Division 1 Evidence at hearing
31.1 Manner of giving evidence at trial
(cf SCR Part 36, rule 2; DCR Part 28, rule 2; LCR Part 25, rule 9)
(1) This rule applies to a trial of proceedings commenced by statement of claim, or in which a statement of claim has been filed.(2) Subject to subrules (3), (4) and (5) and to the provisions of the Evidence Act 1995, a witness’s evidence at a trial must be given orally before the court.(3) The court may order that all or any of a witness’s evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement.(4) Unless the court orders otherwise, evidence of facts must be given by affidavit if the only matters in question are:(a) interest up to judgment in respect of a debt or liquidated claim, or(b) the assessment of damages or the value of goods under Part 30, or(c) costs.(5) Unless the court otherwise orders, at any trial on an assessment of the amount to be recovered by a plaintiff after default judgment has been given, the following evidence may be given by affidavit:(a) evidence of the identity of any motor vehicle,(b) evidence of the damage sustained by a motor vehicle in a particular collision,(c) evidence of the reasonable cost of repairing that damage.
31.2 Evidence of witnesses at other hearings
(cf SCR Part 36, rule 3; DCR Part 28, rule 3)
Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise.
31.3 Evidence by telephone, video link or other communication
(cf SCR Part 36, rule 2A; DCR Part 28, rule 2A; LCR Part 23, rule 1C)
(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.(2) This rule does not apply to circumstances in which directions could be sought under section 25 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth.
31.4 Court may direct party to furnish witness statement
(cf SCR Part 36, rule 4A)
(1) The court may direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief on any questions of fact to be decided at any hearing (a witness statement).(2) A direction under subrule (1):(a) may make different provision with regard to different questions of fact or different witnesses, and(b) may require that notice be given of any objection to any of the evidence in a witness statement and of the grounds of any such objection.(3) Each witness statement must be signed by the intended witness unless the signature of the witness cannot be procured or the court orders otherwise.(4) If an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court.(5) If the party serving the statement calls as a witness at the hearing any person whose witness statement has been served pursuant to a direction under subrule (1):(a) that person’s witness statement is to stand as the whole of his or her evidence in chief, so long as that person testifies to the truth of the statement, and(b) except by leave of the court, the party may not adduce from that person any further evidence in chief.(6) A party who fails to comply with a direction given under this rule may not adduce evidence to which the direction relates, except by leave of the court.(7) This rule does not deprive any party of the right to treat any communication as privileged and does not make admissible any evidence that is otherwise inadmissible.(8) An application by a party for an order that the party not be required to comply with a direction under this rule in respect of any proposed witness or witnesses (whether or not such a direction has been given) may be made without serving notice of motion.
31.5 Notice under s 67 or s 99 of the Evidence Act 1995
(cf SCR Part 36, rule 13D; DCR Part 28, rule 9A; LCR Part 23, rule 3A)
Unless the court orders otherwise, notice for the purposes of section 67 or 99 of the Evidence Act 1995 must be given:(a) in any case where the court by notice to the parties fixes a date for determining the date for hearing, not later than 21 days before the date fixed by that notice, and(b) in any other case where the place of hearing is a place other than Sydney, not later than 21 days before the first call-over held in respect of the sittings at that place, and(c) in any other case, not later than 21 days before the date on which the court determines the date for hearing.
(cf SCR Part 36, rule 6; DCR Part 28, rule 7)
(1) The court may permit a party to any proceedings the subject of an order under rule 24.3 (relating to the taking of evidence otherwise than at trial) to tender in the proceedings the evidence of a person examined under the order.(2) The evidence is not admissible in the proceedings if:(a) it appears to the satisfaction of the court that the person examined is in New South Wales and is able to attend the hearing, or(b) the evidence would not have been admissible had it been given orally at the hearing of the proceedings.(3) If it is in the interests of justice to do so, the court may exclude from the proceedings any evidence of the person examined even though the evidence is otherwise admissible.(4) Unless the court orders otherwise, evidence in any proceedings that a case falls within:(a) subrule (2) (a), or(b) section 8 (2) (a) or 22 (2) (a) of the Evidence on Commission Act 1995, or(c) section 9 (2) (a) of the Foreign Evidence Act 1994 of the Commonwealth,may be given by affidavit on information and belief, but the person making the affidavit must give the source of and ground for the information and belief.(5) The judicial officer presiding at the trial may make any necessary observations and findings as to demeanour and credibility of the person examined, and act on them for the determination of the issues at the trial, if:(a) the examination has been conducted by the same judicial officer, or(b) an audio-visual recording under rule 24.13 is tendered in evidence at the trial,except where the trial is before a jury.(6) In this rule, evidence includes:(a) any document or thing produced at the examination, and(b) any answers made (whether in writing, or orally and reduced to writing) to any written interrogatories presented at the examination, and(c) any audio-visual recording made in accordance with rule 24.13.
