VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 - SCHEDULE 3
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 - SCHEDULE 3
Schedule 3––Expert witnesses and expert evidence
1 Objects of this Schedule
The main objects of this Schedule are to—
(a) enhance the case management powers of the Tribunal in relation to expert evidence in proceedings; and
(b) restrict expert evidence to that evidence which is reasonably required to resolve a proceeding; and
(c) emphasise the paramount duty of an expert witness to the Tribunal.
2 Directions in relation to expert evidence
(1) The Tribunal may give any directions under section 80 that it considers appropriate in relation to expert evidence in a proceeding.
(2) Those directions may include, but are not limited to, the following—
(a) the preparation of an expert's report;
(b) the time for service of an expert's report;
(c) limiting expert evidence to specified issues;
(d) providing that expert evidence may not be adduced on specified issues;
(e) limiting the number of expert witnesses who may be called to give evidence on a specified issue;
(f) providing for the appointment of—
(i) single joint experts; or
(ii) Tribunal appointed experts;
(g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding.
Note
Section 102(2) empowers the Tribunal to refuse to allow a party to call evidence in certain circumstances, which includes expert evidence (see clause 8(1)(a)).
3 Directions to expert witnesses—conferences and joint experts reports
(1) Directions under section 80 may direct expert witnesses in a proceeding—
(a) to hold a conference of experts; or
(b) to prepare a joint experts report; or
(c) to hold a conference and prepare a joint experts report.
(2) The Tribunal may direct under section 80 that a conference of experts be held with or without the attendance of all or any of the following—
(a) the parties to the proceeding;
(b) the legal practitioners (if any) of the parties;
(c) an independent facilitator.
(3) A direction to prepare a joint experts report may include, but is not limited to, the following—
(a) that the joint experts report specifies—
(i) the matters agreed and not agreed by the experts; and
(ii) the reasons for any agreement or disagreement;
(b) the issues to be dealt with in the joint experts report by the expert witnesses;
(c) the facts, and assumptions of fact, on which the joint experts report is to be based.
(4) Directions referred to in this clause may be general or in relation to specified issues.
4 Use of conference of experts and joint experts reports in proceeding
(1) Unless the parties to the proceeding agree, or the Tribunal otherwise orders, anything said or done during a conference of experts, except as referred to in a joint experts report, must not be referred to at any hearing of the proceeding to which it relates.
(2) A joint experts report may be tendered at the hearing of the proceeding as evidence (as appropriate) of—
(a) joint or separate opinions of the experts; or
(b) matters agreed by the experts; or
(c) matters not agreed by the experts.
5 Directions about giving of evidence, including concurrent evidence, by expert witnesses
(1) The Tribunal may give any directions under section 80 that it considers appropriate in relation to the giving of evidence by any expert witness.
Sch. 3 cl. 5(2) amended by No. 62/2014 s. 45.
(2) Without limiting subclause (1), the Tribunal may direct that any expert witness—
(a) give evidence at any stage of the proceeding, including after all factual evidence has been adduced on behalf of all parties; or
(b) give evidence concurrently with one or more expert witnesses; or
(c) give an oral exposition of his or her opinion on any issue; or
(d) give his or her opinion of any opinion given by other expert witnesses; or
(e) be examined, cross-examined or re‑examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time; or
(f) be permitted to ask questions of any other expert witness who is concurrently giving evidence.
(3) The Tribunal may question any expert witness to identify the real issues in dispute between 2 or more expert witnesses, including questioning more than one expert witness at the same time.
6 Single joint experts
(1) The Tribunal may order that an expert be engaged jointly by 2 or more parties to a proceeding.
(2) The Tribunal may make an order for the engagement of a single joint expert at any stage of the proceeding.
(3) In making an order to engage a single joint expert, the Tribunal must consider—
(a) whether the engagement of 2 or more expert witnesses would be disproportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute in the proceeding; and
(b) whether the issue falls within a substantially established area of knowledge; and
(c) whether it is necessary for the court to have a range of expert opinion; and
(d) the likelihood of the engagement expediting or delaying the proceeding; and
(e) any other relevant consideration.
(4) A single joint expert is to be selected—
(a) by agreement between the parties; or
(b) if the parties fail to agree, by direction of the Tribunal.
(5) A person must not be engaged as a single joint expert unless he or she consents to the engagement.
(6) Any party who knows that a person is under consideration for engagement as a single joint expert—
(a) must not, prior to the engagement, communicate with the person to obtain an opinion on the issues concerned; and
(b) must notify the other parties to the proceeding of the substance of any previous communications on the issues concerned.
(7) Unless the Tribunal orders otherwise, a single joint expert's report may be tendered in evidence by any of the parties to the proceeding.
7 Tribunal appointed experts
(1) The Tribunal may make an order appointing an expert—
(a) to assist the Tribunal; and
(b) to inquire into and report on any issue in a proceeding.
(2) The Tribunal may make an order appointing a Tribunal appointed expert at any stage of the proceeding.
(3) In making an order to appoint a Tribunal appointed expert, the Tribunal must consider—
(a) whether the appointment of a Tribunal appointed expert would be disproportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute in the proceeding; and
(b) whether the issue falls within a substantially established area of knowledge; and
(c) whether it is necessary for the Tribunal to have a range of expert opinion; and
(d) the likelihood of the appointment expediting or delaying the proceeding; and
(e) any other relevant consideration.
(4) A person must not be appointed as a Tribunal appointed expert unless he or she consents to the appointment.
(5) The parties are responsible for any costs of a Tribunal appointed expert and are to pay those costs in the proportions determined by the Tribunal.
8 Interaction with other powers of Tribunal
(1) Nothing in this Schedule limits any other power the Tribunal may have—
(a) in relation to case management, evidence or witnesses, including expert witnesses; or
(b) to take any action that the Tribunal is empowered to take in relation to a contravention of a direction given or an order made by the Tribunal.
(2) Nothing in this Schedule limits—
(a) the jurisdiction of the Tribunal; or
(b) any other powers of the Tribunal under any other Act (including any Commonwealth Act), the rules, practice notes or practice directions.
Í Í Í Í Í Í Í Í Í Í Í Í Í Í Í