Blog: Process and Procedure

Expert Witness Code of Conduct: Federal Court and State Rules

Every expert witness in Australia is bound by a code of conduct, but the specific rules vary by jurisdiction. This guide explains the Federal Court expert witness practice notes, NSW UCPR Schedule 7, and equivalent rules in Victoria, Queensland and other states.

Author: Karim Ali ChOHSP FAIHS Reading time: 8 min read

Why Expert Witnesses Are Bound by Codes of Conduct

Expert witnesses occupy a unique position in litigation. Unlike lay witnesses who give evidence of facts they observed, expert witnesses give opinions based on their expertise. This creates a risk that an expert might advocate for the party who instructed them rather than giving an honest, independent assessment. Australian courts developed formal codes of conduct to address this risk by making the expert's duty to the court explicit and enforceable.

Breach of the expert witness code of conduct is a serious matter. Courts have excluded expert evidence, reduced its weight and, in serious cases, made adverse cost orders where experts failed to comply with their obligations. A report that does not comply with the applicable code may be inadmissible or given little weight regardless of the underlying quality of the analysis.

Federal Court: Expert Evidence Practice Note GPN-EXPT

The Federal Court's Expert Evidence Practice Note (GPN-EXPT) sets out what is expected of experts in Federal Court proceedings. The Harmonised Expert Witness Code of Conduct is attached to it as Annexure A. The party engaging the expert must give them a copy of the practice note and the code, and the report must acknowledge that the expert has read the code and agrees to be bound by it.

The code also sets out what a report must contain: the expert's qualifications, the facts, matters and assumptions the opinions are based on, the reasons for each opinion, any literature or tests relied on, and a statement where an opinion is not fully concluded or a question falls outside the expert's field. If the expert's opinion changes after the report has been served, the expert must provide a supplementary report.

NSW: UCPR Schedule 7 Code of Conduct

In NSW courts that apply the Uniform Civil Procedure Rules 2005, including the Supreme Court and District Court, the Expert Witness Code of Conduct in Schedule 7 applies. Under rule 31.23, unless the court orders otherwise, a report is not admissible unless it contains the expert's acknowledgment that they have read the code and agree to be bound by it. Rule 31.27 sets out what the report must contain, including the expert's qualifications, the facts and assumptions relied on, the reasons for each opinion, any literature or tests used and a statement if an opinion is not concluded. Rule 31.24 allows the court to direct experts to confer and prepare a joint report.

The NSW Personal Injury Commission has its own direction on expert evidence, which sets out specific requirements for expert reports filed in PIC proceedings. Reports prepared for PIC matters must comply with the PIC direction, not only with the UCPR code.

Common Omissions in Expert Reports

The most common reasons courts reduce the weight given to expert evidence are: the expert did not acknowledge the limitations of their opinion, the expert did not state the facts and assumptions on which the opinion is based, or the expert appeared to be advocating for the instructing party rather than giving an honest assessment. All reports prepared by Karim Ali address each of these requirements explicitly.

Victoria, Queensland and Other Jurisdictions

Victoria

In the Supreme Court of Victoria, expert evidence in civil proceedings is governed by Order 44 of the Supreme Court (General Civil Procedure) Rules 2015. The party engaging the expert must give them a copy of the Expert Witness Code of Conduct in Form 44A. The code requires the expert to recognise their overriding duty to the court, to be impartial and objective, and to make clear when a question falls outside their area of expertise. Courts expect the same independence from experts in other proceedings, including WHS prosecutions.

Queensland

Queensland's expert evidence rules are in Chapter 11 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld), which was replaced in 2022. The expert's duty to the court is set out in rule 429F, the requirements for reports in rule 429H and the code of conduct in Schedule 1C. Queensland has not adopted the Harmonised Code used in the Federal Court.

Common Requirements Across All Jurisdictions

  • The expert's primary duty is to the court, not to the instructing party
  • The opinion must be within the expert's area of expertise
  • All facts and assumptions material to the opinion must be stated
  • Limitations of the opinion must be acknowledged
  • The expert must update the report if the opinion changes
  • The report must contain a declaration of independence

For how these obligations apply in practice, see expert witness reports, the joint expert conference process, how to instruct a WHS expert witness and review of opposing expert reports, which checks the other side's report against these requirements.

Frequently Asked Questions

  • It depends on the court or tribunal. Federal Court matters use GPN-EXPT and the Harmonised Code. NSW Supreme and District Court matters use UCPR Schedule 7. NSW Personal Injury Commission matters use the Commission's procedural direction on expert evidence. Supreme Court of Victoria matters use Order 44 and the Form 44A code. Queensland matters use Chapter 11 Part 5 of the UCPR 1999 and the Schedule 1C code. Karim confirms the applicable rules for the forum when he first assesses the matter.

  • No. The expert's primary duty is to the court. The expert must give an honest, independent opinion based on the evidence, regardless of which party retained them. An expert who tailors opinions to assist the instructing party breaches the code of conduct and risks having their evidence excluded or its weight significantly reduced. The most effective expert evidence is that which is genuinely independent and therefore credible to the court.

  • Courts can exclude the expert's evidence, reduce its weight, or decline to accept particular opinions where the expert has breached the code. In serious cases, the court may also make adverse cost orders. A breach can also expose the expert to criticism in the judgment that damages their credibility in future proceedings. Compliance with the applicable code is not optional; it is a condition of giving expert evidence.

  • In most courts, yes. In NSW, rule 31.23 makes a report inadmissible without the expert's acknowledgment that they have read the Schedule 7 code and agree to be bound by it, unless the court orders otherwise. The Federal Court practice note has an equivalent requirement.

  • The court can direct experts to confer and prepare a joint report setting out where they agree and disagree, and why. In NSW this is rule 31.24. See the joint expert conference process.