(cf SCR Part 36, rule 6B)
(1) Unless the court orders otherwise, a party who adduces foreign material under section 24 or 32 of the Foreign Evidence Act 1994 of the Commonwealth as evidence:(a) must give at least 14 days’ written notice to each other active party of:(i) the intention to adduce evidence under that section, and(ii) the nature of the foreign material, and(b) must adduce all relevant evidence available to that party:(i) as to whether the person who gave the testimony that is the subject of the foreign material is in Australia and is able to attend the hearing, and(ii) if the foreign material is adduced under section 24 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 25 (2) (a) or (c) of that Act refer, and(iii) if the foreign material is adduced under section 32 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 33 (2) (a) or (c) of that Act refer.(2) In this rule foreign material has the same meaning as it has in the Foreign Evidence Act 1994 of the Commonwealth.
31.8 Earlier evidence in the same proceedings
(cf SCR Part 36, rule 5; DCR Part 28, rule 6)
(1) Evidence taken at a trial with respect to a question that is ordered to be tried separately may be used in any subsequent trial in the same proceedings, saving all just exceptions and unless the court orders otherwise.(2) Evidence taken at a trial may be used for any subsequent trial for the assessment of damages or of the value of goods in the same proceedings, saving all just exceptions and unless the court orders otherwise.(3) Subject to subrules (1) and (2), evidence taken at a hearing may not be used as evidence in any subsequent hearing in the same proceedings except by leave of the court.
31.9 Earlier evidence in other proceedings
(cf SCR Part 36, rule 7; DCR Part 28, rule 10)
(1) In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.(2) Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts.
31.10 Plans, photographs and models
(cf SCR Part 36, rule 8; DCR Part 28, rule 11; LCR Part 23, rule 4)
(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.(2) A party who fails to comply with subrule (1) may not tender the plan, photograph or model in evidence except by leave of the court.
31.11 Production of court documents
(cf SCR Part 36, rule 10; DCR Part 28, rule 13; LCR Part 23, rule 6)
Unless the court orders otherwise, the registrar must produce to the court any document in the registrar’s custody that, by notice in writing, any party to proceedings requests the registrar to produce to the court for the purposes of the proceedings.
31.12 Proof of court documents
(cf SCR Part 36, rule 9; DCR Part 28, rule 12; LCR Part 23, rule 5)
A document purporting to be marked with the seal of any court or tribunal is admissible in evidence without further proof.
31.13 Unstamped documents: arrangements under section 304 of the Duties Act 1997
(cf SCR Part 36, rule 10B)
(1) The “usual undertaking by person liable” if given to the court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, transmit the instrument to the Chief Commissioner of State Revenue.(2) The “usual undertaking by person not liable” if given to the court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, forward to the Chief Commissioner of State Revenue the name and address of the person liable to pay duty on the instrument under that Act together with the instrument.
31.14 Unstamped documents: undertaking in respect of section 29 of the Stamp Duties Act 1920
(cf SCR Part 36, rule 10A; DCR Part 28, rule 13A)
(1) The “solicitor’s usual undertaking as to stamp duty”, if given to the court by a solicitor in relation to an instrument referred to in section 29 of the Stamp Duties Act 1920, or an unexecuted copy referred to in that section, is an undertaking that the solicitor will cause the instrument or copy to be presented to the Chief Commissioner of State Revenue for assessment in accordance with that Act and cause any duty and fine to which the instrument or copy is liable to be paid.(2) The “party’s usual undertaking as to stamp duty”, if given to the court by a party in relation to an instrument referred to in section 29 (4) of the Stamp Duties Act 1920, is an undertaking that the party will, within 28 days, inform the Chief Commissioner of State Revenue of the name of the person primarily liable to duty in respect of the instrument and lodge the instrument or a copy of the instrument with the Chief Commissioner.
