What is an expert conclave?
An expert conclave is basically a joint meeting between experts that have been engaged by the applicant and the respondent in a matter. Typically the expert conclave is held on-site and is attended only by the tribunal member (NCAT / QCAT) and the experts involved.
The aim of the conclave is to limit or eliminate the need for experts to provide evidence at any hearing. The expert conclave is conducted by a tribunal member that has extensive expertise and experience in both the industry and home building matters.
During the conclave the experts will discuss the issues on which they have all prepared reports – the aim being to clarify matter in dispute and to reduce, as much as possible, the issues to be determined during the final hearing.
The outcome of the conclave is either signed off on by the experts at the conclave or combined into a final expert report. All parties are then bound by the result of the expert conclave – the exception being if it is shown that there are extraordinary circumstances at play which clearly demonstrate they should not be so bound.
By its very nature, a conclave can save costs to all parties as well as expediting the hearing process. This is particularly important in complex home building matters.
When is an expert conclave used?
A matter is often referred for an expert conclave when:
- Both applicant and respondent have engaged experts
- When it is considered to be a cost-effective course of action
- When expert reports and Scott schedules have been exchanged
- When multiple items are in dispute but a resolution is possible prior to the hearing
How does the expert conclave process work?
The process involving an expert conclave has three separate parts – the directions hearing, the conclave itself and the conclave outcome.
The Directions Hearing
This is when a matter is referred for an expert conclave – the directions hearing will confirm what will occur both before and after the conclave such as:
- Information being provided as to the availability of experts for the conclave
- The preparation of written reports by the experts on alleged defective work
- A timetable for the filing of expert reports and Scott schedules
The tribunal member will explain the rules and process for the expert prior to the conclave beginning. The engaged experts will discuss the issues between themselves with the tribunal member leading the discussion. This must be conducted in a non-adversarial manner.
The experts will analyse the reports and identify the areas of agreement. Any proposed solutions are agreed on and outstanding areas of disagreement are identified. Where possible, a join Scott schedule is drafted and signed off on.
Should the need arise, during the conclave, an expert may seek brief instructions or advice a party to the proceedings or legal counsel.
After the Conclave
Once the conclave is completed, the tribunal member will prepare a report on the outcomes. This report is called a ‘Memorandum of Outcome’ and it contains an agreed list of items plus a notation about any matters which are still in dispute on the Scott schedule.
All engaged experts that attended the conclave are to sign the Memorandum of Outcome and a revised joint Scott schedule which reflects the positions reached during the conclave. These documents and then sent back to the tribunal such as NCAT or QCAT.
Should the parties reach a settlement during the conclave, the matter will be listed for hearing to determine if the agreement will finalise all issues. Orders can then be made in accordance with the terms of the settlement.
Should the parties not be able to reach a settlement, the matter is listed for directions as to a further hearing of the outstanding issues.
Who is responsible for what?
All engaged experts must be independent and provide advice accordingly. Their responsibility is to the tribunal and to assist the tribunal members, not to the party instructing/engaging them.
The tribunal member’s responsibility is only to facilitate discussions between the involved experts. The tribunal member can not and will not make directions or orders. Actions taken and discussions held at a conclave are not admissible as evidence in the hearing unless all parties are in agreement.
If you need expert help with your building dispute contact the Morse Building Consultancy team today.