EXPERT WITNESS

An expert witness is a qualified professional with specialised knowledge, training, or experience in a particular field. Their role is to provide independent opinion evidence that assists courts, tribunals, or arbitrators in understanding technical or complex matters that fall outside the knowledge of the general public.

What Makes an Expert Witness Different?

Unlike lay witnesses who testify only to facts they observed, expert witnesses may express professional opinions, based on:

• Their expertise and field knowledge,

• Analysis of evidence or documentation,

• Industry standards or established methodologies.

Their evidence helps clarify complex issues, such as causation, compliance, valuation, or industry practice.

Key Responsibilities in Legal Proceedings

• Clarifying technical matters for the decision-maker,

• Providing written reports that detail findings, reasoning, and conclusions,

• Participating in pre-trial conferences, including joint expert conclaves (if ordered),

• Giving oral testimony and responding to questions during cross-examination,

• Always maintaining neutrality, independence, and a duty to the court, not the engaging party.

How Does Someone Qualify as an Expert Witness?

Qualification depends on the court or tribunal’s discretion, but generally includes:

• Relevant education, training, and accreditation,

• Practical experience in the subject area,

• Recognition through publications, professional membership, or certifications.

In most Australian jurisdictions, the expert must also declare compliance with the Expert Witness Code of Conduct (e.g., under the UCPR, NCAT, or Federal Court rules).

What About Impartiality and Cross-Examination?

An expert witness’s primary obligation is to the court or tribunal, not the party that instructs them. They must provide unbiased, fact-based opinions, and:

• Disclose the assumptions and limitations underpinning their views,

• Withstand scrutiny during cross-examination by opposing counsel,

• Maintain professionalism and neutrality throughout the matter.

HMS Group Insight

At HMS Group, we understand that expert evidence is often crucial in resolving complex disputes. Selecting the right expert—one who is not only technically capable but also experienced in the ethics and expectations of legal proceedings—can be instrumental. Our expert witnesses are committed to providing clear, independent, and reliable opinion evidence that withstands scrutiny and supports informed decision-making.

Selecting the right expert witness is a critical step in building a credible and persuasive case. The expert’s qualifications not only determine whether their opinion will be admissible, but also how much weight and reliability the court or tribunal will assign to their evidence.

Below are the key criteria to consider when assessing the suitability of an expert witness:

1. Formal Education and Professional Training

A strong foundation in the relevant field—typically demonstrated by university degrees, postgraduate qualifications, or accredited industry certifications—can enhance the expert’s credibility. Ongoing professional development is also important.

2. Relevant Industry Experience

Practical, hands-on experience in the field of expertise is essential. An expert who has applied their knowledge in real-world settings—especially in matters similar to the dispute—can offer insight grounded in professional practice, not theory alone.

3. Publications and Contributions to the Field

Publication of articles, technical papers, or books indicates deep engagement and thought leadership within the expert’s area. This can enhance their standing in the eyes of the court and support the legitimacy of their methodologies.

4. Prior Expert Witness Experience

While not mandatory, previous experience providing expert evidence in court, arbitration, or tribunal hearings is beneficial. It often means the expert is familiar with procedural requirements, codes of conduct, and how to handle cross-examination or concurrent evidence sessions.

5. Professional Memberships and Recognition

Affiliation with recognised industry bodies (e.g., RICS, Engineers Australia, AIQS, VBA) supports the expert’s credentials and demonstrates peer validation. Awards or formal recognition may further establish their professional standing.

6. Independence and Objectivity

Impartiality is non-negotiable. The expert must disclose any actual or perceived conflicts of interest and must not act as an advocate for either party. Their overriding duty is to the court or tribunal, not to those instructing them.

7. Communication and Presentation Skills

An effective expert must be able to explain complex concepts in clear, plain language—both in writing and during oral testimony. Courts value experts who are calm, composed, and articulate under pressure.

8. Admissibility and Track Record

Consider whether the expert’s prior evidence has ever been excluded, rejected, or significantly criticised in past proceedings. A consistent record of admissible and persuasive expert opinion is a good indicator of reliability.

