Potter v Woollahra Municipal Council

Cases Cited: Campbelltown-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70
D v S [2009] QSC 446
Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149
House v The King (1936) 55 CLR 499; [1936] HCA 40
The Estate of Genevieve Bryan [2021] NSWSC 567
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales [2025] NSWLEC 61

Texts Cited: NSW Law Reform Commission, Report 109, (June 2005)

Category: Procedural rulings

Parties: Collette Potter (Applicant) (Applicant on the Motion)
Woollahra Municipal Council (Respondent) (Respondent on the Motion)

Representation: Counsel:
P Tomasetti SC (Applicant)
R Coffey (Respondent)
Solicitors:
Dentons (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2025/00140644

Publication restriction: Nil

JUDGMENT

1. On 4 July 2025, Registrar Froh, having heard a notice of motion dated 1 July 2025 filed by the Respondent to this Class 1 proceeding (the Woollahra Municipal Council (the Council)), made (inter alia) the following orders:

“2. The Respondent is granted leave to rely on the expert town planning evidence of Simon Smith.

3. The Respondent’s leave to rely on the expert town planning evidence of Stephen McMahon is withdrawn.

4. The Respondent is granted leave to rely on the expert arboricultural evidence of Peter Castor.

5. The Respondent’s leave to rely on the expert arboricultural and landscaping evidence of Craig Kenworthy is withdrawn.

6. The short minutes of order granted on 30 May 2025 are varied as follows:

(a) Order 1(a)(i) is varied to read:

Planning and Visual Impact*: Robert Chambers (the Applicant’s town planning expert) and Simon Smith (the Respondent’s town planning expert) are to confer in relation to contentions 3, 5, 6, 9, 10, 11, 12, and 13 and John Aspinall (the Applicant’s visual impact expert) and Simon Smith are to confer in relation to contention 4 of the Respondent’s Statement of Facts and Contentions under UCPR r 31.24 and prepare a joint expert report.*

(b) Order 1(a)(ii) is varied to read:

Planning and Landscaping*: Robert Chambers, Simon Smith and William Dangar (the applicant’s landscaping expert) are to confer in relation to contention 7 and William Dangar and Peter Castor (the Respondent’s arboriculture expert) are to confer in relation to contention 8 of the Respondent’s Statement of Facts and Contentions under UCPR r 31.24 and prepare a joint expert report.”*

2. By notice of motion filed on 21 July 2025, Collette Potter (the Applicant) seeks to vary the orders made by the Registrar pursuant to r 49.19(1) of the Uniform Civil Procedure Rules 2005 (UCPR) such that orders 2 to 6 above are “dismissed”.

3. For the reasons that follow, the order sought by the Applicant in her notice of motion should be granted, and the orders made by the Registrar on 4 July 2025 should be set aside.

Hearing and Background Facts

4. At the hearing of the motion before me, the Applicant was represented by Mr P Tomasetti SC. The Council was represented by Mr R Coffey of Counsel. The Court was provided with written submissions by both the Applicant (AWS) and the Council (RWS). The following affidavits were read:

For the Applicant

(a) Affidavit of Stephanie Suzanne Vatala dated 3 July 2025 (First Vatala Affidavit); (b) Affidavit of Stephanie Suzanne Vatala dated 21 July 2025 (Second Vatala Affidavit);

For the Council

(a) Affidavit of Jane Hewitt dated 1 July 2025 (First Hewitt Affidavit); and (b) Affidavit of Jane Hewitt dated 30 July 2025 (Second Hewitt Affidavit).

5. Set out below are the uncontested facts deposed to in the affidavits.

6. On 20 September 2024, the Applicant lodged a Development Application (DA) with the Council seeking consent to conduct development works on land described as Lot 100 in DP 1278603 and known as 26-28 Wolseley Road, Point Piper (the Site). There were four submissions lodged against the grant of consent relating to, inter alia: floor space ratio non-compliance; inconsistency with the desired future character of the Point Piper Residential Precinct; height and setback non-compliances with the relevant planning controls; view impacts; tree impacts; and visual privacy impacts.

