"To Prove or Disprove a Claim, an Experts Report must link cause to effect to damage” (E. Pratt. Retired District Court Judge circa 2002/03 to me)

? Copyright 2016, Donald Evan Gilbert, Australian Lease & Property Consultants Pty Ltd

Don Gilbert is a Specialist Retail Valuer (“SRV”), a 3D Economist and an Arbitrator. He provides independent, impartial advice to tenants, landlords and prospective investors. He does not provide legal advice, nor does he act as an agent on a client's behalf.

Our Case Studies are often a short precis of the events that have taken place to illustrate a point. In effect every case is different, each with its own peculiarities. Independent advice should always be obtained from Informed Professionals, eg. lawyers who practice in the field of leasing, etc.

TARGET AUDIENCE

Alternative Dispute Resolution Practitioners, Expert Witnesses, Australian Property Institute and Royal Institution of Chartered Surveyors, Legal Fraternity and Courts and Tribunals

SUMMARY AND BACKGROUND

In 1995 (as a much younger property practitioner), having been confronted by conflicting instructions, in South Australia in leases prepared by lawyers, about what a valuer appraiser had to take into account and or disregard to prepare an opinion of current market rent, I realized the end product had to become corrupted.

If that process became corrupted, and the outcomes were corrupted, then consecutive opinions determinations had to also have been corrupted.

Ultimately all the outcomes would be a product of the legal profession, who knew little or nothing about rental determinations, providing conflicting instructions in leases.

I wrote an exploratory paper, “Market rent: what is it?” and suggested and proffered a uniform definition. The paper was published in the Australian Property Institutes’ national journal (Gilbert, D. 1995).

Five years later, that definition was adopted into the International Valuation Standards. All income producing property valued world-wide, comes back to that common standard, which allows valuers appraisers to evaluate risk multipliers and hence market value. Better.

Yesterday, the 8th November 2016, I was cross examined as an Expert in an Administrative Decisions Tribunal claim for compensation for alleged breach of quiet use and enjoyment by ironically, I am informed a South Australian Barrister or QC for the Respondent.

"In this matter, the Respondent in my option did not/does not have a case nor a defense. Their Expert gave me nothing to respond or reply to. Their only defense was to attack the Expert. Their attack was so far removed from FACT aka linking cause to effect to damage, the only matter in evidence that was not “tested” for its veracity (because I was never questioned) is my Expert’s Report and Statement in Reply.What a joke. His line of questioning was so far removed from my Statement(s) of Evidence (aka Expert’s Reports), he could have made up any story he wanted to, from material that was so far removed from the FACTS it is not true ………………….. "

If we as valuers appraisers are cleaning up our Profession (reference https://www.dhirubhai.net/pulse/95-determinants-market-value-fall-outside-development-don-gilbert-1?trk=mp-reader-card ) the legal and law system needs to significantly lift their game(s).

FACTS

In regard to the matter in question, as the Expert:

1.     My reports, forensic modelling, evaluation of loss, changes in sales, etc. link straight back to:

a.     The issues in dispute;

b.     The Annual Financial Statements;

c.      Tables and calculations Clearly Colour Coded for easy reference back to my reports;

2.     I directly and professionally controverted the Respondent’s Expert, professionally and not in such a way as to personally offend;

3.     I prepared my material and myself to the best of my ability and listened to the Australian Property Institutes’ presentation for Expert Witnesses prepared by Stuart Morris QC again, who is or was also a Supreme Court Judge https://www.dhirubhai.net/pulse/excellent-presentation-stuart-morris-qc-expert-behalf-don-gilbert?trk=mp-reader-card;

4.     The Respondent from my knowledge experience Respondent’s Expert’s material in this matter, does not have a case.

If I have this terminology correct, my material is Evidence in Chief, and it is clearly In Evidence and it was never “tested” by the Respondent’s legal team.

If I as an Expert, were and had prepared my report in such a discombobulated fashion as I was personally attacked in the ADT of New South Wales yesterday, and if this is the average standard allowed, then Heaven help the Legal Profession.

They need Codes of Conduct.

MAKING UP CASE LAW ALONG THE WAY, NOT BASED ON FACT THEN IT SEEMS TO BECOME "FOLK LAW" (sic), MATERIAL NEVER “TESTED” BY A COURT OF LAW (OR TRIBUNAL), BASED ON SUPPOSITION BY LAWYERS TRIBUNAL MEMBERS WHOM RELY ON OR OUGHT TO RELY THEIR EXPERT

I question how one can prepare one’s material based on FACT, whereby causation is not far removed from a claim for losses, that:

1.     One’s Duty is to the Tribunal;

2.     One has clearly and diligently identified loss mitigation efforts by the Applicant as a major deductible item and deducted them from a potential claim;

3.     One has applied some minor changes to the Respondent’s Expert’s material during the interlocutory process and stated how one has done this;

4.     That one’s opinions are based on the Truth (FACT);

5.     That one has been polite and respectful to the Respondent’s lawyers and the Tribunal Member whilst being knifed in the back;

6.     One has tried respectfully to say yes and no, except where one seeks to qualify one’s answer eg. to be re-examined;

7.     That one (the Expert) has acted fairly and can demonstrate that;

8.     That one has stated the facts truly;

9.     These were the honest opinions I held/hold;

10. That my report, modelling, calculations are simple, easy to understand, clearly link cause to effect to damage, including several variation of same;

That a Barrister or QC can butcher the Applicant’s Expert in the witness box.

The line of attack, by the Barrister or QC upon me, is written into false Case Law, whereby I was never “tested” in a court (Tribunal) of law in 2009, which has subsequently stuck.

