Pittwater Council v A1 Professional Tree Recycling Pty Ltd

Land and Environment Court (NSW)|2008-12-15|Before: Biscoe J, Mr J, Lloyd J

CITATION : Pittwater Council v A1 Professional Tree Recycling Pty Ltd [2008] NSWLEC 325

PROSECUTOR: Pittwater Council PARTIES : DEFENDANT: A1 Professional Tree Recycling Pty Ltd

KEY ISSUES: Evidence :- expert evidence - whether and in what circumstances an expert witness's evidence is inadmissible or should be excluded in the court's discretion because of lack of impartiality.

Australian Securities and Investments Commission v Rich [2005] NSWSC 149 Evans Deakin Pty Limited v Sebel Furniture Limited [2003] FCA 171 CASES CITED: Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 Kirch Communications Pty Limited v Gene Engineering Pty Ltd [2002] NSWSC 485 Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238

PROSECUTOR: Mr J Johnson SOLICITORS Grahame Jackson & Associates LEGAL REPRESENTATIVES: DEFENDANT: Mr T G Howard SOLICITORS Lawhouse Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PITTWATER COUNCIL v A1 PROFESSIONAL TREE RECYCLING PTY LTD

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a hearing of a prosecution of a charge of unlawful clearing of bushland contrary to a council tree preservation order. The defendant has objected to the admissibility of paragraph 12 of the affidavit of an expert witness, Mr Chris Wright, called by the prosecution, in which he said: "In my opinion, the vegetation (except for the areas cleared on earlier occasions) which was cleared was a remainder of the natural vegetation of the land." 2 That evidence is relevant to whether the tree preservation order is applicable. 3 The objection is on the ground that Mr Wright cannot properly put himself forward as an expert witness because, in consequence of the role that he played as an investigator for the prosecutor council prior to the commencement of the proceedings, particularly by making a report in which he recommended "investigation/prosecution", he was incapable of bringing the degree of impartiality required of an expert witness. 4 The defendant relied on Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 at [11] where Lloyd J refused to admit an expert's report for the following reasons: "In my opinion, the report of [the council's expert witness] should be rejected. She is not independent from a party but, on the contrary, is an employee of a party. Moreover, she appears to have been heavily involved in the proposal for the development of the land in question and so is not independent from the matter in dispute. Finally, as I have already noted, the report itself contains not only facts but also partisan opinions, which demonstrate that she has clearly adopted the role of an advocate for a party".

It was the totality of those considerations that led to the rejection of that expert's evidence. Thereafter the expert's statement of evidence was re-cast into an affidavit that removed all expressions of opinion and constituted an historical analysis, which was admitted into evidence. 5 An expert witness is bound by the Expert Witness Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005. That is because Part 75 r 3J of the Supreme Court Rules 1970 binds an expert witness to the Code of Conduct and Part 75 applies, so far as applicable, to criminal proceedings (such as these) in Class 5 of this Court's jurisdiction: r 5.2(1) of the Land and Environment Court Rules 2007. The Code of Conduct applies to any expert witness engaged or appointed to provide an expert's report for use as evidence in proceedings or proposed proceedings or to give evidence in proceedings or proposed proceedings. It states that an expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise: cl 2(1). 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: cl 2(2). An expert witness is not an advocate for a party: cl 2(3).

6 In Kirch Communications Pty Limited v Gene Engineering Pty Ltd [2002] NSWSC 485 at [14] Campbell J concluded that "even an expert opinion from someone with a connection with a party to the proceedings is sometimes capable of assisting to resolve the issues". His Honour at [9] quoted the following passage from the judgment of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 at [7]: "The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the court in reaching the correct result... While it is undoubtedly the task of the Court to do justice between the parties, and necessary for the court to be not only independent, but perceived to be independent, a biased witness does not impugn the independence of the decision-maker. Rather, any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility". 7 The issue of admissibility of expert evidence on the ground of partiality was visited in Australian Securities and Investments Commission v Rich [2005] NSWSC 149 by Austin J. In that case, there was an issue as to the admissibility of the evidence of an expert called by ASIC who was involved from the commencement of ASIC's investigation by assisting it in the investigation and preparation of a report. Thus, the circumstances were similar to the present case. Austin J set out a range of considerations going to the admissibility or discretionary exclusion of expert evidence pertinent to the case before him, at [256]: "Although the law is not fully settled, it appears that the Act and the case law surrounding it, read in conjunction with the Code, give rise to the following considerations going to the admissibility or discretionary exclusion of expert evidence, pertinently to the present case:

