giving expert evidence - api.org.au · (api conflict of interest september 2019) • experts must...

Giving Expert Evidence

Welcome & Overview

Dr Rachel Baird,General Manager Professional Development & Education,Australian Property Institute

Chris Kamitsis FAPI,DirectorHorrigan Kamitsis Valuers

Introduction to Giving Expert Evidence

GIVING EXPERT VALUATION EVIDENCEChris Kamitsis – 28 February 2020

A long time coming for QLD…

Structure of presentation

1. Review of online module – key points2. Types of disputes – the need for expert valuers3. Examples of dispute requiring expert evidence4. Primary reasons for disagreement between expert valuers5. Practical advice for the JER conclave and the report itself6. Pros and Cons of being an expert witness

Review of the online introduction moduleThis course has been designed to provide guidance to API members, particularly Certified Practising Valuers, in giving evidence in valuation and compensation matters in court. The module covers:• Introduction to Course and Expert Evidence • What is Evidence? • Expert Evidence • What is an Expert? • Types of Disputes • The Practicalities of Giving Expert Evidence • Giving Expert Evidence in Commonwealth CourtsThe module also provides an overview of the courts and legislation for each jurisdiction, case studies and access to resources including Acting as an Expert Witness (ANZRTIP 1).

Evidence given by an expert must:

• Be impartial, independent and not influenced by an outside party

• State the facts, matters and assumptions upon which each opinion is expressed

• Include the reasoning for each opinion reached and a summary of opinions

THE PRIMARY DUTY OF AN EXPERT WITNESS IS TO ASSIST THE COURT

Our objectives• To gain the respect and trust of the Court; • That our evidence will demonstrate impartiality, objectivity

and sound reasoning;• That we demonstrate a preparedness to assist the Court;• That our evidence will withstand cross-examination, to the

satisfaction of the court;• That our evidence is prepared and presented to a standard

that will convince the court of its correctness, reliability, precision and the ability to be preferred against an alternate point of view.

Types of Disputes – the need for expert valuation evidence1. General Property Litigation Matters incl. family law2. Alleged Valuer Negligence3. Annual Site Value Appeals 4. Land Acquisition and Compensation Claims5. Planning and Environment Court matters

In Boland v Yates (1999, 167 ALR 575 at 650), Callinan J stated:“Most professional experts do encounter and have to deal from time to time with mattersof law, or mixed facts and law. Engineers and architects may be called upon to construebuilding codes and engineering standards. But apart perhaps from town planners whoalmost daily will be called upon to construe long and complex planning instruments, therewould be few non-legal disciplines requiring knowledge and consideration of legalprinciples to the extent that a valuer must in his or her ordinary practice.”

Primary reasons for disagreement between valuation experts

• Highest and best use sometimes requires the input of numerous other experts

• Valuation methodology • Selection, analysis and weight given to sales evidence –

a matter of fact and degree• The application of legal principles relevant to valuation

– particularly true in respect of compulsory acquisition matters

Before accepting a brief…

An example from the Supreme Court:BS988/09 - Hurt, M -v- Fraser Coast Regional Council & Carswell & Company

An example from the Planning & Environment Court:

An example from the Planning & Environment Court Con’t:

Some practical advice for the JER conclave:

1. Meet in person with your counterpart;2. Speak candidly in the conclave, don’t make them tease out

your views and opinions;3. Consider your counterpart’s position to understand why you

disagree. Don’t be argumentative or defensive.4. Utilise conduct reports or if the matter is in the Land Court,

you will likely have a CMEE convenor who you can call in for guidance or assistance.

Some practical advice for the JER report:1. If you have been jointly briefed, ensure you consider all the material

within the brief and be sure to answer questions put to you by the parties;

2. Your assessment for the JER might differ from earlier views you have expressed;

3. Clearly outline areas of agreement and disagreement;

4. In respect of areas of disagreement, be clear about why you disagree. Obviously, a ‘speaking’ valuation from each expert will form part of the JER.

