If you have a complex matter before the Tribunal, you may consider engaging an expert to provide a written report or give expert evidence in support of your case.
An ‘expert’ is any professional person who has specialised knowledge, skills or qualifications and the ability to provide their expert opinion.
A party to proceedings can engage an expert evidence to provide a written report or appear as a witness at the hearing. For example, an architect may be used an expert witness in a home building dispute, or a mechanic to provide a report for a motor vehicle dispute.
Note: An expert witness is not an advocate for the party. Experts must be neutral and independent
Experts are used when evidence is needed about a subject of specialist or technical knowledge. Experts are often used in home building or motor vehicle matters. However, experts may be used in any type of application.
A report from a qualified expert will usually address the particular facts of a case that are within their area of expertise, and most importantly, give an opinion about matters such as the cause of the event, the need for repair, the method of repair and cost to repair.
NCAT will consider the expert’s qualifications, skills and experience, the manner in which the report is prepared and evidence presented in deciding what weight to place on the evidence.
Before engaging an expert you need to be clear on the issues you want the expert to address. You also need to think about whether the cost associated with engaging an expert is worth the expense having regard to the value of the dispute.
You will also need to consider whether you need the expert to appear as a witness in proceedings or provide an expert report to verify certain facts. Experts who appear as a witness to give evidence at a hearing can do so in person or, in some circumstances, by telephone.
The cost of engaging an expert will vary depending on the nature of the dispute, the type of expert needed and the skills and knowledge of the expert. The expert’s costs are usually paid by the party who has engaged the expert.
Expert reports can be quite expensive as they are time consuming to prepare. Before requesting an expert report you may want to ask the expert to give you an estimated cost of preparing the report. There may also be additional costs if you want your expert to comment on other expert reports filed by other parties and appear as a witness at your hearing.
The costs of retaining an expert may in some cases be recoverable from the other party if you are successful before NCAT, but not in all cases.
If you are unsure where to find an expert in the relevant field, contact the professional or trade association, for example the ‘Institute of Building Consultants’, and ask them to provide a list of their members.
Alternatively you could approach people in the field and ask them for references, or approach teaching institutes or university affiliated organisations. Before engaging the expert, make sure your expert is highly qualified in the field or discipline required.
When an expert is engaged to prepare a report to be used as evidence in a hearing, the report structure should include the following:
Note: Any issue or question falling outside the expert’s field of expertise should be clearly identified in the report.
You will need to provide a copy of the expert's report and any other supporting documents to NCAT and to the other party. The Tribunal Member will set a timetable for doing this.
It is likely that the other party will also provide a report from an expert whose opinion may differ from that of the expert engaged by you.
If your expert gives oral evidence, he or she may be cross-examined by the other party. If your expert does not attend the hearing, you can still rely upon your expert report. It is possible, however, some difficulties may arise if your expert is not present to answer any questions.
The Tribunal Member will decide which expert opinion carries more weight and is preferred.
In home building matters NCAT may direct a meeting be held between parties’ experts, known as an ‘expert conclave’.
A conclave is where the experts meet on-site with a Tribunal Member to discuss the issues on which they have prepared their reports with a view to narrowing points of difference between them. The points of agreement and difference are then identified in writing and filed with NCAT before the hearing, usually in the form of a Scott Schedule.
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Experts are engaged to provide an independent and impartial source of expert advice to NCAT. A conflict of interest may arise when an expert may be influenced, or could be seen to be influenced, by a personal interest in carrying out the assigned work, such as where the expert has:
Any matter which gives rise to an actual or perceived conflict of interest should be disclosed to NCAT promptly.