Full Text of Rule 38 – Supreme Court Rules 1987 (SA)

Full Text of Rule 38 – Supreme Court Rules 1987 (SA) – Expert Reports

(Applies only to actions commenced before 4 September 2006)

38.01

(1) Within twenty-eight days after the time limited by the Rules for making discovery in the action each party in an action shall deliver to all other parties a full copy of every expert report in the party’s possession or power relating to any matter in issue in the action.

(2) Where a party has complied with subrule (1) and further expert reports then come into the possession or power of the party, that party shall immediately deliver to all other parties a full copy of such further expert reports.

(3) A party shall obtain all expert reports which the party wishes to obtain for the purposes of the action and comply with subrules (1) and (2) above in respect of all such reports no later than twenty-one days before the date fixed by the Court or by the Rules for the first hearing of any application to refer the action for trial, provided that the party may obtain supplementary reports from experts from whom previous reports have been obtained which are confined to matters upon which a report could not reasonably have been obtained within that time.

(4) Where a party contends that the party’s case would be unfairly prejudiced by the disclosure of a particular expert report, the party may, before or within 7 days after the party is required to deliver that report, file a copy of that report in a sealed envelope which is not to be opened except by the authority of the Court and apply ex parte to the Court for an order that the party be not required to deliver that report pursuant to Rule 38.01.

(5) Rule 38.01 does not require delivery to a party of any expert report which has previously been delivered to that party or its insurer pursuant to Rule 61, Section 127 of the Motor Vehicles Act, 1959, Section 28 of the Workers’ Compensation Act, 1971 or any other statutory provision requiring delivery of such reports.

(6) For the purposes of Rule 38.01 “expert report”:

(a) means a written report which contains or includes the opinion of any expert (which expression includes any of the persons described in subrule (6) (b) hereof) on any matter in issue in the action, and includes a report in which the expert comments upon the report or reports of any other expert; and

(b) includes a report from any medical practitioner, dentist, psychologist, physiotherapist, chiropodist, chiropractor or any other person who has examined, treated or tested any party to the action or otherwise offered any professional opinion in connection with any injury or illness in issue in the action.

(7) Other than with the leave of the Court, no party is to adduce expert evidence at a trial unless:

(i) prior to preparing the expert report the expert has been provided with a copy of the current practice direction issued by the Registrar entitled “Guidelines for Expert Witnesses in Proceedings in the Supreme Court of South Australia”;

(ii) the expert includes an acknowledgement at the commencement of the expert report that he or she has been provided with and has read the copy practice direction referred to in (i) prior to preparing the expert report; and

(iii) the following matters are set out in the report or reports delivered or disclosed in accordance with this Rule, or in particulars delivered in accordance with subrule (8):

(a) the substance of that expert’s evidence;

(b) the qualifications of the expert; and

(8) When the substance of the expert’s evidence or any of the other matters referred to in subrule (7) is or are not fully set out in the report or reports delivered or disclosed under this Rule, particulars in writing (which may be furnished by letter from a party or the solicitor for that party) setting out those matters, or which when read together with any report or reports which have previously been disclosed, adequately canvass those matters, shall be delivered to all parties no later than the date upon which the report, or if more than one report, the last report, must be delivered pursuant to this Rule:

Further requirements for Experts’ Reports

38.01A

(1) Rule 38.01A applies only to actions in which the pleadings have closed on or after 3 June 2000 and to such other actions as the Court directs.

(2) Any report of an expert obtained by a party and which is to be delivered under Rule 38.01 is to:

(a) set out with reasonable particularity all of the qualifications of the expert which are relied upon to qualify him or her to give the report;

(b) set out separately each of the factual findings or assumptions upon which the opinions are based;

(d) comply with any Practice Direction published about the contents and form of reports from experts.

(3) Any subsequent report of an expert need only refer to a previous report from that expert and where any part of the contents of the previous report are not to be altered they should not be repeated in the subsequent report.

(4) Upon a request to that effect by another party a party must in relation to an expert’s report delivered under Rule 38.01:

(a) provide to the other party a list of all documents which have been referred to, or prepared by or at the direction of the expert, in the course of preparing the report;

(b) provide to the other party copies of any of the documents referred to in a list supplied under (a);

(c) disclose to the other party details of any fee, disbursement or benefit received or receivable by the expert, or any one on his or her behalf, for the preparation of the report and for services provided or to be provided by the expert, or by anyone on his or her behalf, in connection with the expert giving expert evidence for the party in the action;

(d) provide a list of all conversations in which the expert has taken part with any party, any legal representative of a party or any other expert consulted in relation to the matter relevant to the opinions expressed in the report, stating when and with whom each such conversation occurred and the topics discussed;

(e) provide copies of all notes made by or on behalf of the party, or by or on behalf of the expert, concerning any of the conversations referred to in a list provided under (d).

(5) Unless the trial Judge otherwise allows, expert evidence-in-chief at the trial is to be given only by tendering reports from the expert which comply with the Rules and the expert swearing that the reports are correct.

38.02 Where a party fails to comply with any of the requirements of Rule 38.01 in respect of a report of an expert:

(1)

(a) The Court at any time may adjourn any hearing or trial at the cost of the party in default or his solicitor;

(b) The Court at any time may direct that evidence from that expert not be adduced by that party at the trial of the action;

(c) The trial Judge may award costs to the other parties or reduce costs otherwise to be awarded to the party in default;

(d) The trial Judge may take that failure, if it be by a plaintiff, into account in assessing the award of damages to the plaintiff.

(2) In action under subrules (1) (c) or (d) above the trial Judge may take into account:

(a) the effect that the failure to comply has had on the proper conduct of the case by any other party;

and

(b) what effect the failure to comply may have had on the possibility of settling the action before trial.

(3) Notwithstanding Rule 67.01 (6), the Court at any time may dispense with compliance with Rule 38.01 in whole or in part and upon such terms as it sees fit.

38.03 The obligations of a party to make disclosure of or to deliver reports under Rule 38.01 are not in substitution for or in derogation from, or to be construed as being in conflict with, any statutory obligation of a party to supply reports or to submit to medical examinations.

38.04 Deleted * * * * * * * * * * *