Expert Evidence and Tribunals

1. Expert Evidence and Tribunals Presented by Josephine Kelly Senior Member, Administrative Appeals Tribunal (Cth)

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

3. Examples of expert evidence • Doctors • Dieticians • Accountants • Valuers • Engineers • Scientists • In the AAT, historians in Veterans’ matters

4. Principles (derived from National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68, Makita and Sprowles & Federal Court guidelines) • An expert’s overriding duty is to assist the court or tribunal on matters relevant to the expert’s area of expertise • The expert evidence presented should be seen as independent and uninfluenced by the parties • An expert is to make clear where a particular question or issue falls outside the relevant field of expertise.

5. Principles – written reports (1) : • The expert’s written report should include: • Details of the expert’s qualifications • Statement of questions or issues the expert was asked to address • The facts on which the expert’s opinion is based • Assumptions of facts clearly stated • An expert witness should not omit to consider material facts which could cause a change in opinion.

6. Principles continued – written reports (2): • The Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia provide that at the end of a written report the following should be declared: “[the expert] has made all the inquiries that [the expert] believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court”

7. Principles continued – written reports (3): • Where an expert’s opinion is not properly researched because of insufficient data/other reason, this must be stated with an indication that the opinion is no more than a provisional one. • If after reading another report, an expert changes his/her view for any reason, this must be communicated to the other party and the Court.

8. Principles continued – written reports (4): • References in the expert’s report should also be provided to the other party at the same time as the report is provided to them. • In so far as an opinion is based on "observed" facts, they must be identified and admissibly proved by the expert; • In so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way;

9. Principles continued: • it must be established that the facts on which the opinion is based form a proper foundation for it; • the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis on which the conclusions reached

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

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

12. Principles continued: • The expert’s duty is to furnish the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the decision-maker to form an independent judgment by applying those criteria to the facts proved in evidence. • Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury, Judge or Tribunal.

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

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

15. Concurrent EvidenceWhat is it? • Is when two or more experts give their evidence at the same time – also sometimes called “hot-tubbing”.

16. What is the purpose of concurrent expert evidence in the AAT? Justice Downes, President of the AAT: • “To enable the evidence and opinions of experts to be better tested by the Tribunal, legal representatives and other experts, with the aim of the evidence being comprehensively explained, understood and analysed, thereby enhancing the Tribunal’s capacity to make the correct or preferable decision; • To assist experts in fulfilling their role as independent advisers whose primary role is to assist the Tribunal; and • Enhance the efficient operation of Tribunal proceedings by reducing the time taken to resolve matters. This may also lead to a reduction in cost to the Tribunal and parties to each proceeding.”

17. Concurrent EvidenceWhen is it appropriate? • Does a significant issue turn upon expert evidence? • Are the experts commenting on the same issue(s)? • Are they of similar disciplines? • Is their level of expertise similar?

18. Concurrent EvidenceProcedure – the hearing • The Tribunal should control the process before and during the hearing. • Expert reports need to be exchanged before the hearing. • Ideally, there should be some discussion between experts before the hearing to identify the areas of agreement and disagreement. This can be done outside the hearing room on the day, or in some cases may be usefully done in the hearing room.

19. Concurrent EvidenceProcedure – the hearing • At the beginning of the hearing, the experts should be made aware of any variance between the facts upon which they have based their opinions and the evidence that has been given. • Each expert to give short evidence of their opinion, in the light of any such variance. • Having established their opinions, the Tribunal should try to identify the areas of disagreement, and then ask each expert to explain why they disagree with the other. • Discussion between the experts may help this process.

20. Concurrent EvidenceProcedure con’t: • The Tribunal should however control the discussion to keep it focussed and not allow one expert to dominate the other. • The key is to refine the matters in dispute and to establish clearly why each expert takes a particular position in terms of the facts and the assessment of those facts. • The Tribunal must ensure procedure fairness which includes allowing the parties or their legal representatives to question the experts, however, it maybe useful for the Tribunal to exhaust its questions before allowing this. There may not be too many relevant questions that need to be asked. • Keep the process and the participants under control.

21. What are the advantages of concurrent evidence? • Narrowing of contested issues • Less time at hearing • Evidence on each issue can be given at the same time • Experts can critically evaluate each other • Takes the experts out of the ‘camps’ of each party and they are forced to confront another expert.

22. What are potential difficulties with concurrent evidence? • There may be a procedural difficulty in identifying appropriate cases sufficiently early to arrange CE • Beware of experts being advocates for their client’s case • One expert may intimidate another by personality or standing in a profession

23. Section 33 of the AAT Act • Procedure at discretion of Tribunal • As little formality and technicality, and as much expedition, as the Act and other enactments permit • Not bound by the rules of evidence and may inform itself as it thinks appropriate TOUCHSTONES • Relevance • Procedural fairness – give everyone a fair go