Tag Archive for: expert witness

Engaging expert witnesses – practical advice

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Expert evidence often plays a crucial role in building disputes, either in identifying defects, valuing works, or providing other technical information. Expert witnesses take on the role of an independent observer, with an overriding duty to assist the Court impartially on matters relevant to their expertise.[1] Typically, an expert will deliver their opinion in a report, in response to stated questions.[2]

The procedural rules governing expert evidence and expert reports are set out in:

  • Part 31 Division 2 to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR);
  • the Expert Witness Code of Conduct, found in Schedule 7 to the UCPR; and
  • NSW Civil and Administrative Tribunal (NCAT) Procedural Direction 3.
    (collectively, the Codes)

The Codes create various procedural requirements for expert reports, for example, that the report contain an acknowledgement that the expert has read and agrees to be bound by the code of conduct.[3] For a detailed overview of these requirements, see our article here.

A common issue engaging experts

We have noticed a common scenario when parties obtain expert evidence:

A party engages an expert to inspect and provide a preliminary report. The report does not comply with the Codes. Later, litigation commences, and the expert either:

  • prepares a second more thorough report which complies with the Codes; or
  • puts on an affidavit acknowledging that their first report will be bound by the Codes.

No problem, the expert has fulfilled their obligations under the Codes… right?

Not necessarily. This approach may result in non-compliance with the Codes, which leads to two risks:

  1. the Court may hold that the expert report is inadmissible; or
  2. the Court may admit the report but give it little weight due to concerns regarding the expert’s credibility.

The Court may hold that the expert report is inadmissible

Courts have a broad discretion whether to admit into evidence expert reports which have been prepared in the scenario outlined above. In Welker & Ors v Rinehart & Anor (No 6),[4] the respondent sought to rely on expert reports which did not comply with the UCPR Code. The experts were not provided with a copy of the Code until after they had prepared their reports, meaning the reports did not contain an acknowledgement that the experts had read and agreed to be bound by the Code. The experts subsequently filed affidavits swearing they had since read the Code and agreed for their earlier report to be bound by it.

Rule 31.23(3) of the UCPR provides that an expert report which does not comply with the Code may not be admitted into evidence unless the Court orders otherwise. Ball J considered whether there was substantial compliance with the Code by examining the circumstances in which the report was prepared.[5] His Honour noted that the Court has a broad discretion whether to admit expert reports, but held that these particular reports were inadmissible because they:

  • did not give evidence justifying the assumptions underlying the expressed opinions;
  • lacked reasoning to support the conclusions in the report; and
  • contained generalised assertions which did not reflect the expert’s area of expertise.[6]

Although the Court retains a discretion when applying rule 31.23(3), this judgment demonstrates that non-compliant expert reports prepared in the above scenario may be deemed inadmissible.

The Court may give the expert report little weight 

Even if the Court admits an expert report prepared in the above scenario, there is a serious risk that the Court will give the report little evidentiary weight. In Smith v Ulan Coal Mines Ltd,[7] Campbell J exercised the discretion under rule 31.23(3) to admit an expert report filed by the plaintiff which did not strictly comply with the UCPR Code. His Honour made the following remarks in relation to rule 31.23(3):

“[…] Where it appears that the expert in preparing the report has been guided by impartiality, independence from the parties and a motivation to assist the Court rather than the party retaining him, there will have been substantial compliance with the Code. However mere retrospective inclusion of the required acknowledgment in an amended report will not satisfy the requirements of the sub-rule unless it can be shown that there has been substantial compliance in the sense I have already discussed.”[8] (emphasis added)

Although the report was technically admissible, it was given little weight at the final hearing. Hoeben CJ noted that in relation to the expert’s evidence that “there was a tendency to favour the plaintiff in some of the responses”.[9] The plaintiff’s claim failed, in part because his Honour was “not persuaded on balance that the plaintiff has given accurate evidence”.[10]

If parties prepare expert reports in the above scenario, they risk the Court drawing similar conclusions about the reliability of their expert evidence. If experts are not aware of their obligations under the Code at the time of preparing the report, including their overarching duty to the Court, this may raise doubts as to the expert’s credibility, and as a result, the persuasiveness of the expert report. These doubts may adversely impact the outcome of the proceedings, even if the reports are technically admissible.

Obligations in NCAT

Finally, parties should be aware that these same risks may exist in NCAT proceedings. Although NCAT is not usually bound by rules of evidence,[11] the Tribunal may direct that expert reports must comply with the NCAT Code.  In McGrath v The Owners – Strata Plan No 13631,[12] the Tribunal made this direction in respect of two expert reports, and the applicant failed to comply. As a result, the Tribunal refused to admit part of one report and the entirety of the other report into evidence.[13] The judgment was upheld on appeal.[14] This decision serves as a warning – the same risks set out above may apply to parties seeking to file expert evidence in NCAT proceedings.

