Mulpha Hotel (Sydney) Pty Ltd in its capacity as trustee of the Mulpha Hotel... [2026] NSWLEC 23 | Case summary | Zoe

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Mulpha Hotel (Sydney) Pty Ltd in its capacity as trustee of the Mulpha Hotel... [2026] NSWLEC 23 | Case summary | Zoe

The mere fact that expert evidence is admissible and even relevant is not sufficient for leave to be granted. Rather, when exercising its discretion, the Court determines whether the evidence is “reasonably required” to facilitate the just, quick and cheap resolution of the real issues in the proceedings (see the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (“CPA”), informed by ss 57-60 of that Act.
A number of authorities have reviewed the legal principles applicable to the granting of leave to adduce evidence in judicial review proceedings (for example, see Pearson v State of New South Wales [2025] NSWLEC 134 at [47]-[52]; Nature Conservation Council of NSW Inc v Minister for Water, Property and Housing [2022] NSWLEC 69 at [25]-[27]; Ross v Lane [2021] NSWLEC 61 at [14]-[22]; Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [42]-[45]; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [119]-[139]; Rossi v Living Choice Australia Ltd [2012] NSWLEC 112; (2012) 190 LGERA 262 at [43]-[50] and Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 at [66]-[83]).
Ordinarily in judicial review proceedings, it is only the material that was before the original decision-maker that is relevant. This is because judicial review is concerned with the lawfulness of the decision under review and any “trespass” or “slide” into the merits of the decision is to be avoided (Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14 at [7]).
There is, however, no rule precluding the admission of expert evidence in judicial review cases (Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 at [42]) and there are exceptions to the general proposition that evidence not before the original decision-maker does not form part of a judicial review challenge (Friends of King Edward Park Inc at [90]).
These exceptional cases depend upon the grounds of review, the nature of the evidence proposed to be called, and the particular facts and circumstances of the proceedings (Nature Conservation Council of NSW Inc at [26]; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-40; McCormack v Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 at [38] and Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [457]-[459]). In particular, courts have allowed expert evidence in relation to a challenge to administrative action on the basis of manifest unreasonableness or irrationality.
In Arnold (No 6), leave to file and serve expert hydrology evidence was granted by Biscoe J. In doing so, his Honour made the following salient observations (at [124]):

In Arnold (No 6), the expert evidence was contended to be necessary to demonstrate that a plan made under the Water Management Act 2000 by the relevant Minister was manifestly unreasonable because the plan’s extraction limit was based on a model that was so flawed that it was irrational to adopt it. Biscoe J granted leave to adduce it but ultimately held that the evidence was inadmissible insofar as it introduced a model that post-dated the making of the plan. As his Honour concluded, if the evidence were admitted, the Court would be engaging in impermissible merits review, especially given the fact that in making the plan the Minister had before him reports from hydrogeologists (at [194] - [195]).
The direction to serve expert evidence made by the Court in Muswellbrook concerned evidence from a mine rehabilitation engineer. The evidence was needed, according to the applicant, to establish that the rehabilitation strategy prepared by the respondent was not a rehabilitation strategy that complied with the conditions of the project approval. The expert evidence would be directed to what the rehabilitation strategy proposed as the end result for the mine site, which would be compared with what the terms of the modified project approval required.
Ultimately, the Chief Judge granted leave to serve the evidence from the mine rehabilitation engineer on several bases, having regard to the fact that the proceedings included both civil enforcement and judicial review and because manifest unreasonableness was not the only ground of review to which the evidence was directed. The Chief Judge emphasised, however, that the evidence needed to address only matters where expert evidence is relevant and admissible to establish manifest unreasonableness at law. It was also noted that expert evidence may not have been required for the consent authority to establish manifest unreasonableness having regard to the manner in which the ground of review was articulated by it. The question of whether the expert evidence obtained by the consent authority met the criteria of admissible and relevant was to be determined later at the point when the consent authority sought to rely upon the expert evidence (at [44]).

