Campbelltown-Minto Merchants Association Inc v Campbelltown City Council

Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 CASES CITED: Port Securities Pty Limited v Wollongong City Council and Anor (2006) 145 LGERA 285 Sandoval Investments Pty Ltd v North Sydney Council [2006] NSWLEC 741 Tomko v Tomko [2007] NSWSC 1486

TEXTS CITED: Lexis Nexis, Ritchie's Uniform Civil Procedure NSW (Volume 1, 2005)

APPLICANT Mr J Ayling SC SOLICITOR LEGAL REPRESENTATIVES: Davis Legal RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11005 of 2008 Campbelltown-Minto Merchants Association Inc v Campbelltown City Council

EX TEMPORE JUDGMENT 1 Her Honour: The Council has filed a Notice of Motion in this Class 1 appeal seeking orders that:

1. The Council be granted leave to rely upon the evidence of its own parking/traffic expert;
2. The Council be granted leave to rely upon the evidence of an alternate individual town planning expert;
3. The Council's traffic/parking expert is to file and serve his/her individual expert report by 5 June 2009;
4. The parties' town planning experts are to confer in accordance with the requirements of Div 2 of Pt 3 of the Uniform Civil Procedure Rules 2005 (the UCPR) and the Expert Witness Code of Conduct in Sch 7 of the UCPR and are to file and serve their joint report by 5 June 2009.
5. Any other such orders.

2 The Notice of Motion is supported by an affidavit of Ms McCallum, solicitor for the Council, which sets out a short timetable of what has occurred to date and why additional expert evidence is sought to be relied on. 3 Under s 62(3)(b) of the Civil Procedure Act 2005 the Court may at any time before or during a hearing make directions limiting the number of witnesses (including expert witnesses) that a party may call. Different UCPR rules apply to prayers 1 and 2 in the Notice of Motion. For prayer 2, r 31.19 provides: 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim. For prayer 1 r 31.44 provides: 31.44 Prohibition of other expert evidence Except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties' single expert has been engaged under this Division in relation to that issue.

Council's submissions (i) whether additional expert on parking when parties' single expert already appointed 4 The Council seeks an order in prayer 1 of the Notice of Motion that it may rely on an additional traffic/parking expert. The parties' single expert on parking was appointed in December 2008 and he prepared a report based on the existing plans. A s 34 conference before a commissioner was held on 12 February 2009 and amended plans were both prepared and served by the Applicant. The parties' single expert provided in the absence of any court direction a report on the amended plans dated 31 March 2009. He stated that he considers the number of carparks to be provided to be satisfactory.

5 The Council seeks leave under UCPR r 31.44 to rely on another expert on parking, Mr Hallam. The matter is set down for hearing in early June and the Council needs to have this expert witness prepare evidence now in order to enable adequate preparation for hearing. (ii) another town planning expert 6 The Council seeks leave under r 31.19 of the UCPR to rely on the evidence of another town planning expert. The Council has been advised to date in the proceedings by its in-house planning officer who assessed the original application for the s 34 conference process. According to Ms McCallum's affidavit the Council now wishes to retain an external town planning consultant in relation to the hearing and consideration of the amended plans as it does not agree with the conclusions and recommendations made by the assessing council officer. I infer that is because he supports the proposal as amended and the Council as a collegiate body wishes to oppose the development as contained in the amended plans. The affidavit states that no joint town planning report has been prepared and the town planning experts can confer and prepare a joint report.

7 Not to allow the orders sought in the Notice of Motion will mean that the Council is prevented from presenting the case that it wishes to. Applicant's submissions 8 The Notice of Motion is opposed by the Applicant. (i) whether additional expert on parking when parties' single expert already appointed 9 Leave is required under UCPR r 31.44 to rely on additional expert evidence and should not be granted. No basis for doing so is established in Ms McCallum's affidavit and the various matters required to be referred to by such an affidavit under par 48 of the Court's Practice Note - Class 1 Development Appeals (the Practice Note) have not been referred to at all or to the extent necessary to enable an assessment to be made by the Court in the Council's favour.

