Lake Macquarie City Council v Australian Native Landscapes Pty Ltd

LEGAL PRINCIPLES

1. Rule 31.23 of the Uniform Civil Procedure Rules 2005 provides that an expert witness must comply with the expert witness code of conduct set out in Schedule 7. Clause 2 of Schedule 7 provides: Schedule 7 Expert witness code of conduct … 2 General duty to the court (1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise. (2) An expert witness's paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness). (3) An expert witness is not an advocate for a party.
2. The requirement to comply with the expert witness code of conduct is also stipulated in the Court's Practice Note - Class 4 Proceedings at [51].
3. Section 56 of the Evidence Act 1995 provides: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.
4. Although ANL makes no application for rejection of the evidence under s 135(a) of the Evidence Act, it is relevant: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party…
5. In Pittwater Council v A1 Professional Recycling Pty Ltd [2008] NSWLEC 325, 165 LGERA 1, the expert was an investigator employed by the prosecutor council who had carried out the investigation and recommended prosecution. I admitted his evidence over objection on the ground of partiality and held at [11]: The authorities support the following propositions, in my view. First, a mere family, personal or business relationship (including that of a retainer as an investigator), even of a kind that might reasonably cause an expectation of lack of impartiality, is insufficient of itself to lead to rejection of expert evidence. Secondly, and exceptionally, there may be additional factors which justify rejection on the ground of clear lack of capacity to bring the requisite degree of impartiality to the expert's reasons, either because the evidence is then inadmissible or in the exercise of the court's discretion. In my opinion, that an expert witness is or was an employee of the party retaining the expert, has investigated the matter prior to commencement of proceedings, and has recommended that proceedings be taken, are insufficient factors, of themselves, to lead to rejection of the expert's evidence. That is the present case.
6. The position is made even clearer by the more recent decision of the Court of Appeal in Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153. There the experts in question were two radiologists (for whose conduct the appellant was vicariously liable). It was alleged that they had been negligent in their diagnosis. The Court of Appeal, overruling the trial judge, held that their evidence was admissible. Ipp JA (Beazley and Giles JJA agreeing) held that evidence of an expert is not inadmissible merely because he or she is materially interested in the litigation or is a party to the litigation or an employee of a party to the litigation, and that whether he or she would tend to give exculpatory and therefore unreliable evidence went to weight and could be tested in cross-examination: at [211]-[219]. His Honour held that the evidence was relevant and therefore admissible under s 56 of the Evidence Act. Whether or not the trial judge intended to reject it under s 135 (which the trial judge did not mention), to do so on the ground of unreliability was a material error of legal principle. To the extent that the trial judge's decision amounted to a finding that the evidence would be unfairly prejudicial to the respondent under s 135, he erred in failing to take into account the unfairness to the appellant in preventing the experts (for whose conduct the appellant was vicariously liable) from explaining and defending their conduct: at [225].
7. In MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 3) [2010] NSWSC 243 the defendant objected to the admissibility of evidence of a town planner on the ground that he was not an objective and independent witness. Johnson J considered that my decision in A1 accorded with the law as it stood before Stamoulis, and that the position is made even clearer by the principles laid down by Stamoulis: at [45]. In admitting the expert evidence, his Honour said that the issues raised by the defendant concerning the expert went to weight and not admissibility, and that s 135(a) of the Evidence Act did not apply. In his Honour's subsequent decision in Commonwealth v Milne (No 1) [2010] NSWSC 932, 260 FLR 166 at [247], he observed that objections to expert evidence upon the ground of bias have led to the judicial response that issues of that type bear upon weight and not admissibility, citing Stamoulis.
8. In Kulikovsky v Police [2010] SASC 58 the defendant contested a charge of speeding. He was a Defence scientist and a magistrate permitted him over objection to give expert evidence as to the accuracy of the police laser equipment. Gray J dismissed an appeal and held that the authorities made plain that lack of independence in an expert witness does not go to admissibility but is relevant to the weight to be attached to the expert's evidence: at [36].
9. In Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385, 202 FCR 564 there was an objection that the expert witnesses in question were not impartial. Dodds-Streeton J held at [35]: In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert's evidence, but rather, the significant risk that it will fail to persuade.
10. Her Honour went on to add that a "lack of objectivity combined with other circumstances" may in some cases justify exclusion of the expert's evidence under s 135 of the Evidence Act: at [47]. No s 135 application had been made. Accordingly, her Honour found that the experts were qualified to give opinion evidence and that "a lack of independence, partiality or an interest in the outcome, if established, [would not] preclude them from doing so": at [55].
11. In my view, Stamoulis and the subsequent authorities to which I have referred support these propositions: 1. evidence of a partial expert is relevant and therefore admissible under s 56 of the Evidence Act; 2. partiality of an expert goes only to the weight of the expert's evidence; 3. exceptionally, evidence of a partial expert combined with other circumstances may in some cases justify exclusion of the expert's evidence in the court's discretion under s 135 of the Evidence Act if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.