9. Availability and Responsiveness

Timeliness matters. The expert should have the capacity to:

• Review materials promptly,

• Prepare reports to schedule,

• Attend conclaves, hearings, or cross-examinations as required.

Delays or lack of preparation can diminish the effectiveness of their evidence.

HMS Group’s Insight

The strength of expert evidence lies not just in technical knowledge, but in independence, clarity, and credibility. At HMS Group, we work with highly qualified professionals who understand both the legal context and the ethical framework of expert witness roles. Careful selection and vetting of experts can make a meaningful difference in the outcome of complex disputes.

An expert witness plays a crucial role in helping the court or tribunal understand technical or specialised issues that are central to a dispute. While they are not engaged to advocate for either party, their independent analysis and evidence can significantly assist in presenting a clear, reliable, and fact-based narrative.

Here’s how an expert witness can support your case:

1. Clarifying Complex Matters

Expert witnesses translate specialised or technical information—such as engineering principles, financial calculations, construction methodologies, or valuation frameworks—into clear, understandable explanations. This supports the tribunal in reaching informed conclusions.

2. Providing Independent Opinion Evidence

Experts do more than present raw data. They draw conclusions based on their training and experience, applying recognised methodologies to the facts of the case. Their role is to assist the court—not to advocate—which enhances the credibility and neutrality of their opinion.

3. Challenging or Reconciling Competing Expert Views

Where multiple experts are engaged, an experienced and well-prepared expert can assist the court in identifying:

• Areas of agreement and disagreement,

• Methodological differences,

• Inconsistencies or limitations in other expert reports.

Their ability to participate in joint expert conferences and give evidence clearly under cross-examination or concurrent evidence is essential.

4. Contributing to Case Preparation

While expert witnesses must remain impartial, they may also assist legal teams in:

• Identifying the core technical issues,

• Assessing the completeness or accuracy of available evidence,

• Advising on whether certain issues fall within or outside accepted standards or practices.

This helps ensure that claims or defences are grounded in verifiable technical reality.

5. Enhancing Presentation of Evidence

Experts may support the presentation of evidence by:

• Preparing schedules, models, or illustrative examples,

• Developing visual aids (e.g. diagrams, process flows, comparison tables),

• Offering reasoned, step-by-step explanations in reports and oral evidence.

Visual clarity is particularly helpful in hearings before lay tribunals or self-represented parties.

6. Assisting in Resolution and Settlement

Expert opinions can also inform mediation or negotiation, especially where they provide neutral clarity on disputed facts. A well-reasoned expert report may encourage early resolution by clarifying the likely position of the court or tribunal.

HMS Group’s Insight

At HMS Group, our expert witnesses are selected not for advocacy, but for their ability to provide independent, clear, and technically sound evidence. When integrated appropriately into the litigation or dispute resolution process, expert opinion can be pivotal—not because it promotes a party’s position, but because it helps the decision-maker understand what is reasonable, reliable, and supported by evidence.

Expert witnesses are commonly engaged in cases where the subject matter involves technical, scientific, financial, or specialised knowledge that falls outside the general experience of the court, tribunal, or arbitrator. Their role is to provide independent opinion evidence that assists in understanding complex issues and forming a fair decision.

Below are common types of matters where expert evidence may be required:

