Expert Evidence – Recent change NCAT Procedural Directions February 2018 – Rules Relaxed

19/04/2018

Expert witnesses are under obligations of independence and an overriding duty to the Court and Tribunals to present their opinion and evidence accurately and without bias.  These duties are well documented in Court cases and also in Codes of Conducts for Experts in various Courts and Tribunals.  Providing reports and giving opinion and evidence in accordance with the Code including impartially on matters relevant to the area of expertise of witness overrides the Experts duty to a particular party.

The change to the NCAT Procedural Direction in February 2018 is significant in that NCAT has confirmed that the Tribunal is bound by the rules of evidence in only some proceedings including for example enforcement of jurisdiction of a civil panel and matters concerning professional misconduct.  In most proceedings NCAT is not bound by the rules of evidence.

Until February 2018 the NCAT Procedural Directions dated 7 February 2014 applied.  These have now been replaced by Procedural Directions of NCAT dated
23 February 2018 which apply from 28 February 2018.

Critically pursuant to the 2014 Procedural Directions if an Expert was unable to comply with the Expert’s Code of Conduct whether because of conflict of interest or otherwise the Expert was not to give evidence or provide expert report for use in the proceedings unless the expert raised the inability with the Tribunal and the Tribunal expressly permitted the expert to give evidence or to provide a report.  This is similar to the duties of Experts in other jurisdictions.  This particular clause in the past has caused significant difficulties in responding to inappropriate Expert Evidence.

The approach adopted by many advisers when there are difficulties with the Expert evidence on behalf of the other party was only to raise the problems at the Hearing.   This required the Tribunal Member to consider the objection and rule on whether the Expert evidence could be provided.

Notwithstanding the Experts Code of Conduct previously in place (before the February 2018 amendment) where an Expert did not comply with the Expert’s Code of Conduct some of the Members accepted the “Expert” evidence and some Members rejected the “Experts” evidence.  This made it difficult to envisage the outcome based on the conflicting decisions of the Members.  This was a critical element in the preparation, conduct and outcome of the case.  

Under the new amendments in place (since February 2018) in proceedings where the Tribunal is not bound by the rules of evidence the Tribunal will accept the “Expert” evidence even if the Expert does not comply with the Code of Conduct for the Expert.  Thereafter the acceptability of Expert evidence is a question of “weight” or whose evidence is preferred by the Tribunal.

One still needs to prepare the case with appropriate Expert evidence in a proper manner utilising only an appropriate Expert who is independent and can comply with the obligations of independence and duty to the Tribunal.  The Expert appointed should be one who is experienced in the jurisdiction and generally accepted in the jurisdiction.

There are advantages where a properly specialised skilled person who may have had some involvement in a project may give evidence in the proceedings, however very careful consideration would need to be had to this.  There may be significant cost savings which could be considered or there could be a combination of utilising an Expert who has been previously engaged on the project together with a further independent Expert.

The change in the Code of Conduct as at February 2018 has a further impact in that we would expect that the evidence produced will be considered by the Tribunal even Expert evidence when the Expert does not comply with the Expert Code.

However the weight given to it will be dependent upon all matters including lack of compliance with the Expert Code.  This means that each case must be prepared with the best evidence to meet the evidence presented on behalf of the other party.

If you have any queries or concerns regarding Expert evidence and/or the admissibility of Expert’s evidence in your case or the Experts Code of Conduct, please contact the experienced Solicitors at Watson & Watson by contacting Richard Watson Accredited Specialist Commercial Litigation Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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