OUTLINE FROM A JER TABLE OF CONTENTS PREAMBLE & STATEMENT TO THE COURT ..................................................................... 3 BACKGROUND & AGREED FACTS..................................................................................... 4 ISSUES IN DISPUTE ............................................................................................................ 5 INSTRUCTIONS ................................................................................................................... 6 SITE DETAILS ...................................................................................................................... 6 CONSIDERATIONS FROM OTHER JER’S .......................................................................... 7

Mr Schomburgk’s Case for Highest and Best Use ............................................................. 7 Mr Perkins Case for Highest and Best Use ........................................................................ 7 Highest and Best Use Summary Table .............................................................................. 8

VALUATION METHODOLOGY ............................................................................................. 8 Mr XXXX Views on Methodology ....................................................................................... 8 Mr Kamitsis Views on Methodology ................................................................................... 9

SALES EVIDENCE ............................................................................................................. 10 SUMMARY OF MR XXX SALES EVIDENCE & ANALYSIS ................................................ 35 THE VALUATION BY MR XXXX ......................................................................................... 36

Mr XXXX – Reconciliation of Sales Evidence and Valuation of Perkins Case .................. 39 SUMMARY OF MR KAMITSIS SALES EVIDENCE & ANALYSIS ....................................... 41 THE VALUATION BY MR KAMITSIS .................................................................................. 42

Mr Kamitsis Views on Planning Risk ................................................................................ 42 Mr Kamitsis Valuation of Mr Perkins Case ....................................................................... 43 Mr Kamitsis Valuation of Mr Schomburgk’s Case ............................................................ 48

SUMMARY OF OPINIONS ................................................................................................. 55 Areas of Agreement ......................................................................................................... 55 Areas of Disagreement .................................................................................................... 56

APPENDIX 1 – CV OF MR XXXXX ..................................................................................... 58 APPENDIX 2 – CV OF MR CHRIS KAMITSIS .................................................................... 61

Some pros and cons• There is no higher test of our professional skills;• A welcome change to cookie cutter work;• Few other areas of valuation work are as interesting;

challenging or rewarding if done correctly.

• Difficult and stressful;• Time consuming and the demands may impact upon other

areas of your practice and personal life;• Risk to professional reputation and credibility.

An expert's worst nightmareASIC v Drake (No 2) (2016) 340 ALR 75 (Edelman J).

“[The expert] purported to give evidence concerning the approach of a prudent trustee including in relation to the 7 August 2012 decision to approve the August 2012 Variation. Unfortunately, he had paid scant attention to the key documents. And when confronted by matters which were inconsistent with ASIC’s case, many of his answers were preposterous. He displayed the worst characteristics of partisanship and could not, in any respect, be described as an independent expert.” Edelman J at [371]

“Much of the difficulty and gaps in ASIC’s case were caused by what can only be described as the implosion of its expert witness…. Edelman J at [537].

It is important workThe acceptance by a court of expertevidence given by a valuer andconsequent use of that evidence asthe basis of the decision reached bythe hearing will be a reflection of thethoroughness and logical strength ofthe valuer's research, explanationsand conclusions.

Acknowledgements & Reference Material

• API’s Expert Evidence online module;• The purpose of expert evidence - Mr John Dowling FAPI;• Practicalities – Mr George Golvan QC;• Valuation Report Content – Mr Christopher Torr AAPI;• Compulsory Conferences – Ms Justine Jacono FAPI VCAT;

Questions

Instructions to the Expert & Valuation Report Content

Judicial Registrar Graham Smith, Member PG Stilgoe OAM, & Member WA IsdaleLand Court of Queensland

GIVING EXPERT EVIDENCELAND COURT OF QUEENSLAND

PART 1

GRAHAM SMITH

• An expert witness should provide independent assistance to the Court by way ofobjective unbiased opinion in relation to matters within his or her expertise:Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379 at 386per Garland J and Re J [1990] FCR 193 per Cazalet J.

• The role is generally adopted throughout Common Law jurisdictions and issupported by well established expert duties which are discussed later.

An expert witness should never assume the role of an advocate.

Role of an Expert

• An Expert has a duty to assist the Court which prevails over all other duties - although similarprovisions apply in most jurisdictions, r 24C of the Land Court Rules couldn’t be clearer:

Duty to the Court

• In "The Ikarian Reefer“ Cresswell J set out a list of duties and responsibilities of expert witnesses in civil cases asfollows:

• "1. Expert evidence should be the independent product of the expert uninfluenced as to form or content by theexigencies of litigation... .

• 2. An expert witness should independently assist the Court by way of objective unbiased opinion re matters withintheir expertise and should never assume the role of an advocate.