Common Case Types Involving Expert Witnesses

1. Construction and Building Disputes

• Assessing defective or incomplete works

• Analysing project delays and cost overruns

• Interpreting contracts, scope variations, or building codes

2. Medical and Personal Injury Claims

• Opinions on causation, injury extent, future care needs

• Assessing adherence to medical standards of care

3. Financial, Valuation, and Commercial Disputes

• Economic loss assessments

• Valuation of businesses, shares, or property

• Forensic accounting and financial modelling

4. Product Liability and Engineering Matters

• Design flaws or manufacturing defects

• Failures in safety mechanisms or compliance with industry standards

5. Psychological and Family Law Matters

• Impact of separation or parenting arrangements on children

• Psychological or psychiatric evaluations

• Financial expert input on asset pool and contributions

6. Environmental and Land Use Disputes

• Contamination, remediation, or ecological impact

• Zoning, planning, and land development feasibility

7. Employment and Industrial Relations

• Workplace practices, termination processes

• Discrimination or wage underpayment claims

• HR and policy analysis aligned with industry norms

8. Insurance and Policy Interpretation

• Analysis of insurance coverage and industry custom

• Claim valuation and application of policy terms

9. Criminal Cases (in some jurisdictions)

• Forensic pathology, toxicology, digital forensics

• Mental health or capacity assessments

10. Intellectual Property and Technology Disputes

• Patent infringement, copyright valuation

• Software or system analysis in IT-related claims

HMS Group’s Insight

The legal landscape is increasingly shaped by specialised disputes—from construction contracts to forensic valuation and everything in between. At HMS Group, we provide expert witnesses who are not only leaders in their field but understand the professional and ethical standards required in litigation and tribunal processes. Whether in court or arbitration, expert evidence can be instrumental—not in winning a case, but in ensuring it is fairly and accurately assessed.

Yes—expert witnesses can provide evidence in both civil and criminal proceedings, provided their expertise is relevant to the issues in dispute and they meet the required standards of independence, qualification, and admissibility.

In Civil Proceedings

Expert witnesses are frequently engaged in:

• Construction disputes (e.g., defective works, delays, cost to complete),

• Commercial litigation (e.g., valuations, loss assessments),

• Family law (e.g., psychological assessments, asset division),

• Personal injury and medical negligence cases.

In these matters, the expert assists the court, tribunal, or arbitrator in understanding complex technical issues that are essential for resolving the dispute fairly.

In Criminal Proceedings

Experts may also appear in criminal cases when their specialised knowledge is necessary to:

• Interpret forensic evidence (e.g., DNA, toxicology, fingerprints),

• Assess a defendant’s mental health or cognitive capacity,

• Reconstruct accident scenes or analyse technical data (e.g., vehicle speed, trajectories),

• Provide insights into medical or psychological conditions relevant to the alleged offence.

While criminal courts may apply stricter scrutiny to expert evidence—especially around impartiality and methodology—the fundamental principles remain the same: the expert’s primary duty is to the court, not the party who engages them.

HMS Group’s Insight

Regardless of whether the matter is civil or criminal, the expert witness’s role is to provide independent, unbiased opinion evidence that supports the administration of justice. At HMS Group, we ensure that our experts are fully aware of their ethical obligations and are equipped to deliver reliable, clearly reasoned, and admissible evidence—whether in court, arbitration, or tribunal settings.

Engaging an expert witness is a strategic decision in any legal matter involving complex technical or specialised issues. The process should be approached with care to ensure the expert is suitably qualified, independent, and available. Here’s how it typically works:

Process of Engaging an Expert Witness

1. Identification and Shortlisting

Potential experts are identified based on their qualifications, experience in the relevant field, and familiarity with the issues in dispute. Referrals, expert directories, or specialist consultancies are common sources.

2. Preliminary Discussions

Initial conversations with the prospective expert help assess:

• Their availability,

• Prior experience giving evidence,

• Understanding of the subject matter,

• And any potential limitations or concerns.

3. Conflict of Interest Check

Before formal engagement, it’s essential to ensure the expert has no actual or perceived conflicts of interest, including prior involvement with parties or projects related to the dispute.

4. Formal Engagement

Once suitability is confirmed, a letter of engagement or contract is executed. This sets out the scope of services, fees, timelines, confidentiality, and terms of withdrawal.

5. Document Review and Analysis

The expert reviews all relevant materials—such as reports, correspondence, site data, contracts, or technical drawings—and may request additional information to inform their opinion.

6. Report Preparation

If required by the tribunal or legal process, the expert prepares a comprehensive written report, outlining:

• Their assumptions,

• Methodology,

• Findings and reasoning,

• And conclusions.

The report must comply with the relevant Expert Witness Code of Conduct and be suitable for disclosure to all parties.

