Gaskell and Bourke v North Shore Homes Pty Ltd

[2019] NSWCATCD 68

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Gaskell & Bourke v North Shore Homes Pty Ltd [2019] NSWCATCD 68
Hearing dates:	10 October 2019
Date of orders:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Consumer and Commercial Division
Before:	D. Goldstein. Senior Member
Decision:	The application for an order that the evidence of Mr Brincat not be admitted in the proceedings is dismissed.
Catchwords:	Home Building – Expert evidence - Expert acting as an advocate - NCAT Procedural Direction 3
Legislation Cited:	Civil and Administrative Tribunal Act 2013
Cases Cited:	National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68
Category:	Procedural and other rulings
Parties:	Applicants: Aaron Gaskell & Serena Bourke Respondent: North Shore Homes Pty Ltd
Representation:	Counsel: Ms M.McMahon for the applicants Mr A. Kaufman for the respondent Solicitors: Antunes Lawyers for the applicants BWT Legal for the respondent
File Number(s):	HB 18/12924 & HB 19/02877

REASONS FOR DECISION

1. These proceedings were part heard on 10 October 2019.

2. The applicants in HB 18/12924 claim, among other things, damages for defective building work.

3. The parties to these proceedings have engaged expert witnesses to provide opinion evidence in the Tribunal in connection with the building and engineering issues in the proceedings.

4. Mr Edward Brincat has prepared reports for the respondent North Shore Homes Pty Ltd. Mr Brincat describes himself as a building consultant. Mr Brincat’s reports and evidence in the proceedings concerns defective items of building work.

5. The parties have also engaged engineers to give opinion evidence concerning engineering issues that have arisen in the proceedings.

6. Mr T Walford provided reports on structural engineering issues on behalf of the applicants. Mr Maroun provided an engineering report on behalf of the respondent.

7. During the hearing counsel for the applicants made an application for an order that Mr Brincat’s opinion evidence in the proceedings should not be accepted or admitted on the ground that Mr Brincat was acting as an advocate not as an expert.

8. The basis for the application was that when the engineering experts were giving concurrent evidence, Mr Brincat assisted counsel for the respondent in the cross examination of Mr Walford and at one point sat at the bar table with counsel during the cross examination.

9. I stated that I would not make an order in the terms requested by the applicants’ counsel and would not provide reasons for my decision unless a request for reasons was made pursuant to section 62 of the Civil and Administrative Tribunal Act 2013. On 16 October 2019 the solicitors for the applicants requested a written statement of reasons for my decision.

10. In both of his reports Mr Brincat states that he has

‘Read the Expert Witness Code of Conduct, NCAT Procedural Direction 3 and agreed to be bound by it.’

11. Mr Brincat also states that he bears in mind that he has ‘an overriding duty to assist the Court on matters relevant’ to his experience.

12. NCAT Procedural Direction 3 contains within it an Expert’s Code of Conduct (the ‘Code of Conduct’). Clause 16 of the Code of Conduct states:

‘An expert witness is not an advocate for a party.’

13. In National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68 at 81-82 Cresswell J set out a list of duties and responsibilities of expert witnesses in civil cases, one of which was:

‘An expert witness in the High Court should never assume the role of an advocate.’

14. No doubt there are many judicial statements in New South Wales and Australia to the same effect.

15. In my view the prohibition on an expert acting as an advocate for a party applies to the conduct and actions of the expert witness insofar as she is preparing a report which is to be tendered in the Tribunal and engaged in giving evidence before the Tribunal. The prohibition also applies to the content of the report. I find that clause 13 of the Code of Conduct makes this clear. It states:

‘This experts’ code of conduct applies in respect of any expert witness engaged or appointed in Subject Proceedings:

(a) to provide an expert’s report for use in those proceedings; or

(b) to give opinion evidence in those proceedings. ‘

16. The opinion expressed in the preceding paragraph is based on the fact that the expert report and the expert’s evidence relates essentially to the quality of the evidence that the expert is providing to the Tribunal and in that sense the expert has a number of obligations to the Tribunal, one of which is not to advocate the expert’s client’s cause as that is in direct conflict with clauses 14 and 15 of the Code of Conduct which state:

‘An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness’s area of expertise.

An expert witness’s paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness.’

17. The statement in the Code of Conduct that an expert is not an advocate logically follows the obligations contained in the clauses extracted above.

18. In context of the situation which was occurring when counsel for the applicants made her application, Mr Brincat was obviously not giving evidence. He was assisting counsel for the respondent, at his request, formulate questions to ask the applicants’ engineer in the course of cross examination. On one view of the position, Mr Brincat’s assistance to counsel may have been of limited value since he does not hold himself out as an engineering expert.

19. The essential issue is that when assisting counsel, Mr Brincat was not giving opinion evidence and was not undertaking work related to the provision of his reports in the proceedings. His conduct also did not bear upon the content of his report which was admitted into evidence without objection.

20. For the reasons provided, I find that Mr Brincat was not in breach of the Code of Conduct when he assisted counsel for the respondent as described above on 10 October 2019. It follows that I will not make an order as requested to exclude Mr Brincat’s evidence in these proceedings on the basis that he has conducted himself as an advocate on behalf of the respondent.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 November 2020