Serapark Pty Limited v Minister for Education and Training

Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 CASES CITED: Fagenblat v Feingold Partners Pty Ltd [2002] VSC454 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd

APPLICANT Mr Tomasetti, Senior Counsel, Instructed by Mr A. Seton, Solicitor of Marsdens Law Group LEGAL REPRESENTATIVES:

RESPONDENT Mr Maston, Barrister, Instructed by Mr B. Rowe, Solicitor of Crown Solicitors Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30998 of 2007 Serapark Pty Limited v Minister for Education and Training

JUDGMENT 1 On 6 August 2008 by a Notice of Motion filed on 28 June 2008 the Minister for Education and Training (the Respondent herein) moved the Court for the following orders:

a That the Respondent have leave to substitute Mr David Lunney (certified practising valuer) as expert for the Respondent in lieu if Mr Keith Watts. b That Mr Lunney serves and files his valuation report within 21 days of these Orders. c That Mr Lunney and the Applicant 's valuer meet in a joint conference for the purposes of the expert witness practice direction and produce a joint report to be filed within 6 weeks of the date of these Orders. d That the Respondent pays the Applicant's costs thrown away as a consequence of these Orders, together with the costs of this Notice of Motion. 2 The Respondent relied on the affidavit sworn by Robert Saunders on 23 July 2008 and the written submissions filed in Court on 6 August 2008.

3 The Applicant opposed the Orders sought in the Notice of Motion and relied on a written chronology of issues/events filed in Court on 6 August 2008. Background 4 This class 3 appeal is in respect of a claim for compensation for land acquired by the Respondent on 18 May 2007 pursuant to the Land Acquisition (Just Terms Compensation) Act 1991.

5 The land is described as being Lots 1 and 3 in DP 1096138 Lodges Road Elderslie ("the acquired land").

6 The public purpose for which the land is acquired is that of the Education Act 1990 and in particular, for the establishment of a primary school

7 The proceedings are fixed for hearing on 14,15 16 and 17 October 2008. 8 The parties accept that the hearing dates are not affected by the application before the Court.

9 The valuer retained by the Respondent for the proceedings is Mr Watts and the valuer retained by the Applicant is Mr Carrapetta.

10 By the date of the hearing of this application the valuers had filed and served their respective valuation reports and their joint valuation report

11 About a month after the compulsory acquisition the Respondent purchased adjoining land (the A.V Jennings land) for the establishment of an educational establishment.

12 The evidence before me discloses that Mr Watts. (the Respondent's valuer) negotiated the purchase of the AV Jennings land on behalf of the Respondent.

13 The Applicant's valuation evidence is that the A.V. Jennings land is a relevant sale for the purposes of these proceedings. 14 Furthermore, the Applicant's valuer refers to a letter of advice from Mr Watts to the Respondent dated 19 June 2007 (being 10 days before the exchange of contracts for the AV Jennings land) in which Mr Watts expressed opinions relating to the sale price of the AV Jennings land.

15 The Respondent 's evidence before me is that the sale of the AV Jennings land is not a relevant sale for these proceedings.

Respondent's submissions 16 The Respondent submits that Mr Watts may be placed in a position of conflict by reason of his personal involvement in the settling of the price of the AV Jennings land, on the one hand, and his position as an independent impartial expert for the Respondent in these proceedings.

17 The Respondent relies on the decision of His Honour Justice Campbell in the decision of Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 (27 May 2002) and other similar cases and submits that Mr Watt's expert evidence in these proceedings may be compromised by the closeness of his association to the Respondent in the purchase of the AV Jennings land.

18 As a consequence of that association between Mr Watts and the Respondent in respect of the AV Jennings land the Respondent submits that the expert evidence of Mr Watts in these proceedings may be ruled inadmissible or liable to be treated as evidence of reduced weight. 19 The respondent submits that it would be unfair for the Respondent to suffer the risk of having its expert evidence either treated as of low or reduced weight when the substitution of an alternative expert can cure the problem.

20 The Respondent submits that Mr Watts will be placed in a position of conflict if he remains as an expert witness in these proceedings.

