expert evidence and tribunals

Expert Evidence Expert Evidence and Tribunalsand Tribunals

Presented by Josephine Kelly Presented by Josephine Kelly Senior Member,Senior Member,Administrative Appeals Tribunal (Cth)Administrative Appeals Tribunal (Cth)

22

What is expert evidence?What is expert evidence?

It is opinion evidence in a field of It is opinion evidence in a field of specialised knowledge given by a person specialised knowledge given by a person who is qualified to do so by virtue of who is qualified to do so by virtue of qualifications, skill and experience.qualifications, skill and experience.(See generally (See generally Makita v Sprowles (Makita v Sprowles (2001) 2001) 52 NSWLR 705)52 NSWLR 705)

33

Examples of expert evidenceExamples of expert evidence

DoctorsDoctors Dieticians Dieticians AccountantsAccountants ValuersValuers EngineersEngineers ScientistsScientists In the AAT, historians in Veterans’ In the AAT, historians in Veterans’

mattersmatters

44

Principles Principles (derived from (derived from National Justice Compania Naviera SA v Prudential National Justice Compania Naviera SA v Prudential Assurance Co Ltd Assurance Co Ltd [1993] 2 Lloyd’s Rep 68, [1993] 2 Lloyd’s Rep 68, Makita and Sprowles Makita and Sprowles & & Federal Court guidelines)Federal Court guidelines)

An expert’s An expert’s overriding dutyoverriding duty is to assist is to assist the court or tribunal on matters relevant the court or tribunal on matters relevant to the expert’s area of expertiseto the expert’s area of expertise

The expert evidence presented should be The expert evidence presented should be seen asseen as independent independent and and uninfluenceduninfluenced by the parties by the parties

An expert is to make clear where a An expert is to make clear where a particular question or issue falls outside particular question or issue falls outside the relevant field of expertise. the relevant field of expertise.

55

Principles – written reports (1) :Principles – written reports (1) :

The expert’s The expert’s written reportwritten report should should include: include: • Details of the expert’s qualificationsDetails of the expert’s qualifications• Statement of questions or issues the expert was asked to Statement of questions or issues the expert was asked to

addressaddress• The facts on which the expert’s opinion is basedThe facts on which the expert’s opinion is based• Assumptions of facts clearly statedAssumptions of facts clearly stated

• An expert witness should not omit to An expert witness should not omit to consider consider material factsmaterial facts which could which could cause a change in opinion. cause a change in opinion.

66

Principles continued – written reports (2):Principles continued – written reports (2):

• The The Guidelines for Expert Witnesses in Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia Proceedings in the Federal Court of Australia provide that at the end of a written report the provide that at the end of a written report the following should be declared:following should be declared:

““[the expert] has made all the inquiries that [the expert] [the expert] has made all the inquiries that [the expert] believes are desirable and appropriate and that no believes are desirable and appropriate and that no matters of significance that [the expert] regards as matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been relevant have, to [the expert’s] knowledge, been withheld from the Court”withheld from the Court”

77


• Where an expert’s opinion is not properly Where an expert’s opinion is not properly researched because of insufficient researched because of insufficient data/other reason, this must be stated data/other reason, this must be stated with an indication that the opinion is no with an indication that the opinion is no more than a provisional one. more than a provisional one.

• If after reading another report, an expert If after reading another report, an expert changes his/her view for any reason, this changes his/her view for any reason, this must be communicated to the other party must be communicated to the other party and the Court.and the Court.

88


References in the expert’s report should References in the expert’s report should also be provided to the other party at the also be provided to the other party at the same time as the report is provided to same time as the report is provided to them. them.

In so far as an opinion is based on In so far as an opinion is based on "observed" facts, they must be identified "observed" facts, they must be identified and admissibly proved by the expert;and admissibly proved by the expert;

In so far as the opinion is based on In so far as the opinion is based on "assumed" or "accepted" facts, they must "assumed" or "accepted" facts, they must be identified and proved in some other be identified and proved in some other way; way;

99

Principles continued:Principles continued:

it must be established that the facts on it must be established that the facts on which the opinion is based form a proper which the opinion is based form a proper foundation for it; foundation for it;

the opinion of an expert requires the opinion of an expert requires demonstration or examination of the demonstration or examination of the scientific or other intellectual basis on scientific or other intellectual basis on which the conclusions reachedwhich the conclusions reached

1010


that is, the expert's evidence must that is, the expert's evidence must explain how the field of "specialised explain how the field of "specialised knowledge" in which the witness is expert knowledge" in which the witness is expert by reason of "training, study or by reason of "training, study or experience", and on which the opinion is experience", and on which the opinion is "wholly or substantially based", applies to "wholly or substantially based", applies to the facts assumed or observed so as to the facts assumed or observed so as to produce the opinion propounded.produce the opinion propounded.

