NCAT may order that the experts on both parties in complex home building cases meet in a conclave.
What is a Conclave?
A conclave is a joint meeting between experts engaged by the respondent and the applicant. The conclave is typically held on-site. Generally, only the Tribunal Member and experts tend to the conclave.
The objective of the conclave is to limit or eliminate the need for expert evidence at the hearing. The conclave is conducted by a tribunal member with extensive experience and expertise in home building matters.
Elie Farah, Effective Building & Consultancy expert, can be your reliable expert witness in terms of house building issues in a conclave. He will discuss the issues on which he has prepared reports to clarify matters in dispute and to reduce the possible issues to be determined at the final hearing.
The conclave results are either signed off by the experts at the conclave or combined into a final report. Then, the parties are bound by the outcome of the conclave, unless it can be shown there are exceptional cases that imply they shouldn’t be so bound.
As a result, a conclave can save costs to the parties and expedite the hearing process in complex home-building issues.
Step 1: Directions Hearing
A matter is referred for a conclave at a Directions Hearing. The hearing will confirm what’s to occur before and after the conclave. This includes:
- Giving information on the availability of experts for the conclave.
- Preparing experts’ written reports on alleged defective work.
- Setting deadlines for filing of experts’ reports and Scott Schedules.
Step 2: At the Conclave
Before the conclave starts, the Tribunal Member explains the procedure and rules for the experts. The experts will discuss the issues between themselves in a cooperative manner, with the Tribunal Member leading the discussion.
The experts analyse the reports and note any areas of agreement. Suggested solutions are agreed upon and any remaining areas of disagreement are noted as well. If necessary, a joint Scott Schedule is drafted and signed off.
During the conclave, if the need arises, an expert may seek brief advice from lawyers or a party to proceedings.
Step 3: Outcome of Conclave
In this stage, the Tribunal Member prepares the report on the conclave outcomes called a “Memorandum of Outcome”. This includes the agreed list of items and notes as to any matters still in dispute on the Scott Schedule.
The experts who attended the conclave sign the Memorandum of Outcome and a revised joint Scott Schedule reflection of the positions reached the conclave. The documents are then sent back to NCAT.
If the settlements occur during the conclave, the matter is listed for hearing to assess if the agreement finalises all issues. Orders are made according to the settlement terms.
If it’s not settled on that event, the matter is listed for directions to further hearing of the outstanding issues.
When Does a Matter Get Referred for a Conclave
A home building issue may be referred for a conclave if there are:
- Multiple items are in dispute which may be possible to solve before hearing.
- Both parties have briefed experts.
- Experts reports and Scott Schedules have been exchanged.
- A conclave is considered to be affordable.
Roles and Responsibilities
The role of tribunal member is to facilitate discussions between experts. The member will not make orders or directions. Things discussed at a conclave are not acceptable as evidence in the hearing unless both parties agree.
The experts are to be independent and provide unbiased advice. The obligation of experts is to NCAT and to assist the Tribunal Member, not to the party instructing them.
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