The second to fourth reasons proffered may be readily dispensed with. In reverse order, the scope of the evidence has now been clarified by Mulpha. As to the cost, both to the parties and the Court, as Macquarie Street Development conceded, they are not likely to be disproportionate. Moreover, the evidence is likely to be accommodated within the two days allocated to hear the matter on 16 and 17 June 2026. In addition, there is, in my view, sufficient time for the preparation of the Blaszczakiewicz expert evidence (which can be served by 6 April 2026, according to Mulpha), any reply to that report as well as the joint conferencing and joint reporting that would follow. In other words, I do not consider that granting leave to adduce the Blaszczakiewicz expert evidence would offend the overriding purpose contained in s 56 of the CPA, insofar as it will not lead to incurring unnecessary cost or delay. While there will be additional costs associated with obtaining and adducing expert evidence, this needs to be considered in the context of the importance of the matters in dispute and the likely totality of the cost of the proceedings.
It is the first basis of objection to leave being granted submitted by Macquarie Street Development which is more compelling. In my view, the expert evidence of Blaszczakiewicz is not reasonably required to determine the real issues in dispute in the proceedings.
Essentially, Mulpha takes issue with the substance of the Council’s decisions to grant the approvals and to impose condition 38 of the consent. While it is a somewhat trite observation that most challenges on the ground of legal unreasonableness are “outcome focused” (Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [60]), in my opinion, Mulpha’s attack transgresses the prohibition against the Court engaging in merits review.
The legal unreasonableness ground as pleaded and submitted by Mulpha was somewhat equivocal as to whether Mulpha was asserting that the Council had acted unreasonably in the exercise of power involving the final decisions themselves or whether Mulpha was asserting that the unreasonableness “resided in an exercise of power concerning the process of making that decision” (San Bao Pty Ltd v Minister for Immigration and Citizenship [2026] HCA 6 at [15]). Either way, as explained below, neither formulation gives rise to the reasonable requirement for expert evidence of the type mooted.
The Council had demolition plans before it prepared by BVN Architecture which expressly referred to a structural engineering report. While it is unclear if the structural engineering report referred to in demolition plans was before the Council at the time it made the decisions, it is tolerably clear that the drawings were based upon the report of a structural engineer and consent was granted on the basis that the development was to be carried out in accordance with those plans (condition 1) and subject to the conditions imposed (that is, including condition 38). It is therefore not strictly correct to say, as Mulpha does, that the approvals were granted by the Council in the absence of any structural engineering material before it.
Having regard to those plans, the Council rightly or wrongly formed an initial, at least, view that it was possible to ensure that existing physical access could be retained, and the use of the ROC would remain safely operational, during the demolition and subsequent construction stages of the development. The alleged legal unreasonableness of this decision can be assessed on the material before the Council at the time that it granted consent, having regard to the manner in which the ground of legal unreasonableness is articulated by Mulpha at [54] and [37]-[49] of the summons.
While Mulpha objected to the proposed development, at no point did it provide the Council with structural engineering material that indicated that it was “impossible” (as Mulpha submitted orally) to ensure that the ROC and the easement were retained during the demolition and construction stages and remained safely operational. Rather, it submitted the JMT report and the BBC report.
The JMT report principally addressed the ROC from the perspective of, unsurprisingly, the traffic impacts of the development on the ROC and on the InterContinental Hotel. A subsequent letter from the InterContinental Hotel dated 24 June 2024, focused on the anticipated revenue and profit loss should the development proceed.
The BBC report, while noting that in the author’s opinion no or insufficient structural engineering plans or details had been provided by Macquarie Street Development to show or explain how the ROC would be protected during the proposed demolition so as to avoid impact upon the operation of the egress from the porte-cochere, in truth took issue with the lack of consultation afforded to Mulpha prior to consent being granted. It requested changes to draft condition 38 to provide it with the opportunity to comment upon the structural design of the ROC before final approval was granted.
As explained above, condition 38 was not amended in the manner sought by Mulpha. There was, however, no obligation on the Council to do so and Mulpha does not assert a denial of procedural unfairness in the granting of the consent.
None of this is to say that Macquarie Street Development will be successful in resisting the other grounds of review raised by Mulpha. For example, it may be arguable that the Council did not, assuming that it was required to do so, form a view that it was possible to ensure that existing physical access to, and the safe use of the ROC during the development was possible inasmuch as it seemingly, by the imposition of condition 38, deferred approval of the detailed design of the structural works to a later date after the granting of the consent. Or, although it was not pleaded as such, it could be contended that there was a constructive failure to exercise jurisdiction by the Council in granting the approvals and in imposing condition 38 of the consent.
It is also not to say that had Mulpha tethered the need for the expert evidence to other grounds of review in the summons (for example, that contained in [50]) that it might have enjoyed greater success in adducing the structural engineering evidence, but the circumscribed ambit of the application did not give rise to a basis upon which to direct expert evidence.