7. The Class 1 proceeding was commenced on 11 April 2025 following a deemed refusal of the DA. On 15 May 2025, the Woollahra Local Planning Panel (WLPP) determined the DA by way of refusal. On 22 May 2025, the Council received the WLPP’s written reasons for refusal. Those reasons are set out at [35] of the Council’s Statement of Facts and Contentions (SOFAC), but in summary address the following planning issues: the desired future character of the Point Piper Residential Precinct; floor space ratio; heritage impacts; excessive excavation; loss of trees and vegetation; and various inconsistencies with the Woollahra Local Environmental Plan 2014 (WLEP), and Woollahra Development Control Plan 2015 (WDCP).

8. In its SOFAC, the Council contends that the DA should be refused on (inter alia) the following grounds, many of which relate to the grounds for refusal of the WLPP, and which can be summarised as:

(a) adverse heritage impact (contention 2); (b) floor space ratio exceedance of the WLEP (contention 3); (c) unacceptable visual impact when viewed from Sydney Harbour (contentions 4 and 5); (d) the DA requires unnecessary and excessive excavation, which is inconsistent with the WLEP (contention 6); (e) the development will result in significant loss of deep soil landscaping, which is inconsistent with the relevant objectives of the WDCP (contention 7); (f) the development would result in the loss of significant trees and vegetation (contention 8); (g) the development would be incompatible with the desired future character of the Point Piper Residential Precinct, and inconsistent with relevant parts of the WDCP relating to that precinct (contention 9); (h) the development would result in non-compliance with the rear setback controls of the WDCP (contention 10); (i) the proposed car-parking would require excavation that fails to satisfy relevant objectives and controls in the WDCP (contention 11); (j) the excavation required for the proposed swimming pool fails to satisfy relevant objectives and controls of the WDCP (contention 12); (k) the development is contrary to public interest (contention 13); (l) potential visual privacy impacts (contention 14); and (m) the DA contains insufficient information in relation to landscape plans, heritage assessment, architectural plans, and owners consent (contention 15).

9. On 30 May 2025, the Court made an order that Robert Chambers (the Applicant’s town planning expert) and Stephen McMahon (the Council’s town planning expert) confer in relation to contentions 3, 5, 6, 9, 10, 11, 12 and 13, and prepare a joint expert report. A further order was made for Mr Chambers, Mr McMahon, William Dangar (the Applicant’s landscaping expert) and Craig Kenworthy (the Council’s arboriculture and landscaping expert) to confer in relation to contention 7, with Mr Dangar and Mr Kenworthy also to confer in relation to contention 8, and for a joint expert report to be prepared.

10. On 13 June 2025, Mr McMahon and Mr Kenworthy advised the Council that they could not support all of the WLPP’s reasons for refusal, despite the fact that they were said to be “both supportive of the refusal of the Development Application in principle”. [1] Subsequently, Mr S Smith (expert town planner) and Mr P Castor (expert landscape and arboriculturist) were briefed by the Council to undertake “peer reviews” relating to the opinions of Mr McMahon and Mr Kenworthy. They subsequently advised the Council’s solicitors that they could support all of the WLPP’s reasons for refusal. This led the Council to file the notice of motion dated 1 July 2025 seeking the orders from the Registrar that she made that are set out at [1] above.

Principles Applicable to the Review of the Registrar’s Decision

11. Rule 49.19(1) of the UCPR relevantly is in the following terms:

49.19 Review of registrar’s directions, certificates, orders, decisions and other acts

(1) Subject to subrule (2) [not applicable here], if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.

12. What is required to make out a case for relief from a Registrar’s decision differs depending on whether the decision relates only to matters of practice and procedure, or is a decision which finally determines or has a decisive impact on a parties’ rights: Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 at [12] per Preston CJ of LEC. In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (‘Tomko’), Hodgson JA (Ipp JA agreeing) provided the following assistance in cases where relief is sought from a Registrar’s decision:

“7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

9 In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

10 In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence.”

Registrar’s Decision

13. The Registrar’s reasons for granting the leave sought by the Council in its motion filed on 1 July 2025 are set out in the transcript of the hearing of the motion on 4 July 2025. The reasons are succinct, and are found at T15.12-34 which is extracted below:

“I am going to deal with the motion that was filed on 1 July 2025.

I am going to grant the leave that is sought in the notice of motion, and allow the respondent to rely on the experts that they have sought, and withdraw the leave for Stephen McMahon, and Craig Kenworthy. I am going to withdraw the leave from that.

I just want to give a few reasons.

The complaints that the applicants have made about their attempts to speak with the experts that were named on 30 May. I do not think that is a prejudice.