31.15 Evidence of consent to act as tutor, trustee, receiver or other office
(cf SCR Part 36, rule 11)
(1) A document:(a) purporting to contain a person’s written consent to act as tutor of a person under legal incapacity, to act as trustee, to act as receiver or to act in any other office on appointment by the court, and(b) purporting to have been duly executed and authenticated,is evidence of the consent.(2) A document is duly executed and authenticated for the purposes of subrule (1):(a) in the case of a consenting person who is a natural person, if the document is signed by the consenting person and the signature is verified by some other person, or(b) in the case of a consenting person that is a corporation, if the seal of the corporation is affixed to the document in accordance with the law regulating the use of the seal.
31.16 Evidence of published research concerning maintenance of children
(cf SCR Part 36, rule 13E)
If the proper needs of a minor are relevant, the court may have regard, to the extent to which it considers appropriate, to any relevant findings of published research in relation to the maintenance of minors.
Division 2 Experts called by parties
(cf SCR Part 36, rules 13A and 13C; DCR Part 28, rule 8; LCR Part 23, rule 1D)
In this Division:code of conduct means the expert witness code of conduct in Schedule 7.
expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.
expert witness means an expert engaged for the purpose of:
(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or(b) giving opinion evidence in proceedings or proposed proceedings.expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion, and the facts on which the opinion is formed, and contains the substance of the expert’s evidence that the party serving the statement intends to adduce in chief at the trial.
hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.
31.18 Disclosure of experts’ reports and hospital reports
(cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)
(1) Each party must serve experts’ reports and hospital reports on each other active party:(a) in accordance with any order of the court, or(b) if no such order is in force, in accordance with any relevant practice note, or(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.(3) Except by leave of the court, or by consent of the parties:(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:(a) that there are exceptional circumstances that warrant the granting of leave, or(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
31.18A Admissibility of expert’s report
(cf SCR Part 36, rule 13B)
(1) If an expert’s report is served in accordance with rule 31.18 or an order made under that rule, the report is admissible:(a) as evidence of the expert’s opinion, and(b) if the expert’s direct oral evidence of a fact on which the opinion was formed would be admissible, as evidence of that fact,without further evidence, oral or otherwise.(2) Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served.(3) Unless the court otherwise orders, such a requirement may not be made later than:(a) in the case of proceedings for which the court has fixed a date for trial, 35 days before the date so fixed, or(b) in any other case, 7 days before the date on which the court fixes a date for trial.(4) The parties may not by consent abridge the time fixed by or under subrule (3).(5) If the expert’s attendance for cross-examination is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.(6) The party using the report may re-examine the expert if the expert attends for cross-examination pursuant to a requirement under subrule (2).(7) This rule does not apply to proceedings in the District Court or a Local Court or to proceedings on a trial with a jury.
31.19 Admissibility of expert’s report in District Court and Local Courts
(cf SCR Part 36, rule 13B; DCR Part 28, rule 9; LCR Part 23, rule 2)
(1A) This rule applies to proceedings in the District Court or a Local Court.(1) If an expert’s report is served in accordance with rule 31.18 or an order made under that rule, the report is admissible:(a) as evidence of the expert’s opinion, and(b) if the expert’s direct oral evidence of a fact on which the opinion was formed would be admissible, as evidence of that fact,without further evidence, oral or otherwise.(2) Unless the court orders otherwise:(a) it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert’s report has been prepared to procure that attendance, and(b) the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which attendance is required.(3) Except for the purpose of determining any liability for conduct money or witness expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party.(4) A party who requires the attendance of a person as referred to in subrule (2):(a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and(b) must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.(5) If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.(6) (Repealed)(7) The party using an expert’s report may re-examine an expert who attends for cross-examination under a requirement under subrule (2).(8) This rule does not apply to proceedings on a trial with a jury.
31.20 Fees for medical expert for compliance with subpoena
(cf SCR Part 36, rule 13BA)
(1) If a subpoena is served on a medical expert who is to give evidence of medical matters but is not called as a witness, the expert is, unless the court orders otherwise, entitled to be paid, in addition to any other amount payable to the expert, the amount specified in item 2 of Schedule 3.(2) The amount payable under subrule (1) must be paid to the expert by the issuing party within 28 days after the date for the expert’s attendance.(3) A party that requires an expert’s attendance under rule 31.19 (2), but subsequently revokes it, must pay to the issuing party any amount paid by the issuing party under subrule (2), but otherwise such an amount is not recoverable by the issuing party from any other party unless the court so orders.(4) In this rule, issuing party means the party at whose request a subpoena is issued.
