Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

Environmental Planning and Assessment Act 1979, s 109 LEGISLATION CITED : Evidence Act 1995, ss 55, 79, 80, 135 Trade Practices Act 1974 Tweed Local Environmental Plan 2000

Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (No.6) (1996) 64 FCR 79 Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; (2003) 48 ACSR 291 Faucett v St George Bank Ltd [2003] NSWCA 43 Forge v Australian Securities and Investments Commission [2004] NSWCA 448; (2004) 213 ALR 574 Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 Hammersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203 Idoport Pty Limited v National Australia Bank Ltd [2000] NSWSC 1077; (2000) 50 NSWLR 640 CASES CITED : Johansen v Art Gallery of New South Wales Trust [2006] NSWSC 577 O'Brien v Gillespie (1997) 41 NSWLR 549 Pan Pharmaceuticals Pty Ltd v Selim [2008] FCA 416 R v Palmer [1981] 1 NSWLR 209 Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300

Tim Barr Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant

Mr RG McHugh SC/Mr J E Lazarus (to 4 July 2008 and from 24 November 2008) - Plaintiffs Mr I M Barker QC/Mr RG McHugh SC/Mr J E Lazarus (from 28 July 2008 to 28 August 2008) - Plaintiffs COUNSEL : Mr M L Einfeld QC/Mr R E Dubler SC/Mr A C Harding (to 27 June 2008) - Defendant Mr A C Harding (30 June 2008) - Defendant Mr I M Neil SC/Mr AC Harding (from 28 July 2008) - Defendant

SOLICITORS : Corrs Chambers Westgarth - Plaintiffs Verekers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED

1 The plaintiffs seek again to tender a report by Mr Glazebrook, a town planner: see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506. The defendant objects to certain parts of the report, specifically, the second sentence of paragraph 5, the whole of paragraph 8, the last sentence of paragraph 10, the whole of paragraph 11 and the second sentence at paragraph 12. 2 The objection is the same in each case and, for the purposes of this ruling, it is sufficient to quote the second sentence of paragraph 5: "I remain of the view that the planting and cultivation of tea trees on the Cudgen Paddock did not require development consent, for the reasons set out below." 3 In this and each of the other passages objected to, Mr Glazebrook states an opinion about the meaning, scope or effect of a statutory provision or planning instrument as it affects land the subject of these proceedings. Questions of that kind play a part in the proceedings because of clause 4.3 of the lease, which begins with these words: "Should the use to which the premises are put by the tenant require the licence consent or approval of any competent authority." 4 It will, in due course, be necessary for the court to decide whether the situation in fact prevailing was as described by those words - or, perhaps, whether persons thought that was so. 5 It is common ground that the relevant legal constraints are sourced in s 109 of the Environmental Planning and Assessment Act 1979 and the Tweed Local Environmental Plan 2000 as in force at 23 June 2000. 6 One important issue will be as to the meaning of "agriculture" and whether certain activities are or are not "agriculture" as defined in schedule 1 to the Tweed Local Environmental Plan. There will also be questions whether s 109 of the Act concerned with what is loosely called "existing use" or "continuing use" applies in the circumstances. 7 The defendant's objection is put on three bases. First, it is said that an expert such as Mr Glazebrook cannot give evidence about how the curial function ought properly to be performed since this would be to allow abdication of the judicial duty and usurpation of the judicial function. I am here using words taken from the judgment of Lindgren J in Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (No.6) (1996) 64 FCR 79. 8 Mr Neil referred also to a number of other cases, some of them reflecting the common law position as it existed before the Evidence Act 1995, including: Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669, R v Palmer [1981] 1 NSWLR 209 and R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129. 9 In Palmer's case in the Court of Criminal Appeal, Glass JA said at 214: "The true rule, in my opinion, is that no evidence can be received upon any question, the answer to which involves the application of a legal standard." 10 Cases since the introduction of the Evidence Act relied on by the defendants include O'Brien v Gillespie (1997) 41 NSWLR 549, a decision of Levine J, in which the following conclusion was stated at 557: "The view to which I ultimately come is that the proposed testimony of this witness is on the essential matters of fact and law to be decided by the application of legal standards upon the evidence of the actual transactions which the court will hear and thus does no more than intrude upon the exercise of the essential judicial function." 11 In Hammersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203, opinion evidence of a business analyst was tendered as to whether a railway was part of a "production process" for the purposes of the Trade Practices Act 1974. Kenny J held this to be inadmissible "to the extent that it dealt with the ultimate legal issue in the case". 12 In Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; (2003) 48 ACSR 291, Austin J considered the same general issue, but recognised the potential impact of s 80 of the Evidence Act which says that evidence of an opinion is not inadmissible only because it is about an ultimate issue. Austin J said, at paragraph [27]: "My ninth proposition is that, although there is no bar, as such, to the expert giving evidence about the ultimate issue having regard to s 80 of the Evidence Act, expert evidence directed to answering a question of law or fact that is directly before the court for decision is inadmissible: see, before the commencement of the Evidence Act, ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 203-5 per Priestley JA. This proposition may be not so much a rule as an injunction to take particular care "when experts move close to the ultimate issue": R v GK (2001) 53 NSWLR 317 at 326-7; cited in Adler at 633, [622] per Giles JA. The evidence is likely to be inadmissible not because it goes to the ultimate issue, but because it will not be wholly or substantially based on the expert's specialised knowledge, or it will be irrelevant: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83 ; 137 ALR 138 at 142 per Lindgren J." 13 A similar approach had been taken earlier in the same year by Sheller JA, with whom Mason P and Meagher JA agreed, in Faucett v St George Bank Ltd [2003] NSWCA 43 at paragraph [48]: "Mr Jennings should not have been asked nor permitted to give evidence such as that set out in paras 10.1 and 10.2 which I have quoted. It was not part of the function of this expert to state as his opinion that the respondent failed in its duty to provide a safe system of work or to provide a security system which was commensurate to the obvious risks of robbery. Section 80 of the Evidence Act 1995 provides relevantly that evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue. But as Mason P pointed out in R v GK (2001) 53 NSWLR 317 at 326-7, "judges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions." In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Court's 'Allstate' Judgment No 33) (1996) 64 FCR 79 at 83 Lindgren J said: "I find it convenient at the outset to state some principles of the general law against which, in my view, the effect of par 80(a) is to be determined. It is fundamental that the ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty. Although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible. The rationale underlying this fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant."

