Port Securities Pty Limited v Wollongong City Council and Anor

CASES CITED: Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303

APPLICANT Mr M Wright SOLICITORS Minter Ellison FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr Mantei SOLICITORS Kells Lawyers SECOND RESPONDENT Mr Clay SOLICITORS Department of Planning - Legal Services Branch

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10939 of 2005 Port Securities Pty Limited v Wollongong City Council

JUDGMENT 1 Her Honour: The Applicant has filed a Notice of Motion seeking leave to adduce an additional expert town planning report in circumstances where a court appointed town planning expert has been appointed. The matter does not yet have a hearing date and no Commissioner has yet been allocated the matter by the Chief Judge but the parties anticipate this will occur in due course. The application is made pursuant to Pt 39 r 6 of the Supreme Court Rules 1970 ("the Supreme Court Rules") which states: Other expert evidence Where an expert has been appointed pursuant to this Part in relation to a question arising in the proceedings, the Court may limit the number of other experts whose evidence may be adduced on that question.

The Supreme Court Rules were adopted by this Court by virtue of the Land and Environment Court Rules 1996 Pt 6 r 1(1). 2 Clause 14 of Practice Direction 1 of 2005 - Court appointed experts states: The Court may direct the expert to report orally to the parties and subsequently provide a written report. In some cases, only an oral or written report may be required. If, after reviewing the oral or written report of the expert, a party intends to seek leave to call another expert at the hearing that party shall immediately notify the Court and the other parties that an application is to be made. The Registrar shall then arrange for the Chief Judge to appoint a judge or commissioner to hear the matter and arrangements will be made for the application for leave to be heard at the earliest convenient date. If leave is granted, the Court will, if possible, give directions which ensure that, if a hearing date has been fixed, it is not lost. The communication with the Registrar and any application thereafter may be made by telephone or e-court if this is convenient. A written motion will not be required. The Court encourages the use of these processes which can save time and expense for the parties. In this case the Applicant has filed a Notice of Motion. 3 In 1994, a Commission of Inquiry was conducted to investigate appropriate land use and zonings in the vicinity of Helensburgh. The Commissioners recommended to the Minister that there be no change to current zonings until further studies are undertaken to identify existing and potential impacts from various land uses, until appropriate environmental objectives are set, and until a strategic catchment management plan is established. Zoning of the land changed in March 1997 to reflect the findings of the Commission of Inquiry. The only issue in the substantive Class 1 proceedings is whether or not a SEPP 1 objection ought be upheld in relation to the construction of a house in an area zoned 7(d) Hacking River Environmental Protection Zone at Helensburgh. A SEPP 1 objection has been prepared on behalf of the Applicant and provided to the Court appointed expert. The Court appointed expert has concluded in his report that the objection should not be upheld and the development application should be refused because it fails to uphold the objectives of the zoning created after the Commission of Inquiry. A draft of the expert town planning report by Thomson sought to be relied on by the Applicant was in evidence. That report concludes that the SEPP 1 objection ought be upheld.

Applicant's submissions 4 The Applicant argued the Court appointed expert report overlooked or failed to assess adequately a number of significant matters including the unique nature of the subject site and the factors which demonstrate that the proposal would not create an adverse precedent for future development on other allotments in the zone. There is also an issue in relation to the assessment of the extent of tree clearing required. It was also in the interests of fairness to the Applicant that the report be admitted because it was argued that in the absence of expert witnesses addressing these matters the Applicant would be denied the opportunity to put a reasoned case for the approval of its development application. 5 The Applicant argued that there would be no disadvantage to the other parties if the report is admitted as the joint conferencing of the experts and the use of concurrent evidence would ensure a streamlined approach to the hearing so that it would not be unnecessarily lengthened if the report were admitted. The matter is estimated to take one day. Director-General's and Council's submissions 6 The Director-General and Council submitted that the admission into evidence of the Thomson report would not assist the Court in its determination of the Class 1 application for the following reasons: (i) The relevant Commission of Inquiry in 1994 speaks for itself and the evidence of an alternative expert witness would not assist the court by giving any new information; (ii) Both experts accept the underlying objectives of the development standard contained in cl 14(1)(b) of LEP 1990 and, to that extent, the Thomson report does not uncover any flaw in the methodology adopted by the Court appointed expert; (iii) Whether or not there exist opportunities for consolidation of the development site with adjoining land is a matter of fact that can be ascertained by the Court from information contained in the SEPP 1 objection submitted with the development application (Fig 2 and Table 3.1); (iv) The Thomson report does not suggest that any matter material to the Court appointed expert's opinion has been overlooked; (v) The Thomson report does not raise any issue that the commissioner hearing the matter, applying his or her own expertise, would not have considered but for the Thomson report.