(1) that the evidence, if not admissible as evidence of fact, must be evidence expressing the expert's opinion; (2) that the person put forward as an expert must possess specialised knowledge based on training, study or experience; (3) that the expert's opinion must be wholly or substantially based on his or her specialised knowledge; (4) that the expert's report must distinguish between the opinions and the facts on which they are based; (5) that the expert must set out his or her reasoning for each opinion expressed; (6) that, where it is pertinent to do so, the expert's report must set out the reasoning by which certain information was considered and rejected or discounted for the purposes of the report; (7) that the expert's opinion must not be wholly or substantially based on facts that can be proved only by inadmissible evidence; (8) that the expert's opinion and reasoning must be his or her own, and not simply the adoption of the work of someone else; and (9) that, although the expert need not be independent of the litigants, he or she must be in a position to exclude from consideration everything except the matters identified as the facts upon which his or her opinions are based." 8 Austin J then addressed considerations relating to an expert's independence. He noted that the Expert Witness Code of Conduct imposed on an expert witness an overriding duty to assist the court impartially: at [333]. He held at [334]: "According to the preponderance of Australian authority, the fact that an expert is aligned to the party engaging him or her, and biased or not independent, is not a bar to the admissibility of the expert's opinion evidence, though it may go to the weight of the evidence... The reason, as explained by Pagone J in Fagenblat , is that the evidence of the witness can be tested in adversarial proceedings, and so the possibility that the witness may be biased does not infect the impartiality of the court. The ability of the court to give biased evidence little or no weight ensures that there is no inherent fairness to the other party in admission of the evidence. Indeed, the presence of a risk of bias (unconscious or otherwise) is not of itself a reason to exclude evidence of an expert either on grounds of admissibility or in the exercise of discretion".

(citations omitted) 9 His Honour at [342] cited Kirch (above) and quoted Allsop J in Evans Deakin Pty Limited v Sebel Furniture Limited [2003] FCA 171 at [676] that: "There is no ethical reason why [expert evidence] cannot be given by the person providing assistance [in the litigation], as long as that person and legal advisors understand and recognise the difference between the two tasks and keep them separate". 10 Austin J concluded that an expected lack of impartiality in the perception of a reasonable bystander by reason of a personal, family or business relationship is not itself a ground for holding that an expert's opinion is inadmissible, at [346]-[348]: "In summary, the fact that the expert may have had a family, personal or business relationship with the party retaining him or her, of a kind that might cause a reasonable bystander to apprehend or even expect a lack of impartiality in the expert's opinions, is not of itself a ground for determining that the expert lacks testimonial capacity or competency, or otherwise for holding that the expert's opinion evidence is inadmissible... there is no basis for holding inadmissible or excluding the Carter report merely because PwC were retained to assist ASIC in its investigation before the proceeding was commenced and Mr Carter provided his report of 21 November, and Mr Carter's assistance at PwC continued to perform assignments for ASIC concurrently with Mr Carter preparing his Report for use in the proceedings.

There may, however, be additional factors that would make the evidence inadmissible or, at least, would cause the court to exclude it in the exercise of its discretion. For example, the court might exclude an expert's evidence if it appeared that the expert, having formed his or her opinions for another purpose, was not prepared to consider changing his or her mind for the purposes of giving evidence in court. But that is not the evidence in the present case...

One additional factor especially pertinent in the present case is that expert opinion evidence might be excluded if the expert, in the course of his or her prior relationship with the party who has retained him or her, has obtained evidence relevant to the formation of his or her expert opinion, which is not part of the identified body of information to which the expert is authorised to have regard in preparing the report. Here the problem is not lack of independence per se, but the fact that, in the course of acting in relationship with the party to the litigation in a non-independent way, the expert may have obtained information which is not appropriate or permissible to be used as a factual basis for expert opinions". 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.

12 ASIC v Rich, the facts of which are analogous to the present case, was not drawn to the attention of Lloyd J in Willoughby City Council v Transport Infrastructure Development Corporation (No 2). The latter case may be explained on the basis of the existence of factors additional to the employer/employee relationship which, in conjunction with that relationship, so clearly demonstrated that the expert had adopted the role of an advocate that there was no doubt that the expert was incapable of bringing the requisite degree of impartiality to the expert's evidence. That is not this case. The evidence on which the defendant relies referred to at [3] above cannot be characterised in that way.

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