• 3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit toconsider material facts which could detract from his concluded opinion.

• 4. An expert witness should make it clear when a particular question or issue falls outside his expertise.• 5. If an expert's opinion is not properly researched due to insufficient available data, then this must be stated with

an indication that the opinion no more than provisional one.• 6. If an expert witness cannot assert that their report contained the truth without some qualification, that

qualification should be stated.• 7. If an expert’s view changes on a material matter after reading the like expert's report or for any other reason,

such change should be communicated without delay to the other side/to the Court.• 8. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports these

must be provided to the opposite party at the same time as the exchange of reports ... ."

ADDITIONAL DUTIES OF AN EXPERT WITNESS (extracted from Land Court Guidelines for Expert Evidence)

Alliance Australian Insurance Limited v Mashaghati [2017] QCA 127

• ADDITIONAL DUTIES OF AN EXPERT WITNESS (extracted from Land Court Guidelines for Expert Evidence)

• Conflict of Interest – arises where the concerns or aims of twodifferent parties are incompatible (API Conflict of Interest September2019)

• Experts must identify and disclose potential conflicts - failure todo so may severely damage an experts credibility both as awitness (in Court) and professionally.

• Systems should be implemented for early identification ofpotential conflicts e.g. client lists, commercial/business interestsand relationships, comprehensive information from lawyers relitigation e.g. experts, directors, lawyers, subject property ID soas to be able to identify potential conflicts.

Dealing with Conflicts

• A conflict identified from the outset may cause little more than the inconvenience ofsubstituting that expert, but could become potentially more damaging if belatedlydisclosed e.g. costs thrown away re adjournments and delays may be substantial andrequired to be met by the party at fault. They could be far worse if the costs of theentire proceeding were to be awarded after a conflicted expert’s evidence is rejectedby a Court.

• Essential - that an expert does not attempt to self assess or self manage a real orperceived conflict. Although it is appropriate for an expert to decline the retainer, theopposite is not true - an expert must report the facts and circumstances of apotential/actual conflict to the instructing solicitors/client.

• Example: EXP v Barker [2017] EWCA Civ 63 (Court of Appeal UK)-“Our adversarialsystem depends heavily on the independence of expert witnesses, on the primacy oftheir duty to the Court over any other loyalty or obligation, and on the rigor withwhich experts make known any associations or loyalties which might give rise to aconflict“……….failing to provide early disclosure of such an obvious conflict “tends toraise the suspicion that the default was not inadvertent”. What happened ?

Dealing with Conflicts (cont)

• Although the letter of instruction is often viewed as the commencement of the expert process, invariablythere will be a great deal of discussion leading up to the law firm forwarding same.

• The best letter of instruction may rarely fully cover all the information required to complete the task of theexpert witness from start to finish i.e. obtaining instructions will necessarily be ongoing, and the letter ofinstruction may need to be updated and supplemented.

• A letter of instruction should include all material facts, issues, assumptions and background. All relevantcourt dates should be provided as well as copies of orders and directions together with a brief of relevantdocuments.

• As addressed earlier it is essential that an expert take all reasonable steps to identify and notify of anypotential conflict of interest. To facilitate this, the letter of instruction should also list all relevantstakeholders to the litigation e.g. litigants, experts, parties, solicitors, counsel, company officers.

• Given the critical nature of these instructions, it is worthwhile to request a conference with the legalrepresentatives as early as possible to plan and discuss all matters concerning the litigation e.g. developingclear and comprehensive instructions, a full brief & document management. Such a conference may be farmore efficient and effective in obtaining and clarifying instructions given the complex nature of expertevidence. A conference will enable those involved to get on the same page early and comprehensively,which enhances clarity and reduces the scope for misunderstandings.

Obtaining Instructions

• If you are inadequately briefed or need clarification, this should be addressed promptly e.g. byseeking a conference with your legal representatives. The conference should be well inadvance of any joint meetings/conclaves given that such meetings are generally quarantinedand the ability to contact legal representatives more restricted and may require a furtherCourt event e.g CMEE Case Management Conference or action by a moderator in otherjurisdictions).

• Law firms may have vastly differing approaches to paperwork so it is essential to discussdocument referencing/identification/management with your instructing solicitors. Potentiallyprivileged documents need to be considered and understood from the joint perspective ofboth lawyer and expert. The context of a document’s creation can have significant implicationsfor the application of privilege. A draft report prepared for the dominant purpose of legaladvice will probably be privileged whereas a draft prepared for any other purpose might notbe (very grey area – no simple answer).