And subsequently two other cases, including a Small Claim by me, again not based on fact has become my nemesis and I seem to have no ability to set the record straight. How can the legal system be so flawed that it gets locked into matters that are not in hand?

SETTING THE RECORD STRAIGHT

Rest assured I have written to the President of QCAT (Queensland Civil and Administrative Tribunal) to have the record set straight about matters stated above.

Ironically, it is via an article I wrote circa 2003 or 2004, whereby I called to have cases Published in Queensland to ensure there was transparency in the system, and to ensure that Tribunal Chairman whose Decisions were written in such a way that if they awarded compensation an amount was stated, but never the:

1.     How?

2.     What?

3.     Why?

4.     Reasons?

5.     Amount and how calculated?

In a 2009 matter that I was involved in, in QCAT, I was never tested or examined on my prowess, knowledge, skills, experience in regard to my Expert’s Report.

An accountant, Chartered Accountant borrowed used my methodology, numbers, reversed the order and presented exactly the same material so that it looked different.

That matter was found not in favour of the Applicant, as alleged representations could not or were not proven. The Chairman who was averse to having decisions challenged, never had to make an award for reasonable compensation.

During the Hearing it was alleged that I was “in business” with the Applicant’s legal representative. We were never “in business” together. Four valuers and the legal representative including myself were marketing our services together on a Webpage. There were never any referral fees, etc. and we met regularly to discuss mainly valuation issues, and myself about retail lease and leasing matters.

In 2013/2014 an astute specialty retailer in the well-known case Christodoulou and Nobilio vs ISPT provided me with the following Testimonial: “As a retailer with over 15 years Brisbane CBD experience, we engaged Don for independent expert advice to assist us in proving damages to the landlord who was a major industry superannuation fund.

I am proud to confirm that Don’s expert advice was 100% reliable and without question. It [the case] was contested in the legal arena and withstood scrutiny from national and international experts.

Don worked tirelessly and innovatively to deliver successful results for us. His contribution to our team of experts was pivotal.

I hold Don in high regard both professionally and ethically.”

In that matter, the Applicant’s Chartered Accountant and myself, dragged the Respondent’s expert up from $0.00 to around $145,000 at a Conciliation Conference. On perusing the Respondent’s Experts material, I uncovered what had to be collusion by the Respondent’s Experts. It would return the Respondents claim back to zero; each Expert having or seeming to have collaborated, to return quantum almost exactly back to ZERO by each report cancelling one another out! They obviously had to have been acting under instructions as well ……………….!

In this second matter, the Respondent’s Expert used my modelling, calculations methodology (in effect my work), made some minuscule assumption changes, which engineered the figures and received the kudos in the decision! Maybe the Respondent could not challenge the decision then?

I had a recent disagreement with someone who kept changing my instructions. I made a minor debt claim. The person involved uncovered the 2009, findings, not based on FACT, but based on allegations that have never ever been tested; or rather they were tested in the Christodoulou matter, but the Kudos did not come our way [this was the highest decision ever awarded by QCAT that I know of at the time (excluding legal fees); but one would never say that reading the decision. This I suggest shows a broken system of law].

It went in favour of the Respondent’s Expert, who as stated, simply changed my hard work, modelling, enterprise. And received the kudos for work he never did!

Conclusions

If we as Experts have Standards and Rules and Codes of Conduct to abide by, then the Legal Fraternity, cannot make up a story, based on bits and pieces of discombobulated and unrelated fact, so far removed from their cases that they too carry no weight!

The closest a claim/an alleged claim can be for “reasonable compensation”, must be a forensic examination of the monthly sales of a given Applicant’s business, LINKED BACK TO THE ANNUAL FINANCIAL STATEMENTS (PROFIT AND LOSS), and in turn linked back to Key Benchmarks eg. the average sale and or consistent or explainable gross profit margin of that business.

Followed by adjustments eg. deducting loss mitigation and or additional expenses incurred by the Applicant.

Here is a précis by me (Gilbert, D. 2004) of an excellent article originally written by Paul Vincent of Vincents Accountants, adapted for the Retail Property Industry ………….. https://www.dhirubhai.net/pulse/principles-assessing-losses-damages-retail-shop-lease-don-gilbert?trk=mp-reader-card in regard to the principles of calculating losses and that before there were experts around, they often made do with what was in front of them.

Again in this matter, the Respondent's Legal Representative claimed that the methodology used by me is not recognised. Hello here is it .............. loss of gross profit margin contribution ................. before adjustments!

I believe that the API and RICS have a role to play to approach the Legal System, to get the Legal Fraternity to fall into line.

I have championed the role of the valuer appraiser and encouraged change and a cultural change from within.

Some in the Legal Fraternity believe they are above the LAW and or that they can write and rewrite “Case Law” on rumours and innuendo. And not tested evidence ………………

Small Business Capital often do not have pockets deep enough to challenge incorrect decisions.

My clients have achieved far far more using the QCAT/VCAT dispute resolution mechanism eg. mediation and conciliation before going to hearing(s). Something is very broken with our Commercial Legal system(s).  It seems to do with people!

In this recent matter, the Respondent in my option did not/does not have a case nor a defense. Their Expert gave me nothing to respond or reply to. Their only defense was to attack the Expert. Their attack was so far removed from FACT aka linking cause to effect to damage, the only matter in evidence that was not “tested” for its veracity (because I was never questioned) is my Expert’s Report and Statement in Reply.

Let us see how this one plays out: Clinton or Trump!

PS       It is woeful that as Expert we have to cover our backs due to the behaviour of others. In turn we appear to be defensive; not objective and seeking to assist the Court or Tribunal.

Donald E Gilbert ? 2016