Way Evidence Given / Expert Evidence/ Affidavits Flashcards
(33 cards)
Which rule relates to the way evidence is given?
Rule 390
How can evidence be given if started by claim?
Orally
Rule 390 (a)
How can evidence be given if started by application?
Affidavit
Rule 390 (b)
Can the court make a direction that evidence be given in a different way to the one prescribed in Rule 390?
Yes. In deciding what mode of evidence is appropriate for trial or application, the court will generally consider notions of fairness, time and expense.
Rule 367
When considering if affidavit rather than oral evidence for trial, the court will consider whether a party suffers substantial prejudice.
Name the case
Western Australian Newspapers v Nationwide News
If the demeanour or credibility of a witness is important, it is likely the evidence must be oral.
Name the case
Mercer v Chief Constable of the Lancashire Constabulary
What rules relate to Expert Evidence?
UCPR 423-429V
What is the purpose of the rules for expert evidence?
Main purpose of this part is to provide appropriate directions to experts, including their duty and how to give their evidence, either solo or jointly.
Rule 423
What is an expert?
A person who would, if called as a witness in the proceeding, be qualified to give opinion evidence as an expert witness in relation to the issue.
Rule 425
Can parties apply for directions re: expert evidence?
Yes. At any time.
Rule 426 (2)
What are the directions a court can make in relation to expert evidence?
The court can make any appropriate directions, but nine potential examples are laid out in Rule 427.
What rule relates to experts being directed by the court to conference and submit joint reports?
Rule 428
- Becoming more common, especially expert medical evidence (Koven v Hall Creek)
- But may serve little purpose if does not address critical factual issues (Booth v Di Francesco)
- 429A sets out the experts duties, that the parties aren’t to be involved, and when report is to be provided.
- 429B sets out permitted communications between the parties and experts.
- 429C sets out admissibility of what is said in conference.
What rules deal with the duties of parties and experts?
Rules 429E and 429F
- Must provide a copy of the code of conduct as soon as practicable to the expert.
- Must not give instructions to the expert to ignore or reject a particular opinion.
- Duties under this rule supersede any obligations to any party in proceeding who is liable for thier fees.
Can parties attend the expert conference?
No, conference must be held in the absence of the parties and report must be prepared without reference to, or instructions from the parties.
Rule 429A (2)
Which rule deals with how an expert gives evidence?
Rule 429G
- Evidence in chief by the report.
- Can only be tendered if disclosed.
- Can only tender if party produces the expert for cross-examination.
- Report admitted into evidence only if expert agrees to be bound by the code of conduct.
- Need leave of the court to give evidence in chief orally. (Holdway v Lawyers)
Which rule sets out the requirements of the report?
Rule 429H
When must reports be disclosed?
As soon as practicable, otherwise within 90 days for Plaintiff and 120 days for defendant following close of pleadings.
Rule 429I
Can an expert change opinions?
Yes. Must issue supplementary report as soon as practicable after they change their opinion.
Rule 429K
Which rule deals with experts appointed jointly?
Rule 429M and L
Which rules deal with experts appointed by the court?
Rules 429R-U
Can experts apply for directions?
Yes. Ususally to facilitate the preparation of a report for a proceeding. Application needs to be served on the parties.
Court can give any directions it considers appropriate to facilitate the preparation of the report.
Rule 429V
Which rules deal with Affidavits?
UCPR Rules 430-441
Are Hearsay Affidavits admissible?
- Usually no hearsay.
- Admissible in interlocutory application, but cannot be for final relief (Bendigo & Adelaide Bank v Wilkin)
- Sources of information for grounds of belief must be admissible (Deputy Commissioner of Taxation v Ahern)
- ‘Final Relief’ test is whether the application will dispose of the rights of the parties (Ex parte Britt)
Which rule outlines the form of affidavit?
Rule 431
Must be approved Form 46
