Ray Fitzpatrick Pty Ltd v Minister for Planning

Land and Environment Court (NSW)|2007-11-28|Before: Jagot J, Mr J

CITATION : Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791

APPLICANT Ray Fitzpatrick Pty Ltd (in members voluntary liquidation) PARTIES : RESPONDENT Minister for Planning

KEY ISSUES: Evidence :- separate question - admissibility of evidence - non-compliance with expert witness code of conduct - expert not aware of expert witness code of conduct when engaged or when reports prepared - expert not aware of use of first report in court proceedings - multiple authors of first report - reports did not disclose underlying facts and assumptions - reports inadmissible - discretionary exclusion

Evidence Act 1995 LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979

Abbey National Mortgages plc v Key Surveyors Nationwide Ltd and Others [1996] 3 All ER 184; Ainsworth v Burden [2005] NSWCA 174; Ballina Shire Council v Jacobson & McMillan (2006) 146 LGERA 156; Harding v Bourke (2000) 48 NSWLR 598; Investmentsource v Knox Street Apartments [2007] NSWSC 1128; CASES CITED: King v Great Lakes Shire Council (1986) 58 LGRA 366; Macquarie Bank v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Notaras & Anor v Hugh & Ors [2003] NSWSC 167; Portal Software v Bodsworth [2005] NSWSC 1228; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT Mr B A Coles QC with Mr R C Beasley SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr J J Webster SC with Mr Mark Seymour SOLICITORS Hunt & Hunt

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

RAY FITZPATRICK PTY LTD (IN MEMBERS VOLUNTARY LIQUIDATION) Applicant

JUDGMENT Jagot J: 1 An issue has arisen between the parties to these proceedings concerning the admissibility of certain evidence and, if the evidence is admissible, whether it should be admitted into evidence at the hearing in the circumstances of the case.

2 The proceedings involve an objection under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 to the amount of compensation offered by the respondent for the acquisition of land at Blacktown. The dispute is a substantial one with the applicant's claim for compensation being just over $136 million. The proceedings have not yet been fixed for hearing. However, but for the dispute about the present evidence, the matter is at a stage where (relevantly): (1) All experts other than town planners and valuers have filed and served principal and joint reports.

(2) The questions to be answered by the four town planners in their joint report have been agreed and await resolution of the admissibility of the disputed evidence.

(3) The valuers have not yet prepared their principal reports or joint reports.

3 The issue about the disputed evidence came to a head as a result of the respondent filing a notice of motion seeking leave to file and serve a report in reply in October 2007. This report constituted a letter from Mr Lee of SGS Economics and Planning to Mr Garth McKenzie dated 21 October 2007. Mr McKenzie is one of the two town planners retained by the respondent who has filed and served a principal report in the proceedings. Mr Lee's letter says it is an update of an "Industrial Land Use Assessment" prepared in October 2006. This 2006 report is exhibit 8(a) to the principal report of Mr McKenzie served in July 2007.

4 Because Mr Lee's report of 21 October 2007 was served outside both the timetable and scheme for expert evidence fixed by the Court the respondent sought leave to file and rely on that report. The applicant objected. In the course of the objection it became apparent that neither the 2006 report exhibited to Mr McKenzie's report nor the 2007 report acknowledged the expert witness code of conduct.

5 Pt 13 r 24 of the Land and Environment Court Rules 1996 provides that: At the hearing, except with leave of the Court, the following requirements shall apply: (a) no expert report is admissible unless it has been prepared and served in accordance with any relevant Practice Direction and these rules.

6 On 14 May 2007 a practice note applicable to these proceedings under s 74 of the Land and Environment Court Act 1979 (Practice Note - Class 3 Compensation Claims) came into effect. Paragraph 34 of this practice note provides that: An expert (including a parties' single expert) and the expert's report are to comply with the requirements of Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules.

7 This practice note is a practice direction for the purposes of Pt 13 r 24

8 Division 2 of Pt 31 of the Uniform Civil Procedure Rules 2005 provides that: 31.19 (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. …

(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. …

31.23 (1) An expert witness must comply with the code of conduct set out in Schedule 7.

(2) As soon as practicable after an expert witness is engaged or appointed: (a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or (b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct, must provide the expert witness with a copy of the code of conduct.

(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.

