EXPERT WITNESS SERVICE
Disputes over quality of building works, building performance or related services can be difficult to resolve. The role of an expert witness is an impartial one to assist a court. Most disputes are resolved by alternative dispute resolution prior to formal court procedures.
Ideally experts should be appointed by each side, be similarly briefed, conduct similar investigations and reach similar conclusions, leaving it to others to negotiate settlement. Disputed matters tend to be those in which this is not the case.
Each court has a code of conduct requiring, amongst other constraints, experts to be impartial and to declare their duty to the court. In engaging an expert it is important to ensure they are able to meet court criteria in this way. VCAT practice note PNVCAT2 is one such requirement.
It is the skill of an expert witness to assist his client without compromising his duty to the court or the ethics of his profession. This impartiality can frustrate advocates trying to assert arguments but it results in less division and encourages settlement.
Building experts are comparatively costly by construction industry standards but less so than many other professions. Most experts work on hourly rates as scope of involvement is usually impossible to predict. Charge out rates reflect seniority, experience and court experience.
If an expert will take a sequential or restricted brief it can save or at least control costs. A preliminary, draft or summary report, prior to publication, or even a conference prior to report publication can equip a client or advocate suitably. Information exchanged between the expert and his client or instructor can potentially be "discovered" (have to be provided to the other side).
Conferences between experts, as opposed to court mediation or hearings, can be an expedient means to resolution and these are often required by the VCAT.
If you require an expert witness, look for an expert who has the expertise you require, the experience and the flexibility. Building matters are notoriously expensive to run. Insurance industry data suggests legal and expert costs average over 40% of settlements, so early settlement is often the best course even if a little compromise is required.
The above is comment only, not advice and it is most important to obtain necessary legal advice.
The domestic buildings list of the Victorian Civil And Administrative Tribunal (VCAT) is where most domestic building matters end up. VCAT is at the forefront of the current trend to "alternative dispute resolution" which means that there are usually a number of forums for resolution by negotiation prior to a judgement.
The majority of claims are resolved early at mediation or compulsory conference and VCAT also provides directions hearings which assist with finding a path to resolution with parties ordered to take specific steps such as to file expert reports by a certain date.
In addition to settlement negotiation by the parties or their representatives VCAT also orders and chairs conferences of experts with the aim of speeding resolution of key technical issues that can be cumbersome to deal with in a formal hearing. Some of these can reach the point of summarising the technical position in a schedule form. It is not the aim of such conferences to reach agreement between experts but to clarify and summarise the position as an aid to expedient settlement.
VCAT genuinely strives to expedite matters but unfortunately building matters are often complicated by the matrix of technical, contractual and regulatory factors that pervade so even with the best intentions can be time consuming to resolve.
We recommend anyone contemplating a VCAT action to obtain thorough legal advice and an understanding of the likely scenarios prior to commencing.
Irwin Structures provides reports complying with VCAT practice note 2 and is experienced and familiar with the VCAT environment.
MAGISTRATES' COURT OF VICTORIA
The Magistrates' Court is not a common venue for building disputes but can be appropriate if the matter does not suit the VCAT domestic building list. Such matters include damages claims or property claims where the dispute is not directly a technical one and some matters involving commercial buildings.
The Magistrates' Court can determine most disputes over money or property up to the value of $100 000, however in certain circumstances the Court can hear cases with an unlimited value. Building and property related matters fall into the Magistrates' Court General Civil Jurisdiction.
The Magistrates' Court is a more formal forum than VCAT, being a formal court rather than a tribunal. Evidence must be produced formally in traditional court style. Less use is made of alternative dispute resolution than at VCAT.
Most building or property related matters large enough to be heard at a formal court tend to go to the County or Supreme Court.
COUNTY COURT OF VICTORIA
The County Court is an intermediate trial court between the Magistrates' Court and the Supreme Court in the Victorian hierarchy of courts. The County Court has a building cases division which can hear matters relating to building or engineering works of any description whatever.
The Supreme Court form 44A is the practice note that provides guidance and lists requirements for expert reports to the County Court.
The County Court of Victoria website has a detailed practice notes giving information and guidance regarding building cases.
SUPREME COURT OF VICTORIA
The Supreme Court of Victoria is the superior court in the State, dealing with trails and appeals. Building matters would normally be listed in the Technology Engineering and Construction (TEC) List which can hear matters or appeals relating to building or engineering works of any description whatever.
The Supreme Court form 44A is the practice note that provides guidance and lists requirements for expert reports to the Supreme Court.
The Supreme Court of Victoria website has a detailed practice notes giving information and guidance regarding building and technology cases.
Building Appeals Board
The Building Appeals Board deals with issues regarding building regulation and building surveyors' decisions. It hears disputes within a limited scope in a similar fashion to the VCAT and grants modifications to building regulations.
BAB hearings in relation to protection works commonly require engineering expert evidence. Irwin Structures can provide advice and reports for these issues.
Patrick Irwin currently serves on the Building Appeals Board as a board member which limits his capacity to act as a witness in this forum.
The BAB and its predecessors such as the Building Referees have been in place for over 150 years. The BAB is currently intended to be absorbed into the VCAT but this process may take some years.