consent to it being adduced; or (c) the Court has given leave for it to be adduced; or (d) the Court has permitted the evidence to be given by affidavit. (4) After a case is entered for trial — (a) the party who entered the case for trial cannot apply under subrule (3); and (b) any other party cannot apply after the time for applying under rule 38B for an order countermanding the entry for trial expires, or any later time that may be fixed by an order made on any such application. (5) On an application made under this rule, the Court may direct — (a) that a copy of an expert witness’s report, the substance of which a party intends to rely on at the trial, be served on such other parties and within such period as the Court may specify; or (b) the substance of all or any expert evidence that a party intends to adduce at the trial be disclosed in writing to such other parties and within such period as the Court may specify.
7 September 2018 GOVERNMENT GAZETTE, WA 3189 (6) The author of a report containing expert evidence must certify in the report to having read and complied with the practice direction made by the Court for the purposes of this subrule. (7) If a report has not been certified as required by subrule (6), it is not admissible at trial, except with the Court’s leave. 47G. Derogation of privilege If under rule 47E or 47F a party is required or directed to disclose any expert evidence, the party cannot, after the time fixed for disclosure by the rule or direction (as the case may be) expires, object on the ground of privilege (within the meaning of the Evidence Act 1906 section 32A) to the evidence being disclosed. 47H. Enforcing this Part (1) Rules 47E(7) and 47F(3) do not affect the enforcement under any other provisions of these rules of a direction given under this Part. (2) A direction given under this Part is not enforceable by a writ of attachment or an order of committal. 47I. Court may limit expert evidence Before or at the trial in a case, the Court may, by a direction, limit the number of medical experts or other experts who may be called as witnesses at the trial. 13. Rule 48AA amended Before rule 48AA(1) insert: (1A) The RSC Order 36B rule 1(1) applies as if the definition of Registry were deleted and replaced by the definition of Registry in rule 3 of these rules. 14. Rule 48AB amended Delete rule 48AB(1) and insert: (1) The RSC Order 36B rule 3(1) and (1A) do not apply to a case.
3190 GOVERNMENT GAZETTE, WA 7 September 2018 15. Rule 48AC amended (1) Delete rule 48AC(1) and insert: (1) The RSC Order 36B rule 5A applies subject to this rule. (2) In rule 48AC(2) delete “rule 3A(1)” and insert: rule 5A(2) and (3) Note: The heading to amended rule 48AC is to read: RSC Order 36B rule 5A modified: form of subpoena 16. Rule 48AD replaced Delete rule 48AD and insert: 48AD. RSC Order 36B rule 7 modified: USB devices not permitted The RSC Order 36B rule 6(7)(b) applies as if the reference to “USB device” were omitted. 17. Rule 48AE amended In rule 48AE(2) delete “rule 8,” and insert: rule 9, 18. Rule 48AF amended In rule 48AF(2) delete “rule 8,” and insert: rule 9, 19. Rule 48A amended Delete rule 48A(2B), (2), (3) and (4) and insert: (2) A party to a case cannot amend any of its pleadings, without the Court’s leave, after whichever of the following happens first — (a) a certificate is tendered under rule 43(3a) in the case on behalf of any party; or (b) the case is listed for trial.
7 September 2018 GOVERNMENT GAZETTE, WA 3191 (3) An application for leave to amend a pleading must be accompanied by an affidavit of the party making the application, or the lawyer representing the party, that sets out the facts — (a) that have arisen since the time expired for amending a pleading without the Court’s leave; and (b) that ground the party’s or the lawyer’s argument that the amendment is necessary. 20. Rule 48B amended Before rule 48B(1) insert: (1A) This rule does not apply to an interlocutory application to amend pleadings. 21. Rule 59 amended Delete rule 59(2) and insert: (2) On determining an appeal the Court may fix the amount of costs but otherwise they are to be taxed in accordance with the Legal Profession Act 2008 section 280. 22. Rule 71 amended Delete rule 71(4) and insert: (4) A party to a case is entitled, at no charge, to inspect and obtain a copy of any part of the court record in respect of the case other than the transcript. 23. Schedule 1 amended (1) In Schedule 1 delete Form 1AB. (2) In Schedule 1 Form 1 delete “the Rules of the Supreme Court 1971 Order 36A; ” and insert: Part 5A; His Honour KEVIN FREDERICK SLEIGHT, Chief Judge of the District Court, District Court of Western Australia. Date: 31 August 2018.
3192 GOVERNMENT GAZETTE, WA 7 September 2018 R ACING , G AMING AND LIQUOR RA301 Betting Control Act 1954 Casino Control Act 1984 Gaming and Wagering Commission Act 1987 Liquor Control Act 1988 Racing and Wagering Western Australia Act 2003 Racing Penalties (Appeals) Act 1990 Racing, Gaming and Liquor Regulations Amendment (Fees and Charges) Regulations 2018 Made by the Lieutenant-Governor and Administrator in Executive Council.