(4) Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert's report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

9 Before 14 May 2007 the practice direction in force with respect to expert evidence in this Court was Practice Direction: Expert Witnesses, effective from 2 February 2004 until repealed on 14 May 2007. This practice direction provided that: 4. Unless the Court otherwise orders: (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code,

(b) unless an expert witness's report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:

(i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note, and (ii) the report shall not be admitted into evidence,

(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and

(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.

10 The code of conduct incorporated into this practice direction was the same in substance as Sch K to the Supreme Court Rules 1970.

11 In response to the notice of motion (and repeated in this hearing), the applicant objected to the respondent relying on both the 2006 and 2007 reports on numerous grounds including that - (i) Mr Lee had never been notified to the applicant as an expert witness on whom the respondent intended to rely, as required by the Court's directions, (ii) his evidence was in substance yet further planning evidence when the respondent already had two planners, (iii) the evidence seemed to have no material role or function in the proceedings or in Mr McKenzie's principal report, (iv) insofar as market take up was in issue, the valuers had yet to prepare their evidence and would presumably deal with the matter, (v) the reports contained many assertions without disclosure of underlying reasoning as required for expert evidence, and thus were inadmissible, and (vi) if admitted despite all these problems, the applicant would have to obtain evidence to meet this evidence thereby delaying the valuation reports and the hearing, and unnecessarily but significantly increasing the cost of the proceedings. The applicant submitted that this would cause unfair delay and cost outside any reasonable view of the regime the Court had established for expert evidence. This regime was not just concerned with time but included detailed processes for expert witnesses to be identified in advance, and for principal reports and joint reports to be filed before valuation reports. The two reports sat outside this regime and could not be brought within it without significant disruption, delay and cost.

12 In the course of the notice of motion (which raised other issues requiring resolution) the potential difficulty of dealing with admissibility questions in advance of the hearing was raised. The parties agreed that the dispute about the admissibility of the reports should be resolved immediately. If deferred until the hearing the uncertainty about admissibility would unreasonably affect the further preparation of the proceedings. Hence, the parties agreed that a separate question should be identified and determined before determination of all other issues in the proceedings. Having regard to Pt 1 r 5A of Land and Environment Court Rules 1996 (that is, the overriding purpose of these rules in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in such proceedings) I made orders accordingly. It follows that this is a hearing of the separate issues as identified in the orders set out below: 1. Pursuant to Pt 31 r 2 of the Supreme Court Rules 1970, the following questions be decided as separate questions prior to the trial of all other issues:

(a) Is the report of SGS dated October 2006 admissible?

(b) Is the report of SGS dated 21 October 2007 admissible?

(i) The failure by the respondent to nominate Ms Newby or Mr Lee as experts.

(ii) The failure to serve the October 2006 report independently of Mr McKenzie's 12 July 2007 report.

(iii) The late service of the 21 October 2007 report outside the terms of the Court timetable.

(iv) The fact that neither report is identified as having been prepared in compliance with or with regard to the expert code of conduct.

(v) Any prejudice to the applicant that arises as a result of the applicant's inability to elicit from the October 2006 report what input the respondent or other stakeholders had in the report, or other persons who supplied information to SGS.

13 In the meantime I directed the respondent to file and serve an affidavit from Mr Lee setting out the circumstances in which the 2006 and 2007 reports had been brought into existence. Mr Lee's affidavit of 8 November 2007 disclosed the following: (1) Mr Lee was not the author of the 2006 report. Rather, Ms Lauren Newby was the author. However, Mr Lee was the project director and before what he described as "reliance of this report" he read it and agreed with its contents. (2) Mr McKenzie retained SGS Economics and Planning to prepare the 2006 report. (3) Mr Lee (and, I infer, no one in SGS Economics and Planning) knew that the 2006 report was to be used in court proceedings.

(4) Although Mr Lee received a letter from the solicitor for the respondent with respect to the 2007 report he was not provided with the expert witness code of conduct at that time either. (5) Mr Lee was not aware of the expert witness code of conduct or its contents before 8 November 2007 (the day he affirmed his affidavit). (6) Mr Lee considers he always has an obligation to provide his honest opinions based on his expertise.

(7) Mr Lee has now read the expert witness code of conduct and agrees to be bound by it.

(8) Having done so Mr Lee "affirmed the contents of those reports" and did not need to make any amendments other than to include his CV and acknowledge the code.

