AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
7. Witness and Expert Opinions 7.1 Witness Procedure Proceedings heard in the Federal Court are subject to the: • Evidence Act 1995 (Cth) (Evidence Act), which prescribes the rules governing admissible forms of evidence, including evidence given by witnesses; and • The Federal Court Act and Federal Court Rules, supplemented by the Court’s Practice Notes, which prescribe various procedural rules. The primary way that witness evidence is adduced is through evidence in chief. The form of evidence in chief is set by the court and turns on the nature of the issues. In competition proceedings it is ordinarily given by affidavit rather than by oral narration in court. Affidavits are used because they promote efficient case management and reduce hearing time and cost, and the Federal Court rules and Practice Notes pre - scribe their form and content. Unless the court orders otherwise, an affidavit becomes evidence when it is read or taken as read, and remains subject to objec - tions as to admissibility. Evidence in chief, whether oral or by affidavit, must be relevant and not caught by an exclusionary rule to be admissible. A party is free to choose its witnesses, but it must call those necessary to prove the facts it has pleaded. If a party, without explanation, fails to give evidence, to call a witness, or to tender documents, the court may draw an inference that the missing evidence would not have assisted that party. It does not permit an inference that the absent material would have dam - aged the case. Any witness called by a party may be cross‑examined by the opposing party. Cross‑examination is oral and usually in person, although the court may permit it by video link where appropriate. It may address both fact and credibility, but questioning must be confined to admissible matters. Cross‑examination is not compul - sory and is often dispensed with where a witness is simply required to prove uncontroversial documents. The key forensic question is whether a party intends to
contradict or challenge the accuracy of the evidence. A party that wishes to lead contrary evidence or later submit that a witness is mistaken or unreliable must first put the substance of that challenge to the witness in cross‑examination. If a witness is unwilling to cooperate, a party may compel evidence by subpoena, which can require attendance in court to give oral testimony, production of documents, or both, though production subpoenas are more common for strategic reasons. Outside a subpoena, a witness cannot be forced to confer with lawyers. Once issued, a subpoena must be served; non‑compliance is contempt and can lead to sanc - tions, including a warrant for arrest. The issuing party must provide conduct money and meet the recipient’s reasonable costs of compliance. A person subpoe - naed to give evidence may, with the court’s leave or direction, give evidence in chief by affidavit rather than orally. If a compelled witness proves adverse, the call - ing party can seek to have the witness declared hos - tile so that cross‑examination is permitted. 7.2 Expert Witness Role and Procedure The courts accept expert evidence and it is routinely relied upon in competition cases in Australia. Experts must act independently of the parties. Any expert wit - ness must read and agree to be bound by the Harmo - nised Expert Witness Code of Conduct prior to giving evidence. Admissibility of expert evidence turns on s 79 of the Evidence Act and the report must identify the field of specialised knowledge, the factual assump - tions, the reasoning path and the literature or data relied upon. Importantly, the expert’s paramount duty is to the court, not the retaining party, and the report should state any limits of expertise, any material uncertainty and any testing or sensitivity analysis undertaken. The Federal Court’s Practice Notes typically require the expert report to annex various documents, such as the letter of instruction from the relevant party. Where there are multiple competing expert witnesses, it is common for their evidence to be presented con - currently through what is referred to as a joint expert conference (colloquially referred to as a “hot tub”). Commonly, judges will also request that experts seek
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