MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council

Supreme Court of NSW|2010-03-26|Before: Johnson J

CITATION : MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) [2010] NSWSC 243

DECISION : The objection to the question at T188.39-40 is overruled.

CATCHWORDS : EVIDENCE - claim for damages for misfeasance in public office and negligence - planning decision of Council - Plaintiffs call town planner as witness - town planner had advised and represented Plaintiffs during application to Council - town planner had advised and assisted Plaintiffs concerning claim for damages - whether town planner ought be allowed to give expert opinion evidence - claim that town planner lacked objectivity - whether evidence ought be excluded under s.135 Evidence Act 1995 - voir dire procedure - objection overruled

LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Evidence Act 1995

MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 1) [2010] NSWSC 241 MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 2) [2010] NSWSC 242 Chan v Sellwood [2009] NSWSC 1335 Neilson v City of Swan [2006] WASCA 94 Leinenga v Logan City Council [2006] QSC 294 Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Willoughby City Council v Transport Infrastructure Development Corporation (No. 2) [2008] NSWLEC 238 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 CASES CITED : Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422; 182 A Crim R 1 Pittwater Council v A1 Professional Tree Recycling Pty Limited [2008] NSWLEC 325 Australian Securities and Investment Commission v Rich [2005] NSWSC 149 Harrington-Smith v State of Western Australia (No. 7) [2003] FCA 893; 130 FCR 424 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Clark [2001] NSWCCA 494; 123 A Crim 506 Ainsworth v Burden [2006] NSWCA 174 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Australian Securities and Investment Commission v Rich [2004] NSWSC 1062; 213 ALR 338

MM Constructions (Aust) Pty Limited (First Plaintiff) PARTIES : Milan Maruncic (Second Plaintiff) Port Stephens Council (Defendant)

COUNSEL : Mr B Toomey QC; Mr E Romaniuk (Plaintiffs) Mr M Joseph SC; Mr S Glascott (Defendant)

SOLICITORS : Creagh & Creagh (Plaintiffs) DLA Phillips Fox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/289298 MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3)

JUDGMENT (on objection by Defendant to evidence of Garry Keith Warnes - see T263) 1 JOHNSON J: The Plaintiffs, MM Constructions (Aust) Pty Limited and Milan Maruncic, sue the Defendant, Port Stephens Council, seeking damages for misfeasance in public office and negligence. The proceedings relate to an application considered by the Defendant between 2005 and 2007 concerning premises at Church Street, Nelson Bay. 2 The background of the present proceedings may be found in my judgment on 23 March 2010: MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 1) [2010] NSWSC 241 ("MM Constructions (No. 1)"). Additional background concerning the progress of the hearing may be found in my judgment of 26 March 2010: MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 2) [2010] NSWSC 242 ("MM Constructions (No. 2)").

