Expert

Getting it right: the importance of bulletproof expert evidence

15 June 2016

A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) is a timely reminder for experts, lawyers and their clients of the importance of ‘getting it right’ with expert reports in order to best assist Courts and Tribunals to make proper determinations of disputes.

At the outset, one must bear in mind that when a lawyer engages an expert on behalf of a client, the expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.  The expert is not an advocate for the party engaged by a lawyer, and must remain objective to the parties in order to fulfill the expert’s paramount duty to the Court.

Order 44 of the Supreme, County and Magistrates’ Courts Civil Procedure Rules set out the use of expert evidence in Victorian Courts and impose a code of conduct on all experts.  Division 6 of Part 4, and Schedule 3 of the VCAT Act govern the use of experts at the Tribunal.

Although it is the lawyer’s role to ensure that the expert is properly briefed with clear instructions, the expert must set out in a written report the facts and/or assumptions that form the foundation of their opinion, and provide cogent and reasoned conclusions based on their specialised expert knowledge.

Calder Park Raceway Pty Ltd v Brimbank City Council [2016] VCAT 551

In the recent VCAT decision of Calder Park Raceway Pty Ltd v Brimbank City Council [2016] VCAT 551, Deputy President Mark Dwyer, and Member Justine Jacono, delivered a’Red Dot’ decision (being a decision of interest or significance) regarding the proper valuation of the site known as the Calder Park Raceway.  The Tribunal has issued a warning to experts engaged by parties to a proceeding of the importance of providing thorough and transparent reasoning in their reports.

In their decision, the Deputy President and the Member discussed the difficult position that they found themselves in when determining what the value of the site was, because of a lack of proper assessment by the expert valuers who were engaged by the parties.  For example, the expert valuer reports failed to properly consider the ‘highest and best use’ of the land and its various attributes and their effect on the valuation.  Further, there was found to be a lack of transparency when the valuers came to assess comparative sales.

The decision reiterates that experts must set out in their written reports the step-by-step process and reasoning leading to their conclusions based on their professional knowledge and experience.  Experts must also properly set out what information and evidence they have relied on, the analysis and adjustments that they have made, and they must clearly articulate their opinion and valuation methodology in their written report which will ultimately be filed with the Tribunal (or the Court) and served on the parties.

A failure on the part of the expert to adequately report on their findings may result in the expert’s evidence being rejected and the client’s case ultimately failing.  The litigation team at Rigby Cooke understands the importance of sound and logical expert evidence to ensure the best possible result for our clients and we have longstanding relationships with many well respected experts across a diversity of fields.

This article originally appeared in the winter 2016 edition of InDispute. Other articles in this newsletter include:

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

Liability limited by a scheme approved under Professional Standards Legislation.

©2016 Rigby Cooke Lawyers