(9) Mr Lee could now categorically state that the opinions given in the October 2006 report "were, and are, an honest attempt to express the opinion of Lauren Newby based on her expertise, and as approved and agreed by me, is an honest expression [of] my own opinions based on my own expertise. Similarly, my report of October 2007 is an honest expression of my own opinion based on my expertise".

(10) Mr Lee is prepared to give oral evidence, mindful of his obligations under the expert witness code of conduct.

14 Mr Lee subsequently provided a further affidavit of 27 November 2007 in which he clarified that he instructed Ms Newby with respect to the terms of the brief and the members of the study team. Further, he had overall responsibility for, amongst other things, project direction and final approval of the 2006 report before it was issued. If he had not been satisfied with the methodology, individual study components or the conclusions he would not have allowed the 2006 report to be issued to Mr McKenzie. He was the sole author of the 2007 report, which drew heavily on the work in the 2006 report.

15 In addition to the issues it raised earlier the applicant objected to the admission of the disputed evidence on further grounds: - (i) the evidence showed that Ms Newby was not in fact the sole author of the 2006 report, (ii) in any event, Mr Lee could not adopt the expert witness code of conduct on Ms Newby's behalf, (iii) it did not matter that Mr Lee was now adopting the code - the whole process of expert evidence had been "corrupted" by the absence of any proper regard to the code when the evidence was first brought into existence and Mr McKenzie's involvement in the October 2006 report, (iv) the 2007 report depended on the 2006 report and the two were inseparable. Hence, Mr Lee's sole authorship of the later report was immaterial, (v) the reports were inscrutable and beset by Makita problems (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). These problems were apparent in the many references to interviews and consultations throughout the report, the results and significance of which to the conclusions were not disclosed. The 2006 report apparently involved three days' consultation with stakeholders such as Blacktown City Council and the respondent's department, (vi) it was impossible to work out who did what with respect to the 2006 report, and (indeed) the respondent's own input into it, and (vii) Ms Newby's qualifications to prepare the report are not self-evident.

16 The respondent emphasised s 38 of the Land and Environment Court Act as follows: (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.

17 The respondent additionally submitted that: - (i) the applicant's complaints did not include inadmissibility under the Evidence Act 1995 or at common law (see s 38 of the Land and Environment Court Act) and hence the Court should assume that the evidence is relevant and of probative weight, (ii) the exclusion of the evidence would involve a disproportionate remedy for a technical breach (referring to Abbey National Mortgages plc v Key Surveyors Nationwide Ltd and Others [1996] 3 All ER 184 at 185 - 186, The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, and Ainsworth v Burden [2005] NSWCA 174 at [57] all of which emphasise the limits on case management and that the Court's obligation is to ensure the just despatch of cases), (iii) it would be a great unfairness to deprive the respondent of the opportunity to present relevant evidence, probative of issues requiring resolution, due to the technical breaches relied on by the applicant, (iv) Pt 13 r 24 is the only rule the applicant could rely on and is inapplicable as this is not the hearing (a submission subsequently withdrawn), (v) various decisions established that the Court could "otherwise order" where there was non-compliance with the expert witness code of conduct (for example Portal Software v Bodsworth [2005] NSWSC 1228 at [3] - [6] and Investmentsource v Knox Street Apartments [2007] NSWSC 1128 at [42]). In any event, this Court has also made orders permitting expert evidence when there has been non-compliance with the expert witness code of conduct (for example Ballina Shire Council v Jacobson & McMillan (2006) 146 LGERA 156), (vi) the 2006 report was carried out by a study team of four people, but Mr Lee supervised the work and approved it, (vii) the respondent can make all members of the study team available for cross-examination if necessary, (viii) Mr Lee is the ultimate author of the two reports, (ix) the report is highly important to the respondent's case in terms of risks relating to timing of release and matters the valuers must consider, (x) the Makita complaints are unfounded in substance, but s 38 of the Land and Environment Court Act applies so that Makita principles have little, if any, work to do in this class of proceeding, (xi) it is often necessary to relax the Makita principles for valuation evidence even where the rules of evidence apply (Notaras & Anor v Hugh & Ors [2003] NSWSC 167 at [8] - (9]), which is analogous to the 2006 and 2007 reports, (xii) Mr Lee's affidavit explained the purpose of the report which was significant to resolution of the proceedings, and (xiii) Ms Newby's qualifications are clear and adequately disclosed in the 2006 report.