7. Preparation for Testimony

If the matter proceeds to hearing, the expert may be briefed on procedural matters and prepare for cross-examination or concurrent evidence sessions (“hot-tubbing”).

8. Court or Tribunal Testimony

The expert may be called to give oral evidence, answer questions from the decision-maker, and respond to opposing expert views—always maintaining their independence and objectivity.

Associated Costs of Engaging an Expert Witness

Costs vary depending on the complexity of the matter, the expert’s seniority, and the scope of engagement. Common cost elements include:

• Retainer Fee: An upfront payment to secure availability and initiate work.

• Hourly or Daily Rates: Charged for analysis, meetings, report preparation, or appearances.

• Court Appearance Fees: Typically billed at a higher rate to reflect preparation and time spent at hearing.

• Travel and Accommodation: Applicable for site inspections or hearings held outside the expert’s base location.

• Specialist Costs: May include laboratory testing, modelling, simulations, or the use of technical software or equipment.

• Post-Hearing Involvement: Additional fees may apply if the expert is required for clarification, appeals, or further proceedings.

HMS Group’s Insight

Engaging an expert witness is not about advocacy—it’s about clarity. At HMS Group, we believe that the value of expert evidence lies in its independence, reliability, and ability to assist the court or tribunal in making informed decisions. While expert services require investment, a well-prepared and impartial expert can play a critical role in untangling technical complexity and presenting it in a clear, accessible manner.

We encourage early engagement and transparent communication regarding scope, expectations, and costs to ensure smooth collaboration throughout the process.

Legal and tribunal proceedings often involve complex technical, scientific, or industry-specific issues that lie outside the ordinary knowledge of the decision-maker. In these instances, an expert witness serves a vital role: to assist the court by providing independent, informed opinion evidence that explains, contextualises, and interprets technical material in a clear and reliable way.

Here’s how an expert witness contributes in matters involving complexity:

1. Explaining Technical Concepts in Plain Language

Expert witnesses help translate specialised knowledge—such as engineering principles, scientific data, or financial models—into language that is accessible to judges, tribunal members, arbitrators, and lawyers. This clarity is essential to ensure informed decision-making.

2. Evaluating and Interpreting Evidence

Experts apply recognised methodologies and domain-specific techniques to assess the relevance, reliability, and accuracy of technical evidence. Their reports often include commentary on:

• Data quality and analysis,

• Causation or compliance with industry standards,

• Whether the evidence supports or contradicts key claims.

3. Addressing and Comparing Industry Standards

In disputes involving professional duties, codes, or benchmarks (e.g., in construction, medical, or financial contexts), the expert may explain what constitutes reasonable practice and how actions compare with accepted norms.

4. Presenting Visual Aids and Structured Analysis

Where helpful, expert witnesses may include diagrams, tables, models, or simulations to visually demonstrate complex systems, sequences, or relationships. This helps clarify issues that are otherwise difficult to communicate through text alone.

5. Critically Responding to Other Expert Opinions

If there are competing experts in a matter, a well-prepared expert can assist the court in identifying:

• Key areas of agreement or disagreement,

• Methodological differences,

• Gaps or inconsistencies in the opposing opinion.

This is especially useful in joint expert conferences or concurrent evidence sessions (“hot-tubbing”).

6. Assessing Future Risks or Technical Implications

In some cases, expert witnesses may be asked to provide projections or forecasts—for example, long-term remediation costs, structural stability, or future financial losses—based on technical data and professional judgment.

HMS Group’s Insight

In complex disputes, expert witnesses play an essential role—not as advocates, but as independent educators of the court or tribunal. Their job is to ensure that technical or scientific issues are properly understood, tested, and transparently presented. At HMS Group, we engage expert witnesses who bring not only subject matter expertise but also the ability to communicate that expertise clearly and objectively—supporting fair, informed outcomes in legal and dispute resolution forums.

Expert witness evidence is not binding. While an expert provides independent, qualified opinion evidence to assist the court or tribunal, it is ultimately up to the decision-maker—whether a judge, tribunal member, or arbitrator—to determine what weight, if any, to give to the expert’s opinion.