31.21 Service of subpoena on medical expert
(cf SCR Part 36, rule 13BB)
(1) Service of a subpoena on a medical expert may be effected, at any place at which the expert’s practice is carried on, by handing it over to a person who is apparently engaged in the practice (whether as an employee or otherwise) and is apparently of or above the age of 16 years.(2) If a person refuses to accept a subpoena when it is handed over, the subpoena may be served by putting it down in the person’s presence after he or she has been told of its nature.(3) If a subpoena requires a medical expert to attend court on a specified date for the purpose of giving evidence on medical matters, it must be served on the expert not later than 21 days before the date so specified unless the court orders otherwise.(4) The parties may not by consent abridge the time fixed by or under subrule (3).
31.22 Subpoena requiring production of medical records
(cf SCR Part 36, rule 13BC)
(1) A subpoena for production may require a medical expert to produce medical records or copies of them.(2) A person is not required to comply with a subpoena for production referred to in subrule (1) unless the amount specified in item 3 of Schedule 3 is paid or tendered to the person at the time of service of the subpoena or a reasonable time before the date on which production is required.(3) Rule 33.6 (Compliance with subpoena) does not apply to a subpoena to which subrule (1) applies.(4) Rule 33.7 (Production otherwise than on attendance) applies to the photocopies in the same way as it applies to the records.(5) If, after service of a subpoena for production referred to in subrule (1), the party who requested the issue of the subpoena requires production of the original medical records without the option of producing copies of them, the party must request the issue of, and serve, another subpoena requiring production of the original medical records.
31.23 Expert witnesses to agree to be bound by code
(cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)
(1) As soon as practicable after engaging an expert as a witness, whether to give oral evidence or to provide an expert’s report, the party engaging the expert must provide the expert with a copy of the code of conduct.(2) Oral evidence may not be received from an expert witness unless:(a) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it, and(b) a copy of the acknowledgment has been served on all parties affected by the evidence.(3) If an expert’s report does not contain an acknowledgment by the expert witness who prepared it that he or she has read the code of conduct and agrees to be bound by it:(a) service of the report by the party who engaged the expert witness is not valid service, and(b) the report is not admissible in evidence.(4) This rule applies unless the court orders otherwise.
31.24 Supplementary reports by expert witness
(cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)
(1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use the earlier report on the question to which the earlier report relates unless the engaging party has served the supplementary report on all parties on whom the engaging party served the earlier report.(2) For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.
31.25 Conference between expert witnesses
(cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)
(1) The court may direct expert witnesses:(a) to confer, either generally or in relation to specified matters, and(b) to endeavour to reach agreement on outstanding matters, and(c) to provide the court with a joint report, specifying matters agreed and matters not agreed and reasons for any failure to reach agreement.(2) An expert so directed may apply to the court for further directions.(3) The court may direct that a conference be held:(a) with or without the attendance of the parties affected or their legal representatives, or(b) with or without the attendance of the parties or their legal representatives, at the option of the parties.(4) The content of the conference between the expert witnesses must not be referred to at the hearing unless the parties affected agree.(5) If the parties have agreed to be bound on any specified matter dealt with by the joint report, the report may be tendered at the trial as evidence of the matters agreed.(6) If the parties have not agreed to be bound on any matter dealt with by the joint report, the report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.(7) If expert witnesses have conferred and provided a joint report agreeing on any matter, a party affected may not, except by leave of the court, adduce expert evidence inconsistent with the matter agreed.
