Whether or not an expert is required to comply with the NSW Civil and Administrative Tribunal’s (NCAT) Procedural Direction 3 setting out the expert’s code of conduct was considered in McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167.
Background
Mr McGrath commenced proceedings against the Owners Corporation for failing to repair and maintain common property pursuant to section 106 of the Strata Schemes Management Act 2015 which resulted in water ingress and damage to his lot.
Mr McGrath submitted two expert reports in relation to the alleged presence of mould in the ceiling space above his lot and was directed to have those experts comply with NCAT Procedural Direction 3. Procedural Direction 3 which sets out a code of conduct for expert witnesses can be viewed here.
Mr McGrath did not comply with the Tribunal’s orders and this resulted in the Tribunal refusing to admit part of one report and the whole of the other report into evidence and rejected any claim for relief in relation to mould.
Appeal Panel’s decision
On appeal, the Appeal Panel clarified that Procedural Direction 3 applies automatically to certain types of proceedings – these are referred to as ‘Evidence Rules Proceedings’ in Procedural Direction 3, but only applies to other proceedings – referred to as ‘non-Evidence Rules Proceedings’ in Procedural Direction 3, if directed by the Tribunal. Although this proceeding was a not an Evidence Rules Proceeding, the Tribunal made a direction that Procedural Direction 3 would apply.
The Appeal Panel was of the opinion that the Tribunal had the power to make a mandatory order for the Procedural Direction to apply as in this case. That power was not an implied ‘repeal’ or ‘amendment’ of s 38(2) of the Civil and Administrative Tribunal Act 2013 which states that The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. This is because it does not attempt to apply any ‘rule of evidence’. Instead, the power is exercised by the Tribunal in appropriate cases so that it has a satisfactory basis upon which to make its findings.
So, should my experts comply?
We suggest that owners corporations and lot owners always ensure that their expert witnesses comply with Procedural Direction 3, even if the expert report is an annexure to another expert report, which was the situation in this case. This will not only give more weight to your expert report, it will also prevent a situation where your expert report is refused due to non-compliance with any subsequent direction of the Tribunal, or given less weight if it is admitted.
Authors: Jasmin H.Singh & Allison Benson