A pitfall to avoid when briefing single experts in the small claims division

Proceedings in the small claims division of the Local Court of New South Wales (Small Claims Court) are intended to be conducted with as little formality and technicality as possible (Local Court Act 2007 s 35(2)), however, non-compliance of a certain procedural rule may result in adverse costs orders being made.

In the Small Claims Court, an expert may be required to assess and share their view on a particular issue, in which case the court may direct that the parties brief a ‘single expert’ appointed by the court.

Litigants should be wary of section 33 of Local Court of New South Wales Practice Note Civ 1 (Practice Note), which dictates how to brief a single expert in the Small Claims Court. In particular, section 33.1(c) of the Practice Note states:

33.1(c) Within 14 days after the single expert witness has been selected or appointed, the parties must:

- Agree on how the expert is to be briefed, ensuring that the expert will be briefed with sufficient material to enable him or her to prepare a report.

- Brief the expert in the agreed manner.

Section 33.1(c) states that, unless the court orders otherwise, a party cannot unilaterally send any information to a single expert without prior mutual agreement. This obligation continues to apply until the proceedings have concluded.

While parties generally ensure that the initial brief, as agreed or ordered, is released to the single expert, unilateral communication with the single expert after release of the initial brief remains a common pitfall, even for practitioners. In this regard, in a recent interlocutory dispute agitated by William Roberts in the Small Claims Court, it held that a party must not unilaterally send further information, even one or two seemingly insignificant photographs to an appointed single expert without prior mutual agreement.

On this occasion, the Small Claims Court applied a strict approach in applying section 33.1(c), notwithstanding the intention that the Small Claims Division be run with as little formality or technicality as possible. The rationale for this strict approach is convincing. If a party is allowed to send one or two seemingly insignificant photographs, the question the court must ask is how the significance is measured and where do you draw the line?

Litigants in the Small Claims Division should therefore be cognisant of section 33.1(c) of the Practice Note and strictly comply with this provision to avoid unnecessary exposure to adverse costs orders.