Factual Background 3 By reference to the Statement of Claim filed 23 May 2008 and the Amended Defence filed 23 March 2010, certain matters by way of factual background do not appear to be in real dispute. 4 In about 1987, Mr Maruncic purchased a block of land in Church Street, Nelson Bay ("the Church Street site"). On about 6 March 2000, the Plaintiffs submitted a development application to the Defendant for the construction of a five-storey residential building at the Church Street site. On 29 May 2000, the Defendant approved the Plaintiffs' application subject to conditions. 5 In or about May 2002, the Plaintiffs commenced demolition work at the Church Street site. In September 2002, Mr Maruncic purchased a crane and other equipment necessary to undertake the proposed development, with construction work commencing soon after. 6 In March 2003, a stop-work order was placed on the development at the Church Street site as a result of complaints of the owner of an adjoining property. Thereafter, the adjoining owner obtained an injunction prohibiting the Plaintiffs from further work on the Church Street site. The injunction proceedings remained on foot for about 18 months, until the injunction was lifted by the owner of the adjoining property in December 2004. 7 Between 2000 and 2004, a number of modification applications were proposed by the Plaintiffs for the development at the Church Street site. 8 On 21 April 2005, the Defendant granted consent to a modification application approving plans submitted by the Plaintiffs subject to certain conditions. 9 On 5 March 2004, a development application was lodged with the Defendant with respect to a development site at 61 Donald Street, Nelson Bay ("the 61 Donald Street site"). On 20 March 2004, the Plaintiffs objected (unsuccessfully) to the Defendant's assessment of the application for the 61 Donald Street site. On 18 February 2005, the Defendant issued development consent subject to conditions with respect to this site. On or about 4 March 2005, the Defendant received a Notice of Commencement of Work at the 61 Donald Street site. 10 On 2 May 2002, a development application was lodged with the Defendant with respect to a development at 65 Donald Street, Nelson Bay ("the 65 Donald Street site"). On 30 August 2002, the Defendant issued development consent subject to certain conditions. On 24 June 2004 and 16 December 2005, applications were made to the Defendant to modify the development application with respect to this site, both of which were consented to by the Defendant subject to conditions. 11 It appears that a development application was made for development at 63 Donald Street, Nelson Bay ("the 63 Donald Street site") with consent being granted by the Defendant subject to conditions on 30 August 2005. The Plaintiffs made submissions to the Defendant apparently in opposition to this development application. 12 As a result of the Defendant's approval of the development applications concerning the 61 Donald Street site and the 63 Donald Street site, the Plaintiffs formed the view that the proposed development at the Church Street site was no longer economically viable and a modification application under s.96 Environmental Planning and Assessment Act 1979 was lodged with the Defendant. From about May 2005, Mr Garry Warnes, Town Planner, was retained to advise and assist the Plaintiffs with respect to the modification application concerning the Church Street site. Correspondence passed between Mr Warnes and Mr Maruncic (on the one hand) and officers of the Defendant, in particular, Ms Amanda Gale, the Defendant's Development Co-Ordinator. From time to time, meetings took place involving Mr Maruncic, Mr Warnes, Ms Gale and other officers of the Defendant and councillors. 13 An issue which arose, and about which the Defendant obtained legal advice, was whether the concurrence of the Department of Planning was required with respect to the Plaintiffs' modification application. 14 On 30 November 2006, a Notice of Intention to Refuse the modification application was issued by the Defendant. Further communications passed thereafter between the Plaintiffs and Mr Warnes and officers of the Defendant. 15 On 21 May 2007, the mortgagee of the Plaintiffs took possession of the Church Street site following default by the Plaintiffs under the mortgage. 16 On 12 July 2007, the Defendant advised the Plaintiffs of the refusal of the modification application with respect to the Church Street site. 17 By their Statement of Claim filed 23 May 2008 as further particularised by letter dated 20 November 2008 (part MFI4), the Plaintiffs set out the way in which they put their case against the Defendant with respect to the pleaded causes of action. Put shortly, the Plaintiffs contend that they were subjected to a protracted process whereby the Defendant purported to consider the modification application on its merits between 2005 and 2007 when the Defendant (through Ms Gale) had formed a predetermined view that it ought be refused. The Plaintiffs contend that their deteriorating financial position was communicated to Ms Gale during this period as part of a request for speedy resolution of the application, but that the Defendant drew out the process in such a way that caused substantial economic loss to the Plaintiffs, for which they are entitled to recover damages against the Defendant by way of the pleaded causes of action. 18 This is sufficient factual background to set the scene for the objection to evidence which is the subject of this judgment. 19 I observe that a litigant who sues for the tort of misfeasance in public office assumes the often difficult task of establishing the elements of this cause of action: Chan v Sellwood [2009] NSWSC 1335 at [41]. Claims have been made against councils in other Australian States for misfeasance in public office in the context of planning decisions: Neilson v City of Swan [2006] WASCA 94; Leinenga v Logan City Council [2006] QSC 294. After analysing relevant authorities in Australia and the United Kingdom concerning the tort, Mullins J observed in Leinenga v Logan City Council at [64] that the authorities illustrate that the cause of action is not easily established.