31.26 Opinion evidence by expert witnesses
(cf Federal Court Rules, Order 34A, rule 3)
In any proceedings in which two or more parties call expert witnesses to give opinion evidence about the same question or similar questions, or indicate to the court an intention to call expert witnesses for that purpose, the court may give any one or more of the following directions:(a) a direction that:(i) the expert witnesses give evidence at trial after all factual evidence relevant to the question or questions concerned, or such evidence as may be specified by the court, has been adduced, or(ii) each party intending to call one or more expert witnesses close that party’s case in relation to the question or questions concerned, subject only to adducing evidence of the expert witnesses later in the trial,(b) a direction that, after all factual evidence relevant to the question, or such evidence as may be specified by the court, has been adduced, each expert witness file an affidavit or statement indicating:(i) whether the expert witness adheres to any opinion earlier given, or(ii) whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given,(c) a direction that the expert witnesses:(i) be sworn one immediately after another (so as to be capable of making statements, and being examined and cross-examined, in accordance with paragraphs (d), (e), (f), (g) and (h)), and(ii) when giving evidence, occupy a position in the courtroom (not necessarily the witness box) that is appropriate to the giving of evidence,(d) a direction that each expert witness give an oral exposition of his or her opinion, or opinions, on the question or questions concerned,(e) a direction that each expert witness give his or her opinion about the opinion or opinions given by another expert witness,(f) a direction that each expert witness be cross-examined in a particular manner or sequence,(g) a direction that cross-examination or re-examination of the expert witnesses giving evidence in the circumstances referred to in paragraph (c) be conducted:(i) by completing the cross-examination or re-examination of one expert witness before starting the cross-examination or re-examination of another, or(ii) by putting to each expert witness, in turn, each question relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete,(h) a direction that any expert witness giving evidence in the circumstances referred to in paragraph (c) be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to,(i) such other directions as to the giving of evidence in the circumstances referred to in paragraph (c) as the court thinks fit.
31.27 Service of experts’ reports in professional negligence claims
(cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)
(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.(4) In this rule:professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (such as dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister.
professional negligence claim means a claim in the court for damages, indemnity or contribution based on an assertion of professional negligence.
Division 3 Experts appointed by the court
In this Division:code of conduct means the expert witness code of conduct in Schedule 7.
expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.
party affected means a party who may be affected by the court’s decision with respect to a question that the court has referred to an expert for inquiry and report.
31.29 Selection and appointment
(cf SCR Part 39, rule 1; DCR Part 28A, rule 1; LCR Part 38B, rule 1)
(1) If a question for an expert arises in any proceedings the court may, at any stage of the proceedings:(a) appoint an expert to inquire into and report on the question, and(b) authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question, and(c) direct the expert to make a further or supplemental report or inquiry and report, and(d) give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert.(2) The court may appoint as an expert a person selected by the parties affected, a person selected by the court or a person selected in a manner directed by the court.
(cf SCR Part 39, rule 2; DCR Part 28A, rule 2; LCR Part 38B, rule 2)
(1) A copy of the code of conduct must be provided to the expert by the registrar or as the court may direct.(2) A report by an expert may not be admitted into evidence unless the report contains an acknowledgment by the expert that he or she has read the code of conduct and agrees to be bound by it.(3) Oral evidence may not be received from an expert unless the court is satisfied that he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.
31.31 Expert’s report to be sent to registrar
(cf SCR Part 39, rule 3; DCR Part 28A, rule 3; LCR Part 38B, rule 3)
(1) The expert must send his or her report to the registrar.(2) The registrar must send a copy of the report to each party affected.(3) Subject to rule 31.30 and unless the court orders otherwise, the report is taken to have been admitted in evidence in the proceedings when it is received by the court.
31.32 Cross-examination of expert
(cf SCR Part 39, rule 4; DCR Part 28A, rule 4; LCR Part 38B, rule 4)
Any party affected may cross-examine an expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.
31.33 Prohibition of other expert evidence
(cf SCR Part 39, rule 6; DCR Part 28A, rule 6; LCR Part 38B, rule 6)
Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any question arising in proceedings if an expert has been appointed under this Division in relation to that question.
(cf SCR Part 39, rule 5; DCR Part 28A, rule 5; LCR Part 38B, rule 5)
(1) The remuneration of an expert is to be fixed by the court.(2) Subject to subrule (3), the parties specified by the court are jointly and severally liable to an expert to pay the amount fixed by the court for his or her remuneration.(3) The court may direct when and by whom an expert is to be paid.(4) Subrules (2) and (3) do not affect the powers of the court as to costs.
31.35 Assistance to court by other persons
(cf SCR Part 39, rule 7; DCR Part 28A, rule 7; LCR Part 38B, rule 7)
(1) In any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser’s opinion.(2) Rule 31.34 applies to and in respect of a person referred to in subrule (1) in the same way as it applies to and in respect of an expert appointed under this Division.(3) This rule does not apply to proceedings in the Admiralty List of the Supreme Court or to proceedings that are tried before a jury.