Background on Courts vs Tribunals
Rules of Evidence
One of the most significant differences between courts and tribunals lies in their rules of evidence. Courts adhere to strict evidentiary rules outlined in legislation such as the Evidence Act 1995 (NSW). These rules govern what evidence can be admitted and how it should be presented. Tribunals, however, often have more relaxed evidentiary standards. For instance, the NSW Civil and Administrative Tribunal (NCAT) is not bound by the rules of evidence and can inform itself on any matter in such a manner as it thinks fit.
This distinction has important implications for both expert witnesses and homeowners. In court, expert evidence must meet specific criteria to be admissible, as illustrated in cases like ASIC v Vines [2003] NSWSC 1095. In the Tribunal, while the quality of evidence remains important, there’s often more flexibility in what can be presented and how.
Expert Witness Qualifications
The qualifications required for expert witnesses can also differ between courts and tribunals. Courts typically have stringent requirements for expert qualifications, as seen in Andrew William Godfrey v New South Wales (No 1) [2003] NSWSC 160. This case highlighted that while experience can form the basis of expertise, the court carefully scrutinises the nature and extent of that experience.
Tribunals may take a more flexible approach to expert qualifications. While expertise is still crucial, the Tribunal might be more willing to consider evidence from experts with practical experience rather than formal qualifications. This can be particularly relevant in building defect cases, where hands-on industry experience may be highly valued.
Admissibility of Expert Evidence
The criteria for admitting expert evidence in courts are well-established and relatively strict. The landmark case of ASIC v Vines [2003] NSWSC 1095 outlined several key propositions for admissibility under section 79 of the Evidence Act. These include the requirement that the expert has “specialised knowledge” based on training, study, or experience, and that their opinion is “wholly or substantially based” on that knowledge.
The Tribunal, while still concerned with the reliability and relevance of expert evidence, often applies these criteria less rigidly. This can mean a greater range of expert opinions might be considered in a tribunal setting. However, it’s important to note that the weight given to such evidence may vary depending on the expert’s qualifications and the basis of their opinion.
Presentation of Expert Evidence
The way expert evidence is presented can vary significantly between courts and tribunals. In courts, expert reports must typically adhere to strict formatting and content requirements. Oral testimony is usually given under oath and subject to formal examination and cross-examination.
Tribunals often allow for more flexibility in the presentation of expert evidence. Reports may be less formal, and oral testimony might be given in a more conversational manner. The case of BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210 demonstrates the level of detail and precision expected in court proceedings, which may be relaxed in tribunal settings.
Cross-examination and Questioning
Cross-examination in court is typically a formal and rigorous process, with lawyers carefully challenging the expert’s evidence. In tribunals, while questioning of experts does occur, it’s often less adversarial. Tribunal members may take a more inquisitorial approach, asking questions directly to clarify points or resolve inconsistencies.
For expert witnesses, this means being prepared for potentially different styles of questioning. For homeowners, it’s important to understand that while tribunal proceedings might feel less intimidating, the expert evidence will still be thoroughly examined.
Concurrent Evidence/"Hot Tubbing"
Concurrent evidence, often called “hot tubbing,” is a process where multiple experts give evidence together, discussing points of agreement and disagreement. This approach is more common in tribunals but is increasingly used in courts as well.
In the Tribunal, hot tubbing can be an efficient way to clarify technical issues, as experts can directly respond to each other’s points. In courts, while less common, it can be a powerful tool for judges to understand complex technical evidence. Both homeowners and experts should be aware of this possibility and understand its implications for how evidence is presented and evaluated.
Weight Given to Expert Evidence:
How expert evidence is weighed can differ between courts and tribunals. Courts typically apply rigorous standards in assessing expert evidence, as seen in cases like Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242, which emphasised the importance of independence and objectivity in expert testimony.
The Tribunal, while still valuing these qualities, may take a more holistic view, considering practical industry knowledge alongside formal expertise. The case of Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 highlighted the importance of clearly distinguishing between facts and opinions in expert reports, a principle that applies in both courts and tribunals but may be applied more strictly in court settings.
Cost and Time Considerations
Court proceedings generally involve higher costs and longer timeframes compared to tribunals. This affects both the preparation of expert evidence and the overall dispute resolution process. In courts, expert reports often need to be more comprehensive and may go through several rounds of revision, increasing costs.
The Tribunal processes are typically designed to be more cost-effective and faster. This can mean less extensive (and thus less expensive) expert reports and shorter hearing times. For homeowners, this can make tribunals a more accessible option, while experts may need to adapt their approach to suit the forum.
Practical Tips for Homeowners and Experts
For homeowners
- Understand the forum: Know whether your case will be heard in Court or the Tribunal and what that means for expert evidence.
- Choose experts wisely: Select experts who have experience in the relevant forum.
- Be prepared for costs: Budget for expert fees, understanding they may be higher for court proceedings.
For expert witnesses
- Adapt your approach: Tailor your report and testimony style to the forum.
- Maintain objectivity: Regardless of the forum, your primary duty is to the court or tribunal, not the party engaging you.
- Be prepared for different questioning styles: Practice for both formal cross-examination and more informal tribunal questioning.
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