The Eddie Arnott Corporation Pty Ltd v Sydney Metro

Legislative framework

1. In relation to the legislative framework, UCPR r 31.29 relevantly provides in relation to the admissibility of expert reports (emphasis added): 31.29 Admissibility of expert's report (cf SCR Part 36, rule 13B) (1) If an expert's report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible - (a) as evidence of the expert's opinion, and (b) if the expert's direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact, without further evidence, oral or otherwise. (2) Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served. (3) Unless the court otherwise orders, such a requirement may not be made later than - (a) in the case of proceedings for which the court has fixed a date for trial, 35 days before the date so fixed, or (b) in any other case, 7 days before the date on which the court fixes a date for trial. (4) The parties may not by consent abridge the time fixed by or under subrule (3). (5) If the expert's attendance for cross-examination is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it. (6) The party using the report may re-examine the expert if the expert attends for cross-examination pursuant to a requirement under subrule (2). …
2. The Land and Environment Court's Practice Note: Class 3 Compensation Claims at [38] provides relevantly in relation to requiring a witness for cross examination: If any witness is required for cross-examination at the hearing, notice is to given before the pre-hearing mention.
3. In exercising the discretion under r 31.29(5), the Court will have regard to the provisions of ss 56 to 58 of the Civil Procedure Act 2005 (NSW) (CP Act), and in particular the dictates of justice, including the competing degrees of injustice that would be suffered by the respective parties.
4. Section 56 of the CP Act makes provision in relation to the objects of case management, and s 58 makes provision in relation to the dictates of justice and provides for the Court to follow the dictates of justice. Other relevant considerations may include the reasons that the expert will not be attending for cross examination, such as whether this is due to a want of diligence on the party seeking to rely on the expert's report or incapacity of the witness; and whether there are other experts who give evidence that contests or contradicts the report sought to be relied upon.
5. I turn to consider the unavailability of the experts upon whose reports the applicant and second respondent seek to rely for cross-examination by the first respondent.

Reasons the experts are not available and any prejudice to the first respondent

1. First, I consider the reasons the experts sought to be relied upon by the applicant and second respondent are not available for cross-examination and any prejudice to the first respondent.
2. On 28 January 2025, the first respondent gave notice pursuant to r 31.29(2) of the UCPR that it required Mr Haskew and Mr Sanidas for cross-examination.
3. At the pre-hearing mention on 25 February 2025, Dr Arnaout said that the expert witnesses are "not available" for cross examination at the hearing because "it's a little bit of a sensitive and a personal issue" and that "I've already talked about it in the affidavit". When the Court queried what was said in the affidavit, the Dr Aranout said: ARNAOUT: Yes, I will provide the paragraph numbers. It is in the context of the financial hardship, your Honour, that I prefer not to talk about, and I've already hinted in my affidavit, your Honour
4. The first respondent submitted in a written submission filed 3 March 2025 that it could not identify any evidence in Dr Arnaout's affidavit filed on 5 August 2024 (5 August affidavit) or Dr Arnaout's affidavit filed on 28 February 2025 (28 February affidavit) which addresses the reasons why the expert witnesses of the applicant and second respondent would not be made available for cross examination. I so find.
5. Having regard to the degree of injustice that would be suffered by the respective parties, in determining the dictates of justice pursuant to s 58 of the CP Act, the first respondent submitted, and I find, that: 1. the evidence of the town planner and valuer of the applicant and second respondent cannot be tested in cross-examination and so, without further order, the first respondent would be materially prejudiced; 2. the first respondent's expert witnesses, Mr McDonald, town planner, and Mr Masters, valuer, have both been required by the applicant and second respondent for cross-examination. The evidence of both Mr McDonald and Mr Masters contests and/or contradicts the evidence of Mr Haskew and Mr Sanidas sought to be relied upon by the applicant and second respondent; and 3. if leave is not granted, the applicant and second respondent will have no expert evidence to support either the freehold claim or the leasehold claim.
6. Notwithstanding that the applicant and second respondent will hear no expert evidence to support either the freehold claim of the leasehold claim, I am satisfied that the first respondent would be materially prejudiced if the applicant and second respondent were permitted to rely on evidence incapable of being tested by the first respondent.

