Preparing for a Dispute – Expert Evidence - be prepared and seek Watson & Watson’s Advice at an Early Stage

15/10/2024

At Watson & Watson when an Owner or Builder or other person such as an Owners Corporation or Lot Owner for example, in relation to a Building Dispute or Strata Dispute seeks our advice, we ask for a brief note of factual matters so that an initial conference can be arranged to discuss the facts and issues that are likely to arise. 

Our approach at Watson & Watson is to:

1.       Firstly ascertain early on, the factual matters which can be based on as far as we are concerned, assumed facts on the basis that our client is aware that as part of the claim, we must prove each of those facts as part of the case.  We will discuss these matters at an early stage, to ascertain the facts to enable the client to consider the course to be adopted in relation to the claim or defending a claim.

2.       Also at an early stage having ascertained the factual matters as instructed, subject to the caveat that they must be proven as part of the proceedings, we discuss with you and suggest we discuss with an appropriate Expert, the matter on a preliminary basis to ascertain the Expert’s preliminary opinion based on the factual matrix. 

It is better that each party considers their likely outcome at an early stage, so as not to be burdened with costs in a situation where the evidence will not support a claim or part of a claim.

We consider limitation periods for bringing a claim including the limitation periods in which a claim could be made for example in either a Court or New South Wales Civil and Administrative Tribunal (NCAT) and whether NCAT and/or the Court is the appropriate forum for the dispute.

Before commencing proceedings, you should consider your position, alternatives available, likely outcomes and possible outcomes including costs and other consequences.  This includes considering what evidence is required, what is available and what further evidence such as evidence by an independent Expert is required.

If you are a Defendant or Respondent to a claim, steps should be taken to ascertain the likelihood of an adverse outcome and we suggest that if possible at an early stage, that you make an appropriate offer of settlement. 

As it happens, there are thousands of cases each year, many of which do not settle at an early stage for one reason or another.

The Claim and Evidence

In the majority of cases requiring Expert evidence:

1.     The Claim (Statement of Claim or Application) and Defence are prepared, filed in the appropriate Court or Tribunal and served.

2.     The evidence to be prepared usually includes lay evidence which deals with many of the factual matters including the facts some of which are provided to the Expert.

3.     The Lawyer considers the facts and the issues and the particular matters about which Expert evidence is required, and drafts an appropriate letter of instructions to the Expert with the appropriate instructions and identification of the issues and the questions about which the Expert is required to provide his or her opinion.  The Expert relies upon some facts provided which form the basis of the Expert’s “assumed” facts.

4.     Thereafter the Expert investigates, discusses the matter with the Lawyer and prepares a draft report which should be carefully considered by the Lawyer as to whether it is prepared in the appropriate form and rigor.

5.     The Defendant will prepare their lay evidence in response to the Plaintiff’s evidence either before or at the time of receiving the Expert Evidence.

6.     Following service of the Expert Report for example by the Plaintiff, the Defendant will then go through the same process instructing the appropriate Expert to respond to the Plaintiff’s Expert evidence.  Also the Defendant would need to consider whether there is any other appropriate Expert who should give evidence in relation to particular issues.

7.     After the Experts have prepared their reports containing the Expert Evidence, the Experts’ Evidence is exchanged.

8.     Thereafter there is a “Conclave” of the Experts who provided evidence.  At the Conclave, the Experts must in accordance with their obligations, consider the issues and discuss the matters and prepare an appropriate report from the Joint Experts’ Conclave.

9.     The report from the Conclave of Joint Experts must include:

9.1        Any agreement by the Experts as to various matters.

9.2        If the Experts do not agree on any particular matter about which evidence is    required, each Expert sets out his or her opinion and the reasons for his or her        opinion.

There are many cases where there can be a legitimate disagreement for example, where there is a claim of defective work covering many items of work some of which may be defective and some of which are not defective work. Eventually the outcome is resolved by the Court or Tribunal upon consideration of the evidence from the respective Experts.

However in many cases where there are fundamental issues for example, whether there is a “major defect” or structural defects which we expect, that normally two Experts properly briefed and who have appropriately considered the facts, can agree on many aspects of the dispute and reduce the extent of the dispute to some degree.

Once the Plaintiff/Applicant has commenced proceedings, the Plaintiff/Applicant can either:

1.       Settle it (with agreement of the other parties).

2.       Proceed with it to finality; or

3.       Discontinue the proceedings. If the Plaintiff discontinues the proceedings, without an agreed settlement with the Defendant, it would be likely that the Defendant would seek that the Plaintiff pays the Defendant’s costs (to some extent).

Similarly, a Defendant or a Respondent to a claim can:

(a)      Defend the proceedings.

(b)      Do not defend the proceedings; and/or

(c)      In any event, attempt to settle it on a reasonable basis.

The Decision

In the end the Judge in a Court or the Member at NCAT will have to decide what evidence the Judge or Member accepts or prefers (based on the requirements of the law) and will make a Decision.  The Judge or Member will consider all of the evidence admitted into evidence. This will include consideration of the evidence of lay witnesses for each party to the Dispute.

Where there are issues between the Experts, the Court will decide in favour of one Expert as being preferred in relation to his or her opinion in relation to a particular issue, in preference to the opinion of the other Expert.  Sometimes where there are many different items in dispute, the Judge or Member decide some factual matters in favour of each of the Experts.

However there are a significant number of cases where the opinion of one Expert is preferred to a great degree, over the opinion of the other Expert engaged by the other party.  This usually has a devastating adverse effect on the party who has engaged an Expert, whose opinion is not accepted by the Court of Tribunal.

In the circumstances, it is critical that an appropriate Expert is engaged and in our experience, the appropriate Expert should be engaged at an early stage so you and the Lawyers are aware of the likely opinion of the Expert in relation to the issues that arises in your case. 

Please contact the experienced Building and Construction Lawyers at Watson & Watson by contacting Richard Watson who is an Accredited Specialist by the Law Society of New South Wales in Commercial Litigation in the stream of building and construction.  Please contact us by contacting Richard Watson’s Personal Assistant, Shereen Da Gloria for an initial conference to discuss your very important matters.  

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