If it is a prejudice, I do not think it is an insurmountable prejudice that means I should not grant the leave that has been sought in the notice of motion. I think that the complaint that the applicant has about this being expert shopping is actually a matter that is more appropriately dealt with in cross-examination, going to the opinion of the expert, not to my decision as to whether such leave that is being sought should be granted, to change the expert. That is the reason why I am granting the notice of motion today.

I have got quite a comprehensive set of short orders that are sought in the notice of motion. Do you have short minutes that reflect that, or do you want me to make orders in accordance with the notice of motion?” (Emphasis added).

14. What is meant by the alleged “prejudice” concerning the Applicant’s “attempts to speak with the experts that were named on 30 May” is not clear. Nothing in the submissions made by Ms Vatala on 4 July 2025 refers to such an alleged prejudice. A submission was made that “[t]here would be prejudice in changing experts at this late juncture”, [2] but the submissions otherwise address the issue of alleged “expert shopping”. [3] In the First Vatala Affidavit, various aspects of alleged “prejudice” are raised, but these matters relate to delay and cost issues. [4]

15. Precisely what the Registrar meant by her reference to “cross-examination” is the subject of differing views between the Applicant and the Council, and is discussed further below. Although not expressly stating it, one thing that the Registrar must have been doing in making the orders she did was exercising the power granted in r 31.20 of the UCPR, which is relevantly in the following terms:

31.20 Court may give directions regarding expert witnesses

(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.

(2) Directions under this rule may include any of the following—

(a) a direction as to the time for service of experts’ reports,

(b) a direction that expert evidence may not be adduced on a specified issue,

(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,

(d) a direction that expert evidence may be adduced on specified issues only,

(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

(f) a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,

(g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,

(h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,

(i) any other direction that may assist an expert in the exercise of the expert’s functions,

(j) a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

16. Also of importance in this matter is r 31.19 of the UCPR, which is the rule the Council was complying with when it originally nominated Mr McMahon and Mr Kenworthy as its planning and landscaping experts respectively on 30 May 2025, and which is relevantly in the following terms:

31.19 Parties to seek directions before calling expert witnesses

(1) Any party—

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial—

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions…

Applicant’s Submissions

17. The Applicant submits that the Registrar made three errors in her decision to grant the orders sought by the Council in its 1 July 2025 motion, as follows:

(a) It is submitted that the “Registrar erred in principle in holding that the question of expert shopping could be dealt with by cross-examination”. [5] The complaint made is that cross-examination of Mr Smith as to why Mr McMahon held different opinions would be “self-evidently futile” and unlikely to be allowed. The same submission applies to Mr Castor and Mr Kenworthy. It was submitted that the Registrar failed to consider whether the Council was “expert shopping”, or the reasons behind the orders sought by the Council. This is said to be a House v The King [6] error. (b) It is submitted that the “Registrar erred in failing to take into account the principles of expert evidence in proceedings”. [7] It is said that she failed to consider the basis upon which she was being asked to make the orders sought, which is again a House v The King error. (c) It is submitted that the “Registrar erred in failing to consider the interest of justice and the just determination of the proceedings”. [8] It is submitted that the Registrar did not consider any unfairness that might be caused to the Applicant in making the orders that she did, and failed to consider the Court’s reasoning in Treyvaud v Transport for New South Wales; Jervis Bay Stockfeeds Pty Ltd v Transport for New South Wales [2025] NSWLEC 61 (‘Treyvaud’) or in Campbelltown*-Minto Merchants Association Inc v Campbelltown City Council [2009] NSWLEC 70 (‘Campbelltown-Minto’*), where in each case the Court was dealing with an application to substitute experts. It is submitted here that reasons for the change were that Mr McMahon and Mr Kenworthy were “unable to support the Planning Panel’s reasons for their refusal in their entirety”. [9] This, the Applicant submits, “is classic expert shopping”. [10] Finally, the Applicant submits that the Registrar “erred in failing to consider the interests of justice” in relation to her decision. [11]

