NSW NCAT - Can Expert Witness Also be the Respondent?

Discussion in 'Commercial Law Forum' started by nose, 31 July 2018.

  1. nose

    nose Well-Known Member

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    Can the respondent in an NCAT matter also be their own expert witness without it being considered a conflict of interest? E.g the respondent is a vet and the matter is about an animal she sold whilst acting as the selling agent for her parents who legally owned the animal in the farming business. Would it not be an error of law for the member to allow that after objection from the other side?
     
  2. Rob Legat - SBPL

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    They might be able to provide their own expert testimony, but I doubt they could be an “expert witness” - the difference being that an expert witness is traditionally a witness not for either side but rather for the court or the tribunal.
     
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  3. Scruff

    Scruff Well-Known Member

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    Was the expert testimony given under oath?
     
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  4. nose

    nose Well-Known Member

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    ]Yes, under oath
     
  5. Scruff

    Scruff Well-Known Member

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    1. Which division of the Tribunal was it?
    2. Did the Tribunal itself specifically identify the respondent as an expert witness when calling them to give that evidence?
    3. I take it that you disagree with the evidence given. Is that correct?
     
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  6. nose

    nose Well-Known Member

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    NCAT Consumer & Commercial division.

    The Tribunal didnt identify them as anything.

    I objected as the person sold me the horse as selling agent for her parents ( the owners of the horse), then treated the horse in her vet capacity after sale and charged me for it, and she was a respondent at the hearing.

    In my view, she can say anything she likes to support her case given she is a vet and the horse was her parents. The member preferred her version of events about vet issues with the horse over my declarations with witness' supporting statements as to what was wrong of the horse.
     
  7. nose

    nose Well-Known Member

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    Yes, I do disagree, as what I believe is wrong with the horse is a chronic condition untreatable but also impossible to diagnose as its idiopathic, and she says its allergy to his new environment. Both views are speculative I guess as neither can be confirmed.

    However, the member found that I had to prove the horse had head shaking problems prior to my purchase. I argued I was entitled to expect the horse to perform as advertised for longer then one month, which it hasn't.
     
  8. Rob Legat - SBPL

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    I think that's your problem right there: "...what I believe is wrong with the horse is a chronic condition untreatable but also impossible to diagnose..." and "... neither can be confirmed."

    I think the member was correct in reasoning that you would have to prove that it was a pre-existing condition. And further, possibly, that the seller was aware of it.

    It's not a matter of time that's relevant. Being an idiopathic condition (which I do understand from personal experience) you cannot rule out that the condition was triggered after the horse was bought - particularly due to its new environment. Consider it this way: You buy the horse, its runs into your paddock, scratches its leg, and develops a life threatening infection. Would you raise issue that it did not perform as advertised for longer than one month in that instance?
     
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  9. Scruff

    Scruff Well-Known Member

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    Okay, that's good information. From what you've provided, I don't think that the Tribunal actually treated the respondent as an "expert witness". The procedural guidelines for expert testimony is "Procedural Direction 3 - Expert Evidence", which you can find at Procedural Directions.

    This direction only applies to the Consumer and Commercial Division in certain circumstances, or if the Tribunal itself makes such a direction. (See para 11.) Expert evidence also has to be provided impartially (paras 14-17).

    It doesn't appear that the Tribunal treated the respondent as an expert witness, but it does appear that it allowed the respondent to give testimony of a technical nature - in other words, testimony based on the respondents knowledge as a VET, that should have been procured from an independent expert.

    In most cases, NCAT makes it's own rules in regard to evidence as per s38 of the NCAT Act. Note paragraph 2 which reads:

    The question here is therefore whether or not the Tribunal accepted evidence from the respondent which should have been provided by an independent expert, and whether or not this was appropriate considering that the respondent obviously had a vested interest in the case. It's therefore a question of whether or not "natural justice" has been served under s38 of the NCAT Act.
     
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  10. Scruff

    Scruff Well-Known Member

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    Valid point from Rob too. You really need a solid diagnosis. Without that, any procedural arguments won't carry enough weight on their own.
     
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