Take home tips

When engaging expert witnesses, parties must be careful to comply with the Codes – this is true even when only a preliminary report is required.  In other words, parties must ensure when an expert is engaged that:

  • the expert is familiar with the Codes; and
  • the Codes are at the forefront of the expert’s mind when any preliminary inspections, condition reports or investigations are carried out.

This is to ensure that the credibility of the expert is not compromised in any subsequent litigation.

Bradbury Legal has extensive knowledge of the procedural rules governing expert evidence. We can assist in engaging expert witnesses in a manner which will best protect a party’s position at trial. For specialist and tailored advice, please contact a member of our team by phone on (02) 9030 7400 or by email at [email protected].

[1] UCPR Schedule 7 clause 2.

[2] UCPR r 31.21, 31.23(4).

[3] UCPR r 31.23(3); UCPR Schedule 7 clause 3(b); NCAT Procedural Direction 3 clause 19(a).

[4] [2012] NSWSC 160.

[5] Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160, [35].

[6] Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160, [40]–[44].

[7] [2019] NSWSC 1263.

[8] Smith v Ulan Coal Mines Ltd [2019] NSWSC 1263, [11].

[9] Smith v Ulan Coal Mines Ltd (No 2) [2020] NSWSC 416, [160].

[10] Smith v Ulan Coal Mines Ltd (No 2) [2020] NSWSC 416, [188].

[11] Civil and Administrative Tribunal Act 2013 (NSW) s 38(2).

[12] [2021] NSWCATAP 167.

[13] McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167, [3].

[14] McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167, [87].

Regulatory Overhaul and Reform Pillars: building confidence and stronger foundations for the NSW building and construction industry

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Transparency, accountability and quality of work are always issues at the forefront of the building and construction industry. In the wake of many high profile instances of defects in newly built developments, these are also the big issues that the NSW Government is tackling in 2020.

Where it began: the Shergold Weir Building Confidence Report

Back tracking to early 2018, the Shergold Weir Building Confidence Report recommended the implementation of a national best practice model. The purpose of this was to enhance public trust in the building and construction industry and strengthen the effective implementation of the National Construction Code. The best practice model comprises 24 recommendations relating to:

  • registration and training of practitioners;
  • roles and responsibilities of regulators;
  • the role of fire authorities;
  • integrity of private building surveyors;
  • collecting and sharing building information and intelligence;
  • adequacy of documentation and record keeping;
  • inspection regimes;
  • post-construction information management;
  • building product safety; and
  • how the above recommendations will be implemented.

The NSW Government’s Response: Building Stronger Foundations Discussion Paper

The NSW Government welcomed the Shergold Weir Report and announced that it is committed to improving the building and construction industry through a number of new reforms. In June 2019, the NSW Government presented its Building Stronger Foundations Discussion Paper seeking input from stakeholders on its four key reforms. These reforms are:

  1. requiring practitioners defined as ‘building designers’ (e.g. architects, engineers) to declare that their building plans/specifications/solutions are compliant with building regulations, including the Building Code of Australia;
  2. introducing a registration scheme for ‘building designers’ who will be making declarations;
  3. ensuring that building practitioners owe a duty of care to owners’ corporations and subsequent residential homeowners; and
  4. appointing a Building Commissioner who is a consolidated regulator for the whole of the NSW building and construction industry.

What to expect in 2020 and beyond

It has been just over a year since the NSW Government committed to implementing regulatory reform and six months since it consulted with stakeholders to shape the direction of these reforms. So what progress has been made in that time?

In October 2019, the first tranche of reforms was introduced with the Design and Building Practitioners Bill 2019 (the “Bill”). The Bill seeks to deliver the NSW Government’s first, second and third key reforms by imposing new obligations on design and building practitioners. The Bill is currently before the NSW Upper House. Make sure to read our next newsletter as we will be providing a detailed explanation of the substance of the Bill.

In relation to fourth key reform, the NSW Government has appointed David Chandler OAM as the NSW Building Commissioner. In January 2020, Mr Chandler announced the Six Reform Pillars, which is the public’s first insight into his plans and implementation strategies for the reforms. The Six Reform Pillars are:

Pillar Actions Outcomes
Building a better regulatory framework

 

 Implementing legislation and regulation and transforming the focus of the regulator

 

 Ensure that NSW has a strong customer focused regulatory framework
Building rating systems

 

 Work with ratings agencies, insurers and financiers to assist in better selection of industry participants

 

 Move away from one-size-fits-all participant recognition and better identify risky players

 
Building skills and capabilities

 

 Improve accreditation of construction related programs through improved standard modules

 

 Shared minimum learning content and open source resources for all institutions

 
Building better procurement methods

 

 Establish clear standards for engagement and outputs

 

 Viable risk allocation and performance accountability

 
Building a digital future

 

 Digitise the NSW Building Industry and move away from analogue record keeping

 

 Shared industry wide platforms that build confidence

 
Building the reputation for quality research

 

 Evidence based approach to accessing and closing the gap via case studies and other research

 

 Baseline and measurement against our ability to improve confidence in the industry

 

 

This article provides a snapshot of the NSW Government’s plans to implement effective and wide ranging regulatory reforms of building and construction industry. This summary demonstrates that there is a significant task ahead in implementing these reforms, so watch this space for future updates.