1111


If all these matters are not made explicit, If all these matters are not made explicit, it is not possible to be sure whether the it is not possible to be sure whether the opinion is based wholly or substantially opinion is based wholly or substantially on the expert's specialised knowledge. If on the expert's specialised knowledge. If the tribunal cannot be sure of that, the the tribunal cannot be sure of that, the evidence is strictly speaking not evidence is strictly speaking not admissible, and, so far as it is admissible, admissible, and, so far as it is admissible, of diminished weight. of diminished weight.

1212


The expert’s duty is to furnish the The expert’s duty is to furnish the necessary scientific criteria for testing the necessary scientific criteria for testing the accuracy of their conclusions, so as to accuracy of their conclusions, so as to enable the decision-maker to form an enable the decision-maker to form an independent judgment by applying those independent judgment by applying those criteria to the facts proved in evidence. criteria to the facts proved in evidence.

Expert witnesses, however skilled or Expert witnesses, however skilled or eminent, can give no more than eminent, can give no more than evidence. They cannot usurp the evidence. They cannot usurp the functions of the jury, Judge or Tribunal.functions of the jury, Judge or Tribunal.

1313


The expert evidence, if intelligible, The expert evidence, if intelligible, convincing and tested, becomes a factor convincing and tested, becomes a factor (and often an important factor) for (and often an important factor) for consideration along with the whole other consideration along with the whole other evidence in the case, but the decision is evidence in the case, but the decision is for the Tribunal.for the Tribunal.

1414


An oracular pronouncement alone by an An oracular pronouncement alone by an expert, however eminent, upon the issue expert, however eminent, upon the issue in controversy, will normallyin controversy, will normally carry little carry little weight, because it cannot be tested by weight, because it cannot be tested by cross-examination nor independently cross-examination nor independently appraised. The parties are seeking the appraised. The parties are seeking the decision of a tribunal and not an oracular decision of a tribunal and not an oracular pronouncement by an expert.pronouncement by an expert.

1515

Concurrent EvidenceConcurrent EvidenceWhat is it?What is it?

Is when two or more experts give their Is when two or more experts give their evidence at the same time – also evidence at the same time – also sometimes called “hot-tubbing”.sometimes called “hot-tubbing”.

1616

What is the purpose of What is the purpose of concurrent expert evidence in concurrent expert evidence in the AAT?the AAT?

Justice Downes, President of the AAT: Justice Downes, President of the AAT:

““To enable the evidence and opinions of experts to be better To enable the evidence and opinions of experts to be better tested by the Tribunal, legal representatives and other experts, tested by the Tribunal, legal representatives and other experts, with the aim of the evidence being comprehensively explained, with the aim of the evidence being comprehensively explained, understood and analysed, thereby enhancing the Tribunal’s understood and analysed, thereby enhancing the Tribunal’s capacity to make the correct or preferable decision;capacity to make the correct or preferable decision;

To assist experts in fulfilling their role as independent advisers To assist experts in fulfilling their role as independent advisers whose primary role is to assist the Tribunal; andwhose primary role is to assist the Tribunal; and

Enhance the efficient operation of Tribunal proceedings by Enhance the efficient operation of Tribunal proceedings by reducing the time taken to resolve matters. This may also lead to reducing the time taken to resolve matters. This may also lead to a reduction in cost to the Tribunal and parties to each a reduction in cost to the Tribunal and parties to each proceeding.”proceeding.”

1717

Concurrent EvidenceConcurrent EvidenceWhen is it appropriate?When is it appropriate?

Does a significant issue turn upon expert Does a significant issue turn upon expert evidence?evidence?

Are the experts commenting on the same Are the experts commenting on the same issue(s)?issue(s)?