Consequences of expert witnesses not being available

No absolute right to cross examine

1. As to the consequences of the expert witnesses not being available for cross-examination, the first respondent submitted that while there is no absolute right to cross-examine, the Court has discretion in that regard. [1] So much is contemplated by r 31.29(2) of the UCPR, and also Practice Note: Class 3 Compensations Claims at [41].
2. Pursuant to s 38(2) of the Land and Environment Court Act 1979 (NSW), in these Class 3 proceedings, "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. While s 38(2) has been liberally interpreted, [2] the Court is still bound by the principles of procedural fairness. [3] So too, in relation to the duty to act rationally, Pain J in R v King; Ex parte Westfield Corporation [4] said at [10]: "a reasonable opportunity of being heard may or may not involve a right to cross-examine - it depends upon the circumstances of the particular case." The principles of procedural fairness require consideration of whether a party has been given a fair opportunity to present their case and whether this requires cross examination in the circumstances. [5]
4. In Ramsay v Australian Postal Commission, [6] Spender J said at [27]: [7] …The duty imposed on a decision-maker…is to give each party an opportunity to present their case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is.
5. I find that it would occasion considerable unfairness to the first respondent, as here, if in unexplained circumstances the experts upon whose evidence the applicant and second respondent seek to rely were not made available for cross-examination. This is because providing the first respondent with a fair opportunity to present its case requires the capacity to test the evidence of the experts upon whose evidence the applicant and second respondent seek to rely in circumstances in which, in particular: 1. the evidence, including facts relied upon and opinions expressed by each of Mr Haskew and Mr Sanidas (town planner and valuer respectively) directly conflicts with that of the first respondent 's experts; and 2. the evidence of the town planning and valuation experts is central to the issues that the Court must determine in these Class 3 proceedings.

Conclusion

1. Accordingly, I will not admit the reports of David Haskew and John Sanidas. Without leave, the reports may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 (NSW) or otherwise used unless the expert attends or is dead (UCPR r 31.29(5). I decline to grant leave. To do so would cause substantial unfairness to the first respondent.
2. In any event, even if I were disposed to admit the reports into evidence, in circumstances where they are unable to be tested, a considerable degree of scepticism would, as submitted by the first respondent, be appropriate in assessing their evidence and their evidence would be given very little, if any, weight. [8]
3. Finally, it is appropriate to record that, as has frequently been held, it is ultimately my role as a judge in matters under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), assisted by the commissioner, to act in the role of a "judicial valuer". [9]

Orders

1. The Court declines to admit into evidence the expert reports of David Haskew, town planner, dated 2 April 2024 and John Sanidas, valuer, dated 13 June 2024 sought to be relied upon by the applicant and second respondent.

Endnotes

1. See Blue Sky Capital Ventures v Council of the City of Lake Macquarie [2007] NSWLEC 790 (Pain J); Francis v Baronian [2009] NSWLEC 146 (Pain J).
2. King v Great Lakes Shire Council (1986) 58 LGRA 366 per Cripps J at p. 367 (referred to recently by Pepper J in UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49).
3. Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc & Anor (2014) 86 NSWLR 527 per The Court at [38]; Gesson v Rockdale Municipal Council (Land and Environment Court of New South Wales, 18 December 1987 unreported) cited in McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 (Bignold J) at p. 166.
4. (1981) 64 LGRA 28.
5. Blue Sky Capital Ventures v Council of the City of Lake Macquarie [2007] NSWLEC 790 (Pain J) at [19], [30].
6. (2005) 147 FCR 39.
7. See also Aronson et al (2017) 6th ed, 'Judicial Review of Administrative Action and Government Liability' Lawbook Co at [8.370]-[8.380].
8. Voltraint No 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055 (Voltraint) per Stevenson J at [18]; Rawson Finances Pt Ltd v Commissioner of Taxation (2013) 296 ALR 307 per Jagot J at [136]-[137]; Turner v Windever [2005] NSWCA 73 (Giles JA at [58]-[59], Bryson JA agreeing at [105]).
9. See, eg, Apokis v Transport for New South Wales [2020] NSWCA 39 at [36] citing Roads & Traffic Authority of New South Wales v Blacktown City Council [2007] NSWCA 20 at [6], [39], [47] and [48] (Spigelman CJ); ISPT Pty Ltd v Valuer General [2009] NSWCA 31 at [5] (Allsop P); Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82. 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. Decision last updated: 06 March 2025