18 In support of these propositions, the respondent referred specifically to the observations in King v Great Lakes Shire Council (1986) 58 LGRA 366 at 371 that s 38(2) of the Land and Environment Court Act is liberally interpreted so as to make admissible in proceedings in classes 1, 2 and 3 such matters as hearsay, expert opinions without proof of underlying facts, and expert opinions on the ultimate issue. The respondent also referred to decisions stressing that case management procedures cannot be used to defeat a just and fair resolution of issues (for example, Macquarie Bank v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 603 and Harding v Bourke (2000) 48 NSWLR 598 at 603). In this context, the respondent said that the fact the proceedings had not yet been fixed for hearing was important. Further, Mr Lee's unchallenged evidence was to the effect that, having read the expert witness code of conduct, he would not now amend the reports. Finally, it was one thing for a practice direction or practice note to ensure an expert witness complied with a code of conduct but another altogether for it to operate to exclude relevant evidence.

19 The applicant, in reply, observed that fairness and justice are not to be equated to a party's subjective ideas of what is fair to them in the abstract. Procedural and evidentiary rules and principles have been developed and applied over a long time to ensure a fair trial and set the context for assessing what is fair and just. Evidentiary rules are not mere "irksome speed humps along the forensic highway" as the respondent appeared to suggest. For example, the principles in Makita, in part, involve important considerations of fairness. Inscrutable expert opinions that cannot be meaningfully tested are inherently productive of unfairness. The disputed evidence is complicated and likely to be controversial. The applicant, moreover, did not accept that it was rationally connected to the necessary steps for the resolution of this dispute, being tangential to the real issues. The respondent had never adequately explained the relevance of the material to the issues in dispute despite being given an opportunity to do so. If admitted, however, this tangential material would a disproportionate impact on cost, delay and the length of the hearing.

20 The applicant also emphasised that the expert code of conduct issue was particularly acute in this case. The 2006 report on which the 2007 report was based involved some three days of stakeholder consultation. One of the relevant stakeholders was the respondent's own department. Unidentified officers of the department had thus been involved in the report and one could never know whether their input into the final conclusions was critical. In such a situation, awareness of the obligations in the expert witness code of conduct was essential in advance of the entire exercise. The problem could not be cured retrospectively. These considerations cannot be simply swept away in some generalised exercise of discretion. The discretion must be exercised on a principled basis, recognising that the starting point is that such evidence, prepared without any cognisance of the code, is inadmissible. One must then ask, what circumstances in the particular case justify the Court otherwise ordering. The applicant submitted that the circumstances referred to above indicate to the contrary.

21 I should deal with some preliminary matters immediately.

22 First, this is a hearing of a separate issue in advance of the hearing under Pt 31 r 2 of the Supreme Court Rules and thus Pt 13 r 24 of the Land and Environment Court Rules is engaged. Without leave of the Court any expert report, prepared other than in accordance with an applicable practice direction, is not admissible. From 14 May 2007 the practice note clearly provides that Div 2 of Pt 31 of the Uniform Civil Procedure Rules and the expert witness code of conduct in Sch 7 of the Uniform Civil Procedure Rules applies to these proceedings. Before 14 May 2007 a practice direction to similar effect was in force. Under both regimes the applicable provisions ensured that the expert witness code of conduct was drawn to the attention of any prospective expert witness as soon as practicable after engagement and before they prepared their expert report. Insofar as the respondent might have submitted to the contrary, I do not accept those submissions. The disputed evidence is thus not admissible other than by leave of the Court.

23 Secondly, the provisions of s 38 of the Land and Environment Court Act and, in particular, the fact that the rules of evidence do not apply to these proceedings, does not have the consequence the respondent apparently perceives. At all times the practice note and practice direction applied and imposed obligations on expert witnesses to disclose their qualifications, the facts (and assumptions of fact) on which the opinions in the report are based, and the expert's reasons for each opinion expressed. In any event, many decisions emphasise that tribunals not bound by the rules of evidence nevertheless proceed on the basis that evidence must be logically probative of issues in dispute (see, for example, the observations in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [127] - [132]). To be logically probative of issues, whether the rules of evidence apply or not, expert opinions must be capable of being assessed by the trier of fact. Such opinions cannot be "a series of oracular pronouncements" but must enable the trier of fact to reach their own "independent judgment by applying the criteria furnished to the facts proved" (Makita at [87]). Problems created by unregulated expert evidence in courts and tribunals have been subject of increasing focus over the past decade. Many of the procedures introduced by courts to mitigate against these problems post date decisions such as King v Great Lakes.

