Question Did you find it positive, negative or neutral that a member of the Tribunal who is an expert in the subject field, put questions during the hearing? Positive
Negative
said as follows: "In the courts one has no idea of the knowledge level of the judge. A lot of time can be wasted on examination that is not relevant to the real issue and there is no way of telling the judge because counsel cuts one off if one goes outside the specifics of a question. In SAT the presiding member often sets an agenda of issues and then we go from there. I can quickly assess the level of knowledge of the Member which means less time is spent to educate the panel." A very experienced interviewee said that in building disputes he has seen "many days saved because of the Tribunal focusing on the right issues without wasting time on credibility examination or on issues that are not relevant to the dispute."
matter were the experts had good justification for their differing opinions. It was a very satisfying experience." Several proposals were made by interviewees about how SAT can further improve its processes22 and SAT will in due course consider those recommendations. Expert conferral and concurrent expert evidence are not magic wands that simplify or dumb down complex evidence. The techniques do however provide a refreshing basis for an exchange of experts opinions that meet the section 9 objectives of SAT.
Neutral
6% 3%
91%
14.
See s9 State Administrative Tribunal Act 2004 which contains the objectives of SAT.
15.
It must be emphasised that these findings reflect the views held in general by interviewees. There are individual instances where an expert may have had a different experience, but the general trend established by the research is highlighted in the article.
16.
One interviewee recalled a specific example where an expert had substantially adjusted his report as a result of exchanges during conferral, but without losing face and without the time it would have taken to 'expose' his lack of expertise in a particular area. Another interviewee explained how both experts during a conferral realised that additional expertise needed to be involved for a specific aspect of building dispute to be properly investigated.
17.
Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995) at 183.
18.
The SAT produced Guide for Expert Evidence explains as follows: "A conferral between expert witnesses, whether on their own or before a SAT member, is not a mediation and its purpose is not to settle the matter or compromise on issues by negotiation. Rather, the purpose of an experts' conferral is to assist the Tribunal to resolve the matter correctly, quickly and with minimum costs to the parties." (author emphasis) The existing framework within which expert conferrals are conducted is therefore that the content of the conferral is not without prejudice.
19.
There was general agreement amongst interviewees that SAT should, if possible, take steps to ensure that the content of the conferral, other than the final report, is treated as private and without prejudice. The Tribunal has not to date made any order pursuant to s35 SAT Act that a conferral is to be conducted on a without prejudice basis. An expert may therefore, generally speaking, be questioned during a hearing about how a specific position in the joint statement was arrived at. The Tribunal's practice is, however, that a party cannot call contrary expert evidence in regard to a matter in the joint statement, unless leave is granted.
20.
Some interviewees said that they make it clear at the outset to prospective clients that if a matter were to proceed to SAT then they would be primarily duty bound to the Tribunal. Other interviewees said that they are so often called upon to prepare expert reports with a view to matters ending in litigation, that they tend to "cross that bridge" when they get to it. Interviewees were generally of the view that by the time an expert report is produced for SAT, the risk of an expert being principally an advocate for their client and thereby breaching the relevant ethical code, is slim.
NOTES 1. LLD (Constitutional Law): Member of the State Administrative Tribunal and Honorary Fellow of the Law School of the University of Western Australia. The views expressed are those of the author. The author wishes to acknowledge and express appreciation to staff and colleagues of the State Administrative Tribunal and particularly, the President Justice Curthoys, who very kindly supported and encouraged the research on which this article is based; to Sally Richardson who so efficiently coordinated the interviews; and to Stephanie Kabay who diligently kept notes of the interviews. 2.
For an overview of literature about these topics and a more in-depth analysis of the views of experts refer to B De Villiers "From advocacy to collegiality – the view of experts of 'hot tubbing' and 'expert conferral' in the State Administrative Tribunal" (2015) Journal of Judicial Administration forthcoming.
3.
See DR Parry "Concurrent expert evidence" (2010) Brief August: 8-12.
4.
For a general overview of SAT, its jurisdictions and operations refer to Parry DR and De Villiers B Conducting Proceedings in the Western Australia State Administrative Tribunal (Thompson Reuters, Sydney, 2012).
5.
At a practical level the procedures of SAT are highly influenced by the objectives of SAT to resolve disputes fairly and according to substantial merit; to act speedily and with as little as possible formality and technicality as practical; to minimise the cost to parties; and to make use of the knowledge of members. See s9 State Administrative Tribunal Act 2004.
CONCLUSION These research findings strongly endorse the proposition that the use of the techniques of expert conferral and concurrent expert evidence in SAT save time and costs; facilitate the identification of the real issues in dispute; emphasise the role of the expert as witness of SAT; and improve questioning by SAT. The support expressed by interviewees for the use of these techniques by SAT was overwhelmingly positive. Interviewees used many descriptive terms to express their support for the techniques, but the essence of their experiences is perhaps summarised by the following quotations: •
•
"I felt valued (in SAT) even though the Tribunal might not have accepted my opinion. It was, in fact, a pleasant experience and all the experts walked away with a sense of satisfaction." "The processes are close to perfect and I felt entirely comfortable to give my opinion."
•
"It was a fantastic experience and my clients felt they got their money's worth."
•
"Nothing is perfect, but there was a gentleness when we gave concurrent evidence that surprised me."
•
"I really felt we were assisting the Tribunal to come to the right decision in a very complex
34 | Brief August 2015
6.
One interviewee, who had been retained by a litigant in person, said that the Tribunal was 'marvellous' in the way that it guided and assisted the litigant through very complex building issues. The interviewee said that if he had been called by the litigant in a normal adversarial process, the litigant would have been completely 'lost at sea' trying to examine the experts individually.
7.
This number does not include the number of expert witnesses who appear in the traditional manner in SAT without the use of conferral or concurrent processes.
21.
The experts came from a wide variety of fields, for example building and engineering, planning, environmental, acoustics, traffic experts, valuers, odour, dewatering, medical, law, hydrology, chemistry, dentistry, water resources, meteorology, and air quality.
Section 9 of the State Administrative Tribunal Act 2004 sets as one of the objectives of SAT "to make appropriate use of the knowledge and experience of Tribunal members."
22.
Recommendation were for example made in regard to: improved reading and video materials; organising seminars to educate experts about these processes; clarifying the role of the facilitator during conferral of experts; clarifying whether discussions during a conferral are with or without prejudice; explaining the process of concurrent evidence at the commencement of a hearing; referring a matter for mediation after conferral; and allowing experts to question one another.
8.
9.
53 experts out of the 63 who were invited, participated in interviews. A few lawyers who have regular appearances in SAT, formed part of the interviewees.
10.
Refer to the Standard SAT Orders number 47 for an example of the type of directions that are given to experts prior to expert conferral.
11.
'Hot tub' is a term that is often used to express the process of concurrent expert evidence. Regardless of some views that the process is not being done justice by using such a descriptive and lay-person term, there is no doubt that the term has stuck and it is often used across Australia in literature, by academics, practitioners and even members of the judiciary. This author prefers the use of the term "concurrent expert evidence". Some caution should be exercised when a court or tribunal uses the word 'hot tub' in a formal, court or tribunal setting. A seasoned expert who was interviewed said he was completely 'stunned' and 'dumbfounded' when he was directed the first time to participate in a 'hot tub' with other experts by a Tribunal member without any explanation what the 'hot tubbing' entailed.
12.
Refer to the Standard SAT Orders number 50 for an example of the type of directions that are given to experts prior to concurrent evidence.
13.
One interviewee who appears in several jurisdictions