With his Honour's statement I entirely agree; see also Naxakis v West General Hospital (1999) 197 CLR 269 at 306 [110] note 137; Cross on Evidence , Australian edition 29105; Odgers Uniform Evidence Law 1.3.4460; O'Brien v Gillespie (1997) 41 NSWLR 549 at 557; Idoport Pty Ltd v National Australia Bank Limited (2000) 50 NSWLR 640 at 655 [39]." 14 In Idoport Pty Limited v National Australia Bank Ltd [2000] NSWSC 1077; (2000) 50 NSWLR 640, Einstein J had expressed the view that an effect of s 80 of the Evidence Act was to remove the fact that the evidence in question goes to an ultimate issue from the reasons for which a court must or can exclude the evidence, so that the circumstance that opinion evidence goes to the application of a legal standard in the determination that the Court is required to make is no longer, of itself, a ground for exclusion. 15 I take this to be consistent with what was later said by Austin J in ASIC v Vines and by the Court of Appeal in Faucett, as outlined above. But, as both those cases show, there are other reasons why opinion evidence of the kind in question might be rejected: first, that a statement of opinion on the ultimate legal issue lies outside the province of the particular expert's specialised knowledge based on training, study or experience; or, second, that when it comes to deciding the ultimate legal issue, the evidence has no relevance because, in terms of s 55, the decision of the court, whose task it is to decide that issue, could not rationally be affected by an opinion of the particular person on that question. 16 Finally, I refer to the judgment of McColl JA (with whom Handley JA and Santow JA) agreed in Forge v Australian Securities and Investments Commission [2004] NSWCA 448; (2004) 213 ALR 574, where many of the cases are discussed and the statement by Austin J in Australian Securities and Investments Commission v Vines is quoted with apparent approval. 17 The defendant's second contention is that the paragraphs of Mr Glazebrook's report in question should be rejected by exercise of the discretion conferred by s 135(a). 18 In O'Brien v Gillespie, Levine J indicated (at 557-558) that, had he not rejected it on other grounds, he would have exercised the s 135 discretion against the admission of the evidence of an expert solicitor in a professional negligence case: "In the end, as I have said, it is really no more than the proffered opinion of one solicitor in relation to the conduct of another in circumstances which will be the subject of evidence in the course of the hearing. It is the evidence of a kind which amounts to no more than the expression of an opinion by a practitioner of what he thinks he would have done had he been placed hypothetically and in this instance with the benefit of hindsight in the position of the first and second defendants. The situation would really thus be one where Mr Penhall can be characterised as a witness produced to present with what no doubt is hoped to be cogent advocacy the case of the party calling him. Evidence of this nature and quality in proceedings of the present kind, I reiterate, is not rendered admissible by s 80.