24 Thirdly, and contrary to the respondent's submissions, the applicant's objections were on grounds that the disputed evidence was inadmissible including by reference to such basic requirements as authorship and disclosure of underlying reasoning.

25 Fourthly, and again contrary to the respondent's submissions, the bulk of the applicant's objections to the evidence cannot be dismissed as mere technicalities. The facts disclose why the preparation of a report by a person who not merely fails to acknowledge the expert witness code of conduct in a report but was not even aware of its existence when the report was prepared is not a mere technical default. The observations of McDougall J in Investmentsource are applicable.

26 Against this background I can deal with the disputed evidence in the particular circumstances of this case.

27 The disputed evidence involves an assessment of the market for industrial development in Blacktown and the capacity of the acquired land to be developed within that market. The evidence was apparently based on many sources including meetings between the "study team" and the "client group", a site inspection, an assessment of demand and for industrial land based on existing information and modelling of future needs, and stakeholder consultations (involving interviews with the Council, the State Government, the Department of State and Regional Development and the Department of Planning). All of this work, and the preparation of the two reports based on it, was undertaken without any appreciation of the expert witness code of conduct or indeed appreciation of any greater obligation than giving the client (presumably Mr McKenzie for the purpose of the 2006 report) the benefit of honest opinions.

28 The honest reporting of expert opinions is but one aspect of an expert's obligations when giving evidence in court. As has been observed in other decisions, an expert retained by a client owes their primary duty to the client. An expert giving evidence in court has a primary and overriding duty to the court. This is a fundamental difference. Contrary to the respondent's position the asserted potential significance of this evidence to the respondent's case made it more (not less) important for the evidence to be created by an expert or experts mindful of their obligations under the code. It is worth remembering the obligations in the code, of which the authors of the reports were apparently unaware when they decided how to structure the study, inspected the site, gathered the existing data, created and ran their models and conducted the various stakeholder interviews. Through all of those steps the various authors were unaware of the following requirements (Sch 7 of the Uniform Civil Procedure Rules): 2 General duty to the court

(1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise.

(2) 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).

(3) An expert witness is not an advocate for a party. …

(1) An expert's report must (in the body of the report or in an annexure to it) include the following: (a) the expert's qualifications as an expert on the issue the subject of the report, (b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed), (c) the expert's reasons for each opinion expressed, (d) if applicable, that a particular issue falls outside the expert's field of expertise, (e) any literature or other materials utilised in support of the opinions, (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, (g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report). (2) If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.

(3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

29 The problem this creates is not answered by Mr Lee now saying he has read the code and would not amend the reports. If anything, this discloses the existence of the problem. Neither the Court nor the parties will ever be able to know the form the evidence might have taken had the authors been aware of these obligations under the expert witness code of conduct before they commenced the exercise. As observed in many of the decisions on these issues, there "is a real risk that an expert who has not prepared a report under the discipline of the applicable schedule will form an opinion from which, thereafter, he or she would find it difficult to retreat, even if circumstances arise that might raise this as a possibility" (see lnvestmentsource at [50] and the cases cited therein). This risk is a fundamental problem not capable of subsequent rectification by retrospective adoption of the expert witness code of conduct. The problem is particularly acute in this case given the complexity of the issues addressed in the reports and the way in which the reports were created (including the stakeholder interviews and the lack of disclosure of who they were conducted with, what the results were, and how important the results were to the conclusions reached). The fact is that no one will ever really know what form the reports would have taken if prepared by people mindful of their obligations under the expert witness code of conduct. Moreover, as the applicant submitted, Mr Lee may now be aware of the expert witness code of conduct and not feel any need to amend the reports, but the position of the other authors, including Ms Newby, remains unknown.

30 These factors alone are sufficient to warrant exclusion of this evidence. For this reason I am not willing to grant leave or "otherwise order", with the consequence that the disputed evidence is not admissible.

