Background

A medical expert was the subject of a claim for damages said to arise because – it was alleged – the report he prepared was “false, misleading, incorrect, vague and not fit for purpose” and “so poor and…so wrong” that it resulted in the abandonment of a claim in the Australian Human Rights Commission (AHRC).

A claim for witness immunity

The expert asked the Court to dismiss the proceedings, without a full hearing.  He said that the claim could not possibly succeed, because as an expert witness who was instructed to prepare a report for use in litigation, he had the benefit of an absolute immunity against such claims.

The plaintiff argued that witness immunity only applied to reports prepared for use in litigation.  The plaintiff pointed to the fact that the AHRC was not a Court, and further, said that the report was prepared to assist an assessment of a potential claim against the plaintiff’s former employer.

Consideration

In Hastwell v Parmegiani [2023] NSWSC 1016 the Court held that:

• Nothing turned on the fact that the AHRC was not a court, because referral to the AHRC was only the first step in the process of recovering compensation.
• It was the purpose of the report that was important, not the actual use – otherwise immunity would depend on whether the expert opinion was favourable or unfavourable to the client.
• The expert had been asked to confirm his compliance with the Expert Witness Code of Conduct, and did so, and instructed that he may be required to give evidence in court. In the circumstances, he was clearly “retained to prepare a report as an expert witness in future court proceedings.”
• Expert witness immunity was not dependent upon whether an expert actually gave evidence, or even whether there was any litigation at all.

Outcome

The Court held that notwithstanding the abolition of witness immunity in the UK (see Jones v Kaney), the law in Australia remained clear: an expert who was required to comply with the Expert Witness Code of Conduct on the basis that evidence might be used in court, continued to have immunity.  Accordingly, the case was “bound to fail,” and was dismissed.