Evidence of Garry Warnes 20 The Plaintiffs called, as the first witness in their case, Mr Garry Warnes. An affidavit of Mr Warnes sworn 15 August 2009 was read and, subject to certain rulings (T83-112), was admitted in evidence together with a folder of accompanying documents (Exhibit C). 21 I should mention that Mr Warnes had provided to the Plaintiffs' solicitors two documents entitled "Expert Witness Report to the Supreme Court as to Town Planning Issues". Both documents are undated, but it is clear that the longer version (MFI13) predates the shorter version (MFI14). It appears that the solicitors for the Plaintiffs served MFI14 upon the Defendant's solicitors as an expert witness report for the purpose of the proceedings. 22 At this point in the hearing, Mr Toomey QC, for the Plaintiffs, has not sought to tender either version of the expert witness report of Mr Warnes. 23 Mr Warnes is an experienced town planner. He had worked for various councils or with the Department of Planning between 1971 and 1997. Between 1989 and 1992, he was Deputy Regional Manager Hunter and Central Coast Regions with the Department of Planning (NSW). Between 1992 and 1997, he was Planning Services Manager/Strategic Planning Manager with the Defendant. In 1997, he left his employment with the Defendant to take up a position in the private sector as a planning consultant. It has not been suggested that Mr Warnes left his employment with the Defendant in 1997 in other than amicable circumstances. Between 1997 and 2002, he worked as a senior environmental planner with a private consultant business and, since 2002, he has been an environmental planner and director of Synergy Environmental Planning Pty Limited. 24 In the course of the evidence in chief of Mr Warnes, objection was taken by Mr Joseph SC, for the Defendant, to an area of his evidence. The Plaintiffs had tendered, without objection, a streetscape plan of the Church Street site (Exhibit A). Mr Toomey QC examined Mr Warnes in chief with respect to Exhibit A (T137ff). Amongst the documentation tendered by the Defendant was a letter dated 7 July 2006 from Mr Warnes to Ms Gale enclosing a plan, which demonstrated both a section view (along Church Street) and a three-dimensional representation of the relationship between the Church Street site and other approved developments in the vicinity of that site (Exhibit 1, Tab 51). 25 In the context of an objection to an earlier question asked by Mr Toomey QC of Mr Warnes, I gave the following ruling which places in context the area of objection to which this judgment relates. I said (T147.5-31): "I propose to allow the question. It should be apparent from the discussion recently which has taken place that there is an issue as pleaded in the statement of claim in support of the claim of misfeasance in public office, that Ms Gale, as a public officer in the employ of the defendant, formed an initial intention to refuse the application, and that that is said to be a predetermined decision thereafter, which she determined not to depart from. I put it broadly because, frankly, it has been put broadly.

As part of the factual narrative of events following the making of the application, the plaintiffs are seeking to adduce pieces of evidence, principally documentary, of things put before Ms Gale, which, it is submitted, go to the application.

Now, as I understand it, the plaintiffs are asserting that, amongst other things despite the written submissions of Mr Warnes, which are included in exhibit 1, the folder of documents attached to Ms Gale's affidavit, and the plan exhibit A, which the defendant acknowledges it had in its possession at one time, as I understand it the plaintiffs assert that there was a predetermined decision to refuse the application. Now, that is the case that is alleged. There is of course something of a large leap between alleging that and proving the elements of misfeasance in public office. But I'm satisfied that exhibit A and the line of questioning of Mr Warnes is at present relevant. I am also satisfied that this does not seek to canvas directly or indirectly my ruling of yesterday afternoon. I will be alert to any attempt by the plaintiffs to, via the back door, run a case that's different to that as originally pleaded, but I'm presently satisfied that this line of questions falls within the broad terms of the statement of claim as put, and it is allowed." 26 Later, Mr Toomey QC asked questions of Mr Warnes concerning the provision of full-scale plans to the Defendant (T188.14): "Q. Did you personally, provide full scale plans to council? A. Yes, I did. The plans would be drawn up and provided to me by Mr Maruncic and I would attend the council often with him to present the plans and the amended application to the council over the counter.