Are they of similar disciplines?Are they of similar disciplines? Is their level of expertise similar?Is their level of expertise similar?

1818

Concurrent EvidenceConcurrent EvidenceProcedure – the hearingProcedure – the hearing

The Tribunal should control the process before The Tribunal should control the process before and during the hearing. and during the hearing.

Expert reports need to be exchanged before Expert reports need to be exchanged before the hearing.the hearing.

Ideally, there should Ideally, there should be some discussion some discussion between experts before the hearing to identify between experts before the hearing to identify the areas of agreement and disagreement. the areas of agreement and disagreement. This can be done outside the hearing room on This can be done outside the hearing room on the day, or in some cases may be usefully the day, or in some cases may be usefully done in the hearing room.done in the hearing room.

1919

Concurrent EvidenceConcurrent EvidenceProcedure – the hearingProcedure – the hearing

At the beginning of the hearing, the experts should be At the beginning of the hearing, the experts should be made aware of any variance between the facts upon made aware of any variance between the facts upon which they have based their opinions and the evidence which they have based their opinions and the evidence that has been given.that has been given.

Each expert to give short evidence of their opinion, in Each expert to give short evidence of their opinion, in the light of any such variance. the light of any such variance.

Having established their opinions, the Tribunal should Having established their opinions, the Tribunal should try to identify the areas of disagreement, and then ask try to identify the areas of disagreement, and then ask each expert to explain why they disagree with the each expert to explain why they disagree with the other.other.

Discussion between the experts may help this process.Discussion between the experts may help this process.

2020

Concurrent EvidenceConcurrent EvidenceProcedure con’t:Procedure con’t:

The Tribunal should however control the discussion to The Tribunal should however control the discussion to keep it focussed and not allow one expert to dominate keep it focussed and not allow one expert to dominate the other. the other.

The key is to refine the matters in dispute and to The key is to refine the matters in dispute and to establish clearly why each expert takes a particular establish clearly why each expert takes a particular position in terms of the facts and the assessment of position in terms of the facts and the assessment of those facts. those facts.

The Tribunal must ensure procedure fairness which The Tribunal must ensure procedure fairness which includes allowing the parties or their legal includes allowing the parties or their legal representatives to question the experts, however, it representatives to question the experts, however, it maybe useful for the Tribunal to exhaust its questions maybe useful for the Tribunal to exhaust its questions before allowing this. There may not be too many before allowing this. There may not be too many relevant questions that need to be asked.relevant questions that need to be asked.

Keep the process and the participants under control.Keep the process and the participants under control.

2121

What are the advantages of What are the advantages of concurrent evidence?concurrent evidence?

Narrowing of contested issuesNarrowing of contested issues Less time at hearingLess time at hearing Evidence on each issue can be given at Evidence on each issue can be given at

the same time the same time Experts can critically evaluate each otherExperts can critically evaluate each other Takes the experts out of the ‘camps’ of Takes the experts out of the ‘camps’ of

each party and they are forced to each party and they are forced to confront another expert.confront another expert.

2222

What are potential difficulties What are potential difficulties with concurrent evidence?with concurrent evidence?

There may be a procedural difficulty in There may be a procedural difficulty in identifying appropriate cases sufficiently identifying appropriate cases sufficiently early to arrange CEearly to arrange CE

Beware of experts being advocates for Beware of experts being advocates for their client’s casetheir client’s case

One expert may intimidate another by One expert may intimidate another by personality or standing in a professionpersonality or standing in a profession

2323

Section 33 of the AAT ActSection 33 of the AAT Act Procedure at discretion of Tribunal Procedure at discretion of Tribunal As little formality and technicality, and as much As little formality and technicality, and as much

expedition, as the Act and other enactments expedition, as the Act and other enactments permitpermit

Not bound by the rules of evidence and may Not bound by the rules of evidence and may inform itself as it thinks appropriateinform itself as it thinks appropriate

TOUCHSTONESTOUCHSTONES RelevanceRelevance Procedural fairness – give everyone a fair goProcedural fairness – give everyone a fair go

expert evidence and tribunals

Documents

experts opinion

opinion evidence

expert witnesses

experts evidence

experts report

statedan expert witness

experts knowledge

written reports