Expert duty to notify material change of opinion at VCAT

Members in the Planning and Environment List have been increasingly reluctant to allow expert witnesses to introduce changes to a development proposal through expert evidence. Parties are expected to seek expert advice early and incorporate any expert recommendations through the amended plans process enabling due notice to be provided to other parties and the Tribunal of a proposed change.

The VCAT Expert Evidence Practice Note PNVCAT2 which applies across all lists of the Tribunal has recently been amended to include a positive obligation on expert witnesses to identify if that expert has changed an opinion on any ‘material matter’. 

This is required to be communicated by the expert to the person retaining the expert ‘as soon as practicable’ and by that party to the other parties in the proceeding ‘forthwith’.  It includes any change of opinion in response to another expert’s report and requires the filing of a supplementary report if necessary.

Whilst this change may in assist in narrowing the issues in dispute in some instances, in other cases it may result in a substantial increase in preparation time in the critical two weeks’ prior to a hearing after expert witness statements have been filed.

Expert witnesses engaged to provide evidence in the Tribunal should be aware of this obligation and positively turn their minds up to and including the hearing to whether their opinion in relation to any material matter has changed. Practitioners need to ensure that experts Tribunal matters are made aware of this amendment to the expert witness practice note. 

For more information please contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au

Sophie McGuinness
Senior Associate
Harwood Andrews
T: 03 9611 0117
E: smcguinness@harwoodandrews.com.au