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 the obligations of experts appearing in Federal Court proceedings. The practice note requires that every expert report contain a declaration acknowledging the expert's duty to the court, a statement that the expert has complied with the practice note, and a summary of the expert's qualifications and the instructions received.

The Federal Court practice note also sets out requirements for the content of expert reports, including that the expert must state the facts, matters and assumptions on which the opinion is based, acknowledge any limitations of the opinion, and advise the court if the opinion changes after the report is delivered. The practice note applies to all Federal Court proceedings including Comcare matters.

NSW: UCPR Schedule 7 Code of Conduct

In New South Wales Supreme Court and District Court proceedings, the Code of Conduct for Expert Witnesses in Schedule 7 to the Uniform Civil Procedure Rules 2005 applies. The code requires the expert's report to contain a statement that the expert has read and complied with the code, a statement of the expert's qualifications, a statement of the assumptions made, and acknowledgment of any matter that may affect the reliability or completeness of the opinion.

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

Victorian Supreme Court expert evidence is governed by Practice Note SC GEN 14 and the Expert Witness Code of Conduct. The code requires the expert to acknowledge their overriding duty to the court, to give evidence that is impartial and objective, and to make clear when a question falls outside their area of expertise. WorkSafe Victoria prosecutions are heard in the Magistrates Court, which does not apply the same formal code but expects independent, impartial expert evidence.

Queensland

Queensland expert witness obligations are set out in Chapter 11 of the Uniform Civil Procedure Rules 1999 (QLD). The rules require expert reports to contain a declaration of independence, a statement of qualifications, and acknowledgment of the expert's duty to the court. QIRC proceedings have their own practice directions on expert evidence.

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 detail on Karim's approach to these obligations, see the code of conduct and independence page. For guidance on the engagement process, see how to instruct a WHS expert witness.

Frequently Asked Questions

  • It depends on the court or tribunal. Federal Court matters use GPN-EXPT. NSW Supreme and District Court matters use UCPR Schedule 7. NSW Personal Injury Commission matters use the PIC direction on expert evidence. Victorian Supreme Court matters use SC GEN 14. Queensland matters use the UCPR 1999 Chapter 11 requirements. Karim prepares all reports to comply with the specific requirements of the relevant forum, which is confirmed as part of the initial matter assessment.

  • 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.