Protecting the Continued Development of Collaborative Expert Witness Evidence in Australia: Surely We Should?

Abstract

Australia has recognised the need to cope with changing attitudes towards advocate and expert witness immunity. While some international jurisdictions have chosen to abolish the immunity altogether, Australia has most recently, via the High Court decisions in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 and Kendirjian v Lepore [2017] HCA 13, recognised the need for the immunity to exist, albeit with significantly narrowed scope. Generally, the principles and scope of expert witness immunity tend to follow that of advocate immunity. However, Australia is widely accepted as the most advanced judicial system supporting the use of concurrent expert evidence. This analysis discusses the unique position of Australia after these two High Court decisions that shape expert witness immunity, recognising the ongoing policy of protecting the finality of litigation. However, the legislature must be careful not to maintain this as the foremost reason for the immunity merely because the courts have chosen this pathway previously. Nor should the legislature merely maintain the status quo of expert witness immunity following advocate immunity.