Architect Marshall Pty Ltd v Lake Macquarie City Council

[2004] NSWLEC 755

Land and Environment Court

of New South Wales

CITATION:	Architect Marshall Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 755
PARTIES:	Architect Marshall Pty Ltd (Appl) Lake Macquarie City Council (Resp)
FILE NUMBER(S):	10663 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Evidence :- Whether a court appointed expert is bound by procedural fairness Whether the conduct of the expert can result in their appointment being revoked by the Court
LEGISLATION CITED:
CASES CITED:	FGT Custodians Pty Limited (formerly Feingold Partners Pty Limited) v Fagenblat [2003] VSCA 33
DATES OF HEARING:	3 November 2004
EX TEMPORE JUDGMENT DATE :	11/03/2004
LEGAL REPRESENTATIVES:	C H Shaw (Appl) Shaw Reynolds (Sol - Appl) G Newport (Barrister - Resp) Peter Rees (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

WEDNESDAY 3 NOVEMBER 2004

10663/04 ARCHITECT MARSHALL PTY LTD v LAKE MACQUARIE CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This matter comes before me this morning on the motion of the Council seeking orders that the appointment of Mr Terrence Byrnes as a court appointed expert in these proceedings be revoked.

2 The development application seeks consent to erect a residential building comprising ten dwellings on land within the village of Rathmines in the City of Lake Macquarie. I understand that Rathmines is a village comprised of many dwellings which are generally single storey and was established after the Second World War.

3 The statement of issues in the matter reveals that the Council has a number of concerns in relation to the proposal. However I understand that those concerns can be distilled to the proposition that the proposal is too intense for the site, having regard to the existing form of development within the village. There has been a total of 198 objections to the development in its originally proposed form, reflecting a general community concern about the character of the current proposal.

4 When the matter came before the Court in the ordinary course, the need for expert evidence to assist in evaluating heritage and planning issues was identified. To assist in that regard, the Court appointed an expert in heritage matters as the court expert and also appointed Mr Byrnes to give evidence in relation to general planning matters.

5 The understanding between the solicitors for the parties was that the experts would carry out their tasks of collecting evidence and providing a report in a manner which ensured that both parties were kept informed of the steps that were being taken. The evidence discloses some concern in relation to the way in which the heritage person conducted his inquiries, however, as I understand it, heritage issues have now been resolved and, accordingly, that conduct is not in issue.

6 With respect to Mr Byrnes, notwithstanding the fact that the solicitors agreed and Mr Byrnes, as I understand it, was informed that he was to communicate with both parties in relation to any substantive matter, he did not do so. The correspondence reveals that Mr Byrnes formed some preliminary views about some aspects of the development and made suggestions to the applicant’s architect as to modifications which might be made which would improve the proposal. The inference which might be drawn at this stage is that, with the modifications suggested by Mr Byrnes, he now believes the project to be acceptable but at this point, no written report has been received from him. Accordingly, it is not possible to know what his ultimate conclusions might be.

7 My reading of the correspondence in relation to these matters suggests that Mr Byrnes concentrated on some design matters relevant to the project on its particular site. It is not apparent that he has expressed any view in relation to whether or not development, in the proposed form, would be generally acceptable, having regard to the townscape and architectural character issues which the Council seeks to raise.

8 Although Mr Byrnes dealt with the applicant exclusively for a period, once this became apparent to the Council, the position has been rectified. The Council has now been provided with copies of correspondence from Mr Byrnes and, of course, by reference to the amended plans is aware of the responses which the applicant has made.

9 The Council’s submissions are twofold. Firstly, it is submitted that a court expert is bound by the rules of procedural fairness in the collecting of his or her evidence. It is submitted that if the rules are breached, then the expert’s evidence cannot be admitted in the proceedings. For this proposition, reference is made to the provisions made in the Supreme Court Rules for the appointment of referees and it is submitted that an expert appointed by the Court is in the same position as a referee and bound by the same obligations to provide procedural fairness.

10 It is secondly submitted that it is a matter for the Court to administer the process of the appointment of court experts and the manner in which those persons carry out their functions. If the Court is persuaded that by reason of the conduct of an expert the evidence will be of little or no benefit in the resolution of the matter, it is submitted the Court should revoke the appointment.

11 It is unnecessary for me today to analyse further the submissions which have been put. However, in some cases, there has been a suggestion that an expert appointed by the Court is in a different position to one engaged by a party to the litigation giving rise to different obligations which include an obligation for procedural fairness, I do not believe it appropriate to resolve that matter today. See FGT Custodians Pty Limited (formerly Feingold Partners Pty Limited) v Fagenblat [2003] VSCA 33 at [14]-[15]. The matter has not been fully argued and it would require an analysis of the juristic basis for the receipt of expert evidence.

12 However, the second submission, in my view, has considerable force. The purpose of a court appointing an expert is to endeavour to enhance the integrity of the decision making process by inviting the parties to identify a person, in who each of them has confidence to assist the court with expert evidence in relation to a particular issue or issues. If the conduct of that person has the effect of destroying the confidence of any of the parties in the evidence which that person might give, as opposed to a party not agreeing with the opinion which the expert may ultimately come to express, the benefit from appointing a court expert will be lost. Accordingly, there will be occasions when it will be necessary for the Court to intervene and revoke an appointment.

13 In the circumstances of the present case, I am of the opinion that it would be premature for me to decide the issue. The Council can point to the fact that Mr Byrnes has not acted as the parties intended and has had communication directly with the applicant leading to an amendment of the plans. However, although Mr Byrnes has communicated directly with the applicant, the opportunity for the Council to speak with Mr Byrnes and address the matters which he has raised with the applicant could and should now be made available. If the Council believes that its position has not been effectively communicated to Mr Byrnes, that position might now be remedied.

14 Of significance is the fact that Mr Byrnes has not yet reported in writing. I understand that report is due on Friday. It may be when that report has been received that the Council will be in a position to indicate from the contents of the report how the process has, from its perspective, been compromised so that the integrity of the ultimate decision, which the Court must make, cannot be assisted by the receipt of Mr Byrnes’ evidence. However, as is plain, that matter can only be gauged after the report has been received.

15 In these circumstances, it seems to me to be sensible to wait until Mr Byrnes’ report is available and, in light of that report, invite the Council, if it wishes, to place any further submissions before me as to whether or not Mr Byrnes’ appointment should be revoked.

16 I accordingly propose to adjourn the motion to Tuesday 9 November at 9.15.