Globesat Pty Ltd v Secretary Department of Education [2025] NSWCATAD 34
Key Takeaways:
- A party cannot act as its own expert witness because an expert must be independent and serve the Tribunal rather than any party involved in the case.
- While the rules of evidence may not strictly apply to cases before Tribunals, their procedural directions must be followed, including the Expert Witness Code of Conduct, which experts must acknowledge and adhere to.
In this case, the NSWCATAD did not accept a "report" which had been styled as expert evidence, but which had been prepared by the applicant. The Tribunal confirmed that a party cannot be his/her own expert witness.
Background
Globesat Pty Ltd (Globesat) had applied for approvals under the Children (Education and Care Services) National Law NSW (National Law) and Education and Care Services National Regulations 2011 (Regulations)which are necessary for operating a child-care centre on two occasion but had failed to satisfy the requirements.
Globesat ultimately applied to the Tribunal for review of the decision to refuse the approvals sought.
Expert evidence
At a hearing on 11 November 2024, Globesat presented its case and submitted several documents, including an "expert evidence" document dated 20 August 2024 which included annexures. The respondent, in reply submissions on 20 September 2024, objected to the "expert evidence" document, arguing it should not be treated as an expert report under Tribunal rules, citing Procedural Direction 3. It was contended that Mr GK lacked the necessary qualifications to provide expert evidence and, even if qualified, could not do so as Globesat was the applicant in the proceedings.
Mr GK's CV showed he held a PhD in Computer Networks from UNSW and a Master's in Engineering Studies from the University of Sydney. The internal reviewer acknowledged his experience in IT, engineering, and cybersecurity, noting some management knowledge. However, they found this background insufficient to demonstrate his ability to operate an education and care service under the National Law and Regulations. While not a requirement, such experience indicates a person's capacity to run such a service.
In confronting the issue of whether Mr GK can give "expert evidence", the Tribunal cited the High Court case of The King v War Pensions Entitlements Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 (Evatt J), that even while the rules of evidence do not apply: [at 25]
[T]his does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
The Tribunal held that, similar to the position adopted by courts, it has adopted and follows a Procedural Direction for expert evidence, which includes an Expert Witness Code of Conduct (Code). Although not directly applicable to the Administrative and Equal Opportunity Division where the dispute was heard, the Code outlines key principles for expert testimony. Under paragraph 19, experts must confirm they have read and agree to follow the Code, which Mr GK has done. An expert witness must also state their qualifications on the relevant issue, disclose any conflicts of interest, provide the letter of instruction, and specify any factual assumptions made. [at 27]
Due to the requirement for expert independence and their duty to the Tribunal, as outlined in the Procedural Direction and established legal principles, the Tribunal did not accept Globesat's "expert report" as expert evidence. The Tribunal noted that, simply put, a party cannot serve as their own expert witness. However, the document was instead treated by the Tribunal as submissions, though it contains some evidentiary elements. [at 29]
Ultimately, the Tribunal has ruled not to grant provider approval to Globesat. [at 83]
Read the full decision here.
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