Joint Expert Reports in Class 1 Merit Appeals
This article addresses expert evidence in Class 1 merit appeals in the Land and Environment Court of NSW (Court) and outlines the key procedural and practical requirements that experts should consider when preparing individual and joint expert reports, and when participating in joint conferencing.
Well-prepared expert reports assist the parties and the Court in identifying and narrowing the real issues in dispute, and facilitating the “just, quick and cheap resolution” of the proceedings in accordance with section 56(1) of the Civil Procedure Act 2005.
The preparation of expert evidence is governed by Division 2 of Part 31 and Schedule 7 of the Uniform Civil Procedure Rules 2005 (UCPR) and the Court’s Joint Expert Report Policy, Conference of Expert Witnesses Policy, and Practice Note – Use of Generative Artificial Intelligence.
1. The Expert’s Paramount Duty is to the Court
The expert’s overriding obligation is to impartially assist the Court on matters within their expertise, in accordance with the relevant Court orders. They are not to act as an advocate for a party.
Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) provides:
“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.”
This obligation applies throughout the preparation of individual expert reports, joint conferencing and the preparation of joint expert reports. Experts should endeavour to assist the Court by identifying and narrowing the real issues in dispute and, where appropriate, identifying practical solutions capable of resolving or reducing those issues. Adversarial or advocacy-based language should be avoided and opinions must be objective, reasoned and confined to matters within their expertise and in accordance with the Court’s orders.
2. General Requirements for Expert Reports
Expert reports must comply with UCPR r 31.27 and Schedule 7, Expert Witness Code of Conduct. These requirements are intended to ensure that expert evidence is transparent, properly reasoned and genuinely assists the Court. Subject to the circumstances of the particular matter, the following information should be set out and presented in a logical sequence:
Section of Report/Requirements
Introduction
Each expert’s name and business address, together with acknowledgment that the experts have read and agree to be bound by the Expert Witness Code of Conduct.
Qualifications
The expert’s qualifications, experience and expertise relevant to the issues addressed in the report.
Summary (where applicable)
If the report is lengthy or complex, a brief summary should be included at the beginning of the report.
Factual basis and material relied upon
The assumptions, material facts and documents relied upon in forming the opinion, together with any literature, technical material, examinations, testing, modelling or investigations relied upon, including the identity and qualifications of any person who carried out that work.
Opinions and reasoning
The expert’s opinions on the relevant issues, the reasons for those opinions and the extent to which any opinion relies upon the opinion of another person.
Scope and limitations
Identification of any matter falling outside the expert’s expertise, together with any qualification, limitation or uncertainty affecting the opinion, including where an opinion is not concluded due to insufficient information, research or data.
Declaration and Gen AI statement
A declaration that all inquiries considered appropriate have been made and that no significant matter relevant to the expert’s opinion has been withheld from the Court, together with the required statement regarding the use, or non-use, of Generative AI in preparing the report.
3. Formatting
The Court is assisted by clear, concise language and simple formatting which makes clear the real issues in dispute and the reasoning process adopted by each expert.
(a) Use simple page and paragraph numbering
Page and paragraph numbering should remain simple and sequential throughout the report. Complex paragraph numbering can make reports unnecessarily difficult to navigate during hearings, especially where late changes are made to cause the numbering to fall out of order. For example, short, sharp and simple sentences:
1. The site is subject to a height of buildings development standard of 8.5m.
2. The proposed building height of 11.6m exceeds the development standard by 3.1m.
3. In my opinion, the contravention of the development standard results in unacceptable visual bulk, scale and overshadowing impacts.
(b) Use clear headings and issue-based sections
Reports should be divided into sections with clear, simple headings. Where appropriate, headings should directly correspond with the relevant contention raised in the Council’s Statement of Facts and Contentions i.e. “Contention 4 - Height”
(c) Keep formatting clear and consistent
Reports should contain sequential page and paragraph numbering, including for annexures. Experts should also ensure that:
(i) plans and photographs are clearly labelled;
(ii) plans remain legible when printed;
(iii) document references are consistent throughout the report; and
(iv) font size, spacing and formatting remain consistent.
If colour plans, diagrams or photographs are relied upon, experts should ensure that all copies remain legible in both electronic and printed form.
(d) Concise and practical writing
The Court is assisted by clear and concise language and practical analysis of the real issues in dispute. The report should focus on the key issues genuinely in dispute and clearly explain the expert’s reasoning process and conclusions. Long blocks of text, excessive technical jargon and repetitive styles are to be avoided.
Where lengthy technical material, modelling, data or supporting documentation is relied upon, it may be more appropriate to annex that material to the report.
4. Joint Conferencing and Joint Expert Reports
Pursuant to rule 31.24 of the Uniform Civil Procedure Rules 2005, the Court may direct experts to confer, attempt to reach agreement and prepare a joint report identifying matters agreed, matters not agreed and the reasons for any disagreement.
The Conference of Expert Witnesses Policy makes clear that joint conferencing should be a genuine dialogue between experts and not a mere summary or restatement of pre-existing opinions. Experts should approach conferencing as a collaborative process directed toward clarifying issues and assisting the Court.
5. Confer only on the issues directed by the Court
Experts should only conference on the matters identified in the Court’s directions, the Statement of Facts and Contentions or any agreed list of issues provided by the parties. Experts should avoid expanding the conference into unrelated issues or matters falling outside their expertise. If an expert considers that an additional issue should be addressed, this should generally be raised through the parties’ legal representatives rather than informally adding it during conferencing.
6. Joint conferencing is independent from the parties
Legal representatives are not permitted to attend joint conferences or participate in the preparation of joint reports without leave of the Court. Experts must exercise their own independent professional judgment during conferencing, to assist the Court and not advocate for a party. Experts should remain impartial, objective and prepared to modify or refine opinions where appropriate following discussion with their counterpart.
7. Prepare for conferencing properly and early
One of the most common practical issues in Class 1 merit appeals is caused by experts leaving it too late to making arrangements for conferencing. This can create unnecessary delays and procedural difficulties. Once the due date for filing expert reports is known, experts should:
Immediately liaise with their counterpart and confirm their availability to commence joint conferencing at least one month prior to the due date. If any expert is on leave, or in Court with other matters, this needs to be communicated to the instructing solicitors as early as possible.
Ensure all amended plans and supporting documents have been exchanged before conferencing commences.
Promptly notify instructing lawyers if there is likely to be any delay in preparing or finalising the joint report.
Where amended plans are provided during conferencing for the purposes of exploring potential design changes, experts should ensure those plans are clearly identified, and annexed to the report.
8. Take a proactive, solutions-focused approach
Experts should clearly identify potential solutions, either through design changes or conditions of consent. Rather than simply identifying a problem, such as “the side setback is inadequate”, it is more useful to say (for example) “the 1m side setback is inadequate and causes unacceptable overshadowing to the southern neighbour’s living room window. The (specified) DCP control provides that side setbacks should be 2.5m. The design could be amended by relocating the laundry from the side to the rear to achieve the 2.5m setback and 3 hours solar access to the adjoining neighbour’s living room window”.
This proactive approach would assist the parties and Court in understanding what the real issues are, and whether a practical design outcome is available to reduce, narrow or resolve those issues.
Conclusion
In conclusion, expert witnesses should arrange dates for joint conferencing early, should write clearly and succinctly to address the real issues in dispute in accordance with the Court’s orders, should use simple paragraph numbers and pagination, and should proactively offer potential solutions to reduce, narrow and resolve the relevant issues in dispute. In these ways, expert witnesses can be of assistance to the Court in the proceedings.