Before the Court is a notice of motion dated 16 April 2020 filed on behalf of Maria Cavasinni, Francesco Cavasinni and Cavcorp Australia Pty Ltd, who are the respondents in Class 4 proceedings presently part heard before me. Although applicants in the present motion, for clarity, I will refer to Mr and Mrs Cavasinni and Cavcorp Australia collectively as the 'respondents'. The motion seeks the following primary order:
"1 The Respondents are granted leave to adduce in the proceedings the expert report of Shahzada Rizvi, geotechnical engineer of E I Australia in these proceedings."
The applicant in the substantive proceedings, Dolly Diab, opposes the relief sought in the motion.
[2]
Background
The salient background facts are relatively uncontested and are summarised as follows.
The substantive proceedings have an unusual history which, as will be seen, is relevant to my consideration of the present application. The substantive hearing proceeded for two days on 3 and 4 February 2020, with the final day of hearing now listed for 20 May 2020.
On 15 December 2017, Mrs Diab commenced civil enforcement proceedings against the respondents in Class 4 of the Court's jurisdiction to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). The alleged breaches resulted from the respondents carrying out residential development at 27 Nelson Parade, Hunters Hill ('site'), otherwise than in accordance with a development consent granted by this Court in 2010.
The points of claim filed on 16 March 2018 at pars 35-37 identify, in most respects, the specific works alleged to have been undertaken not in accordance with the development consent and the approved plans. In response to the allegation that the works involved excavation, the respondents, in their amended points of defence filed on 8 January 2020 at par 36(f), "deny any significant exc[sic]vation of sandstone in that location other than to dig planters into the stone for plants."
The question presently part heard before the Court is confined to the existence (and extent) of any possible breach of the development consent by the respondents, as a result of the following order made on 24 December 2019 by Preston CJ of LEC in Diab v Cavasinni [2019] NSWLEC 204 at [37]:
"The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found."
The separation of the preliminary question in relation to the nature and extent of any breach from other discretionary considerations occurred as there has been an application made on behalf of the respondents to retrospectively address certain breaches of the development consent, which is now the subject of a Class 1 appeal in this Court as referred to below.
The respondents accept that, at least in some respects, certain work has been carried out otherwise than in accordance with the development consent. In an attempt to remedy the unauthorised work that has been admitted by the respondents, the respondents made an application to modify the development consent pursuant to s 4.55 of the EPA Act in September 2018. The modification was refused by Hunters Hill Council on 19 December 2019. This refusal resulted in the commencement of a Class 1 appeal in this Court by Cavcorp Australia Pty Ltd (being the third respondent in these proceedings) on 23 December 2019 against Hunters Hill Council and, although the hearing of the appeal was set down on 12 and 13 May 2020, that date has recently been vacated and the matter was listed for directions before the Assistant Registrar on 21 April 2020 (presumably for the allocation of a further hearing date).
Despite the above, and although it has been conceded by the respondents that some work undertaken on the site involved work not the subject of the development consent, there remains, as the pleadings make clear, a dispute between the parties as to the nature and extent of work which has in fact been carried out. Relevantly, the respondents dispute Mrs Diab's allegation that they carried out work involving the excavation of sandstone, concreting, and planting of vegetation in the area to the north of a right of way across the site.
While it is not in dispute that the now concreted area covers part of the site for which consent and the approved plans required existing vegetation to be "retained", the essential dispute that relates to the present notice of motion (and to a discrete aspect of the substantive proceedings) is whether the respondents have removed a significant rock outcrop and, in doing so, whether a mechanical excavator was used in that area. A specific aspect of this dispute which emerged at the hearing was whether the existing vertical face of a rock escarpment itself has been formed by cutting away rock from the escarpment which, if the allegation is true, once protruded further to the south. Leaving aside the fact that the respondents accept that some of the clearing was to some extent a breach of the development consent, the respondents say that the present (or remaining) vertical face of the escarpment is naturally formed and that the material removed comprised floating rocks, dirt and building waste. This material was overtopped by weeds that had accumulated over several years, which sat on what the respondents describe as an "expanse of rock" that had been created at an earlier time.
In light of the above, the respondents now seek to rely upon a recently obtained "report" of Shahzada Rizvi, Principal Engineering Geologist of EI Australia, dated 23 March 2020, which purports to address the excavation evidence given at hearing ('Mr Rizvi's Report').
[3]
Evidence
In support of the motion, the respondents read the affidavit of David Charles Balog affirmed 23 March 2020 and the affidavit of Francesco Cavasinni, the second respondent, affirmed 24 March 2020.
