Lister & Lister 2014 FamCA 606

Parents had agreed on appointment of a single expert witness to give evidence about a property matter.  When the report was obtained the husband obtained a further report from an adversarial witness to contest certain assumptions and opinions expressed by the first expert.  The wife submitted that the judge did not have discretion to accept a report from a second expert.

The husband argued that he did not need the Court’s permission to admit evidence from an adversarial expert.  It was accepted that the second expert had specialised knowledge that was relevant to an issue under dispute.

The judge noted that the single expert rule aims to appoint one expert who is agreed by both parties.  The judge noted a need for safeguards against a single expert getting something wrong.  The judge noted that there was a discretionary rule allowing a judge to decide whether it is necessary for the court to have a range of opinions, and whether there is a special reason for tendering a report or adducing evidence from a second expert witness (experts number of).

The judge noted a tendency for experts to become partisan or partial by wanting to be of service to those who employ them so that, instead of considering themselves to be an objective witness, experts can consider themselves to be paid agents of the person who employs them, or others may perceive the expert from this perspective.  A survey of 244 judges conducted by Freckleton and colleagues had found that 90% of judges said they had encountered ‘partisanship’ in expert witnesses, and nearly half considered that such partisanship was a significant problem for the quality of fact-finding in their court.

The judge referred to a kind of unconscious bias which is a well-known characteristic of expert evidence.  The judge noted that the adversarial system used in Courts might promote partisanship by experts.

The judge ruled that admissibility of expert evidence lies within the power of a judge to give permission.  In this case, the judge granted permission to introduce and to rely on evidence of the second or adversarial expert.

The judge gave reasons for granting leave that the second report be received as evidence.