The Council’s Submissions

18. The Council’s primary submission is that the Applicant’s motion for review should be dismissed because nothing in the Registrar's decision, which concerns an issue of practice and procedure, amounts to an error of law or a House v The Kin**g error of the kind the Court of Appeal said in Tomko would normally be required to be demonstrated to vary or set aside a Registrar’s decision: Tomko at [8]. In particular, in relation to the Applicant’s criticism concerning the reasons relating to cross-examination (see [17(a)] above) the Council submits that the Registrar’s decision should not be interpreted as meaning that she was suggesting that either Mr Smith or Mr Castor would be cross-examined about the views of the Council’s previous experts, Mr McMahon or Mr Kenworthy. It is submitted that instead the Registrar’s reasoning should be interpreted to mean no more than that she felt that “the evidence to be given by Mr Smith or Mr Castor could be properly tested at the hearing in the ordinary practice that expert evidence is tested in terms of compliance with the expert code and in terms of putting the Applicant’s case to them*.*” [12]

19. The Council also submits that when all of the relevant circumstances concerning its original nomination of Mr McMahon and Mr Kenworthy are considered, its motion seeking to substitute Mr Smith and Mr Castor as experts should not be categorised as “expert shopping”. This is because:

(a) the Council is under the “direction and control of the WLPP” [13] in respect to this Class 1 proceeding, despite being the necessary Respondent: s 8.15(4) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act); (b) the WLPP refused the DA on 15 May 2025, but its reasons were not made available until 22 May 2025; (c) the Council was required to file its SOFAC on 26 May 2025; (d) while on 30 May 2025 the Council, in orders made by the Court, nominated Mr McMahon and Mr Kenworthy as its planning and landscape experts, it was not until 13 June 2025 that Mr McMahon and Mr Kenworthy first informed the Council that they could not support all of the WLPP’s reasons to refuse the DA in its entirety; (e) the WLPP’s instructions to the Council are to oppose the DA based on the WLPP’s reasons; (f) there are said to be “inefficiencies” in a Class 1 appeal such as this where the Council has filed a SOFAC based on the WLPP’s reasons for refusal at a stage where they have only received the preliminary views on the DA from Mr McMahon and Mr Kenworthy, and it is only after the time that the SOFAC has been filed and those experts have been nominated as the Council’s experts that they, having given the matter more consideration, indicated that they could not support all of the WLPP’s reasons. This should not be seen as “expert shopping”; and (g) of further relevance is the fact that neither Mr McMahon nor Mr Kenworthy had:

“(i) Provided any substantial input into Council's pleadings;

(ii) Had not had any without prejudice discussions with the Applicant;

(iii) Had not started joint conferencing;

(iv) Had not produced a joint report; and

(v) Had not produced individual expert reports.” [14]

20. It was also submitted on the Council’s behalf that there has been a “material change in circumstances” to the extent that it would not be in the interests of justice to set aside the Registrar’s decision. This is because on 16 July 2025 a without prejudice meeting was held between the Council’s newly nominated experts (Mr Smith and Mr Castor) and the Applicant’s expert team. [15] It is submitted that the Applicant has provided no reasons as to why, in circumstances where it is now seeking to have the Registrar’s orders set aside, it agreed to participate in this without prejudice meeting. Given that the Council expended time and resources in preparing for and attending this without prejudice meeting involving its newly nominated experts, it is submitted that it is not in the interests of justice to now overturn the Registrar’s decision.

21. Finally, the Council points to distinguishing features in both the Court’s decisions in Treyvaud and Campbelltown-Minto. In Treyvaud, the decisive factor was the breakdown in the relationship between the Applicants’ Valuer, and the Applicants and their solicitor. In Campbelltown-Minto, Justice Pain was concerned that the substituting of an expert would undermine the utility of the s 34 conference process which had already taken place: Campbelltown-Minto at [25]. Neither of the decisive considerations in Treyvaud or Campbelltown-Minto arise in this case.

Resolution

Court rules and relevant practice note

22. It is appropriate first to consider the relevant court rules concerning expert evidence that are set out in Division 2 of Part 31 of the UCPR.

23. Rule 31.17 of the UCPR emphasises that a main purpose of Division 2 is to “ensure that the court has control over the giving of expert evidence” (r 31.17(a)). Consistent with the recommendation of the NSW Law Reform Commission Report 109 of June 2005, [16] the Court’s control over the giving of expert evidence is then facilitated by rr 31.19 and 31.20 which are set out above at [15] and [16].

24. Of importance also to the resolution of this motion is r 31.23 and Sch 7 of the UCPR, which provide that “[a]n expert witness must comply with the code of conduct set out in Schedule 7”: r 31.23(1). The Expert Witness Code of Conduct (Expert Code) mandates, amongst other things, that expert witnesses have an overriding duty to assist the Court impartially, and are not to be an advocate for the party (cl 2), and further that when an expert “changes his or her opinion on a material matter, the expert must forthwith provide to the party (or that party’s legal representative) a supplementary report” regarding this change of view: cl 4.

