Key requirements to consider in VCAT Expert Witness Reports

Expert Witnesses at the VCAT - what does a report require…

• VCAT Practice Note - PNVCAT2 Expert Evidence (“PN”); and
• Schedule 3 of the VCAT Act (“Schedule”).

The PN at clause 2 says the Schedule needs be read in conjunction with the PN.

The Schedule is relevant to:

• conference of experts
• joint reports
• giving evidence
• single joint reports

AND Much MORE! The Schedule is attached - The Tribunal often requires Scott Schedules, Conclaves and Joint Reports by order.

The Practice Note includes issues that I often see litigants overlook…

DON’T let your case go sideways. Expert evidence is critical - remember:

• Experts - PLEASE - Stay in your lane

Clause 1 PN: “…it is important that expert’s opinion is soundly based, complete, impartial, dispassionate, and within the scope of his or her expertise.”

Comment- Whilst an expert’s opinion being soundly based may be debatable, an expert going beyond their scope can be more objectively assessed. I see this a lot! So, CHOOSE an expert with the right expertise for the right issue.

• Tribunal has DISCRETION - it can decide

Clause 3 PN: “…the Tribunal may at its discretion vary the operation of a practice note by direction or order.”

• Give the PN to the Expert with your instruction letter

Clause 7 PN: “Parties…must ensure that any expert…is made aware of the contents of this practice note…at the time of such retainer.”

Comment - An easy way to check this has occurred to the other parties witness is to read any letter of instruction to the expert which should be a part of the written report. If not given, ask for the instruction letter.

• Paramount Duty to Tribunal NOT who pays

Clause 8 PN: “An expert has a paramount duty to the Tribunal and not to the party retaining the expert.”

Comment - Let me repeat this one for some experts and clients. THE EXPERT HAS A PARAMOUNT DUTY TO THE TRIBUNAL!!!!

• Don’t forget what needs to be in the REPORT!

Clause 11 PN: “The report of an expert witness must include the following matters:

(c) a statement setting out the expert’s expertise to make the report;

(d) reference to any private or business relationship between the expert witness and the party for whom the report is prepared;

(e) all instructions that define the scope of the report…

(f) …all assumptions upon which the report proceeds…

(g) reference to those documents and other materials the expert has been instructed to consider…

(j) a signed declaration…

Comment - check your opposing parties report for compliance with the list. If it doesn’t comply

I largely in building defect and water act cases but clause 13 states that 11 does not strictly apply to doctors and hospitals…

I hope this helps other practitioners and experts.

Other lawyers are encouraged to contact me if you need guidance blair@bulawyers.com.au

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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