NCAT issues updated Procedural Direction on expert evidence

The NSW Civil and Administrative Tribunal (the Tribunal) has issued a revised Procedural Direction 3 (Direction) which came into effect on 28 February 2018.

While the previous direction applied to proceedings in all divisions of the Tribunal, the new Direction applies to a specific sub-set of proceedings, namely:

  • proceedings in which the rules of evidence apply (Evidence Rules Proceedings)
  • proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989(NSW) with a value greater than $30,000
  • proceedings in the Occupational Division for a “profession decision” as defined in clause 29(1) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW)
  • any other proceedings the Tribunal directs the Direction will apply to.

The Direction, like its predecessor, provides that the Tribunal may rely on evidence from expert witnesses to reach a conclusion about a technical matter or area of specialised knowledge that is relevant to an issue to be determined in proceedings. The expert opinion must be soundly based, complete and reliable.

The Direction makes a distinction of admissibility between the acceptability of expert evidence in Evidence Rules Proceedings and proceedings in which the Tribunal is not bound by the rules of evidence, where acceptability is a question of weight, but where nevertheless, if the expert issues are difficult or complex, expert evidence is required to be prepared and presented in a manner which seeks to ensure its usefulness.

The carve out in the previous direction for evidence from treating doctors, health professionals and hospitals is not maintained in the Direction.

Experts’ Code of Conduct

The Experts’ Code of Conduct (the Code) at paragraphs 13 to 24 of the Direction is similar in substance to the previous Code. While the updates are minor, they demonstrate the importance the Tribunal places on compliance with the Code and the Direction as a whole. For example, the requirement that an expert’s report must include an acknowledgement that the expert has read the Code and agrees to be bound by it now heads the list of requirements for expert reports, rather appearing at the end.

The language of the requirements regarding how experts in the same matter interact has been updated to reflect the Tribunal’s practice of ordering experts to attend conclaves.

Compliance

The Direction specifically addresses the consequences of failure to comply with the Code, whereby:

  • a failure to comply with the Code in Evidence Rules Proceedings may render the expert report or evidence inadmissible or adversely affect the weight attributed to the evidence
  • a failure to comply with the Code in proceedings in which the Tribunal is not bound by the rules of evidence will not render an expert report or evidence inadmissible, however, may adversely affect the weight attributed to the evidence.

What does it mean?

Both the subtle and the explicit changes suggest that a new rigour will be applied by the Tribunal in dealing with the expert evidence before it. Experts should not take these changes lightly. It must be remembered of course that the Tribunal’s jurisdiction is significant, where the Tribunal is chiefly responsible for resolving building claims and has a monetary jurisdiction for claims up to $500,000.