In an earlier blog I wrote about the decision in New Aim Pty Ltd v Leung [2022] FCA 722, a decision in which the Federal Court rejected an expert’s written and oral evidence in light of the extent of lawyer involvement in the drafting of the expert’s report.

Background

Apparently prompted by what was described as a “remarkable” timeline – a sixteen page report delivered on the day after the expert has received the letter of instruction, the Court paid careful attention to the process by which the report was prepared.

The Court found that “most of the report was, at least initially, the product of drafting by the lawyers” that was “well beyond permissible guidance” and meant that the Court could not be satisfied that the opinions in the report “truly represented the expert’s honest and independent opinions” – and concluded that the report should not be admitted.

The Appeal

In New Aim Pty Ltd v Leung [2023] FCAFC 67 the Full Court held:

• A question might not “be formulated at the time the expert [is] first retained – and in fact might be finalised after discussing the issues with the expert.
• The issue of a final letter of instructions containing the final form of the questions to be answered by an expert, shortly before an expert report is finalised, was in fact “a common occurrence.”
• Ordinarily a report would be drafted by the expert, but there were circumstances such as “physical, language or resource difficulties” in which the legal practitioner’s involvement might be appropriate.
• The primary judge had “erred in rejecting the entirety of the evidence of [the expert].”

The appeal was successful.