Non-compliant expert affidavit admitted into evidence by NSW Supreme Court

In brief - Expert reports should comply with rule 31.23 of Uniform Civil Procedure Rules, but the Court may exercise a discretion to overcome non-compliance in certain circumstances

The recent decision in Hoffmann v Challis [2016] NSWSC 268 to admit an expert affidavit despite the fact that the expert witness had neither read the expert witness code of conduct nor acknowledged his compliance with it in his affidavit, gives an illustration of some of the circumstances in which courts may exercise their discretionary power to admit such evidence. In this instance, it was because the court considered that the expert evidence was impartial and the expert willing to comply with his overriding duty to assist the court, rather than the party by whom he was engaged.