Friends of Tumblebee Incorporated v ATB Morton Pty Limited

Reason for the Late Application 5The explanation given by ATB for the late application is that it believed that an appropriate direction had been given by the Court permitting this evidence to be filed in orders made by Pain J in her capacity as List Judge on 16 May 2014. Her Honour made the following order: 4 the First Respondent is to serve its expert evidence by 11 July 2014. 6Prior to her Honour making this order, on 14 February 2014 Sheahan J had made this order (emphasis added): 6 the Applicant is to serve any [affidavits in reply and] bundle of any additional documents in reply and serve an expert ornithological report by 22 April 2014. 7Ms Heather Irish, appearing for ATB, was not able to assist the Court by giving any further information as to what transpired at the directions hearing before Pain J. In particular, she was not able to indicate whether or not it had been made clear to the List Judge that by ATB requesting such an order (which was contained in short minutes of direction handed to the Court on that day), it was seeking an open-ended direction under r 31.19 of the UCPR permitting it to file any expert evidence whatsoever (given that the type of expert evidence to be filed was not specified by ATB). 8In my opinion, the reasonable inference to be drawn from the chronology of directions made by the Court outlined above, is that order 4 made by Pain J on 16 May 2014 was in response to order 6 made by Sheahan J on 14 February 2014, and was confined to the service of expert ornithological evidence in reply only. 9It is inconceivable that, absent any corroboration that this was the Court's intent, that the Court would make a direction allowing expert evidence to be served on any topic in the judicial review proceedings (before it). It would be contrary to the body of caselaw (discussed below) circumscribing the extent to which parties may rely on expert evidence in judicial review proceedings. It would be contrary to r 31.17(a) and (b) of the UCPR. And it would be contrary to common sense. 10Reinforcing this conclusion was order 3 made by her Honour on 16 May 2014, which was in the following terms: 3 The Applicant is directed that it may adduce evidence in the form of a summary under s50 of the Evidence Act, 1995 (NSW) namely the Summary of Development Approvals involving clearing of Native Vegetation within Hunter Economic Zone granted up to April 2014, noting the First Respondent reserves its right to object to the admissibility of that summary on grounds other than form. 11In making that order the Court noted the express reservation of ATB to object to the admissibility of the summary of planning evidence referred to therein on grounds other than form. It may be readily inferred that had ATB wished to serve expert planning evidence, a similar notation would have been added to order 4, namely, that the expert evidence included planning expert evidence in addition to expert ornithological evidence. No such notation was made. 12Before turning to the substance of ATB's application it should be noted that by order 12 on 16 May 2014, Pain J granted liberty to restore to the parties on three days' notice. 13It is a matter of considerable concern that neither party sought to exercise their liberty to restore in order to bring this application before the Court in a more timely manner. Correspondence put before the Court indicates that the issue of whether or not leave was required to rely on the affidavit of Mr Dwyer crystallised on 13 August 2014. Given that the hearing did not commence until 20 August 2014, adequate time existed prior to the hearing to have this application separately determined by a judge. 14The parties' failure to exercise the liberty to restore (afforded for this very purpose) meant that the application was heard during the course of the two day hearing. The application took several hours. In addition to the matters informing the exercise of the Court's discretion under r 31.19 of the UCPR, one of the bases that the applicant, Friends of Tumblebee Incorporated ("Tumblebee"), relied upon to submit that the grant of leave ought to be refused was because Mr Dwyer's affidavit constituted impermissible opinion evidence. That is to say, the application was not straightforward. In the result, valuable hearing time was occupied by an application that plainly should have been brought prior to the commencement of the hearing. The hearing was consequently unable to be completed within the allocated time. 15Parties are expected to exercise the liberties granted to them by the Court to ensure that lengthy or complex interlocutory applications are determined prior to the commencement of hearings. When hearing times are allocated by the Court it is generally assumed that all such applications have already been brought and determined. 16Comment should also be made as to the reason for the delay in filing Mr Dwyer's affidavit and in bringing the application. According to Ms Irish, the reason for the delay was because it was not until ATB was served with the index to the Evidence Book on 29 July 2014 that it became apparent that there was difficulty with Appendix H to the affidavit of Mr Anderson. Thus it was not until this late date that ATB were first alerted to a problem concerning the admissibility of Mr Dwyer's town planning report as annexed to Mr Anderson's affidavit. It was only as a matter of prudence that Mr Dwyer's report was subsequently attached to an affidavit affirmed by him on 13 August 2014. The affidavit was served on Tumblebee that day. 17Ms Irish conceded that the affidavit of Mr Dwyer ought to have been filed and served earlier, and that had this occurred, the notice of motion would have in all likelihood been brought before the Court in a more timely manner. 18This concession was correctly proffered. Indeed, if, as Ms Irish claimed, it was anticipated that expert planning evidence was required on 16 May 2014 when Pain J made order 4, the town planning evidence ought to have been filed in accordance with that direction, that is to say, by 11 July 2014. It was not.

