Part 5A — Expert evidence
47B. Terms used
In this Part —
expert medical evidence means the evidence of a
medical expert on medical matters;
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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.
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(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.
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(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.
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(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.
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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.
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(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.
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R ACING , G AMING AND LIQUOR
RA301
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Racing and Wagering Western Australia Act 2003
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Racing, Gaming and Liquor Regulations
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Regulations 2018
Made by the Lieutenant-Governor and Administrator in Executive
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