• Lawyers often have appropriate systems in place to avoid pre-trial disputes overdisclosure/privilege - it is important that this aspect be fully discussed and understood fromthe outset.

Obtaining Instructions (cont)

• Court rules and procedures (including proactive directions, guidelines and factsheets) are now readilyavailable via the internet. Whilst this information is invaluable for general professional development your firstport of call in the event of any litigation specific issue will be your instructing solicitors. Although sometimeslocated within a much larger document, the specific rules are mostly quite confined, not overly complicatedand best viewed as helpful signposts if followed. If you are to appear in a particular court, download or printthe rules, practices and guidelines and read and revise regularly in advance. For a small investment of time,you will be far better off than not having done so (practical info otherwise ignored … but forensicallyunderstood by your like expert). Given the vast amount of information on the internet it might be best to start as close to home as possible

e.g.- check the relevant Court and legislation websites and also the professional association portals e.g. API.• https://www.legislation.gov.au/ https://www.legislation.qld.gov.au/• https://www.courts.qld.gov.au/courts/land-court https://www.courts.qld.gov.au/• https://www.fedcourt.gov.au/ http://classic.austlii.edu.au/• https://www.api.org.au/education/giving-expert-evidence-short-course

Knowing Court Rules and Procedures

https://www.legislation.gov.au/

https://www.legislation.qld.gov.au/

https://www.courts.qld.gov.au/courts/land-court

https://www.courts.qld.gov.au/

https://www.fedcourt.gov.au/

http://classic.austlii.edu.au/

https://www.api.org.au/education/giving-expert-evidence-short-course

Knowing Court Rules and Procedures (cont)

The decisions/judgments section of Court websites may provide examples of the application of the rules and procedures.

Workshops – Role plays - Law Society, Bar Association, Law Schools, Expert Providers e.g. UNISEARCH Attend Court and observe procedures, check YouTube for Courtroom training procedures Find a Mentor (retired professional colleague) Many excellent Australian texts Join an expert discussion group/forum. LAW FIRM WEBSITES

PART 2

Member Stilgoe

CMEEs – a report from the front line

Managing multiple experts and timelines

Communication between experts and with parties

Narrowing the issues

JERs – have they improved?

PART 3

Member WA Isdale

Reply Reports

• During litigation, an expert may produce an expert report on behalf of a claimant.

• The opposing party may then also produce an expert report in reply to matters raised by the other expert.

• This process, whereby experts produce reports in reply to one another, may continue for some time.

What they are and when they are used:

Reply Report

Reply Report

• The Land Court expert witness process will ordinarily make reply reports unnecessary.

• Expert witnesses will be required to meet and prepare a joint report.

• Any points of disagreements will need to be explained and the alternative viewpoint of their colleague must be considered.

• ‘I disagree with the methodology of….but, if the Court accepts it, then….”

Expert Evidence in the Land Court

Expert evidence and conduct in Court

• Usually, experts will give their evidence concurrently.

• Experts’ duty is to the Court.• Experts are to report honestly and truthfully. • Experts are to give their opinions objectively. • An expert is not an advocate.

• Expert evidence should be concise, clear and unambiguous. • Any uncertainties should be explained.

• Experts are not at war with one another.

• Concurrent evidence allows for a relatively free flow of information. It is not debate.

• The Court provides experts with a protected environment which allows experts to be honest.

• The Court will prevent experts from being treated unfairly.

Concurrent Evidence- the Court’s Perspective


Lets take a break….

Joint Statements

Compulsory Conferences and Mediations

Court appointed Independent Experts

Majella Pollard, Clayton Utz

© Clayton Utz

JOINT EXPERT REPORTS ALTERNATIVE DISPUTE RESOLUTION IN THE LAND COURT COURT APPOINTED INDEPENDENT EXPERTS

Majella Pollard, Partner

28 February 2020

TOPICS

61

Joint Expert Reports (JER)

Alternative Dispute Resolution in the Land Court

Court Appointed Independent Experts

OVERVIEW

How does the JER process commence??

Purpose of a JER

Process to prepare a JER

What should a JER look like?

How will the JER be used?