The Expert’s Role: Advisory, Not Determinative

An expert witness plays a neutral, advisory role in legal proceedings. Their function is to:

• Explain technical or specialised matters,

• Provide conclusions based on their expertise, and

• Assist the court in making informed decisions.

However, the expert does not decide the outcome. The court remains free to accept or reject all or part of the expert’s opinion.

Factors Influencing the Weight of Expert Evidence

Courts and tribunals assess expert evidence on its merits, methodology, and credibility. Relevant factors include:

• Qualifications and Experience: The expert’s formal credentials and real-world expertise in the relevant field.

• Objectivity and Independence: The expert’s demonstrated impartiality and adherence to the duty owed to the court—not the instructing party.

• Soundness of Methodology: Whether the expert’s conclusions are based on accepted principles and clearly reasoned analysis.

• Clarity and Communication: The expert’s ability to explain complex issues clearly and respond to questions under cross-examination.

• Comparative Weight: In cases involving multiple experts, the tribunal may compare competing reports or testimony and prefer one over the other based on strength of reasoning or consistency.

HMS Group’s Insight

Expert evidence is a powerful component of the legal process—but it is always subject to the court or tribunal’s scrutiny. At HMS Group, our experts are selected not just for technical expertise, but for their ability to maintain independence, provide rigorous analysis, and communicate effectively under legal examination. While expert testimony can significantly assist the decision-maker, it is the quality, neutrality, and clarity of that evidence—not the title of “expert”—that determines its impact.

An expert witness’s value lies not only in their technical knowledge but in their ability to provide a neutral, independent opinion that assists the court or tribunal. To safeguard the integrity of expert evidence, several procedural and ethical measures are in place to ensure that expert witnesses act with objectivity, transparency, and independence throughout the legal process.

Key Safeguards Ensuring Expert Neutrality

1. Conflict of Interest Checks

Before engagement, experts are required to disclose any potential conflicts—such as previous relationships with the parties, financial interests, or prior involvement in related matters. Any such conflict may disqualify them from acting as an expert.

2. Compliance with the Expert Witness Code of Conduct

Most courts and tribunals in Australia require expert witnesses to comply with a formal Code of Conduct, such as:

• The UCPR Expert Witness Code (NSW),

• The Federal Court Practice Note (GPN-EXPT),

• Or relevant tribunal practice notes (e.g., NCAT Procedural Direction 3).

These codes mandate that the expert’s paramount duty is to the court or tribunal, not to the party who retained them.

3. Oath or Affirmation of Truthfulness

Before giving oral evidence, expert witnesses must take an oath or affirmation to tell the truth, reinforcing their legal and ethical duty of honesty and impartiality.

4. Prohibition of Contingency-Based Payment

Experts must not be paid based on the outcome of a case. Any contingency fee arrangement is improper and may undermine the admissibility of their evidence. Payment must be based on time and services rendered—not success.

5. Use of Recognised Methodologies

To ensure impartial reasoning, experts are expected to base their opinions on established, discipline-specific methods. Opinions unsupported by recognised practice or methodology may be challenged or rejected.

6. Disclosure of Prior Engagements

Experts may be required to disclose their prior history of providing expert evidence. This helps assess whether they are frequently retained by the same parties or perceived as “professional witnesses,” which could raise questions about neutrality.

7. Exposure to Cross-Examination

All expert reports and opinions are subject to cross-examination. The court or opposing party may challenge the expert’s assumptions, reasoning, or potential bias—serving as an important accountability mechanism.

HMS Group’s Insight

Objectivity is the cornerstone of credible expert opinion. At HMS Group, we place a high premium on independence and ethical conduct. Our expert witnesses are not advocates—they are professionals who adhere strictly to legal codes of conduct, recognised methodologies, and the highest standards of integrity. These safeguards ensure that their insights are respected, admissible, and ultimately useful to the decision-making process.