10 The process referred to under r 31.41 also had not been complied with whereby the Council could have sought clarification of the report of the single expert dated 31 March 2009. Rule 31.41 provides: 31.41 Parties may seek clarification of report (1) Within 14 days after the parties' single expert's report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report. (2) Unless the court orders otherwise, a party affected may send no more than one such notice. (3) Unless the court orders otherwise, the notice must be in the form of questions, no more than 10 in number. (4) The party sending the notice must, on the same day as it is sent to the parties' single expert, send a copy of it to each of the other parties affected. (5) Each notice sent under this rule must be endorsed with the date on which it is sent. (6) Within 28 days after the notice is sent, the parties' single expert must send a signed copy of his or her response to the notice to each of the parties affected. (ii) additional town planning expert 11 The Council should not be allowed to change town planning experts in the circumstances of this case. It no longer wishes to rely on the advice of its in-house town planning expert and seeks to adduce evidence from another town planner, yet to be identified. To allow this to occur is contrary to the ethos of Class 1 proceedings, is not supported by the UCPR or the Practice Note. Finding 12 The issues that arise under the UCPR on this motion have yet to receive much consideration in this Court. The authorities referred to by the parties Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303, Port Securities Pty Limited v Wollongong City Council and Anor (2006) 145 LGERA 285 and Sandoval Investments Pty Ltd v North Sydney Council [2006] NSWLEC 741 were decisions of this Court considering the previous expert witness regime as found in the Supreme Court Rules Pt 39 r 6 and the Practice Note as it was in 2005. UCPR r 31.44 is in somewhat different terms to the earlier Supreme Court rule. Some of the observations made in those cases remain relevant.

13 The Practice Note which commenced on 14 May 2007 identifies matters the Court requires parties before it to consider in relation to expert evidence at par 43 to 58. Paragraph 47 identifies that leave is required before another expert can be relied on where a parties' single expert has been appointed. Paragraph 48 identifies that a Notice of Motion asking for leave to rely on a particular matter must be supported by an affidavit setting out various matters specified at (a) to (f).

14 It has to be said that the supporting affidavit in these proceedings does not enable all of the specified matters in par 48 to be assessed by me, particularly (a), (c), (d) and (e). At this stage no additional town planning expert has been identified by the Council. The parking/traffic expert the Council wishes to be called was identified from the bar table. (i) whether additional expert on parking when parties' single expert already appointed 15 In relation to whether leave should be granted to rely on another parking expert when a parties' single expert has already been appointed, in Crown Atlantis Lloyd J at [13] noted that the guiding principle on whether leave ought be granted was if the Court considered it would be assisted by calling another expert witness. He also stated that leave would be granted where a flaw in the methodology of the single expert was alleged or that some matter was overlooked. He considered the category of cases where leave might be granted was not closed.

16 In Port Securities I considered that passage and the Court's policy behind the introduction of the Practice Note as then in force in relation to the management of expert evidence. The sole context for the calling of expert evidence is to provide assistance to the Court in the application of his or her expertise, not advocacy for a particular party. I also referred to the fact that in Class 1 proceedings, commissioners of the Court hear the matter and are able to and are required to bring to bear their expertise. I noted that if the Court does too readily establish a practice of allowing in new expert evidence when there is a parties' single expert then the adoption of single experts will be undermined. Ultimately as the additional expert evidence related to a different methodological approach I did allow in the additional evidence in that matter.

17 In Sandoval Biscoe J considered at [5] that leave to allow in additional expert evidence might be more readily granted where the issue was one where reasonable expert opinion might more readily differ than in areas of a more objective nature where there is more likely to be one answer.

18 Lexis Nexis, Ritchie's Uniform Civil Procedure NSW (Volume 1, 2005) (Ritchie's UCP) [31.44.5] in considering r 31.44 cites a decision of Tomko v Tomko [2007] NSWSC 1486. Brereton J in proceedings in the Equity Division of the Supreme Court stated at [8]-[9]: It has been said that proper exercise of the discretion to grant leave only requires satisfaction that there is an appropriate basis to permit a party to adduce additional evidence and that relevant considerations include the nature and complexity of the issues, the existence of an objective basis to question the conclusion arrived at by the joint expert, the existence of significant competing expert opinion, and the actual or apprehended bias of the joint expert…In my view, the court should be relatively ready to grant leave to adduce evidence from a separate expert, lest trial by single expert otherwise become substituted for trial by judge. Where some arguable basis is shown for challenging the report of a single expert, the court should be disposed to grant such leave.