Q. When, to your knowledge, would the council first have had the full scale plans? A. They would have had a set of full scale plans with the initial application and they would have had full scale plans with each subsequent amendment for consideration.

Q. When you say the initial application do you mean - in what year? A. Well, when I say the initial application, I mean the section 96 application because the consent was already existing.

Q. That's what I'm asking? A. Yes. It was for the initial section 96 application. The subsequent variations made over the time there was a requirement that we provide full scale plans of sufficient numbers so that if council was of the mind to approve it they were the plans to stamp and approve.

Q. *Now, what is the importance of having a full scale plan in the context of the question of the relative building heights? OBJECTION." 27 It is the lastmentioned objection which triggered application for a voir dire. Mr Joseph SC objected to the question upon the basis that expert opinion was sought to be obtained from Mr Warnes without a report having been provided on the topic and that, in any event, the Court should not accept Mr Warnes as an expert witness because of non-compliance with Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 and the rules of Court on this issue (T188.44-48). 28 Having heard submissions, I allowed the question objected to (T190.29). Mr Joseph SC then sought to conduct a voir dire on the question of Mr Warnes' objectivity in expressing opinions in this Court in this case (T190.31). I permitted Mr Joseph SC to examine the witness on the voir dire, a process later interrupted by further submissions on the issue in the absence of the witness. Those submissions crystallised the issues on the voir dire to include the absence of any expert report from Mr Warnes referring to the subject plans, a submission that Mr Warnes was not objective and ought not be permitted (for that reason) to give expert opinion evidence and a submission that, even if the evidence was admissible, that it ought be rejected under s.135 Evidence Act 1995. I determined that the voir dire ought continue (T205.22) and Mr Joseph SC continued to examine Mr Warnes on the voir dire (T205-220).