Yes—expert witnesses can be and often are cross-examined during hearings or trials. Cross-examination is a key component of the adversarial legal system and serves as an important check on the reliability, impartiality, and reasoning of expert opinion evidence.

Purpose of Cross-Examination

The goal of cross-examining an expert witness is to:

• Test the soundness of their conclusions,

• Explore any limitations or weaknesses in their methodology,

• Assess the objectivity of the opinion, and

• Provide the court or tribunal with a balanced view of the evidence.

Cross-examination promotes fairness by allowing both parties to challenge expert evidence before it is accepted or weighed by the decision-maker.

Areas Commonly Explored in Cross-Examination

Qualifications and Experience

The opposing party may question the expert’s academic credentials, professional history, or relevance of experience to the dispute at hand.

Methodology and Assumptions

Experts may be asked to explain:

• How they arrived at their conclusions,

• Whether their methods align with recognised industry or scientific standards,

• What assumptions they relied upon—and whether those are valid.

Bias or Perceived Partiality

Cross-examiners may explore any real or perceived bias, including prior relationships with the instructing party, repeat engagements, or financial arrangements that could affect neutrality.

Consistency with Prior Opinions

Experts may be challenged with prior reports, testimony, or publications to test the consistency and reliability of their current views.

Hypothetical Scenarios

The expert may be presented with alternative sets of facts or hypotheticals to assess whether their conclusions still apply, or to expose any oversights in their reasoning.

Comparison with Other Experts

Where multiple experts are engaged, cross-examination may highlight differences in opinion, technique, or interpretation—allowing the court to assess which evidence is more persuasive.

HMS Group’s Insight

Cross-examination is not an attack—it’s a structured and necessary process that ensures expert evidence is transparent, well-founded, and truly helpful to the court or tribunal. At HMS Group, we prepare our expert witnesses to approach this process with professionalism and clarity, confident in their reasoning and respectful of their duty to the court. Experts who are well-prepared, impartial, and grounded in sound methodology are best positioned to provide evidence that withstands scrutiny and contributes meaningfully to fair outcomes.

Selecting a credible expert witness is critical to ensuring that their opinion evidence is not only admissible but reliable, and useful to the court or tribunal. A strong expert must possess both technical expertise and a demonstrated ability to deliver their opinion independently, clearly, and in accordance with legal standards.

Here are key steps to help assess the credibility and suitability of an expert witness:

1. Review Academic and Professional Qualifications

Start by verifying the expert’s formal education, certifications, and any post-graduate training. Ensure that their qualifications align with the specific subject matter relevant to the dispute.

2. Evaluate Practical Experience

Depth of real-world experience in the relevant industry or profession often carries more weight than academic credentials alone. Consider:

• Years of active practice,

• Seniority or decision-making roles,

• Involvement in complex or comparable projects.

3. Examine Publications and Research

Published articles, technical papers, or books can demonstrate the expert’s thought leadership and professional engagement in their field. This may also support the credibility of their methodologies.

4. Assess Previous Expert Testimony

Where accessible, review:

• Prior reports or transcripts,

• Court judgments referencing their evidence,

• Whether their testimony was accepted, criticised, or excluded.

Past performance under cross-examination or in concurrent evidence sessions (“hot-tubbing”) is often a valuable indicator of preparedness and credibility.

5. Consider Peer Recognition and Memberships

Look for memberships in recognised professional bodies (e.g. RICS, Engineers Australia, AIQS) and any awards, designations, or leadership positions within their discipline.

6. Check for Conflict of Interest

Confirm that the expert has no conflicts—such as prior involvement in the dispute, connections to the parties, or financial interests—that could impair their impartiality. Transparency at this stage is critical.

7. Assess Communication and Courtroom Skills

Expert evidence must be clear and comprehensible. During early conversations or briefing sessions, assess the expert’s ability to:

• Explain complex ideas in plain terms,

• Structure their reasoning clearly,

• Remain composed under challenge.

8. Confirm Availability and Responsiveness

Ensure the expert can commit to key timelines, including:

• Document review periods,

• Report submission deadlines,

• Attendance at conclaves or hearings,

• Post-trial clarifications (if required).

