Gaskell & Bourke v North Shore Homes Pty Ltd [2019] NSWCATCD 68

Gaskell & Bourke v North Shore Homes Pty Ltd [2019] NSWCATCD 68

The prohibition on an expert acting as an advocate applies to the expert's conduct and actions when preparing a report for tender, giving evidence, and to the content of the report. When Mr Brincat assisted counsel for the respondent in formulating questions during cross-examination, he was not giving opinion evidence, undertaking work relating to his reports, or engaging in conduct bearing on the content of his report. He therefore did not breach the Code of Conduct, and there was no basis to exclude his evidence as having conducted himself as an advocate for the respondent.

Jurisdiction
Australia
Judgment Date
25 October 2019
Procedural Posture
Home Building Proceedings Involving Alleged Defective Building Work and Expert Evidence / Part Heard Procedural Application for an Order Excluding Mr Brincat's Opinion Evidence
Outcome
The application for an order that the evidence of Mr Brincat not be admitted in the proceedings is dismissed.
Legal Topics
['expert Evidence' 'expert Witness Code of Conduct' 'expert Acting as an Advocate' 'admission of Evidence' 'ncat Procedural Direction 3']
['home Building' 'evidence' 'civil Procedure'] ['expert Evidence' 'expert Witness Code of Conduct' 'expert Acting as an Advocate' 'admission of Evidence' 'ncat Procedural Direction 3']

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Procedural Posture

Home Building Proceedings Involving Alleged Defective Building Work and Expert Evidence / Part Heard Procedural Application for an Order Excluding Mr Brincat's Opinion Evidence

Legal Issues

  1. 1 ["Whether Mr Edward Brincat's opinion evidence should not be accepted or admitted on the ground that he acted as an advocate rather than as an expert." "Whether assisting counsel for the respondent during cross-examination of another expert breached the Expert's Code of Conduct in NCAT Procedural Direction 3."]

Ratio Decidendi

The prohibition on an expert acting as an advocate applies to the expert's conduct and actions when preparing a report for tender, giving evidence, and to the content of the report. When Mr Brincat assisted counsel for the respondent in formulating questions during cross-examination, he was not giving opinion evidence, undertaking work relating to his reports, or engaging in conduct bearing on the content of his report. He therefore did not breach the Code of Conduct, and there was no basis to exclude his evidence as having conducted himself as an advocate for the respondent.

Court Disposition

The application for an order that the evidence of Mr Brincat not be admitted in the proceedings is dismissed.

Orders

  • ['The application for an order that the evidence of Mr Brincat not be admitted in the proceedings is dismissed.']