Week 9: Expert Evidence

Section 23.15 of the Federal Court Rules (2011) states [inter alia] the following:

Evidence of Experts:

If 2 or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any of those parties may apply to the Court for one or more of the following orders:

(a) that the experts confer, either before or after writing their expert reports;

(b) that the experts produce to the Court a document   identifying where the expert opinions agree or differ;

(c) that the expert’s evidence in chief be limited to the contents of the expert’s expert report;

(d) that all factual evidence relevant to any expert’s opinions be adduced before the expert is called to give evidence;

Based on your knowledge and learning from your own reading and research, why did the Federal Court Rules include sections (a), (b), (c), & (d)? What advice would you give a forensic accounting expert witness from your firm, about to present evidence in court for the first time, in relation to the above?

Expert witnesses can provide different evidence to the court than normal witnesses. In particular, we can provide opinions on subject matter within our field of expertise (Sides, M., n.d.).

(Cullum, L., 1999)

The Court therefore has regulation in place regarding the admissibility and presentation of this evidence, and I have had to comply with these regulations, and in particular section 23.15 of the Federal Court Rules (2011) each time I have presented evidence in court.

(Federal Court Rules, 2011)

When going to court for the first time, I originally thought that this section, and particularly sub-sections (a) to (d), were aimed towards making my job as an FA expert witness more difficult. However research into these rules and discussion with my manager lead me to understand that s23.15 is actually beneficial to my job.

Sub-sections (a) and (b) are included in the Federal Court Rules (2011) to ensure that the Court fully understands where the two expert witnesses agree, and especially where they disagree on opinions formed from the facts. This helps ensure that the case will be brought to resolution as quickly, inexpensively, and efficiently as possible (Federal Court of Australia, 2015).

Sub-sections (c) and (d) are included so that neither expert can ‘hide’/exclude evidence from their report that they bring out on the stands. This helps create a ‘level playing field’ and stops unnecessary adjournments from being called to investigate further pieces of evidence.

(Van Akkeren, J., 2016)

I advise any FA expert witness about to present evidence in court for the first time to fully understand and follow this section completely in order to ensure your evidence is deemed admissible in Court (Domino M., et al, 2015).

 

Sources

Cullum, L. (1999). Expert Witness. Retrieved May 22^nd, 2016, from http://www.condenaststore.com/-sp/Expert-Witness-New-Yorker-Cartoon-Prints_i8478954_.htm

Domino, M., Stradiot, M., & Webinger, M. (2015). Factors which may bias judges’ decisions to exclude accounting expert witnesses testimony. Accounting Research Journal, 28(1) (pp.59-77). Retrieved May 22^nd, 2016, from http://gateway.library.qut.edu.au/login?url=http://search.proquest.com/docview/1687304432?accountid=13380

Federal Court of Australia. (2015). Conference of Experts. Retrieved May 22^nd, 2016, from http://www.fedcourt.gov.au/case-management-services/ADR/conference-of-experts

Federal Court Rules (2011) s23.15. Retrieved May 22^nd, 2016, from http://www.austlii.edu.au/au/legis/cth/num_reg/fcr2011n134o2011269/s23.15.html

Sides, M. (n.d.) Admissibility of Expert Opinion Evidence. Retrieved May 22^nd, 2016, from http://www.aic.gov.au/media_library/conferences/medicine/sides.pdf

Van Akkeren, J. (2016). AYB115 Governance, Fraud & Investigation: Lectures 11 & 12 Mock Trial. Retrieved May 22^nd, 2016, from https://blackboard.qut.edu.au/webapps/blackboard/content/listContent.jsp?course_id=_123312_1&content_id=_6144814_1