25. Exercises of discretion pursuant to these rules, and orders made under them, are of course always done with an eye to the overriding purpose of the rules of facilitating “the just, quick and cheap resolution of the real issues” in any proceedings (ss 56 and 57 of the Civil Procedure Act 2005 (NSW) (CPA)), and the “dictates of justice”: s 58 CPA.

26. In furtherance of the purposes of Division 2 of Part 31 of the UCPR, this Court’s “Class 1 Residential Development Appeals” Practice Note (Practice Note) sets out the Court’s expectations concerning expert evidence. One such expectation is that before the first directions hearing the parties should have endeavoured to agree upon “if any party intends to adduce expert evidence at a hearing… a statement of the disciplines in respect of which they propose to call expert evidence, the names of the experts, the issues to which the proposed expert evidence relates, and the reasons why the proposed expert evidence is reasonabl**y required”: cl 21(c) of the Practice Note. The Practice Note also reaffirms that a party may not adduce expert evidence at the hearing of a Residential Development Appeal unless the Court has given directions permitting this (cl 27), and that the names of the experts who will be giving evidence must be specified in the directions of the Court (cl 28 of the Practice Note). The “usual directions” for a first directions hearing set out in Schedule E of the Practice Note affirms these matters, as well as having regard to the expert’s obligations under the Expert Code.

Procedural steps taken here

27. Unsurprisingly, the initial procedural steps taken in this matter were generally in accordance with the Court rules and the Practice Note. While no experts were nominated at the first directions hearing held on 7 May 2025, an order was made that directions concerning expert witnesses would be made at the next directions hearing, originally listed for 23 May 2025, but which was rescheduled for 30 May 2025. As noted above, prior to the second directions hearing on 30 May:

(a) the WLPP published its reasons for refusal on 22 May 2025; and (b) the Council filed its SOFAC on 26 May 2025, which contains contentions for refusal that are consistent with the WLPP’s reasons for refusal that are set out at [35] of the SOFAC.

28. On 30 May 2025, orders were made by this Court under rr 31.19 and 31.20 of the UCPR, for Mr McMahon and Mr Kenworthy to confer with the Applicant’s relevant expert witnesses for the purposes of preparing joint reports.

Reasons given for change of experts

29. Ms Hewitt has been frank in her affidavits as to the reasons why the Council sought to substitute Mr Smith for Mr McMahon, and Mr Castor for Mr Kenworthy. In a nutshell, Mr McMahon and Mr Kenworthy formed opinions, subsequent to the orders being made on 30 May 2025, that differ from that of the WLPP. More precisely, Ms Hewitt stated in her affidavit of 1 July 2025 that:

(a) Mr Kenworthy was briefed to act as the Council’s landscaping expert on 22 May 2025, the same day that the Council received the WLPP’s written reasons for refusal; (b) Mr McMahon was retained for the Council on 23 May 2025 as its planning expert, on which day he indicated that “he could support the refusal of the Development Application in principle”: First Hewitt Affidavit at [17]; (c) the SOFAC was filed on 26 May 2025, by which date “neither Mr McMahon nor Mr Kenworthy had had an opportunity to fully assess the D**evelopment A**pplication or inspect the S**ite, or form a view on the WLPP’s reasons for refusal”: First Hewitt Affidavit at [21]; (d) on 30 May 2025 the orders referred to above were made at the second directions hearing concerning Mr McMahon’s and Mr Kenworthy’s participation for the purposes of preparing joint expert reports with the Applicant’s experts, but “*[o]*n 13 June 2025, and following their site inspections and more considered assessments of the D**evelopment A**pplication, both Mr McMahon and Mr Kenworthy provided their considered input on the D**evelopment A**pplication and advised that they could not support all of the WLPP’s reasons for refusal”: First Hewitt Affidavit at [26]. Which reasons for refusal Mr Kenworthy and Mr McMahon did not support are not specified in the First Hewitt Affidavit, nor is the reason for their views explained. Ms Hewitt does however state that “it was apparent that, while Mr McMahon and Mr Kenworthy were both supportive of the refusal of the D**evelopment A**pplication in principle, they were unable to support the WLPP’s reasons for refusal in their entirety”: First Hewitt Affidavit at [27]; (e) the “WLPP’s direction to Council was to oppose the Development Application based on the WLPP’s reasons for refusal”, and so the Council instructed the solicitors “to make enquiries with other planning and arboricultural experts to obtain peer reviews of Mr McMahon and Mr Kenworthy’s reports. The purpose of the peer reviews was to enable Council to seek further instructions from the WLPP”: First Hewitt Affidavit at [28]; (f) ultimately, Mr Castor undertook a “peer review” of Mr Kenworthy’s “report”, and Mr Smith undertook a “peer review” of Mr McMahon’s “report”. The reference to the word “report” was not further explained in Ms Hewitt’s affidavits. It is clear enough that it is not a reference to any report filed in the proceedings, and I took it to mean some kind of written record of the views of Mr McMahon and Mr Kenworthy concerning the WLPP’s reasons for refusal; and (g) Mr Smith and Mr Castor ultimately indicated to the Council’s solicitors that they could support all of the WLPP’s reasons for refusal which prompted the motion of 1 July 2025 to substitute Mr Castor and Mr Smith for Mr McMahon and Mr Kenworthy, and which resulted in the decision and orders of the Registrar on 4 July 2025 which are the subject of this motion for review of that decision and orders.