Prejudice Occasioned by the Late Application 19Finally, Tumblebee asserts that the delay in serving Mr Dwyer's affidavit is prejudicial to it because if leave is granted to allow Mr Dwyer's affidavit into evidence, Tumblebee will require expert town planning evidence to meet it. 20Had there been any prospect that the matter could be finalised within the two days set aside to hear it absent any expert town planning evidence, the Court would have had no hesitation in all the circumstances of the case in refusing leave to rely on Mr Dwyer's affidavit. However, because the matter could not, in any event, be finalised within the allocated time, as a practical matter, Tumblebee will be afforded additional time to file and serve any town planning evidence in reply should it transpire to be necessary.

Legal Principles Applicable to an Application Pursuant to Rule 31.19 21Rule 31.19 of the UCPR relevantly states as follows: 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. 22The legal principles applicable to the exercise of the discretion to grant leave to adduce expert evidence in judicial review proceedings have been articulated in a number of authorities (DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 per Craig J; Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348; Rossi v Living Choice Australia Ltd t/as Living Choice [2012] NSWLEC 112; (2012) 190 LGERA 262; Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 at [66]-[83]; Gilbank v Bloore [2012] NSWLEC 172 at [7]-[12]; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [119]-[139]; Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14 at [18]-[40]; and Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141 at [4] and [5]). 23The Court of Appeal considered r 31.19 in Shellharbour City Council, Giles JA stating that (at [35], quoted recently in Botany Bay City Council at [5]): The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible. 24Thus relevance and admissibility alone are insufficient to guarantee that leave will be granted to rely on the evidence. When exercising the discretion available under the rule, it will be necessary to determine whether the evidence is "reasonably required" in order to ensure the just, quick and cheap disposition of the real issues in dispute (see s 56 of the Civil Procedure Act 2005, as informed by ss 57-60 of that Act). 25In Gilbank Craig J usefully summarised the limited exceptions to the general proscription against adducing expert evidence in judicial review proceedings (at [11]): 11. Notwithstanding the strictures identified in the cases to which I have referred, there are limited exceptions to the general rule. One of those exceptions exists where the grounds of review are manifest unreasonableness (Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342). Evidence is also admissible, in limited circumstances, of an enquiry that a statutory decision maker could have made, but failed to make, revealing information readily available and relevant to the determination to be made (Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1988) 6 FCR 155). Further, this Court has also determined that in judicial review proceedings evidence may be admissible in order to establish the manner in which a council, exercising the function of the council whose decision is sought to be impugned, would ordinarily embark upon the task when undertaking the process of decision making (Friends of King Edward Park Inc v Newcastle City Council at [77]). 26His Honour was not, of course, suggesting that the categories were closed. In the present case, for example, the Court is required to determine a jurisdictional fact which will require the Court to have regard to expert evidence in order to determine for itself whether or not the development is likely to significantly affect threatened species or their habitat pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 27There is, therefore, no question that it would be appropriate for the Court to have regard to the expert ecological or ornithological evidence in order to determine whether or not ATB's proposed development is likely to have a significant impact on the Regent Honeyeater and its habitat. 28But is the Court reasonably required to have regard to expert town planning evidence in order to resolve the proceedings? 29An answer to this question requires a more detailed analysis of the evidence contained in Mr Dwyer's report. 30A central plank in Tumblebee's case is that although the proposed development only seeks to clear 3.2ha of native vegetation and Regent Honeyeater habitat, regard must be had to the cumulative impact of the development when it is assessed against other proposed development in the immediate area in order to measure the totality of the impact of the development on the Regent Honeyeater and its habitat. 31In this regard Tumblebee has sought to rely on: (a)a Summary of Permissible Development Within Hunter Economic Zone ("HEZ") prepared by its solicitor ("the First Summary"); and (b)a Summary of Evidence With Respect to Development Approvals Involving the Clearing of Native Vegetation Within the HEZ Granted up to April 2014 ("the Second Summary") (also prepared by its solicitor). 32The Second Summary, although initially sought to be tendered as evidence by Tumblebee, was subsequently (and correctly, in my view) put before the Court as a submission. The First Summary, however, has been admitted into evidence pursuant to s 50 of the Evidence Act 1995. 33The annexed report to Mr Dwyer's affidavit is in two parts. The first part comments on already approved developments in the HEZ and is responsive to the First Summary. The second part comments on the permissible uses within the HEZ and is responsive to the Second Summary. 34The First Summary lists various concept plan approvals and development application approvals granted for development in the HEZ, together with the amount of clearing proposed in each application. In each instance, the source of the information is the application documentation itself. 35In the first part of his report, Mr Dwyer states that (although the report refers to "RPS", it was accepted by the parties that this was in effect a reference to himself insofar as he personally visited the HEZ site on 27 June 2014 and directed and supervised the verification of the works carried out on the site on 30 June 2014) he verified the clearing status of the land in the First Summary and produced a table (Table 1) updating the First Summary to include a "status" column and a column indicating the amount of clearing actually undertaken up to 30 June 2014. 