31 If it were necessary to say so, the other problems with the disputed evidence are many and manifest. Contrary to the respondent's submissions, Mr Lee was not the author or even the "ultimate author" of the 2006 report. His affidavits do not show that he personally supervised the collection and creation of all of the data in the report. Mere approval of the written text, particularly in circumstances where Mr Lee had no knowledge that the 2006 report was to be used in court proceedings, and the text is based on interviews and modelling apparently not directly (or even indirectly) supervised by Mr Lee, is insufficient. The fact that Mr Lee now adopts the first report as his own is also insufficient. I am not satisfied he is meaningfully able to do so without, in effect, redoing the entire exercise. The entire exercise is formidable. For example, stakeholder interviews may have been critical to the opinions expressed but was Mr Lee involved and present at those interviews as opposed to the so-called "inception meetings" with the client?

32 The fact that the respondent is willing to make all the authors available for cross-examination does not answer (and indeed increases) the problems. The 2006 report does not disclose who was responsible for its various parts. In the circumstances set out above neither the applicant nor the Court should be burdened by an obligation to deal with four witnesses on this issue.

33 The potential involvement of the respondent's own department as one of the "stakeholders" interviewed (perhaps by Ms Newby) also creates difficulties and the potential for unfairness. The officers interviewed are not identified. Nor are the questions asked and responses received. This too shows that had the authors been aware of the expert witness code of conduct the form of the report (and hence its substance) could have been markedly different because an expert must disclose the facts, and assumptions of fact, on which the opinions in the report are based and any examinations, tests or other investigations on which the expert has relied. With respect at least to the results of the many interviews, the disputed evidence does not fulfil these obligations. The reports, as the applicant submitted, are largely inscrutable. Again, as the applicant submitted, this raises real issues of unfairness. Without going through each example relied on by the applicant, it is clear that material of this character cannot be effectively tested through cross-examination. The essential conclusions, where not yet more town planning evidence, are rolled up conclusions and assertions with no real or effective disclosure of assumptions of fact or method. Where not a planning opinion, the disputed evidence is a market analysis involving forecasting of economic circumstances, demand and take up. For such evidence it is essential that all underlying facts and assumptions be adequately exposed to scrutiny. They are not, as review of the disputed evidence makes clear. To take but one example, what inputs were fed into the "SGS Employment Yield Model" to create table 8 in the 2006 report? Identifying the source of that table as "SGS Economics and Planning", as though that were somehow of equivalent status to ABS data, is fundamentally misconceived. It speaks volumes of the creation of this material without the authors' understanding the obligations imposed on expert witnesses generally and the expert witness code of conduct in particular. The disputed evidence is not a valuation. The observations made in Notaras v Hugh are thus distinguishable.

34 There is a real risk of significant prejudice to the applicant should the disputed evidence be admitted. Because of the way in which the evidence was originally created that prejudice is not capable of rectification by case management procedures (such as permitting the applicant to call evidence on the same topic and requiring joint conferencing with Mr Lee and the other authors of the reports in dispute). As observed in Investmentsource at [50] the ordinary workings of the human mind might make a process of joint conferencing more difficult for an expert who did not start out with an appreciation of his or her obligations under the applicable schedule.

35 The risk of real and significant prejudice to the applicant and the proceedings as a whole by the admission of the disputed evidence is the respondent's responsibility. The respondent did not notify the applicant that it intended to rely on Mr Lee as an expert. The respondent did not provide the expert witness (or, more accurately, witnesses) with a copy of the code of conduct as soon as they were engaged. This is not to suggest that the respondent should somehow be punished for these oversights. That would be wrong. It is merely to recognise the source of the problem when discretionary factors are weighed up.

36 Finally, I note that the planners are yet to prepare their joint report and the valuation evidence is yet to be prepared. The planners will deal with development timing issues as they see fit. The valuers will presumably have their own views about the demand for and take up of industrial land in Blacktown. Those views of the planners and valuers should not be affected by material brought into existence without any awareness of the fundamental obligations in the expert witness code of conduct. Moreover, if those experts form the opinion they require assistance from any other expert (and if the Court agrees) then arrangements can be put in place through further directions to ensure that such evidence is obtained in accordance with the expert witness code of conduct and, just as importantly, has regard to paragraph 34 in the Court's practice note, namely that: If there are large differences in the amount of compensation for which the parties or their experts contend, the Court may appoint a parties' single expert.

37 Accordingly, I answer the separate questions as follows: (a) No

38 The disputed evidence (marked for identification) is returned.

39 Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2007) 157 LGERA 100

(2006) 146 LGERA 156

At a glance

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Cases Cited (11)

Cited By (6)