- Lawyers should be involved in preparing and settling the form of expert reports. However, where lawyers’ involvement in the preparation of a report detracts from the independence of the expert, this can result in the total rejection of the opinion evidence of the expert.
- In such cases, any oral evidence given by the expert in cross-examination may also be wholly rejected.
- Confidential information need not be a ‘trade secret’ to attract the necessary quality of confidence as recognised by a court exercising equitable jurisdiction. Instead, consideration should be given to a range of factors as to how such information was handled by the party seeking relief.
In New Aim Pty Ltd v Leung  FCA 722, the Federal Court of Australia (McElwaine J) rejected, in its entirety, the contents of an expert report in circumstances where the matters expressed in the report did not ‘truly represent [the expert’s] honest and independent opinions’ (at ).
While the decision involves an extreme case of inappropriate involvement by a lawyer in the preparation of an expert report, it also contains several useful general observations as to the principles that should inform lawyers’ dealings with expert witnesses.
Proceedings were commenced by New Aim Pty Ltd (‘New Aim’), an online retailing business, against three of its former employees and two competing businesses.
New Aim alleged, among other things, that its former employees had disclosed or misused its confidential information in collaboration with its competitors. It pursued claims based on equitable breach of confidence, breach of contract and breach of the Corporations Act 2001 (Cth).
A central issue concerned what constituted New Aim’s ‘confidential information’. In advancing its claims, New Aim sought to lead expert evidence from Ms FC about the e-commerce industry in which New Aim and competing online retailing businesses operated.