- In Australia there has been a shift away from the adversarial approach to expert evidence.
- This article examines how expert witnesses assess ‘conferral of experts’ and ‘concurrent expert evidence’ as conducted by the State Administrative Tribunal (SAT).
- This article reflects on the purported ‘benefits’ of saving time and costs; facilitation of identification of real issues in dispute; emphasis of the role of the expert as witness of SAT (rather than advocate for a client); and improved quality of questioning and utilising knowledge of Tribunal.
During the past two decades, Australia has experienced major changes in the way courts and tribunals deal with expert evidence.
The predominant adversarial approach – whereby experts are called one by one to give evidence – is, in many instances, being replaced by experts being called to give evidence concurrently. Often experts also meet prior to a hearing to confer (‘conclave’ as it is called in some jurisdictions) pursuant to directives of a court or tribunal.
Two new concepts – ‘conferral of experts’ and ‘concurrent expert evidence’ – have become an integral part of the legal vocabulary, theory and practice of Australia. Internationally, Australia is credited for the leading role it has played in the development of these new procedures to deal with competing expert evidence.
Much has been written about the theory and practice of expert conferral and concurrent expert evidence and the potential benefits it may bring to parties and judges who are called upon to assess opinions about complex factual scenarios, but little is known about how experts themselves view and experience these processes.
This article attempts to give some insight into how expert witnesses who have appeared in the State Administrative Tribunal (SAT) during the past 10 years assess expert conferral and concurrent expert evidence as conducted by SAT.
It is hoped these research findings would assist experts, the legal profession, and courts and tribunals to identify strengths and weaknesses in these new techniques and to engage in ongoing improvement and refinement of our legal system.