HOW DOES THE PROCESS COMMENCE?

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Nomination of expert witnesses

Case listed for review

Court Managed Expert Evidence

(CMEE)Set timetable for

preparation of reportsOR


Factors indicating CMEE

CMEE Convenor

Practice Direction 3 of 2018

64

Court Managed Expert Evidence


More than one party nominates an expert witness on one or more issues

CMEE Convenor » case management conferences» chairing meetings of experts

Not subject to CMEE» parties and expert witnesses manage the meeting and reporting process

65

PURPOSE OF A JER

Timely Efficient Effective

66

PROCESS TO PREPARE A JER

• Notice of orders, issues, information, duties (rule 24)

• Separate briefings• Consolidated brief of instructions• Consider impact of factual or legal

disputes

Briefing

67


• Purpose • Conduct of meetings• Approaching discussions

Meeting

68


• Without any input from the parties• Joint requests• Court directions

Communications

69


• Usually the only report • It will be the statement of evidence

for each expert

Report

71

WHAT SHOULD A JER LOOK LIKE?

Broadly…

72

State the joint opinion

Identify matters on which they agree / disagree

Explain disagreements


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Rule 24F(2)• Experts' qualifications • Summary of range of opinion and

reasons for adopting a particular opinion

• All material facts, whether written or oral

• Summary of conclusions reached

• References to any literature or other material relied on

• Statement about whether access to any readily ascertainable additional facts would assist expert in reaching a more reliable conclusion

• Details of any inspections, examinations or experiments conducted


74

Rule 24F(3)Expert to confirm…

• Factual matters included are, as far as the expert knows, true

• Expert understands the expert's duty to the court and has complied with it

• Expert has made all enquiries considered appropriate

• Expert has read and understood the Land Court Rules

• Opinions included in the statement are genuinely held by the expert

• Expert has not received or accepted instructions to adopt or reject popular opinion re. issue in dispute in the proceeding

• Statement contains reference to all matters considered significant

PREPARING A JER - PRACTICAL TIPS

Pay attention to the specific question / issue in dispute to be addressed

For each question / issue in dispute:» state the relevant facts» state the expert opinion » provide reasoning in support of any expert opinion» provide a summary of conclusions

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Presentation of your report is paramount» ensure it is easy to read » use logic and explain process» use plain English and explain or define industry specific terms and jargon» well structured (headings / paragraph numbering, appendices) and not too

lengthy» current CV» paginate every page including appendices!

76


Spell it out:» do not assume that your reader understands the issue as well as you do» define the terms you use» explain the process you used to reach your conclusion» just a conclusion is not enough - show your working

Sell it:» why should your opinion be preferred over that of your counterpart?» what are the differences?

77

HOW WILL THE JER BE USED?

Filed as evidence (statement of evidence) – rule 24E(2)(a)

Rule 24E(2)(b) - a further statement of evidence on issues of disagreement – BUT Land Court does not follow this rule

Basis for cross-examination

78

HOW WILL THE JER BE USED?

79

…further statement of evidence must not, without the court’s leave—(a) contradict, depart from or qualify an opinion in

relation to an issue the subject of agreement in the joint report; or

(b) raise a new matter not already mentioned in the joint report.

Rule 24E(3)

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Questions?

OVERVIEW

81

Joint Expert Reports



ALTERNATIVE DISPUTE RESOLUTION

Types of Alternative Dispute Resolution (ADR) in the Land Court» Preliminary Conferences» Mediations

ADR for land valuation objections and appeals

What is required of an expert?

82

ALTERNATIVE DISPUTE RESOLUTION

83

Informal Cost-effective Efficient

TYPES OF ADR

84

Four ADR processes in the Land Court:

Preliminary Conference Court supervised mediation –Member or Judicial Registrar

Court supervised mediation –Land Court ADR Panel Private mediation

PRELIMINARY CONFERENCE

• Parties attempt to settle at an early stage• Usually convened by the Judicial

Registrar• Convenor assists the parties to identify

and discuss the issues in dispute• If agreement reached, it must be within

power of Court• Without prejudice

Section 36 of Land Court Act2000

85

MEDIATION

86

Mediation is a process under the rules in which the parties use a mediator to help them resolve their dispute by

negotiated agreement without adjudication

Section 40 - Civil Proceedings Act 2011

MEDIATION

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• Practice Direction 3 of 2017 (amended 2019)