Relevant authorities

30. Most of the relevant authorities I was referred to or have found in relation to applications for the substitution of one expert witness for another, or for leave to adduce evidence from an additional expert witness, have been against the background of a prior order being made by a Court for a single parties’, or Court appointed witness. They are nevertheless of some guidance.

31. In The Estate of Genevieve Bryan [2021] NSWSC 567, Hallen J dealt with a motion in which a party to a probate proceeding sought to adduce evidence from a consultant psychiatrist concerning the testamentary capacity of the testatrix, in circumstances where the parties had already agreed on a joint psychiatric expert. Ultimately, Hallen J dismissed the motion, although the most significant reason he had for doing so appears to be that he did not feel he would be further assisted by the evidence of another psychiatrist in circumstances where neither psychiatrist had met the testatrix. His Honour did however caution that a court should “be aware of “expert shopping” and the possibility that an applicant is seeking another expert’s evidence simply because the single expert has come to a conclusion that does not assist his, her, or its, case”: Estate of Genevieve Bryan at [69]. His Honour also noted the importance of also considering the overriding purposes of case management orders set out at s 56 of the CPA.

32. In D v S [2009] QSC 446, Wilson J dismissed an application by a party to rely on the affidavit of a valuer in circumstances where the parties to the litigation had previously agreed on an expert valuer as a single expert to the proceeding. In dismissing the application, her Honour described it this way:

“This is simply a case of the applicant having agreed to a joint valuation and then not liking the joint valuation she received. It is not necessary to ensure a fair trial of the proceedings that there be more than one expert on the value of the real estate. To allow the applicant to rely on the evidence of another expert in the circumstances would unnecessarily increase the cost of the litigation”: D v S [2009] QSC 446 at p 8.

33. In Campbelltown-Minto, Pain J dealt with a motion whereby an order was sought by a council that it be “granted leave to rely upon the evidence of an alternate town planning expert” in a Class 1 Development Appeal. The application before her Honour was against the background of the fact that the council had been relying in the proceedings on “its in-house planning officer who assessed the original application for the s 34 conference process”: Campbelltown-Minto at [6]. As a result of what occurred at the s 34 conference, amended plans for the development under consideration emerged. The council’s application was based on it taking the view that it was reasonable now in the circumstances for the amended plans to be considered by an alternative planning expert. At [24] to [25] of her judgment, her Honour resolved the application this way:

“The reason given for the Council requiring new town planning evidence is that there are now new plans and essentially the matter therefore commences afresh, so that the Council should have the opportunity of presenting the case it wishes to put to the Court. I have some difficulty with that approach. The new plans have been produced in the course of these Class 1 proceedings and after a s 34 conference was held. I do not accept that the matter is to be considered essentially as new so that new expert evidence is warranted on that basis.