Submissions on Objection to Evidence of Mr Warnes 29 In support of the objection, Mr Joseph SC submitted, firstly, that the topic of plans furnished to the Defendant by Mr Warnes on behalf of the Plaintiff in 2006, was not the subject of any reference in any expert report served by the Plaintiffs for the purpose of the proceedings. Reference was made to r.31.28(3) and (4) Uniform Civil Procedure Rules 2005 ("UCPR") whereby, except by leave of the Court or by consent of the parties, an expert report is not admissible unless it has been served in accordance with that rule, and the oral expert evidence in chief of any expert is not admissible unless the expert's report contains the substance of the matters sought to be adduced in evidence. Leave is not to be given to adduce oral expert evidence in chief unless the Court is satisfied that there are exceptional circumstances that warrant the granting of leave, or that the report concerned merely updates an earlier report: r.31.28(4) UCPR. 30 Secondly, Mr Joseph SC submitted that Mr Warnes ought not be permitted to give expert evidence at all in the proceedings, because he was not an objective and independent witness. It was submitted that the evidence of Mr Warnes on the voir dire, taken together with documents which are MFI13 (the longer expert report), MFI14 (the shorter expert report) and other documents, being MFI17, MFI18 and MFI19, revealed that Mr Warnes was retained by the Plaintiffs to advise and assist them in and after May 2005 with respect to the subject application and that he did so. Further, Mr Warnes had prepared, on behalf of the Plaintiffs, an objection to the Defendant with respect to an application made by Expoe Pty Limited, the subsequent owner of the Church Street site (MFI19 - letter of objection dated 17 October 2007). In addition, it was submitted that Mr Warnes had provided advice to the Plaintiffs' solicitors concerning the content of the Statement of Claim (MFI18 - undated letter from Mr Warnes to Mr Maruncic). It was submitted that Mr Warnes had been retained by the Plaintiffs' solicitors on 7 August 2009 to provide an expert report for the purpose of the proceedings (MFI9). Facsimiles were sent by Mr Warnes to the Plaintiffs' solicitors on 11 and 12 March 2010 commenting upon a number of factual issues in the proceedings (MFI17). Reliance was also placed upon edits made to the longer expert report (MFI13) which were said by Mr Warnes to have been made at the request of the Plaintiffs' solicitor (T205-206). It was submitted that amongst the passages removed from the longer report were statements by Mr Warnes that he agreed with the view of Ms Gale in certain respects. Reference was also made to strong criticism by Mr Warnes of the Defendant's approach to the Plaintiffs' modification application between 2005 and 2007. 31 Accordingly, the Defendant submitted that Mr Warnes was not an independent expert witness and that his evidence ought not be allowed. Reliance was placed upon the passages in the judgment of Heydon JA (as his Honour then was) in Makita (Australia) Pty Limited v Sprowles at 738-744 [77]-[85] and the decision of Lloyd J in Willoughby City Council v Transport Infrastructure Development Corporation (No. 2) [2008] NSWLEC 238 ("Willoughby City Council"). The Defendant submitted that statements of Ipp JA (Beazley and Giles JJA agreeing) in Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 ("Stamoulis") at [186]-[225] were distinguishable, and did not have the effect that opinion evidence of Mr Warnes was admissible. 32 Finally, Mr Joseph SC submitted that, if otherwise admissible, the Court should refuse to admit opinion evidence from Mr Warnes upon the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Defendant under s.135(a) Evidence Act 1995. 33 Mr Toomey QC submitted that the question which drew the objection (set out at [26] above) did not, in reality, involve the seeking of opinion evidence from Mr Warnes. He submitted that Mr Warnes was called to give factual evidence as to events in which he was involved between 2005 and 2007, and that the provision of the plans lay within this part of his evidence. 34 With respect to the objection based upon Mr Warnes' alleged lack of objectivity, the Plaintiffs submitted that application of the principles in Stamoulis ought lead to a conclusion that opinion evidence was not inadmissible on this basis, with issues of the type raised by the Defendant going to weight only. 35 With respect to the argument that the expert report of Mr Warnes did not refer to the plans, the Plaintiffs submitted that the Defendant's own documents revealed that plans had been provided to it by Mr Warnes on 7 July 2006 (Exhibit 1, Tab 51), and that the Defendant's later records suggest that the view had been formed within the Defendant that the plans were, in some way, inaccurate (Exhibit 1, Tab 104). Accordingly, it was said that the Defendant was aware of issues concerning the plans.

Ruling Concerning Objection 36 Section 189 Evidence Act 1995 permits a voir dire to take place in a civil hearing by a Judge sitting alone. The grant of a voir dire is a matter of discretion and not a right. A party seeking a voir dire must first satisfy the Court that there are reasonable grounds for a voir dire, and counsel must identify the issues to which it is directed. Specification by counsel of issues to be examined on a voir dire is important to allow objections to be taken and considered on relevance: Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at 98 [112]; R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422; 182 A Crim R 1 at 5-6 [20]. 37 I sought to identify the issue to be determined on the voir dire in application of these principles. The central issue was the Defendant's objection that Mr Warnes ought not be permitted to give opinion evidence at all because of his suggested lack of independence, resulting from his involvement on behalf of the Plaintiffs from 2005 until the present. An associated question was the s.135 objection. Having regard to the procedural state of the litigation generally, the absence of any reference in an expert report to the plans ought not be decisive on the objection taken as part of this voir dire. It is clear that plans were submitted to the Defendant by Mr Warnes in 2006 as part of the Plaintiffs' application and subsequent submissions. In any event, no expert report of Mr Warnes has been tendered as yet by the Plaintiffs, with (as at 26 March 2010) the Plaintiffs leaving open the question whether expert opinion evidence will be sought to be adduced from him. The issue has been brought to a head in the way and at the time it has because of the objection taken by the Defendant, with a voir dire allowed with respect to the objection. 38 I am satisfied that the question which attracted the objection does, to an extent, seek expert opinion of Mr Warnes in answering the question. Although the question, on one view, involves an obvious factual response that the larger the scale of the plan, the easier it is for the recipient to read and understand what is depicted on it, it seems to me that a town planner's answer to this question involves, as well, an element of opinion concerning the role and use of plans of this type in the assessment of a planning application by a council. Accordingly, I do not accept the submission of the Plaintiffs that the question seeks a factual response only. I do accept, however, that there is a significant factual (as opposed to opinion) element in the expected response to this question. Accordingly, I am satisfied that the question operates as a sufficient trigger to the objectivity objection raised by the Defendant. 39 In my view, the present objection is to be determined by reference to the principles expressed in Stamoulis concerning the admissibility of expert opinion evidence from a person, who also happens to be a person interested in the outcome of the proceedings in the sense of being a party or an ally of a party to the proceedings. 40 In Stamoulis, Ipp JA (at [210]-[211]) referred to the duties of expert witnesses, in the context of considering whether the rules rendered inadmissible expert evidence of witnesses who had an interest in the proceedings: "210 I accept that the rules to which his Honour was referring and the current equivalent of those rules impose more stringent duties on expert witnesses than did the common law, as his Honour implies. But, his Honour in that observation was not saying, with respect, that the rules render inadmissible expert evidence of witnesses who have an interest in the proceedings.

