NCAT Relaxes Rules for Use of Expert Evidence

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The NSW Civil and Administrative Tribunal (NCAT) has revised ‘Procedural Direction 3’ which defines how experts must provide evidence before the Tribunal. The recent changes, which were initiated on 23 February 2018, now apply and have clarified the situations in which an expert must comply with an Expert Witness Code of Conduct. Codes of Conduct are common in a range of proceedings to ensure experts observe an overriding duty to a Court or Tribunal to present their evidence with independence and accuracy. [1]

Formerly, in situations where an expert had not complied with the Code in NCAT proceedings, there was a degree of inconsistency in the Tribunals: some Members accepted the experts’ evidence, while others rejected it. This uncertainty was clearly unsatisfactory where parties had expended costs in engaging an expert and preparing a report. [2]

Hence, the Procedural Direction 3 now differentiates between strict proceedings where the Tribunal is bound by the rules of evidence and less formal proceedings where the Tribunal is not. In proceedings in which 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.[3]

However, evidence that has been prepared without compliance with the Code may be given less weight by the Tribunal. This means there is still a clear advantage in an experts’ compliance with the Code. Parties must still prepare the cases with the appropriate expert evidence in a manner utilising an experienced expert, who understands the duties to be impartial and independent to the Tribunal. [4] There may be significant cost savings where the expert appointed is one who is experienced and accepted in the relevant jurisdiction.

To find an experienced expert for NCAT proceedings, please contact ExpertsDirect on our website or at 1300 847 855.

References:

[1] NSW Civil and Administrative Tribunal (NCAT), Practice Direction 3 –  Expert Evidence, 23rd February 2018

[2] Watson & Watson Solicitors, Expert Evidence – Recent change to NCAT Procedural Directions February 2018 – Rules Relaxed, 19th of March 2018, W&W Solicitors, http://watsonandwatson.com.au/document-110/expert-evidence-recent-change-ncat-procedural-directions-february-2018-rules-relaxed

[3] Ibid. JS Mueller & Co Lawyers, NCAT Changes the Rules for Strata Disputes, 21 June 2018, JS Mueller & Co Lawyers, https://muellers.com.au/ncat-strata-dispute-evidence/

[4] Watson & Watson, above no. 2

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