19 In Port Securities I referred at [14] to the possible tension between the desire of the Court to be fully assisted by expert evidence and the parties to fully present their case as they see fit with the role of single expert witnesses. I held I did not have to resolve it in that matter but it appears that I do here. 20 In relation to whether there should be an additional parking expert relied on by the Council, I take into account that there has not been any attempt to comply with r 31.41 of the UCPR by the Council so that no clarification of the 31 March 2009 report has been sought (see also Port Securities at [18]). It is not clear from the supporting affidavit or the submissions made why the matter cannot be dealt with by having the single expert witness address the matter further or in cross-examination (par 48(e) of the Practice Note). If clarification is sought from the parties' single expert as provided for in r 31.41, this can be done under an extended timetable beyond the 14 days referred to in that section.

21 In light of the considerations I referred to in Port Securities about the role of expert witnesses and the nature of Class 1 proceedings in this Court before expert commissioners, I do not consider I should exercise my discretion to allow an additional expert report to be prepared. The relatively low threshold applied in Tomko by Brereton J is in proceedings of a quite different nature compared to Class 1 proceedings, being an equitable dispute between private parties. While the same UCPR rule applies to both, its application is at the discretion of the judicial officer. I must exercise my discretion in light of the nature of the proceedings and the factors required to be addressed in an affidavit sworn to satisfy par 48 of the Practice Note. It is not apparent that for the Court to be properly assisted in this matter a further expert report on parking is required. I am also not convinced that evidence about car parking numbers is an inherently subjective matter about which minds may differ. 22 I therefore refuse the order sought in prayer 1 of the Notice of Motion. (ii) additional town planning evidence 23 UCPR r 31.19 applies in relation to the additional town planning evidence. Ritchie's UCP at [31.19.15] states: Discretion to withhold direction for the use of expert evidence The purpose of the requirement for direction is to restrict the use of expert evidence to that which is reasonably required having regard to the overriding purpose of facilitating the fair, just and economical resolution of the proceedings: see CPA ss 56-60: eg Countouris v Kallos [2007] NSWSC 94,; … Directions permitting the use of expert evidence will be withheld where the court is not satisfied that the proposed expert evidence: · is reasonably required to resolve the issues in the proceedings: Chapman v Chapman [2007] NSWSC 1109, BC200708531 … · does relate to a real issue in the proceeding: Bizzanelli v Bizzanelli [2007] NSWSC 1085; BC 200708672 …

24 These observations also apply in this matter. The reason given for the Council requiring new town planning evidence is that there are now new plans and essentially the matter therefore commences afresh, so that the Council should have the opportunity of presenting the case it wishes to put to the Court. I have some difficulty with that approach. The new plans have been produced in the course of these Class 1 proceedings and after a s 34 conference was held. I do not accept that the matter is to be considered essentially as new so that new expert evidence is warranted on that basis. 25 The role of expert evidence is to assist the Court, not to advocate for a particular outcome sought by one of the parties. The Council commenced the proceedings on the basis that it was content to rely on its own officer's town planning expertise. It should not be allowed to change that reliance now because it does not agree with the advice it has received in relation to the amended plans. To allow another expert in at this stage solely on the basis that the Council wishes to present its case as it wishes undermines the utility of the parties engaging in the s 34 conference process, in my view. I do not consider the just, quick and cheap disposal of proceedings is facilitated by making that order. I therefore consider I should not make the order sought in prayer 2 of the Notice of Motion.

26 In terms of the just, quick and cheap disposal of proceedings which is a paramount consideration in any procedural issue the Court must resolve (Civil Procedure Act 2005, s 56(1) and (2) stating the overriding purpose of the Act and the Court's role in its achievement) the additional evidence sought to be adduced will result in the Applicant incurring more costs. Contrary to the statements in the supporting affidavit that new evidence will not incur additional cost for the Applicant beyond what would already be likely to be incurred, I consider that it will. 27 I therefore consider I should dismiss the Council's Notice of Motion. Orders 28 The Court makes the following orders: 1. The Council's Notice of Motion dated 30 April 2009 is dismissed. 2. No order as to costs. 3. The parties are to seek a date for further directions by 13 May 2009 via e-court. 4. Any application by the Council to seek clarification of the expert report of Mr Hazell, the parties' single expert on parking, pursuant to r 31.41 of the Uniform Civil Procedure Rules 2005 is to be made by 20 May 2008.

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