Bellew, Geoffrey --- "Editorial: Who are the experts?" [2022] PrecedentAULA 46; (2022) 172 Precedent 2

---

WHO ARE THE EXPERTS?

By the Hon Justice Geoffrey Bellew

One of the consequences of the wide-ranging and comprehensive review of evidence law conducted by the Australian Law Reform Commission in the 1980s was the formulation of a Model Bill which, in turn, provided the basis of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW). Similar legislation in Tasmania, Victoria, the ACT and the NT followed. Absolute consistency of evidence laws across Australia has not, at least at this point, been achieved: Queensland, SA and WA are yet to become part of the uniform regime.

The uniform law that operates in these remaining states and territories is based largely upon common law principles. There is now a strong body of jurisprudence establishing the extent to which the uniform law departs from the common law in particular areas, and the extent to which the common law still has a role to play.

One such area, which is the subject of two of the articles in this edition, is that of expert opinion evidence. At common law, expert opinion was not admissible unless it related to a recognised field of expertise. One line of authority tended to support the conclusion that this field of expertise was required to be ‘sufficiently established to have gained general acceptance in the particular field to which it belongs’^[1] such that, within that broad criterion of expertise, the opinion was admissible.^[2] However, another tended to the view that expert opinion evidence was admissible if there was a reliable basis for it.^[3]

The uniform law largely removed that debate by introducing an exclusionary rule (in this case, the opinion rule in s76) and the associated prescription of exceptions to that rule. As a result, expert opinion evidence is admissible pursuant to s79 of the uniform law to the extent that it is based upon specialised knowledge.^[4] Such specialised knowledge is fundamental to admissibility,^[5] as is the requirement for the expert to explain how that specialised knowledge was used to form the basis of the opinion.^[6] The article by Professor Freckelton AO QC in this edition touches on some of these issues in the context of coronial proceedings, and points out that general principles of this kind continue to provide a yardstick as to the probative value of expert opinion, even in proceedings that are not bound by rules of evidence.

The importance of an expert’s role in the administration of justice is underscored by the fact that (for example) in NSW, experts are bound by a Code of Conduct. A fundamental tenet of that Code is that an expert is not an advocate for a party, and has a paramount duty to assist the court impartially on matters relevant to the specific area of expertise in question.^[7]

In Vakauta v Kelly,^[8] the High Court concluded that a plaintiff in personal injury proceedings was entitled to a new trial on the basis that remarks made by the trial judge about experts called to give evidence amounted to ostensible bias. Those remarks included a description of three medical practitioners as forming an ‘unholy trinity .... whose views are almost inevitably slanted in favour of [the insurer] by whom they have been retained’.^[9] The effect of those observations was, at least in part, to denounce what the trial judge clearly viewed as the practice of ‘doctor shopping’, the subject of the article by Adj Professor Anforth AM and Mr White. The authors cite, as an example of such practice, the deliberate choice of experts with known opinions who can be counted on to support the position of the party retaining them. Any such practice, if established, is entirely at odds with the fundamental obligation of an expert to independently assist the court.

The Hon Justice Geoffrey Bellew is a Judge of the Supreme Court of NSW, Adjunct Professor of Law at Notre Dame University Sydney, and co-author of Australian Uniform Evidence Law – Principles and Context.

---

^[1] From Frye v United States (1923) 293 F. 1013.

^[2] R v Gilmore [1977] 2 NSWLR 935.

^[3] Clark v Ryan [1960] HCA 42; [1960] 103 CLR 486.

^[4] HG v R [1999] HCA 2; [1999] 197 CLR 414.

^[5] Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; [2000] 120 FCR 146.

^[6] Dasreef Pty Limited v Hawchar [2011] HCA 21; [2011] 243 CLR 588.

^[7] Uniform Civil Procedure Rules 2005 (NSW), sch 7.

^[8] [1989] HCA 44; [1989] 167 CLR 568.

^[9] Ibid, 581–2.