• Conducted by Member or Judicial Registrar• Must participate in good faith and not

impede mediation• If agreement reached can have consent

orders, private agreement, or documented in another way

• Without prejudice

Court supervised mediation –Member or Judicial Registrar

MEDIATION

• Practice Direction 1 of 2018 (amended 2019)

• Panel established• Procedure same as mediation by Member

or Judicial Registrar • Difference - parties pay costs of the

mediation

Court supervised Mediation – Land Court ADR Panel

88

MEDIATION

• Parties choose any person as the mediator• Model Directions apply to private mediation• Mediator must deliver a certificate• Parties share costs unless agreed

otherwise

Private mediation

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VALUATION OBJECTIONS

Independently chaired objection conference – purpose:

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Encourage the settlement of disputes about the objection

Promote an open exchange of information

Give the parties information about the operation of the

Land Valuation Act

Help the settlement of the dispute in any other way

VALUATION OBJECTIONS

Conference required» If the valuation is more than $5 million, the Valuer-General must offer to

participate in an objection conference, and participate if the objector agrees

Conference by agreement» If a valuation is less than $5 million, the Valuer-General and objector may agree

to an objection conference

91

If no agreement then Valuer-General must decide objection.An objector may appeal to the Land Court against the objection decision

VALUATION APPEALS

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Preliminary conferences Practice Direction 2 of 2015 Where valuation appealed against is less than $5 million, parties invited

to attend preliminary conference No preliminary conference where valuation appealed against is more

than $5 million (because already had objection conference) except in exceptional circumstances

ROLE OF AN EXPERT IN ADR

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Independence • An expert witness is not an advocate for a party

Duty to the Court

• An expert witness' paramount duty is to the Court and not to the party retaining the expert

REQUIREMENTS OF EXPERTS

Guidelines for Expert Evidence in the Land Court 2018

The Land Court may direct expert witnesses to participate in a preliminary conference or mediation

Experts should provide an objective and impartial opinion

94


The Land Court expects experts to:

• Understand and abide by their duty to assist the Court

• Refrain from acting as an advocate for a party• Comply with the Court's directions• Read the Rules, Practice Directions and the

Guidelines• Know what issues they are being asked to

consider

95


The Land Court expects experts to:

• Identify if they need further information• Confine their opinion to their area of expertise• Expose the facts, assumptions, methodology

and reasoning that supports their opinion• Fully engage in a meeting of experts• Change, qualify or revise their opinion where

necessary

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97

Questions?

TOPICS

98

Joint Expert Reports



COURT APPOINTED EXPERTS

99

When does this occur?

Obligations of the expert

APPLICABILITY OF THE UCPR

The UCPR applies where the Land Court Rules do not provide for a matter in relation to a proceeding in the Court

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Section 4 of Land Court Rules 2000

WHEN DOES THIS OCCUR?

Before proceedings commence• Expert appointed by Court on application – UCPR rule

429S

After proceedings commence• Expert appointed by Court on application - UCPR rules

429G(2), 429I• Expert appointed by Court on Court initiative - UCPR rules

429G(3), 429J

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CONSIDERATIONS

Court considerations when appointing an expert:

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Complexity of the issue

Impact of appointment and

costs of proceedings

Likelihood of appointed expert

expediting or delaying the proceeding

Interests of justice Any other relevant considerations

EXPERT'S OBLIGATIONS

103

Duty of expert(1)A witness giving evidence in a proceeding as an expert

has a duty to assist the court(2)The duty overrides any obligation the witness may have to

any party to the proceeding or to any person who is liable for the expert's fee or expenses

Rule 24C Land Court Rules / rule 426 UCPR


A court appointed expert must:» prepare a report on the issue» give the report to the Registrar together with copies for

all parties

Court may make the orders and directions it considers appropriate in relation to a court appointed expert

104


Expert may apply to the court for directions to facilitate the preparation of a report

105

106

Questions?

www.claytonutz.com

Giving Evidence

David Purcell, BarristerQld Bar

Giving evidenceDavid Purcell – Barrister

The Courtroom

Court rules for everyone• When you go to court, you should show respect for the court by dressing neatly

(though you don’t have to wear a suit), particularly if you’re appearing as a witness

• When you’re in court:• turn off your mobile phone• sit quietly - don’t talk, comment or make noise if you are watching from the public gallery• don’t eat, drink or chew gum - courthouses have an area outside the courtroom where you

can eat• don’t smoke in the courthouse• don’t make an audio or visual recording of proceedings• don’t broadcast the trial in any way• don’t speak to jurors if it is a jury trial.

