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NSW Evidence for NSW Civil and Administrative Tribunal (NCAT) Case

Discussion in 'Australian Consumer Law Forum' started by smar9012, 27 August 2015.

  1. smar9012

    smar9012 Member

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    Hi All,

    I'm currently involved in bringing a case against a supplier before the NCAT.

    A couple of days ago we attempted mediation outside of the courtroom, but a resolution could not be reached. We then took the matter in front of a tribunal member who scheduled a date for the case to be heard and gave both parties orders to exchange evidence before the hearing.

    My question relates to protocol for the creation and exchange of evidence. During the mediation session, the party who I am bringing the case against presented an expert's report which contained a lot of information that was false. I would like to engage an expert to refute the other party's expert, but in order to do so I need to obtain a copy of their report.

    We're due to exchange evidence a couple of weeks out from the court date, but the tribunal member has advised that after the exchange has been made we're unable to alter anything - so we won't be able to amend our statement to address their claims if needed.

    I'm just wondering if there's a way we can obtain the report to ensure our expert is addressing everything he needs to address BEFORE we hand over our evidence to the opposing party.

    Thanks so much for your help!
     
  2. praxidice

    praxidice Well-Known Member

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    In QCAT you can get everything the other side files with only a few exceptions that shouldn't apply to you. NCAT rules are probably comparable. Those kangaroo courts are a PITA though, personally I prefer to use a proper court.
     
  3. Tracy B

    Tracy B Well-Known Member

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    Hi smar9012,

    You can still engage an expert to write their own report on the situation. The expert can individually assess the situation without directly responding to the other side's expert report. However, if the other expert report is clearly wrong, your expert report will necessarily be different from theirs. This can be used as evidence to question and dispute the other side's expert report.

    According to NCAT's practice notes, any witness (including their expert witness) relied upon should be available to give evidence verbally. This will give you an opportunity to cross-examine them on the false statements/opinions and discrepancies between their report and your expert report. Generally, you respond to the other side's evidence, draw conclusions and make arguments regarding their evidence at the hearing, not during the evidence gathering stage. Before this, there should also be a conference where the expert witnesses (yours and theirs) come together and make a list of points they agree on and where differences lie. You can also ask NCAT to request the expert witnesses give verbal evidence concurrently, meaning they sit in the witness box together and receive questions side by side.

    Generally, NCAT's procedures and rules of evidence are quite flexible (compared with a court's). Therefore, if need arises, you can always ask the tribunal at hearing. However, you do not really make submissions and respond to the other side's evidence before the hearing. During this time, you can anticipate where differences will lie and make sure your case is as strong as it can be.

    For more information, take a read of:
     

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