Mr Balog, the respondents' solicitor, deposes that he was advised by Mr Cavasinni in February 2020 that Mr Cavasinni intended to "commission a geotechnical engineer to inspect the sandstone escarpment" and was intending to do so "to answer the oral evidence of Mr Diab". Mr Balog then states that he received the "completed report" of Mr Rizvi on 23 March 2020.
Mr Cavasinni deposes that, during the hearing on 3 and 4 February 2020, he heard Danny Diab (Mrs Diab's husband) give evidence that he saw a mechanical excavator cutting the escarpment to the north of the right of way on the property. He further deposes that "after the hearing was adjourned on 4 February 2020 [he] received oral advice from [his] lawyers that it would be prudent to obtain additional evidence from a geotechnical engineer..." and gives details of his subsequent contact with Mr Rizvi. Mr Cavasinni deposes that Mr Rizvi provided a report to him on 20 March 2020; that the report was amended (at the request of Mr Cavasinni's lawyers) to address the Court's Expert Witness Practice Note; and that a "final report" was issued on 23 March 2020.
The report of Mr Rizvi is in the form of a letter to Mr Cavasinni. In summary, the report provides as follows.
Mr Rizvi carried out a "Geotechnical Inspection" at the site at the request of Mr Cavasinni on the basis that Mr Cavasinni advised him that "Hunters Hill [Council] requires an inspection report with regards to assessment of the in-situ bedrock conditions expose[sic] over a cliff face along the northern site boundary of the above mentioned property."
Mr Rizvi's letter, apart from a brief introduction, provides an opinion under the heading "Conclusions" that comprises two bullet point sentences:
"Based on our site observations of the in-situ bedrock conditions exposed over the cliff face along the northern site boundary, highlighted on the site photographs shown above, the following conclusions are made:
• There is no evidence of any signs of saw cutting, rock breaking/chipping, rock drilling or any other form of construction activities undertaken previously to alter the in-situ, natural conditions of the sandstone bedrock exposed over the cliff face along the Northern boundary of 27 Nelson Parade, Hunters Hill.
• Therefore, it is concluded that the in-situ conditions of the Sandstone bedrock exposed over the cliff face along the Northern site boundary of the above mentioned property have not been altered by any engineering activity and the exposed bedrock is in its natural, undisturbed condition."
The report does not explain why the second bullet point is underlined.
The report also contained six "Plate[s]", being an "Aerial photograph"; an "Excerpt from geological map"; and various photographs of the present condition of the site with associated descriptions.
In the section of the report styled "Limitations", it states:
"This report has been prepared for the exclusive use of Mr. Frank Cavasinni who is the only intended beneficiary of EI's work. The scope of the inspections carried out for the purpose of this report is limited to those agreed with Mr. Frank Cavasinni ..."
[4]
Submissions
Each of the parties has provided detailed written submissions in relation to the motion before the Court. I summarise these submissions.
Mr Doyle of counsel, on behalf of the respondents, first points to the affidavit of Mr Cavasinni and his reasons for commissioning the report during the adjournment which, according to Mr Doyle, justifies the delay in the report being provided. He submits that there is no prejudice in circumstances where counsel for the applicant, Mr Hutton, has indicated that Mrs Diab would not be seeking to adduce evidence in reply if the report of Mr Rizvi is admitted into evidence. In those circumstances, Mr Doyle says there is no prejudice arising from the application.
Second, Mr Doyle says that Mr Rizvi's Report is only responsive to matters raised at the hearing or in the evidence served in the days before the hearing commenced. Mr Doyle points to earlier material prepared, being the affidavit of Danny Diab, sworn 12 November 2018 (which Mr Doyle notes was not read) to demonstrate that the earlier material did not refer to any photographs or material, nor did it refer to the cutting away of the face of the sandstone escarpment as opposed to the removal of material generally in the area. Mr Doyle submits that it was only when Mr Diab gave his evidence regarding the use of an excavator that this aspect became a specific concern to the respondents.
Third, Mr Doyle submits that the allegation that a "stone outcrop" had been removed was first made in pars 22-24 of the further affidavit of Danny Diab sworn 29 January 2020, being the week immediately before the hearing commenced. Mr Doyle says that there had been no opportunity to obtain an expert report addressing that allegation.