The role of expert evidence is to assist the Court, not to advocate for a particular outcome sought by one of the parties. The Council commenced the proceedings on the basis that it was content to rely on its own officer’s town planning expertise. It should not be allowed to change that reliance now because it does not agree with the advice it has received in relation to the amended plans. To allow another expert in at this stage solely on the basis that the Council wishes to present its case as it wishes undermines the utility of the parties engaging in the s 34 conference process, in my view. I do not consider the just, quick and cheap disposal of proceedings is facilitated by making that order. I therefore consider I should not make the order sought in prayer 2 of the Notice of Motion.”

34. It can be noted in Campbelltown-Minto that one of the reasons for her Honour refusing the orders sought by the council was that she felt that to do so would undermine “the utility of the parties engaging in the s 34 conference process” (Campbelltown-Minto at [25]), a matter yet to have taken place in the matter before me.

35. In Treyvaud, I dealt with a motion in which the applicants in a Class 3 Appeal brought under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) sought to substitute one valuation expert for a different valuation expert. I considered that the key issues to be resolved in that matter were the following:

(a) what were the reasons behind the applicants seeking leave to change valuers, and were they legitimate reasons or rather something akin to “expert shopping”; (b) would the granting of the orders defeat the overriding purpose of ensuring a “just, quick and cheap” resolution of the real issues of the proceedings, and would granting the orders cause significant delay and add significantly to the costs; (c) would granting the orders subvert the obligations of the Expert Code, the s 34 conciliation conference process (which had already taken place in Treyvaud), and the previously made case management orders; and (d) giving consideration to all issues, was it in the “interests of justice” to make the orders sought to substitute the expert valuers: Treyvaud at [38].

36. I made the order sought by the applicants in Treyvaud principally because in the unusual factual circumstances of that case the relationship between the applicants’ current valuer and themselves and their solicitor had seemingly irretrievably broken down for reasons that need not be detailed here.

The orders made by the Registrar on 4 July 2025 should not have been made

37. In my view, the Registrar should not have made the orders she did on 4 July, when she granted leave to the Council to rely on the evidence of Mr Smith and Mr Castor, and withdrew the leave to rely on Mr McMahon and Mr Kenworthy (although ultimately whether the Council calls Mr Kenworthy and Mr McMahon at any final hearing in light of the orders I propose to make is a matter for it).

38. I hold this view because the reasons given for the leave sought – that Mr Kenworthy and Mr McMahon “could not support all of the WLPP’s reasons for refusal” [17] of the DA – is not a good reason for granting such leave. It would in my view be a bad reason for granting such leave.

39. I appreciate that while the Council is the Respondent to this appeal, it is under the control and direction of the WLPP by reason of s 8.15(4) of the EPA Act, which is in the following form:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(4) If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel.

40. I appreciate also that while the WLPP’s reasons for refusal had been made public by the time Mr McMahon and Mr Kenworthy agreed to act as experts for the Council on 22 and 23 May, and a further week went past by the time the orders were made for them to confer and prepare joint reports with the Applicant’s experts on 30 May 2025, neither Mr McMahon nor Mr Kenworthy had visited the Site. I appreciate too that the WLPP might have a desire to have all of its reasons for refusal supported by the experts engaged by the Council. I also take into account that the expert issues relating to the DA here, which proposes a very substantial development at an estimated cost of nearly $19,000,000, might be numerous and complex. I note also that within the time period of them being engaged on 22 and 23 May, and the Court’s orders of 30 May, both Mr McMahon and Mr Kenworthy may not have had time to fully consider every aspect of the WLPP’s reasons for refusal. I also note that at this stage they have not yet conferred with the Applicant’s experts, no joint reports have been prepared, and the s 34AA conference has not yet taken place.

41. However, Mr Kenworthy and Mr McMahon were nominated as the Council’s experts a week after the WLPP’s reasons for refusal of the DA were made public, and the Court made the orders it did naming them to prepare joint reports. After this, they have formed a view (not specified to me) that there are one or more aspects of the WLPP’s reasons for refusal that they cannot support. I would infer that in forming the views they have that differ from the WLPP, Mr Kenworthy and Mr McMahon have done so consistently with their obligations under the Expert Code to be impartial, not to be an advocate for the WLPP (or the Council), and to fulfill the obligation they have to assist the Court. It seems to me that it would subvert the objects and purposes of Division 2 of Part 31 of the UCPR, of the Expert Code, and of this Court’s relevant Practice Note, if, only because they have formed an opinion that is not entirely in agreement with the WLPP’s reasons for refusal, leave should be granted by the Court to dispose of them as the Council’s experts, and substitute instead witnesses that have been found that say they can support all of the WLPP’s reasons for refusal.