Timely engagement and responsiveness are essential in fast-moving or high-stakes matters.

9. Gather Feedback and Referrals

If possible, seek references or informal feedback from other professionals who have worked with the expert—especially legal practitioners or tribunal users. Personal recommendations can offer insight into reliability, neutrality, and professional conduct.

HMS Group’s Insight

At HMS Group, we believe that the credibility of an expert witness is built on more than qualifications—it includes their independence, methodology, communication, and ethics. We conduct a rigorous vetting process to ensure that our experts meet the highest standards of professionalism and integrity, enabling them to provide evidence that stands up under legal scrutiny and contributes meaningfully to the resolution of complex disputes.

Yes—expert witnesses can often be engaged before a hearing to assist in understanding the technical aspects of a case. Their involvement at an early stage can provide clarity, uncover potential issues, and shape the scope of evidence required. However, it’s important to distinguish between consulting experts and testifying expert witnesses, particularly in maintaining independence and admissibility standards.

Ways Expert Witnesses May Be Involved Pre-Hearing

Initial Consultation and Suitability Assessment

Many experts offer an initial consultation to:

• Understand the general issues in dispute,

• Confirm their area of expertise aligns with the subject matter,

• Assess availability and any potential conflicts of interest.

This early dialogue helps determine whether the expert is the right fit for the case.

Preliminary Case Evaluation

Before preparing a formal report, the expert may:

• Review documentation, photographs, or technical data,

• Offer a preliminary verbal opinion (non-binding),

• Identify whether further investigation or clarification is needed.

This allows legal teams to assess whether expert evidence is warranted or how it might be framed.

Advisory Input (for Consulting Experts)

Where an expert is engaged solely for internal strategic support and not intended to give evidence, they may assist behind the scenes by:

• Testing assumptions,

• Reviewing opposing expert reports,

• Advising on technical matters relevant to pleadings or cross-examination.

This is common in complex commercial, engineering, or financial disputes.

Expert Report Preparation (if testifying)

If the expert is intended to provide evidence, they must act in accordance with the Expert Witness Code of Conduct, and their primary duty becomes one to the court or tribunal. They may:

• Conduct site visits or forensic analysis,

• Prepare an independent expert report for filing and disclosure,

• Participate in joint conferences or conclaves with other experts.

Assisting with Hearing Preparation

Experts who are giving evidence may assist with:

• Clarifying technical terms for solicitors and counsel,

• Anticipating likely areas of cross-examination,

• Rehearsing the clear articulation of their methodology and conclusions.

They must not, however, take part in argument strategy, settlement negotiations, or evidence shaping outside their area of expertise.

HMS Group’s Insight

Early engagement with an expert can offer significant value—but the role of the expert must be clearly defined. At HMS Group, we support clients in selecting appropriately qualified professionals who can either provide confidential technical advice (as consulting experts) or deliver formal, independent opinion evidence suitable for court or tribunal proceedings. Maintaining this distinction ensures both the integrity of the expert’s contribution and the admissibility of their evidence.

Yes, expert witnesses regularly provide written reports in addition to oral testimony. In fact, in most Australian jurisdictions, a written expert report is required before oral evidence can be given. These reports serve as the foundation for the expert’s opinion and are prepared in accordance with strict procedural rules and expert witness codes of conduct.

Written Expert Reports

Written reports are the primary form of expert opinion evidence in civil, commercial, tribunal, and arbitral matters. These reports typically include:

• The expert’s qualifications,

• The questions or assumptions on which the opinion is based,

• A clear summary of the methodology,

• Detailed reasoning and conclusions, and

• A declaration of compliance with the applicable Expert Witness Code of Conduct (e.g., under UCPR or Federal Court rules).

Written reports are disclosed to the other party prior to the hearing, allowing for transparency, rebuttal, and informed cross-examination.

Oral Testimony

If a hearing proceeds, the expert may be called to:

• Present their opinion in person,

• Clarify their reasoning under examination-in-chief,

• Respond to questions during cross-examination, and

• Participate in concurrent expert evidence (“hot-tubbing”) where required.