Fourth, Mr Doyle points to the cross-examination of Mr Diab which was specifically directed, through his (Mr Doyle's) questions, to an alternative explanation for matters in Mr Diab's affidavit of 29 January 2020 - namely that there was vegetation, including loose rocks, which may have disguised the true nature of that which was beneath, and that the rock outcrop Mr Diab perceived were in fact "floaters" emerging from other material. He points to the evidence of Mr Diab given in his cross-examination (Tcpt, 3 February 2020, p 70(6-34)):
"DOYLE
…
Q. And that the rock escarpment, as I've named it, does not present in a way that it has been excavated recently, and indeed, you can see that when you drive down the right of carriageway, that's correct, isn't it?
A. No, it's not. If I can explain Mr Doyle? I was present when this was excavated. This - the sandstone was, was cut and removed by the excavators. At the first year, that was - the colour of that wall was yellowish. It, it discoloured over time, because this is now three or four years on. The rain and the weathering had blended that in.
HIS HONOUR
Q. How was it cut?
A. It was cut using a, a - excavators with those pointy things at the end of them, and they had a saw as well.
DOYLE
Q. I suggest that just isn't the case and that you didn't see that?
A. I was there Mr Doyle, and there were other neighbours that actually saw that.
Q. There are other neighbours, who are they?
A. Sorry?
Q. Who are they?
A. At, at this point, I'm not going to bring anyone unless I speak to Mr--
Q. You've been asked a question and it's quite important in this case?
A. Mr Carter, Mr Toomah(?) saw it.
Q. Mr Carter and Mr Toomah?
A. Yes. Mr Carter used to own the house above, and he has recently sold it."
Mr Doyle submits that the fact Mr Diab witnessed the actual cutting of the escarpment with an excavator is new evidence. In those circumstances, Mr Doyle submits that it is fair and reasonable for the respondents to be given the opportunity to respond to the new evidence.
In response, Mr Hutton first submits that the report sought to be relied upon is "egregiously late". Mr Hutton notes that the proceedings were first brought on 15 December 2017 and refers the Court to the matters observed by Preston J in Diab v Cavasinni [2019] NSWLEC 204 at [14], [16].
Second, Mr Hutton submits that the excavation of the "sandstone outcrop north of the driveway" has been in issue for more than two years. Mr Hutton refers to the points of claim filed 16 March 2018 which include the allegation that the excavation of sandstone was not in accordance with the approved plans and submits that it was not until 8 January 2020, being a significant time after the points of claim had been filed on 16 March 2018, before the respondents admitted that any of the alleged breaches had occurred.
Mr Hutton points to the amended points of defence filed 8 January 2020 at par 36(f) wherein the respondents, while admitting the removal of vegetation north of the driveway, specifically denied any significant excavation of sandstone in that location other than to dig planters into the stone for plants.
In those circumstances, Mr Hutton submits that it was clear that the parties were proceeding to trial on the issue of whether the respondents had carried out unauthorised excavation north of the driveway, and that this was a matter clearly at least on the pleadings when it was before Preston J. In those circumstances, Mr Hutton submits that if expert evidence going to the excavation was to be adduced, it should have been adduced and filed at that time, or at least sometime earlier.
Third, Mr Hutton says that the alleged unlawful excavation of sandstone has been addressed in the lay evidence of the respondents over several years and refers to the affidavit of Francesco Cavasinni affirmed on 23 December 2019 at par 21(f) and the further affidavit of Francesco Cavasinni affirmed 31 January 2020 at pars 33-44. Those affidavits, amongst others, were read at the trial on 3 and 4 February 2020, and Mr Hutton submits that the alleged unauthorised excavation of sandstone should have been a matter which Mr Cavasinni was well familiar with because it had been alleged in earlier Class 4 civil enforcement proceedings brought earlier by Hunters Hill Council.
Fourth, Mr Hutton submits that no explanation has been given in the evidence to support why Mr Rizvi's Report was not filed and served earlier. Mr Hutton says that Mr Cavasinni's explanation is inadequate to explain the delay.
Fifth, in response to Mr Doyle's submission, Mr Hutton submits that it should not be held against the applicant that she has taken the position that, if the report was admitted, she would not be seeking an opportunity to put on responsive expert evidence. This submission was advanced by Mr Hutton on the basis that Mrs Diab is a private individual who should not be expected to bear uncontrolled legal costs, and if the Court was to accept Mr Rizvi's Report, it would further increase the prolonged period of time over which these proceedings have been conducted, being now almost three and a half years after the unlawful conduct and in circumstances where the works have now been partly admitted as unauthorised.