211 Irrespective of the precise content of the duties to the court now owed by expert witnesses under pt 31 r 23, there is no reason why expert witnesses who have a material interest in the proceedings in which they are to testify should not be able to comply with those duties. Nothing in the content of those duties, as described by Cresswell J in the Ikarian Reefer , suggests that an honest expert witness who has a material interest in the proceedings would be unable to comply with the requirements imposed thereby. For example, such a material interest would not render it impossible for the expert to present evidence to the Court that is the independent product of the expert - uninfluenced as to form or content by the exigencies of litigation, or for the expert to provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his or her expertise, or for the expert to refrain from assuming the role of an advocate. Such an expert might well be able to give truthful evidence, to ensure that the court is fully informed of his or her reasoning process, and to present evidence without misleading the court or concealing any relevant facts from the court. Whether the expert does so is a matter to be tested in cross-examination." 41 After considering other decisions in Victoria, South Australia, New South Wales and the United Kingdom (at [213]-[218]), Ipp JA concluded at [219] that the trial Judge in Stamoulis erred in deciding that expert evidence of certain medical practitioners was inadmissible merely because they were materially interested in the proceedings, would tend to give exculpatory evidence and that, for these reasons, their evidence would be inherently unreliable. Ipp JA concluded that these matters went to weight and not admissibility. 42 I do not accept the Defendant's submissions which seek to distinguish Stamoulis from the present case. In my view, Stamoulis lays down general principles which apply to proceedings where questions of this type are raised. 43 I do not consider that the Defendant is assisted on this argument by the decision of Lloyd J in Willoughby City Council. That case was determined before Stamoulis, and it is the principles identified by the Court of Appeal in the latter case which I must apply in this case. 44 In any event, I observe that the decision of Lloyd J in Willoughby City Council was distinguished by Biscoe J in Pittwater Council v A1 Professional Tree Recycling Pty Limited [2008] NSWLEC 325. Biscoe J noted that Lloyd J's attention had not been drawn to the decision of Austin J in Australian Securities and Investment Commission v Rich [2005] NSWSC 149 and authorities referred to in that decision. Having done so, Biscoe J at [11]-[12] confined the observations of Lloyd J in Willoughby City Council. 45 With respect, I think that the decision of Biscoe J accorded more closely with the law as it stood before Stamoulis than the decision of Lloyd J in Willoughby City Council. However, the position is made even clearer by the principles laid down by the Court of Appeal in Stamoulis to which I have referred. 46 I have had regard to the totality of oral and documentary evidence adduced on the voir dire. The MFI documents referred to in this judgment are to be treated as evidence on the voir dire (T223). Insofar as some of the submissions of the Defendant invited the Court to reject certain answers of Mr Warnes on the voir dire as being implausible, I am not persuaded that such a view ought be formed. Of course, if the evidence on the voir dire becomes evidence in the trial and issues of the credibility and reliability of Mr Warnes require determination, then conclusions will be reached by reference to the totality of the evidence. Mr Warnes has offered some explanations for what he has said in various reports and other documents referred to in the voir dire evidence. The actions of Mr Warnes in removing parts of his longer expert report (MFI13) following discussions with the Plaintiffs' solicitors may call for consideration of principles referred to by Lindgren J in Harrington-Smith v State of Western Australia (No. 7) [2003] FCA 893; 130 FCR 424 at [19]ff. I accept that Mr Warnes has advised and assisted the Plaintiffs, for a lengthy period, and has expressed some strong views critical of the Defendant. 47 I am satisfied that the issues raised by the Defendant concerning the involvement of Mr Warnes between 2005 and the present time on behalf of the Plaintiffs go to weight and not admissibility of any expert opinion evidence which he might give in the proceedings. I reject the submissions of the Defendant on this issue. 48 Accordingly, the Plaintiffs ought not be shut out from seeking to adduce expert opinion evidence on town planning issues from Mr Warnes based upon the ground of lack of objectivity. I am not persuaded that the present question ought be disallowed under s.135 Evidence Act 1995. The question relates to the provision of plans by Mr Warnes to the Defendant, an issue which is referred to at various points in the Defendant's own records. I am not persuaded that the probative value to be accorded to Mr Warnes' response to this question is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Defendant, or be otherwise misleading or confusing or result in undue waste of time. I bear in mind that the statutory formula in s.135(a) requires a conclusion that the admission of the evidence would be not just prejudicial to a party, but unfairly prejudicial to that party: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 324-327 [90]-[97]; R v Clark [2001] NSWCCA 494; 123 A Crim 506 at [110]-[123]; Ainsworth v Burden [2006] NSWCA 174 at [99].

