r 31.26 – Joint expert report: admissibility
2. The Plaintiffs/Cross-Defendants have articulated extensive objections to Mr Jugmans’ memoranda dated 6 July and 5 August 2011 by reference, among other matters, to the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The Cross-Claimant has not responded to those objections at this point but instead relies on Uniform Civil Procedure Rules r 31.26 that relevantly provides that a joint report “may be tendered at the trial as evidence of any matters agreed”. The reference to a joint report in that rule is to a report prepared under UCPR r 31.24(1)(c) as a joint report specifying the matters agreed and the matters not agreed between experts and the reasons for any disagreement. Mr Kelly, who appears for the Cross-Claimant, submits that once a joint report is admitted as evidence of the matters agreed there is then no room for cross-examination as to those matters and both parties are bound by the matters as agreed between the experts.
3. In my view, UCPR r 31.26 is permissive and not mandatory and does not require but merely permits the admission of a joint report. In particular, I do not consider that r 31.26 requires the admission of a joint report which does not comply, or where the reports of the separate experts which it incorporates do not comply with the requirements of s 79 of the Evidence Act 1995 (NSW), or where that report or reports is or are liable to exclusion under s 135 of the Evidence Act .
4. In my view, the position for which Mr Kelly contends would have remarkable and unfortunate consequences. The first is that if two experts mutually agree as to matters outside their area of expertise, the evidence of that agreement would be admissible and would, if Mr Kelly is correct, not be open to exclusion, challenge or cross-examination in the proceedings. If two experts committed a common error then the joint report which is the product of that error or which recorded that error would also be admissible as proof of their agreement and, if Mr Kelly is correct, that error could not be contested in cross-examination and the parties would be bound by it. I do not consider that is the intent of r 31.26 and do not consider that result would be consistent with the overriding objective articulated in s 56 of the Civil Procedure Act. That result may be simply avoided by reading the rule, as I do, as permissive and not mandatory.
5. I would myself have been inclined to the view that r 31.26 only applied to the joint product of the experts’ consultation which is labelled as the experts’ “joint report” as distinct from the separate reports of the experts which are referred to in the joint report. However, the Cross-Claimant contends that the “joint report” includes not only the document labelled as such but the separate reports of the experts referred to in the joint report. As I noted above, the Plaintiffs/Cross-Defendants have articulated extensive objections to the reports of Mr Jugmans, one of those experts, and the Cross-Claimant has not responded to those objections but instead relies on r 31.26 in the manner that I have noted above.