7 The Director-General further submitted that new expert witness evidence should not be admitted, because any new information can be conveyed more appropriately by amending the SEPP 1 objection. This case involves a SEPP 1 objection, not a more general assessment of a development application which is why the SEPP 1 objection should be amended in favour of allowing in new expert witness evidence. 8 Further, the Director-General submitted that the criteria for giving leave to allow alternative expert evidence must amount to more than a mere difference of opinion between the experts. The role of the parties is to give all relevant information to the Court appointed expert, and then for the expert to decide what to take into account. The Director-General further submitted that a party should not be allowed to adduce further evidence through an alternative expert on the basis that the Court appointed expert failed to attach sufficient weight to a matter. No unfairness would attach to the party towards whom the Court appointed expert's findings are adverse. Any unfairness would be a necessary consequence of the fact that having a Court appointed expert departs from the usual practice in an adversarial system. Finding 9 The Court has not been provided with any case law by the parties in relation to the application in the Supreme Court of Pt 39 r 6 of the Supreme Court Rules, or similar provisions in other jurisdictions. This may be because there has not to date been much use of Court appointed experts so that there has been little application of Pt 39 r 6 by parties seeking to adduce additional expert evidence. There is only one authority relied on from this Court, Lloyd J in Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303. That case concerned an appeal under s 56A of the Land and Environment Court Act 1979, against the decision of a Commissioner which allowed an additional expert town planning report to be tendered at the hearing when a Court appointed expert had also been appointed in the same discipline. The additional expert report raised issues outside those originally particularised. On appeal before Lloyd J, it was argued that this amounted to an error of law. His Honour dismissed the appeal, and held at [13]: As noted above, when there is a Court appointed expert, a party to proceedings may not adduce evidence of any other expert on the question except with the leave of the court: SC Rules , Pt 39, r 6. In the usual course of events it is only the Court appointed expert whose evidence will be admissible on the question that has been referred to that expert for report; hence the need for leave to call any other expert. Typically, one would expect a court to grant leave where, for example, it may be alleged that there are some flaws in the methodology adopted by the court appointed expect, or where something may have been overlooked by the Court appointed expert. But the category of cases in which leave may be granted is not closed. The primary purpose for the appointment of a court expert is to provide assistance to the court. The court retains the discretionary power to grant leave to call another expert. The discretion to do so is unfettered. If the court is of the opinion that it will be assisted by the admission of evidence of another expert, then it may, in the exercise of its discretion, admit that evidence.

10 Justice Lloyd held there was no error of law in the circumstances. There are few written judgments which have otherwise considered the Court's approach to the exercise of its discretion in these circumstances.