Use of Voir Dire Evidence in the Trial 49 It has been held that evidence on a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding unless some order is made qualifying its status or significance under ss.135 or 136 Evidence Act 1995: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [201]-[202]; Australian Securities and Investment Commission v Rich [2004] NSWSC 1062; 213 ALR 338 at [29]ff; Director of Public Prosecutions (NSW) v Zhang at 98 [111].

Conclusion on Objection 50 In summary, my conclusions with respect to the objection and voir dire are as follows:

(a) the question objected to does seek to illicit from Mr Warnes an answer based upon a mixture of his factual involvement in events between 2005 and 2007 and his expert opinion as an experienced town planner;

(b) the issues raised by the Defendant concerning suggested lack of objectivity of Mr Warnes go to weight, and not admissibility of any expert opinion evidence that he might give;

(c) although the expert reports prepared by Mr Warnes (MFI13 and MFI14) do not refer to the plans, there is direct reference at various points in the Defendant's documents, and Mr Warnes' submissions to the Defendant concerning the plans, so that the Plaintiffs ought not be shut out from adducing an answer to the question objected to which involves, to an extent, an expert opinion - to the extent that the Plaintiffs require leave under r.31.28(4) UCPR for this purpose, then a foundation exists for leave in this case;

(d) I am not satisfied that the probative value of the answer to the present question is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Defendant, be misleading or confusing or cause or result in undue waste of time, so that it ought be excluded under s.135 Evidence Act 1995 ;

(e) accordingly, the objection by the Defendant to the question is overruled. 51 The ruling with respect to this objection ought not be interpreted as an open invitation to the Plaintiffs to adduce such evidence as they wish from Mr Warnes. I have referred to the history of this litigation, both past and recent, in my judgments, MM Constructions (No. 1) and MM Constructions (No. 2). I propose to give directions so that this litigation is put in order before the hearing is resumed. Those directions will include orders requiring further steps to be taken by the Plaintiffs if they seek to adduce expert evidence, beyond the answer to the present question, from Mr Warnes. 52 The formal order which I make is that the objection to the question at T188.39-40 is overruled. I will hear the parties, in due course, on the question of whether the evidence adduced during the voir dire ought be admitted in the trial generally, in accordance with the principles referred to at [49] above.

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