Expert witnesses are so crucial to legal proceedings
However, I see so many expert reports prepared which fall short.
Particularly for the VCAT where the role of the person is either misunderstood or the person whose opinion is desired to be used as expert opinion has not been properly instructed or aware of their legal obligations.
Firstly:
“An expert witness is not an advocate for a party to a proceeding.”
I wish I got a dollar for every time I saw a report prepared by a proposed expert witness particularly for building or Water Act proceedings at the VCAT misunderstood this…
Secondly:
I frequently see opinions rolled out on issues beyond the expert’s expertise!
Paragraph 11 (b) of PNVCAT2 clearly sets out that the requires the experts qualifications.
Thirdly:
Scott Schedule
I have even recently viewed a report where the expert prepared a so called ‘Scott Schedule’ in the first report to the owner and for the Tribunal.
A Scott Schedule at VCAT is usually prepared for filing after witnesses meet and relates to a comparison of expert witness opinion. The Tribunal has powers to order a conclave and Scott Schedule. See paragraph 27 of the practice note.
Finally, an expert must sign a declaration that:
“I have made all the inquiries that I believe are desirable and appropriate and that no matters of significance which I regard as relevant have to my knowledge been withheld from the Tribunal.”
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Recent articles
-
Security of Payment Legislation: What’s Changing and How Subcontractors Can Improve Debt Recovery
-
Unqualified Expert Witnesses in Building Claims
A building professional who can write a report and a building professional who can defend one under cross-examination at VCAT are rarely the same person, and the gap between them is costing property owners claims.
-
Suing for Water Damage Under Section 16 Water Act
If water from a neighbouring property has damaged your home or investment property in Victoria, section 16 of the Water Act 1989 gives you a direct path to recovery, but only if you can prove exactly where the flow came from and why it was unreasonable.
-
Gathering Expert Evidence in Property Damage Cases
When a property damage claim moves toward recovery, the tradesperson who fixed the problem and the expert who can prove liability in court are rarely the same person.