Oral evidence expands on the written report, but does not replace it unless otherwise directed.

Preliminary Opinions and Advisory Notes

In the early stages of a matter, an expert may provide preliminary advice—such as internal memos, verbal opinions, or short-form summaries—to assist the legal team in assessing whether formal expert evidence is required. These early-stage documents are not normally disclosable unless later relied upon in evidence. However, an expert must disclose his or her previous involvement with the case and the parties to the court or tribunal to avoid any conflict of interest and potential bias.

Once the expert is instructed to give evidence, their role becomes governed by their duty to the court or tribunal, and their work must be formalised accordingly.

Visual Aids and Demonstrations

In technical or complex matters, expert witnesses may use:

• Diagrams, tables, or flowcharts,

• Photographic evidence,

• Simulations or models, to support the presentation of their findings. These aids enhance understanding and are often included as annexures to their report or presented at hearing.

HMS Group’s Insight

Expert witnesses contribute in multiple formats—most commonly through detailed written reports, followed by oral testimony when required. At HMS Group, our experts are skilled not only in their discipline but also in structuring clear, compliant, and persuasive reports that stand up to legal scrutiny. We ensure that expert contributions, whether written or oral, are aligned with procedural obligations and uphold the integrity of the process.

Yes—expert witnesses commonly provide evidence in a wide range of legal and dispute resolution forums, including courts, tribunals, arbitrations, and occasionally during mediation or settlement conferences. While each forum has its own procedural framework, the core responsibility of the expert remains the same: to offer independent, impartial opinion evidence to assist the decision-maker in resolving complex or technical issues.

Expert Witnesses in Court Proceedings

In formal court settings—such as District Courts, Supreme Courts, or the Federal Court—expert witnesses:

• Prepare and submit written reports in accordance with applicable rules of evidence and expert codes of conduct (e.g. UCPR, Federal Court GPN-EXPT),

• Take an oath or affirmation before giving oral evidence,

• Are subject to cross-examination, and may also participate in concurrent expert evidence where applicable.

Experience in court is particularly valuable when the matter involves complex disputes requiring persuasive, clearly articulated, and robust expert reasoning.

Expert Witnesses in Tribunals

Expert witnesses are also frequently engaged in tribunals, including:

• NCAT (NSW Civil and Administrative Tribunal),

• VCAT (Victoria),

• Fair Work Commission, or

• Specialist regulatory bodies (e.g., disciplinary or planning panels).

Tribunal hearings are generally less formal than court, but still require compliance with procedural fairness and expert obligations. Experts in tribunals:

• Prepare reports tailored to tribunal-specific formats,

• May attend joint conclaves,

• And often give oral evidence in simplified or self-represented environments, where clarity and impartiality are especially crucial.

Expert Evidence in Arbitration

In both domestic and international arbitration, expert witnesses provide evidence under the authority of the arbitral tribunal. While more flexible than courts, arbitration still requires:

• Detailed expert reports,

• Participation in joint expert meetings if directed,

• Oral testimony subject to cross-examination or tribunal questions.

Experienced expert witnesses understand the procedural distinctions between institutional rules (e.g. ACICA, UNCITRAL) and tailor their presentation accordingly.

Expert Involvement in Mediation and Settlement

While not testifying in mediation, experts may be engaged to:

• Provide neutral opinions to clarify contested issues,

• Assist legal teams in understanding technical matters that influence negotiation strategy,

• Participate in technical meetings that help parties reach common ground.

Any expert input during settlement discussions must be approached with care to avoid compromising independence or admissibility if later relied upon in evidence.

HMS Group’s Insight

At HMS Group, our expert witnesses are experienced across the full spectrum of legal and dispute resolution settings. We recognise that each forum carries different expectations, levels of formality, and procedural rules. That’s why we ensure our experts are not only technically competent but also familiar with the nuances of courts, tribunals, and arbitration environments—delivering clear, impartial, and credible opinion evidence wherever it is needed.