Finally, Mr Hutton suggests that Mr Rizvi's Report is highly irregular and would be inadmissible at least without supplementation. In particular, Mr Hutton notes that no letter of instruction was provided; that Mr Rizvi states he was engaged by Mr Cavasinni directly; and that the Court has no record of communications between Mr Cavasinni and Mr Rizvi.
[5]
Consideration
In the circumstances, having considered the material and having looked closely at the both the evidence and the excerpts of transcript to which I have been directed, and taking into account the pleadings and other evidence in the proceedings which I have heard over two days and which will be completed on 20 May 2020, I have formed the view after some anxious consideration that leave should not be granted to the respondents to rely upon the further expert evidence. My reasons may be shortly stated.
First, I accept the applicant's submission that the evidence sought to be adduced is particularly late in the proceedings. Whilst I have closely considered the evidence including the more recent evidence of Mr Diab given at the hearing on 3 and 4 February 2020, I am of the view that the issue in relation to the excavation of the rock face and, in particular, the nature and extent of the excavation, has always been an issue between the parties and that Mr Diab's evidence does not take the matter significantly further.
Second, while I do not accept that the evidence has been improperly obtained, I nonetheless note that the manner in which it has been obtained is relatively unorthodox. The unorthodox nature of the retaining of Mr Rizvi's Report goes to a number of matters. It is clear that there is no letter of instruction. I do not make that comment in a way critically to Mr Balog, who has given sworn evidence as to the circumstances in which he became aware of Mr Rizvi's Report. Although I note that Mr Cavasinni's affidavit refers to a suggestion made by his instructing solicitors in relation to the retention of an expert report, which does not sit comfortably with the evidence of Mr Balog, I draw no adverse inference from either of those matters. Further, the instructions which Mr Rizvi says he received, that "The Council of The Municipality of Hunters Hill requires an inspection report", are not related to the actual issue in these proceedings and are simply incorrect.
Third, not only is there no precise record of instructions given to Mr Rizvi (which, as I have indicated above, makes the report not particularly probative), but the letter is also subject to an express limitation, "for the exclusive use of Mr. Frank Cavasinni". Whilst that might be a pro forma limitation, I consider that it has some particular import in this case.
Further, all that Mr Rizvi has undertaken, apart from taking six photographs, is what might be loosely called a "walk-over" of the site and has, at the date of the report (which is some years after the alleged conduct), indicated that there is no evidence of any saw cutting or rock breaking. That is the extent of his evidence. This is in circumstances where the respondents obviously have been aware of the nature of the evidence, albeit not with the particularity otherwise articulated more recently by Mr Diab. Nonetheless, I note that the respondents have relied upon the affidavit of Livio Pace (a contractor who did work for the respondents at the site) sworn 2 February 2020, who gave evidence covering the specific issue of excavation involving the use of an excavator and that he specifically notes that "I do remember that I did not excavate the rock face" and gives reasons as to why his memory is as such.
In the above circumstances, the respondents were aware, and marshalled evidence in relation to, the specific matters about which Mr Rizvi's Report is now sought to be called to give more particular evidence. Put simply, the excavation of rock, whether it be rock face, floaters or other similar descriptor, has been in issue in the proceedings for some period of time. In particular, the amount and type of excavation carried out as well as the methods used have been caught up in that issue.
Further, evidence has been marshalled by both parties from witnesses who were on the site at the time of the works or shortly thereafter. In those circumstances, I consider that Mr Rizvi's Report, which I reiterate was based upon a walk-over some years after the works were undertaken, is not significantly of probative value. I do not consider that there is any significant prejudice flowing to the respondents by refusing leave on the basis that the respondents were aware for some period of time of this issue.
In addition to the above, although I do not accept that Mr Rizvi's Report is "egregiously late" as suggested by Mr Hutton, it is late in the circumstances where the opportunity was always available for the respondent's to call that evidence.
Furthermore, although I give some weight to the fact that Mr Hutton has properly noted that it is unlikely that evidence would be called in response if the Court was minded to let the report into evidence, I do not consider this to be determinative. However, I accept the submission that Mrs Diab, as a private individual, should not be expected to bear significant legal costs over an increasingly prolonged period of time as submitted on her behalf. Again, while this matter is not on its own determinative, it is a further matter I have taken into account in relation to my decision not to allow leave for the report to be relied upon.
In the circumstances, I decline to make the orders sought and dismiss the motion.
[6]
Orders
The orders of the Court are:
1. The notice of motion dated 16 April 2020 is dismissed.
2. Costs are reserved.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 May 2020