All these factors would cause or result in an undue waste of time as envisaged in s 135 particularly given the minimal probative value of what is sought to be tendered by way of evidence from Mr Penhall." 19 The third basis of objection is, in essence, relevance. It was explained by reference to the to observations of Emmett J in Pan Pharmaceuticals Pty Ltd v Selim [2008] FCA 416 concerning opinion evidence as to whether particular conduct that the expert is asked to assume satisfies or falls short of some legal standard as when a medical practitioner says that a particular procedure was conducted negligently. His Honour said at [36] and [37]: "[36] Very little, if any weight, should ever be accorded the last category of opinion evidence. It may be admissible by reason of the operation of s 80, however, in so far as it is an opinion by reference to a legal standard, it will be essential, before it can be admissible and certainly before any weight can be afforded to it, that the expert's understanding of the relevant legal standard be established and be shown to be in accordance with the law.

[37] Thus, an opinion as to whether conduct satisfies or falls short of a particular standard, such as whether particular conduct was in breach of a duty of care entails an examination as to what the expert's understanding is of the duty of care. Where the so-called opinion is proffered as to whether conduct satisfies or falls short of a statutory requirement, such as the Code, the expert must make clear just what his understanding of the effect of the Code might be. Unless the witness makes perfectly clear what he understands the Code to mean, his evidence as to whether particular conduct satisfies or falls short of it cannot be tested and can have no weight." 20 Mr McHugh submitted on behalf of the plaintiffs that the only real issue to be decided here is relevance. As he pointed out, s 56 lays down the general rule that all evidence that is relevant is admissible unless excluded by a provision of the Act. Section 80, as Mr McHugh pointed out, is not a provision that excludes. It is a provision that directs that there be no exclusion. 21 I accept Mr McHugh's submissions with one qualification. I would say that, consistently with the more recent authorities to which I have been referred, expert evidence cannot now be rejected just because it goes to the question of the application of a legal standard. But it can and must be rejected if it is not, in terms of s 79, wholly or substantially based on the expert's specialised knowledge, which is, in turn, based on the person's training, study or experience. And it can and must be rejected if it has no capacity rationally to affect the assessment of the probability of the existence of a fact in issue - they being the words in s 55 which define the concept of relevance. 22 One then comes back to the question the court will be required to determine in this case, that is, whether the use to which the land was put required the consent of any competent authority. 23 It is common ground that a large element of this will go to whether the activities on the land at relevant times were within the definition of "agriculture" contained in the planning instrument. The definition says that certain activities are included within the agriculture concept and certain others are excluded from it. One express inclusion is "horticulture". One express exclusion is "forestry". Between the express inclusions and the express exclusions, there is an undefined core concerned with "agriculture" according to its ordinary and natural meaning. 24 In general terms, a court does not need expert help to decide whether a particular activity on land is or is not agriculture or horticulture or forestry, any more than the court needs expert help to decide whether or not a particular portrait has been "painted": see Johansen v Art Gallery of New South Wales Trust [2006] NSWSC 577. The general principle is that the court does not need anyone's help to determine the meaning of an ordinary English word. 25 A threshold question, however, is whether one is dealing with an ordinary English word used as such or a word which, although it is an ordinary English word, is in the particular context not used as an ordinary English word. An example taken from Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 is the words "competition", "market" and "efficiency". All of these are words we use day by day in ordinary conversation. But they are words which, in the context under discussion in that case, had special meanings in the area of economics. 26 Mr McHugh says that the fact that "agriculture" is defined in the planning instrument sets it aside from its ordinary meaning and gives it a special meaning. I am not satisfied that this is so. There is, as I have said, a core which is, as it were, added to and subtracted from by a statement of particular things that are included and particular things that are not. None of the inclusions or exclusions can be said to involve anything more than ordinary English words. They are all readily understood activities that one knows when one sees them. 27 My conclusion is, therefore, that the court will not be assisted by Mr Glazebrook's views about what is or is not included within the defined concept of "agriculture", nor will it be assisted by his views about the meaning and operation of s 109. It is a provision concerning what is generally described as "existing use" or "continuing use" - a concept that was referred to in its legal signification in the judgment of McHugh JA in Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 at 310: "The effect of s 109, as it was interpreted in light of the High Court decisions, was radically changed by the addition to it, operative from 3 February 1986, of subs (2). That subsection requires that "use" be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s 309 and s 109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually (as opposed to potentially) physically being used, and the extent of the use of that land likewise being limited to its extent on that day." 28 When I say that the court will not be assisted, what I mean is that Mr Glazebrook's opinions on these matters do not have any probative capacity of the kind referred to in s 55, added to which neither the meaning of the relevant words nor the construction of the statutory provisions and those of the planning instrument is a matter of which it can be said that it lies within an expert town planner's specialised knowledge and which is, in turn, based on an expert town planner's training, study or experience. 29 The passages in question in Mr Glazebrook's reports will therefore be rejected.

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