36According to the first part of Mr Dwyer's report, the information contained in Table 1 indicated the following: ▪ Of the 157.6 hectares (ha) indicated by EDO NSW as being approved for clearing, only approximately 27.5 ha (17.4%) has been cleared in accordance with the respective approvals; ▪ Approvals for the creation of the Spine Road and associated infrastructure for both Stage 1 and Stage 2 have been essentially duplicated, resulting in either a partial completion of approved clearing works (Item 45 and Item 47) or no approved works occurring as the approval was superseded (Item 48); ▪ Except for Item 62 (8/2006/543/1 Concrete Batching Plant), all developments are either completed or lapsed; and ▪ Item 62 (8/2006/543/1 Concrete Batching Plant) remains active but not commenced and if commenced will result in the removal 0.86 ha of vegetation [sic]. 37Given that this evidence is directly in response to the First Summary relied upon by Tumblebee, the evidence is both relevant and, in my opinion, may be considered as reasonably required by the Court insofar as it attempts to demonstrate that not all of the land approved for clearing under the various development applications has in fact been cleared. 38However, this is not the end of the matter. Additional objection is taken by Tumblebee to this part of Mr Dwyer's report on the basis that it is inadmissible opinion evidence contrary to s 76(1) of the Evidence Act insofar as it is not covered by the exception contained in s 79(1) of that Act. This is because Mr Dwyer does not sufficiently, or at all, disclose his reasoning either in arriving at the amount of clearing actually undertaken up until 30 June 2014, or in stating his conclusions with respect to the status of the development applications, that is to say, that the development application has either lapsed, been partially completed or been completed. 39In his seminal judgment, Heydon JA (as he then was) stated the applicable principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [85]): 85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise". 40The dictum has been oft repeated and applied since it was first pronounced. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 the Court stated (at [37]): 37 It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. 41In my opinion, there is considerable merit in Tumblebee's complaint in this regard. For example, Mr Dwyer does not explain how he (or those he supervised) identified the boundaries of each development site, or what methodology was used in order to measure the amount of clearing he asserts has taken place. 42Moreover, in relation to Mr Dwyer's opinion that some of the listed development approvals have lapsed, no explanation is proffered for this statement. As Tumblebee submitted, the mere fact that the lapsing date has passed and that there is no obvious sign of clearing on the development site does not mean the consents have in fact lapsed. In order to prevent the lapsing of a consent, all that a proponent is required to do is physically commence the development. Physical commencement may be effected by minor physical works that do not leave an obvious trace on the development site. 43In addition, Mr Dwyer may have made an incorrect legal assumption about the relevant date upon which the impact of these approvals is to be considered for the purpose of these proceedings. That is to say, when the consent was granted by the council on 23 October 2013, and not as at 30 June 2014. 44Although this latter error would not, of itself, render this part of Mr Dwyer's report inadmissible, it has the tendency to reinforce the fact that Mr Dwyer has not adequately exposed the reasoning by which he has arrived at the opinions he has expressed in this part of his report. 45In summary, in my opinion, there has been a manifest failure to disclose Mr Dwyer's reasoning in relation to the amount of clearing undertaken on each of the sites referred to in Table 1 and in relation to his conclusion that some of the approvals have lapsed. Therefore, the first part of Mr Dwyer's report is inadmissible and the Court should not exercise its discretion under r 31.19 of the UCPR to permit ATB to rely upon it. 46The second part of Mr Dwyer's report purports to express an opinion on the likelihood of certain developments being approved in light of the planning controls and planning policy documents applicable to the site. Mr Dwyer goes on to describe the approval process to which any development proposal in the HEZ will be subject. 47To reiterate, the second part of Mr Dwyer's report is responsive to the Second Summary that does not form part of Tumblebee's evidence, but is a submission only. It was appropriate to treat the Second Summary in this way because the information contained in it is no more than a collation of the salient clauses of the applicable planning instruments and documents. 48For this reason, it is material that the Court can interpret without the assistance of expert planning evidence. Put another way, the Court is in as good a position as Mr Dwyer to assess the significance of the matters contained in those instruments. 49Furthermore, most of the purported opinions expressed by Mr Dwyer in this part of his report are, properly analysed, no more than submissions that can readily be made by ATB without recourse to expert evidence. In other words, the evidence is not, in my opinion, probative and hence not reasonably required by the Court. 50A further difficulty with the second part of Mr Dwyer's report is that it suffers from the same vice as the first section. That is to say, to the extent that any of the conclusions Mr Dwyer expresses can properly be described as opinions (rather than submissions), once again Mr Dwyer does not properly disclose the basis of his reasoning underlying them. Thus, for example, it is not known why: ...management commitments (as detailed within Section 4 of the Habitat Management Strategy (HMS) (RPS 2005) and Section 4 of the Conservation Lands Conservation Management Plan (CLCMP) (RPS 2007) are likely to increase the quality of vegetation within the E1 and E2 zoned lands, and contribute towards a positive conservation outcome for identified threatened species / communities and their habitats. 51Accordingly, even if it were reasonably required by the Court in the proceedings, it would be inadmissible because it is opinion evidence contrary to s 76(1) of the Evidence Act.

Conclusion 52For these reasons, the Court declines leave to ATB to rely on the affidavit of Mr Dwyer pursuant to r 31.19 of the UCPR.

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: 29 August 2014