How is expert evidence given?
Means of receiving expert evidence
The Court may receive expert evidence by various means:
- parties may engage their own individual experts to give evidence in Court
- parties may agree to appoint a single expert who will give evidence in Court
- the Court may appoint an expert to assist the Court in various ways, including by giving evidence in Court.
For hearings in Classes 1, 2 and 3 of the Court’s jurisdiction, the rules of evidence do not apply and the Court may inform itself of any matters in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permit: s 38(2) of the Act. This enables Commissioners with special knowledge, experience and qualifications in particular fields of knowledge, to use that knowledge and experience in understanding and determining issues concerning those fields of knowledge raised in the proceedings. Any such use, however, must conform to the rules of procedural fairness, including disclosure to the parties and providing an opportunity for the parties to be heard, such as by adducing evidence and making submissions, on the matters disclosed by the Commissioner.
How is expert evidence given at the hearing?
Some types of proceedings can be heard on the site of the dispute. For on-site hearings, all evidence including expert evidence is generally presented on-site.
When site inspections are conducted as part of conciliation conferences or Court hearings, experts who have prepared evidence for the proceedings should ensure that they are available to attend the site inspection. Experts should ensure that any aids they require to support their evidence, such as height poles, or the pegging out of any proposed buildings, are in place at the time of the site inspection or hearing. Experts should also ensure that access to relevant properties is available on the site inspection. Experts may be called upon by the Court to explain their evidence on site so a greater understanding of their evidence is available when the hearing resumes in Court.
Individual expert evidence
Experts may be called individually to give evidence in a Court hearing. When entering the witness box, an expert should bring all necessary information, including any expert reports or background information relied on by the expert in the preparation of his or her evidence, to assist the expert in giving evidence.
The expert may be asked questions about his or her evidence by the party calling the witness or the party’s legal representative (examination in chief) and then by the opposing party or legal representative (cross-examination).
Individual expert evidence is used less frequently in appeals in Classes 1, 2 and 3 of the Court’s jurisdiction where concurrent evidence is more common.
The Court may direct that the evidence of the expert witnesses be given concurrently (UCPR r 31.35). Experts, grouped in disciplines, are sworn in together and sit next to each other in the witness box or bar table or other convenient location visible to the parties and the Court. The presiding judge or Commissioner takes an active role in the process, acting as a chair of the discussion.
An agenda for oral evidence is settled. Usually the issues disagreed in the joint report form the basis for the agenda. The Court gives directions as to the manner in which the evidence is to be given (UCPR 31.35). Usually each expert in turn is given an opportunity to explain their opinion on each issue and give their opinion about the opinion of another expert witness. There may be a dialogue in the form of a structured, orderly debate. Experts may ask questions of each other. At the conclusion of this dialogue, the Court may ask questions. Parties are then given an opportunity to examine the experts. This may involve examination in chief and cross-examination.
Concurrent evidence is the usual way in which the expert evidence of the parties’ experts is given at a Court hearing of proceedings in Classes 1, 2 and 3 of the Court’s jurisdiction. The benefit of this approach is that it facilitates a discussion between the experts, the advocates and the Judge or Commissioner and helps to narrow the issues in dispute.