Courtesy• Respecting the judge or member

• The judge or member is in charge of the court and everyone in the courtroom should show them respect.

• This includes:• standing whenever the member or judge enters or leaves the courtroom—the clerk or bailiff will call

‘all rise’, announce which Court is in session and call matters• bowing your head to acknowledge the member or judge every time they enter or leave the courtroom• calling the judge ‘Your Honour’ or ‘Sir or Madam’.

• It is important to also show courtesy to Counsel and counterpart witnesses irrespective of your familiarity – Madam/Mr Associate, Bailiff, Mr/Ms

• Eye contact is important – expression of confidence and persuasiveness

Matters for consideration• There are a number of matters which a trier of fact will take into account when

assessing the evidence given by various experts and deciding which evidence to accept and which to reject either in whole or in part.

• Amongst the matters considered by the trier of fact are the following:-• The weight of the expert’s opinion.• The logical underpinning to the opinion.• The relative skill of the witness.• The certainty of the facts on which the opinion was based.• The attested reliability of the procedures used.• The competency of the persons using particular procedures.• The impartiality of the witness.

Expert opinion evidence must satisfy the Makita criteria• In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85], Heydon JA stated that

for expert opinion evidence to be admissible, it must meet the following criteria:• (a) it must be agreed or demonstrated that there is a field of “specialised knowledge”;• (b) there must be an identified aspect of that field in which the witness demonstrates that by

reason of specified training, study or experience, the witness has become an expert;• (c) the opinion proffered must be “wholly or substantially based on the witness’s expert

knowledge”;• (d) so far as the opinion is based on facts “observed” by the expert, those facts must be identified

and admissibly proved by the expert;• (e) so far as the opinion is based on “assumed” or “accepted” facts, those facts must be identified

and proved in some other way;• (f) it must be established that the facts on which the opinion is based form a proper foundation for

it; and• (g) finally, the expert’s evidence must explain how the field in which the expert has expertise - as

established pursuant to (a), (b) and (c) – applies to the facts assumed or observed so as to produce the opinion propounded.

Reports generally• An indication of what the report is about and also an indication of any instructions given

to and questions asked of the expert• A statement of the relevant background material including the factual basis upon which

the report is founded – annexures to report if necessary• A clear statement of any factual matter which have been either accepted or assumed by

the expert in the preparation of the report• An identification of the sources of information or opinion which have been referred to by

the expert.• A clear and concise outline of the methodology which has been adopted in preparing and

producing the report• An outline of the nature of any investigations which have been carried out, the

information revealed by those investigations, the methodology used in analysingobservations during the investigation and the conclusions or inferences which are drawn from those investigations.

Reports generally• The conclusions that have been reached from the application of the methodology

• An acknowledgement of and a consideration given to opposing points of view and alternative conclusions – identify points of disagreement and reasoning for that disagreement

• The application of the conclusions to the matter before the Court in a clear and succinct manner

• A statement of compliance with prescribed statutory requirements

• The existence and applicability of any standards, guidelines or accepted methodologies.

• Remember – attach your CV.

Preparation, preparation, preparation• Objective is to:

• get the case theory right/aligned from the outset• give the witness credibility• manage client expectations • ensure the evidence aligns and supports the case theory• ensure appropriate evidence identified early and can be obtained in time• enhance the prospects of an early resolution – saving and time and costs

Tips• Thoroughly read through the whole brief

• Identify any issues which need clarification or contribution• Ascertain both the factual and legal issues that require your expert involvement• Identify all relevant documents and request further documentation as necessary • Think about case theory and other party’s case theory, and evidential issues

• Familiarise yourself with the Court – ambience, layout and procedure• Conference with legal team and experts prior to preparation of reports• Prior to hearing

• Meet with Counsel and legal/expert team• Ensure you have read and digested relevant reports – counterpart’s and other experts• Explore and clarify possible gaps or uncertainties – do gaps need filling?• Where does your evidence fit in overall case theory?