42. As to the fact that there has been a without prejudice meeting between Mr Castor and Mr Smith and the Applicant’s experts on 16 July 2025, which the Council submits creates a “material change”, this does not alter my view. That without prejudice meeting took place in compliance with an order of the Court made 7 May 2025 at the first directions hearing, and does not change my view that the orders sought in the 1 July motion should not have been made.

The Registrar erred

43. While in my view the Registrar should not have made the orders she did on 4 July 2025, it is still necessary to address r 49.19 of the UCPR, and the Court of Appeal’s guidance as to that rule in Tomko (see [12] above). The Registrar’s decision relates to an order of practice and procedure. Although she did not refer to it, she was clearly exercising a discretion under r 31.20 of the UCPR in making the orders in accordance with the 1 July motion that she did. As to her reasons for making those orders, the core basis is that set out above at [13] and in particular that “expert shopping is a**ctually a matter that is more appropriately dealt with in cross-examination, going to the opinion of the expert”. [18]

44. The reference to cross-examination could be a reference to the opportunity that Counsel for the Applicant would have at a hearing to cross-examine the Council’s expert witnesses in the normal fashion concerning aspects of disagreement with the Applicant’s experts. It could also be a reference to possibly cross-examining Mr Smith and Mr Castor about the “unspecified” different views of Mr Kenworthy and Mr McMahon (which might neither be feasible nor permissible). Either way, it does not address the central complaint the Applicant was making in the hearing before the Registrar of “expert shopping”, nor does it more importantly address the issue of whether it was appropriate to grant the orders sought and exercise her discretion under r 31.20 favourably to the Council based on the reasons the Council had given for seeking to substitute Mr Castor and Mr Smith for Mr Kenworthy and Mr McMahon (see those reasons set out in detail above at [29(a)-(g)]. With respect, I think this is at least a failure to take into account matters the Registrar should have, such that the Registrar failed to properly or adequately exercise her discretion, in a manner referred to in House v The King.

45. In making this finding I do not intend to be critical of the Registrar. I have simply reached a different view to her. The decision she made was during the course of a busy list of directions, return of subpoena, and other motions. There was extensive affidavit evidence to consider. The Registrar did not have the benefit of the time afforded to me, or of the written submissions that have assisted me. Furthermore, this was a motion of some complexity.

Conclusion

46. For the above reasons, Order 4 sought by the Applicant in the motion before me seeking to vary the Registrar’s orders made on 4 July 2025 such that those orders are set aside or “dismissed”, should be granted. As discussed with Counsel at the hearing, I will not make the other orders sought (which include vacating the conciliation conference listed for 25 to 27 August) until the parties know of my decision. I will hear from them as to other timetabling orders I should make with the benefit of my decision today. I have also reserved costs of this motion. I am provisionally of the view that costs should follow the event, but I will allow the parties time to either agree a costs order, or make short written submissions about the order I should ultimately make.

Orders

1. Orders 1 and 2 made by the Registrar on 4 July 2025 are varied by setting aside those orders so that Orders 2 to 6 sought by the Respondent in its notice of motion dated 1 July 2025 are dismissed.
2. Costs are reserved.
3. The parties have 7 days from the date of these reasons to inform my Associate of any agreement as to costs, failing which they may have a further 7 days (until 5pm on 21 August 2025) to file written submissions on costs limited to 3 pages.
4. I will hear further from the parties as to Orders 1 to 3 sought in the notice of motion dated 21 July 2025.

**********

Endnotes

First Hewitt Affidavit at [27].

T8.14; Second Vatala Affidavit, p 14.

T10.47; Second Vatala Affidavit, p 16.

See [6(g)] and [35] of the First Vatala Affidavit.

AWS at [34(a)].

House v The King (1936) 55 CLR 499; [1936] HCA 40 (‘House v The King’).

AWS at [34(b)].

AWS at [34(c)].

AWS at [36]; First Hewitt Affidavit at [25].

AWS at [37].

AWS at [40].

RWS at [16(a)].

RWS at [9].

RWS at [15(f)].

Second Hewitt Affidavit [14], [16] and [17].

NSW Law Reform Commission, Report 109, (June 2005), pp 84-85 at [6.9]-[6.11].

First Hewitt Affidavit at [26].

T15.26-28; Second Vatala Affidavit, p 21.