consideration

1. ANL accepts that the mere fact of Mr Lovell's employment by Council is insufficient of itself but submits that four matters, beyond his employment, establish that he is not impartial and, therefore, that his expert evidence is inadmissible.
2. First, ANL contends that Mr Lovell told each expert that the approved development area was two hectares (which was his view) but failed to inform them that a condition of each consent provided for the work to be carried out "generally in accordance with" the approved indicative plan.
3. I do not accept the contention. In cross-examination Mr Lovell accepted that his opinion and the instructions he conveyed to each expert were that the development consent only related to two hectares. Mr Lovell provided Council's water management expert Mr Jamieson with a draft briefing note (as Mr Lovell called it) titled "Draft - Investigations into potential breaches of development consent" and containing blanks, in which he said that the approved footprint under the 1986 consent was 2 hectares. He also provided Mr Jamieson with (inter alia) a copy of the 1986 and 1988 development consents, which showed on their approved plans the development area as 100 x 200 metres. One of the conditions of each required that the development proceed "generally in accordance with" the approved plan. Hence, Mr Jamieson was fully informed. Mr Jamieson's evidence, which I accept, was that he regarded Mr Lovell's draft briefing note as a "draft preliminary preparation", that he did not rely on it, and that he derived his independent understanding that the approved area was two hectares from the plans attached to the development consents (which showed a development area of 100 x 200 metres) and a 1986 document containing information consistent with a statement of environmental effects. As regards the other experts, the evidence does not disclose whether or not Mr Lovell provided them with the draft briefing note and disclosed the "generally in accordance with" condition of the development consents. ANL complains that no reference to "two hectares" appears anywhere before the briefing note. Since two hectares is merely the product of the 100 x 200 metres stipulated in the 1986 and 1988 approved plans, I consider that this reference to two hectares does not warrant complaint for present purposes.
4. Secondly, ANL contends that Mr Lovell deliberately elected not to provide Council's water management expert, Mr Jamieson, and ecologist, Mr Peake, with documents on Council's files recording that in 2001 Council was content with the development (notwithstanding that, according to Council's allegations in the proceedings, the development even then went beyond what was permissible under the earlier development consents). The said documents are a 5 July 2001 memorandum to Council from a Council development compliance officer, Mr Ian Fletcher; a 2 April 2001 letter from a Council development planner, Ms Kirrily Vincer, to the Environment Protection Authority; a 13 March 2001 letter from Council development compliance officer Mr Fletcher to the Environment Protection Authority; and a 19 March 2001 letter from the Environment Protection Authority to Council's Mr Fletcher.
5. I do not accept the contention. In fact, Mr Lovell provided a copy of the last-mentioned letter to Mr Jamieson and it made sufficiently clear what Council's position was. It is unnecessary to go further but the following additional observations may be made. Although in cross-examination Mr Lovell accepted that the July 2001 memorandum may have affected the opinion of the experts, I have difficulty in seeing how Council's opinion about what was lawful in 2001 could have affected the opinions of Mr Jamieson and Mr Peake given the issues with which they were concerned. In broad terms, Mr Jamieson's job was to work out matters of hydrology and what pollutants (nutrients) were being released to the external environment. Mr Peake's job was to work out the environmental impacts. As to the word "deliberately" in ANL's contention, I do not accept that Mr Lovell intended to mislead the experts.
6. Thirdly, ANL contends that Mr Lovell appears to have given the experts the wrong impression that ANL had cleared 3.6 hectares on site (in excess of the said two hectares), as appears in the draft briefing note and in a letter from Mr Jamieson to Council of 10 May 2013. I do not accept the contention. That is not in fact what the documents say. They indicate that approximately 3.6 hectares had been cleared, not that ANL had cleared that area. On the contrary, the draft briefing note states (with highlighting) that: "The approved footprint prior to ANL possession of the site was [blank]". It is unnecessary to go further but I observe that this contention was not put to Mr Lovell in cross-examination.
7. Fourthly, ANL contends that Mr Lovell went through Council files relating to developments on adjacent land and extracted two assessment reports which he provided to Mr Jamieson. One of the reports was a 2005 flora and fauna and threatened species assessment of adjoining land and the subject land and related to a proposed seniors living development involving construction of at least 70 serviced self-care units and a nursing home. The other report was a 2004 review of environmental factors on an adjoining property including identification of tree species right to the boundary of the subject property and downstream impact of water flow. The information in these reports included information that may have been relevant to issues Umwelt experts, Mr Jamieson and particularly the ecologist Mr Peake, were to address. In any case, I do not accept that Mr Lovell's provision of these reports to Mr Jamieson in any way indicates partiality by Mr Lovell bearing on the admissibility of his evidence.
8. In my opinion, it has not been proved that Mr Lovell lacks the requisite degree of impartiality. ANL has made no application to exclude his evidence under s 135 of the Evidence Act. Had it done so, I consider that the application would have failed.
9. For these reasons I overruled ANL's objection on the ground of partiality to the admissibility of Mr Lovell's evidence.

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