11 When the Land and Environment Court practice was changed to provide for Court appointed experts in Practice Direction 1 of 2005, this was so that numerous problems relating to the giving of expert evidence could be overcome. These included the multiplicity of evidence which can occur with more than one expert, lengthy cross-examination of experts in court, and the pressure expert witnesses face to appease the lawyers as their clients, rather than to inform the court. The practice direction aims to minimise the costs and time taken in litigation, and ensures greater confidence in the court process and the determination ultimately made, since experts are appointed as impartial persons whose duty is clearly to the Court alone. Further reasons behind the introduction of the practice direction are discussed in speeches of Chief Justice Peter McClellan as follows: · Land and Environment Court - Achieving the Best Outcome for the Community; delivered 28-29 November 2003 · Speech for the Government Lawyers' Annual Dinner, delivered 7 September 2004 · Expert Witnesses - The Experience of the Land and Environment Court of New South Wales, delivered 20-24 March 2005 12 It is important to emphasise that these procedures relate to the provision of expert evidence. Under this Court's Expert Witness Code of Conduct, par 3, an expert witness' duty is to assist the Court on matters within his expertise, not to advocate a case for his client. Paragraph 3 states:

An expert witness's paramount duty is to the Court and not to the person retaining the expert. 13 While the Court has broad discretion in whether to allow an additional expert witness, a key component in Class 1 proceedings is the specialist nature of the Court's jurisdiction and the expertise of its Commissioners. A Commissioner with the relevant expertise will be allocated this matter. A key consideration is whether the additional expert evidence will assist the Court in its deliberation as identified by Lloyd J in Crown Atlantis. 14 There is potentially tension between the desire of the Court to be fully assisted by expert evidence and the parties to fully present their cases as they see fit, and the role Court appointed expert witnesses are intended to fulfil in Class 1 proceedings. If the Court does establish a practice of too readily allowing in new expert evidence which challenges that of the Court appointed expert then the purpose behind the Court's recent adoption of the appointment of Court appointed expert reports will be undermined. I do not intend to resolve that tension here.

15 A substantial part of the criticism directed to the Court appointed expert's evidence here is that he has overlooked or failed to assess adequately a number of significant matters according to the Applicant. The latter is a criticism of his analysis. While both experts look at the same material in drawing their different conclusions, there are important differences in their reasoning. The Thomson report undertakes a different analysis to that of the Court appointed expert on matters relevant to the question in issue. I consider the Thomson report provides more than an expression of opinion different to the Court appointed expert's report. Rather it demonstrates a different analytical process. This inevitably involves giving different weight to matters when compared to the Court appointed expert. I consider that analysis is likely to be of assistance to the Commissioner hearing this matter. 16 As I note at par 18 it is preferable where it is alleged the Court appointed expert has referred to relevant information or given certain matters insufficient weight that these matters be raised with the Court appointed expert. Some of the issues raised by the Applicant's criticisms would ideally be raised with the Court appointed expert to enable him to respond in a further or amended report.

17 Even if this were to be done in this case I consider there would still be important parts of the analysis in the Thomson report which would be of assistance to the Commissioner hearing this matter. Rather than require further approaches to the Court appointed expert, with a possible further report to which the Applicant is likely to want to respond, it is more efficient overall if I allow in a reduced version of the draft report to be relied on in this case. It presently contains a large amount of material as annexures which duplicates what will be in evidence and needs to be modified accordingly. Some of the text is also not necessary, as discussed at the hearing. I agree the introduction of this report and this expert witness will not greatly prolong the hearing as it will still be able to be completed in one day in my view. The parties should agree necessary directions to enable this matter to proceed to a hearing. 18 In terms of the process under clause 14 of Practice Direction 1 of 2005 it is worthwhile observing how such issues should be handled as a practical matter. An appropriate first step for those parties who are unhappy with a Court appointed expert's report is to write to the expert setting out the issues of concern, for example, where they consider the Court appointed expert has overlooked relevant information or failed to take into account relevant matters. It may be that through such a process the Court appointed expert's report is amended and an alternative expert report considered unnecessary.

Bushfire report 19 The second prayer in the Applicant's Notice of Motion dealt with a bushfire report of Mr Parry. The parties have reached agreement on the filing of that report and it is unnecessary for me to consider that matter.

Orders 20 The Court makes the following order:

1. The Applicant is granted leave to rely on a reduced report from Ms Janet Thomson, a town planner, in reply to the Court appointed expert's report prepared by Lindsay Fletcher dated 17 February 2006.

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