An Expert’s Responsibilities
Only a small percentage of disputes end in litigation, and of those only a small proportion go to a hearing. As most cases settle, the involvement of an expert often stops at the report stage.
If a case does go to a hearing, an expert may be called to attend court to comment on the report, or reports, that they have written for the proceedings. This is especially true for complex cases which cannot be resolved without the expert’s assistance.
In the event that an expert is required to give evidence in court, it is important to be cognisant of an expert’s responsibilities for court attendance.
When Experts are Required to Go to Court
Experts are ordinarily summoned via a subpoena requiring the expert to appear and give evidence in court. [1] The subpoena will outline the day, time, and location the addressee must attend to give evidence.
Failure to comply with a subpoena without lawful excuse (outlined below) holds the addressee in contempt of court. This may lead to the issue of a warrant for the addressee’s arrest, and the addressee may also be liable to pay the costs and damages caused by their failure to comply.
These implications are universal across all courts in Australia. For example, the Uniform Civil Procedure Rules 2005 (NSW) – Reg 33.12, and the County Court Civil Procedure Rules 2018 – Reg 42.12 both specify:
“(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.
(2) … if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(3) Subrules (1) and (2) are without prejudice to any power of the court under any rules of the court (including any rules of the court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena”
In a similar vein, Family Law Rules 2004 (Cth) – Rule 15.36 provides the following warning:
“the court may issue a warrant for the named person’s arrest and order the person to pay any costs caused by the non-compliance.
Note: A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Act).”
It is evident that simply ignoring a subpoena to attend court comes with grave repercussions, and thus, it is of great importance for an expert to realise their duty and attend court once they have been summoned.
But what if the expert is unable to attend court for legitimate reasons? There are a number of potentially lawful excuses in the event that an expert is unable to attend, and provisions they may be afforded if their attendance comes at a personal cost.
What if the Expert Cannot Attend Court?
While experts are required to comply with a subpoena, there are instances when this may not be possible. In such instances, a lawful excuse comes into play. There are two primary lawful excuses which, if met, mean compliance with the subpoena is no longer required:
- If the subpoena is served after the date of service stated in the subpoena; and
- If the serving party makes no offer or payment of conduct money (usually $30).
Conduct Money
Conduct money is defined by Rule 33.1 of the Uniform Civil Procedure Rules 2005 (NSW) as, “a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending”.
It may be the case that $30 is not enough to cover losses incurred by attending court. For example, the expert may have to travel a considerable distance, require accommodation, or be missing out on potential wages as a result of attending court. In such circumstances, an expert may claim “reasonable expenses”. Experts may also claim legal expenses if giving advice on confidentiality and privilege issues.
While there is flexibility allowed for reasonable expenses, an expert’s claim for compensation needs to be within reason and must be verifiable. Biggs v George [2016] NSWCA 113 Is an example of a case where an expert, Dr Thomas Havas, claimed significant costs for preparing evidence and attending court.
Dr Havas valued his lost time at a figure of $6,000, calculated at $1,500 per hour. His reasoning for this calculation of loss was outlined in a letter to the solicitors for the appellants. In the letter, he considered his “experience, expertise and seniority” to be at the same level as that of a senior counsel. Dr Havas further noted that the requested amount “does not compensate me for lost income but I think is reasonable, considering the expertise and experience that I bring” [157].
The appellants indicated that they were only willing to pay a sum equivalent to $790 per hour, the maximum rate for court attendance by medical experts listed in a joint statement issued by the Law Society of NSW and the Australian Medical Association (NSW) Ltd. Based on the figure, the trial judge determined the appropriate amount to be $3,476 plus GST. However, the appellants indicated they had offered to pay $3,950 and were still prepared to offer that amount. As such, the ultimate decision was for the defendants to pay Dr Havas an amount of $3,950 to comply with the subpoena to attend and give evidence [159].
In Case of Emergencies
In the occasion of suffering illness or another emergency on the court attendance date, the expert should contact the issuing party and the court to explain their situation; doing so may result in the court date being moved, and a charge of contempt may be avoided. If the expert has been charged with contempt and a warrant for their arrest has been filed, they should seek the advice of a lawyer. It is prudent to keep a copy of supporting documentation to prove the validity of the emergency.
Takeaways
Attending court, especially if summoned by a subpoena, is a task that needs to be carried out. Non-compliance with a subpoena is contempt of court and may lead to arrest or the payment of damages.
If an expert is unable to attend court, they must have a lawful excuse. This can constitute the subpoena date being unreasonable, or the expert not being given sufficient conduct money to comply with the subpoena.
While conduct money has a set baseline amount, there is some flexibility with the amount that can be compensated by the issuing party. However, the judge can scrutinise the expert’s valuation of their calculated losses to ensure that it is a reasonable and logical cost; the costs are never determined merely at the expert’s whim.
To learn more about the duties of expert witnesses, read our previous blog post ‘Can Anyone Be an Expert Witness?’
References
[1] http://www.fedcourt.gov.au/going-to-court/i-have-been-subpoenaed