21 The Respondent submits that Mr Watts' position of conflict did not become apparent until the Applicant's expert valuer's evidence was served and confirmed in the joint report.

22 The Respondent submits that the substitution of Mr Lunney in place of Mr Watts would cause no prejudice to the Applicant other than the need for the Applicant's valuer to jointly confer with the Respondent's substituted valuation expert Mr Lunney. 23 The Respondent submits that any prejudice caused to the Applicant can be cured by an order for costs thrown away to be paid by the Respondent.

24 The Respondent submits that it is in the interests of justice that any risk of unfairness to the Respondent in the hearing be removed by the substitution of Mr Lunney as the independent expert valuer for the Respondent.

Applicant's submissions 25 The Applicant relied on a chronology, which traced amongst other things the involvement of Mr Watts in the Respondent's purchase of the AV Jennings land.

26 The evidence discloses that the timetable for evidence in these proceedings has been extended at varies times to accommodate the particular personal circumstances of the expert valuers in these proceedings.

27 In particular on 19 March the Respondent sought a 4 week extension of the timetable for the filing of expert valuation evidence from Mr Watts because of personal circumstances. 28 However, the chronology also shows the extended timetable was given at all times with the Applicant's consent.

29 The Applicant submitted that the evidence of Mr Watts is relevant to the proceedings particularly, his involvement in the negotiated purchase price of the AV Jennings land as detailed in the letters annexed to the chronology filed by the Applicant in Court.

30 The Applicant submitted that if Mr Watts was removed as the Respondent's valuation expert in these proceedings the Applicant would still require Mr Watts to attend and give evidence at the hearing. Furthermore, the Applicant suggested it would be necessary for Mr Lunney in his expert capacity to speak with Mr Watts about the comparable sale of the AV Jennings land.

Reasons 31 Clearly, it is open to the Applicant to call any relevant evidence or subpoena any relevant person to give evidence at a hearing in respect of any relevant matter subject to the leave of the Court.

32 In the application before the Court I am not required to deal with the admissibility of evidence.

33 It is not the Court's role to force a party to rely on an expert at a hearing.

34 As His Honour Justice Cambell stated in Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 (27 May 2002) at para 9 quoting Justice Pagone in Fagenblat v Feingold Partners Pty Ltd [2002] VSC454: "While it is undoubtedly the task of the Court to do justice between the parties , and necessary for the Court to be not only independent , but perceived to be independent , a biased witness does not impugn the independence of the decision maker . Rather, any bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility" 35 Furthermore , it not the Court's or a party's role to dictate to an expert who they should speak with in the preparation of their independent expert evidence for a hearing.

36 Ultimately it is a matter of weight in assessing the evidence "The possibility of a witness having a bias in favour of a party (directly or indirectly ) is undoubtedly a matter to be taken into account by a Court when deciding what weight to give to the expert evidence ,but not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result" Kirch para 9. 37 There is no evidence before me, which demonstrates any prejudice to the Applicant if the Court were to make the Orders sought in this application that cannot be cured by a costs order.

38 It is irrelevant to the matter before me when it became apparent to the Respondent that Mr Watts might be placed in a position of conflict. In this matter there is sufficient time to cure the potential problem and maintain the hearing dates.

39 I am of the opinion that any possible conflict can be avoided if the Orders for a substituted expert valuer are made. 40 Accordingly, the Court makes the following Orders: 1. That the Respondent have leave to substitute Mr David Lunney (certified practising valuer) as expert valuer for the Respondent in lieu of Mr Keith Watts. 2. That Mr Lunney serves and files his valuation report within21 days of these Orders. 3. That Mr Lunney and the Applicant 's valuer meet in joint conference for the purposes of the expert witness practice direction and produce a joint report to be filed within six (6) weeks of the date of these Orders. 4. That the Respondent pay the Applicant's 's costs thrown away as a consequence of these Orders including the cost involved in the further joint conference and joint report between the Applicant's valuer Mr Carrapetta and Mr Lunney.

          S. Dixon
          Registrar of the Court

I HEREBY CERTIFY THAT THE PRECEDING 40 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF REGISTRAR DIXON

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.