If you or someone you know wants more information or needs help or advice in relation to this article, please contact us on (02) 9248 3450 or email [email protected].

The role of an expert witness in a building dispute

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If you are involved in a domestic building dispute, whether as a building professional or homeowner, it will often be beneficial or necessary to retain an expert witness.

The role of an expert witness in a building dispute is to provide objective, qualified and documented evidence relevant to the facts in dispute.

Engaging an expert witness is usually a complex and expensive exercise. Further, the expert’s role as an impartial observer, and not as an advocate for the instructing party, is often misunderstood. Parties to a dispute can become anxious when it appears that the expert they have retained is not “on their side” or that the other party’s expert is an “opponent” in disputed proceedings.

It is therefore helpful to understand the role of expert witnesses, their obligations to a tribunal or court and how they can assist in determining a building dispute.

What is an expert witness?

An expert witness is a qualified professional with both specialised technical knowledge in a particular area or industry, and the necessary skills to provide an opinion, in writing and verbally. This opinion may be used as evidence in negotiations, dispute resolution processes or during tribunal or court proceedings.

When and why is an expert used?

The role of the expert is to assist the parties in negotiating a settlement, or if the matter proceeds to a tribunal or court, guide the decision-maker towards a reasonable determination.

A residential building dispute does not typically concern the interpretation of a contractual term, which, in a court or tribunal, would be a matter for lawyers to argue.

Rather, a residential building dispute typically concerns claims of incomplete and/or defective construction work the nature of which is highly technical and industry specific. The subject matter of the dispute may be a single dwelling or a multi-storey residential complex.

A layperson is not qualified to provide evidence of a technical nature which, in court or tribunal proceedings, could be considered an opinion or hearsay. Similarly, a lawyer is not qualified to assess the costs of rectification of a building.

In such matters evidence should be given by a person with specialised knowledge in the subject matter that is based on his or her training, study or experience. One example of an expert is a quantity surveyor.

Retaining an expert witness

The selection of an expert witness is typically made by the lawyer representing a party to the dispute, who will identify a professional with the necessary expertise required for the particular case and the ability to provide written, and oral evidence, if required.

Written instructions should be provided to the expert which will include an overview of the matter, the issues in dispute, the matters to be addressed, and additional information that will assist in compiling the report, such as building contracts, plans and specifications, and invoices for building materials.

Most unresolved domestic building disputes are heard in a tribunal with specific rules and codes of conduct regarding the use of an expert witness and the required format for expert reports. This is generally to ensure consistency and uniformity. A copy of the relevant expert evidence guidelines and reporting requirements from the tribunal should always be attached to the instructions given to the expert.

It may also be necessary to engage an additional expert with specialist knowledge, such as a structural engineer, to provide a supplementary report for specific issues like a retaining wall claimed to be defective.

A quantity surveyor may be engaged to assess the cost of rectification works for more complex matters. For relatively simple matters, retaining an expert may not be necessary, as obtaining quotes from building professionals and tradespersons may be sufficient.

The expert report

An expert will draw upon his or her construction knowledge to provide a qualified opinion in response to the issues raised in the instructions. A report will typically include:

  • the expert’s formal qualifications, experience and field of expertise in which the evidence is being provided;
  • a summary of the issues upon which the expert is required to report;
  • any facts or assumptions upon which the expert has relied (i.e. the letter of instruction);
  • the identification (and categorisation) of incomplete, non-compliant and/or defective building work;
  • an opinion as to why the building work is incomplete, non-compliant and/or defective, qualified with reference to relevant standards, construction codes and tolerances, and the building contract, plans and specifications;
  • any examinations, investigations or tests used to form the opinion;
  • an assessment of the cause of a defect;
  • recommendations for the rectification of incomplete, non-compliant and/or defective building work including reasons for the recommendation;
  • suggested methods for rectifying the incomplete, non-compliant and/or defective building work including any reasonable alternative remedies;
  • the estimated cost of the recommended rectification work.

The duty of impartiality

Tribunal and court rules, practice notes and directions require that an expert witness is impartial and not an advocate for a party to a proceeding. He or she has an overriding duty to assist a tribunal or court on the matter relevant to the expert’s expertise.

Independence is paramount and any hint of bias towards the instructing party by the expert can be detrimental to that party’s case and may initiate a request by the opposing side for the tribunal to disregard that expert’s evidence.

The expert’s reputation and credibility in such circumstances will also be at stake.

Conclusion

An expert witness may be retained to provide an impartial qualified opinion to assist in determining a matter in dispute.

Choosing an expert with the requisite qualifications, knowledge and experience to provide an objective opinion is essential for many building disputes. When retaining an expert, it is also important to bear in mind that the expert is not an advocate for the instructing party.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email [email protected]