In home building matters where there are a number of complex technical issues in dispute, NCAT may order that the parties’ experts meet in a conclave.
A conclave is a joint meeting between experts engaged by the applicant and the respondent. The conclave is usually held on-site. Generally only the Tribunal Member and experts attend the conclave.
The purpose of the conclave is to limit or eliminate the need for expert evidence at hearing. The conclave is conducted by a Tribunal Member with extensive experience and expertise in the industry and in home building matters.
The experts discuss the issues on which they have prepared reports, with a view to clarifying matters in dispute, and to reduce as far as possible the issues to be determined at the final hearing. The results of the conclave are either signed off by the experts at the conclave or combined into a final report. The parties are then bound by the outcome of the conclave, unless it can be shown there are exceptional circumstances which demonstrate they should not be so bound.
As a result, a conclave can save costs to the parties and expedite the hearing process in complex home building matters.
The conclave process involves three steps: the directions hearing, the conclave and the conclave outcome.
A matter is referred for a conclave at a Directions Hearing. The Hearing will confirm what is to occur before and after the conclave, such as:
The Tribunal Member explains the process and rules for the experts before the conclave starts. The experts then discuss the issues between themselves in a non-adversarial manner, with the Tribunal Member leading the discussion. The experts analyse the reports and identify any areas of agreement. Proposed solutions are agreed upon and any remaining areas of disagreement are identified. If possible, a joint Scott Schedule is drafted and signed off.
During the conclave, if the need arises, an expert may seek brief advice or instructions from lawyers or a party to proceedings.
The Tribunal Member prepares a report on the outcomes from the conclave called a ‘Memorandum of Outcome’, which includes an agreed list of items and a notation as to any matters still in dispute on the Scott Schedule.
The experts who attended the conclave sign the Memorandum of Outcome and a revised joint Scott Schedule reflecting the positions reached at the conclave. The documents are then sent back to NCAT.
In the event of settlement during the conclave, the matter is listed for hearing to determine if the agreement finalises all issues. Orders are then made in accordance with the terms of settlement.
In the event of a non-settlement, the matter is listed for directions as to the further hearing of the outstanding issues.
A home building matter may be referred for a conclave when:
The Tribunal Member's role is only to facilitate discussions between the experts. The Member will not make orders or directions. Things said or done at a conclave are not admissible as evidence in the hearing unless all parties agree. The experts are to be independent and provide advice accordingly. The obligation of the experts is to NCAT and to assist the Tribunal Member, not to the party instructing them.