Tips continued – the hearing• Don’t be late, give yourself time• Ensure you are comfortably set up in the witness box• Take all the material you need with you – calculator, reports etc• Direct your evidence to the decision maker• Be mindful of the impression you are creating

• Avoid inappropriate non-verbal communications – detract from credibility• Take care not to appear arrogant, condescending, flippant, hostile or evasive• Answer the question then qualify if necessary• Speed and tone of voice – comprehensible• Be clear, precise and confident in giving your opinion

• Listen carefully to the question – if you do not understand, say so and ask Counsel to rephrase

Tips continued• If you can’t answer a question, say so and explain why and how that might be

addressed

• Use whatever aids necessary to best communicate your evidence (discretion advised)

• Maintain impartiality and objectivity – avoid undue emotion and advocating a position – give measured responses

• Never argue with the cross-examiner

• Make relevant concessions if necessary

• In preparing reports and giving evidence, make your evidence accessible to a layperson – avoid unnecessary technicality (if possible)

The hearing

Case presentation• Opening submissions

• Inspection

• Evidence • Block – same discipline back to back (rather than in the course of presentation of two

separate cases)• Individual or concurrent

• Closing submissions

• Oral and written

Conduct of witnesses• Witnesses

• Ordinarily a witness is required to wait outside the courtroom until called to give evidence and shouldn’t talk to other witnesses about the case before both have given evidence.

• Expert witness• There is no property in a witness – duty to the Court• Expert witness may sit in and listen to other experts (may have relevance to their evidence)• Can assist their legal counsel re. technical issues on counterpart’s evidence

Evidence in Court• The assistance to a Court by an expert’s evidence will be given in four main ways:-

• 1. an expert report (and possibly a reply to the contents of another report) tendered at the beginning of or during a Court case;

• 2. Evidence in chief;• 3. Cross-examination;• 4. Re-examination.

Evidence in chief• Evidence in chief is ordinarily by Joint expert report and individual reports

UCPR, the Planning and Environment Court and Land Court rules generally provide that matters contained in the statement of evidence (JER or individual statements) are not to be repeated

• What does this mean?

• It means that an expert, in examination in chief, must not, without the Court’s leave:• Repeat or expand on matters contained in the expert’s statement of evidence; or• Introduce new material.

• Underlying policy?• Clarification of evidence• Importance in making relevant enquiries prior to completing reports

Evidence in chief• No leading questions

• Preparation, preparation, preparation• Teamwork – work with Counsel and prepare – it is up to you to express your opinion• What are the important/critical issues – what is it you wish to express?• Structure of evidence – logical, clear and concise – persuasive

• Chronological, by topic, separate headings – consistent with case theory/narrative• Presentation of oral evidence – break key issues up into bite sized chunks

• Don’t get lost in the detail unless necessary – the written report should address the detail• Remember! – Judges are human

• You are the expert, your role is to offer your opinion impartially to assist them in understanding to accept your evidence – watch for body language and physical cues

• If you wish to refer to a document, ensure everyone has a copy and identify by reference to exhibit and pagination

• Don’t read – if you must, only short excerpts and only if absolutely necessary

Cross-examination• Opportunity for opposing party to objectively test your evidence and credibility

• Don’t fear the reaper• Remember you are giving your opinion that is all you can do – and if you have properly

prepared, there is nothing to fear• The only person whose opinion matters is the decision maker• It is not a memory test – refer to your notes and report(s) as necessary – identify if necessary• It is not a speed trial – take your time, listen carefully to the question and give a considered

response• Ask for clarification or the question to be rephrased if you don’t understand• Respond clearly and concisely, and qualify as necessary

• Stop if there is an objection – don’t shoot from the hip, leave it to Counsel• Ensure everyone on the same page (reference to documents/exhibits/pagination)

Re-examination• The purpose of re-examination is to allow witnesses an opportunity to explain or

clarify any matters raised during cross-examination

• Re-examination can also be a very useful tool in repairing damage done to a witness’s credit in cross-examination

• Re-examination can’t be leading• Listen very carefully to the question and read the underlying intent

• Don’t assume you will have the opportunity – election of Counsel

• Don’t worry if there is no re-examination

Concurrent evidenceA perspective from the Bar

• How does this work?

• When is it used?

• Is it a better method than cross examination?

• Is it more or less effective?

QuestionsDavid Purcell -Barrister


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Practical Tips and Overview of the Day

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