Capital Airport Group Pty Limited v Director-General of the NSW Department of Planning
[2011] NSWLEC 22
•18 February 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Capital Airport Group Pty Limited v Director-General of the NSW Department of Planning [2011] NSWLEC 22 Hearing dates: 18 February 2011 Decision date: 18 February 2011 Before: Biscoe J Decision: Directions made in accordance with short minutes of order dated 18 February 2011
Catchwords: Expert witnesses - obligation under UCPR 31.19 to promptly seek directions before calling expert witnesses - unless court otherwise orders, expert evidence may not be adduced at trial unless directions sought in accordance with the rule and, if directions made, otherwise than in accordance with the directions - whether directions sought should be made where a party fails to seek directions promptly Legislation Cited: Uniform Civil Procedure Rules 31.17, 31.19 Category: Procedural and other rulings Parties: Capital Airport Group Pty Limited (Applicant)
Director-General of the NSW Department of Planning (first Respondent)
Queanbeyan City Council (second Respondent)
Village Building Co Limited (third Respondent)Representation: Counsel:
Ms M Allars (Applicant)
Ms K Richardson (first Respondent)
Ms F Ramsay (second Respondent)
Mr M Astill (solicitor) (third Respondent)
Solicitors:
Mallesons Stephen Jaques (Applicant)
Department of Planning (first Respondent)
Williams Love and Nicol Lawyers (second Respondent)
Blake Dawson (third Respondent)
File Number(s): 40915 of 2010
ex tempore Judgment
The issue before the Court is whether directions should be made relating to expert evidence under r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR) on the application of a party who is in breach of that rule by not seeking the directions promptly.
The proceeding is in Class 4 of the Court's jurisdiction and has been listed for trial on 7 to 10 March 2011. It was commenced on 12 November 2010. Directions leading to a trial were made by the Court on 3 December 2010. The directions did not refer to any expert evidence. On 2 February 2011 the applicant served an affidavit of Graeme Shoobridge, which was expert evidence relating to traffic.
On 14 February 2011 the applicant applied for directions from the Court under rule 13.19 of the UCPR in relation to that expert evidence. That is how the matter comes before me. Rule 31.19 provides that parties must seek directions before calling expert witnesses as follows:
31.19 Parties to seek directions before calling expert witnesses
(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.
(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.
(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.
(4) This rule does not apply to proceedings with respect to a professional negligence claim.
The second and third respondents but not the first respondent oppose directions being made in regard to Mr Shoobridge's evidence. Given the terms of r 31.19(3), the consequence of not seeking directions in accordance with the rule and not complying with any such directions is potentially dire. However, it is common ground that the "promptly" requirement is exhortatory, not mandatory. I will proceed on that basis for present purposes.
The second and third respondents submit that the obligation of the applicant to promptly seek directions under r 31.19(1) arose no later than 20 December 2010 when the applicant's solicitors wrote a letter to Mr Shoobridge asking him to prepare a report that addressed specified matters and recording that they had previously provided him with certain material. They submit that even if r 31.19(1)(a) was not engaged on 20 December 2010 (ie. if the applicant was not then intending to adduce expert evidence at trial), then at least it had become "apparent" to the applicant by that date that it "may" adduce expert evidence such that r 31.19(1)(b) was engaged. The applicant submits that neither limb of r 31.19(1) was engaged until shortly before the date of Mr Shoobridge's affidavit of 2 February 2011.
In my opinion, r 31.19(1)(b) was engaged by 20 December 2010; that is, by that date it was apparent to the applicant that it may adduce expert evidence at trial. Consequently, in my view, the applicant did not promptly seek directions from the Court as required by the rule.
It is also common ground that there is power in the Court to now make directions under the rule. The question then is whether, in the exercise of the Court's discretion, the directions should be made. The second and third respondents submit that several considerations should lead the Court to decline to exercise its discretion. The first consideration is that the applicant did not seek directions promptly after 20 December 2010 and did not do so until 14 February 2011. The second consideration is the main purposes of Division 2 (in which r 31.19 is located) of Part 31, which are enumerated in r 31.17 as follows:
31.17 Main purposes of Division
The main purposes of this Division are as follows:
(a to ensure that the court has control over the giving of expert evidence,
(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,
(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,
(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,
(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,
(f) to declare the duty of an expert witness in relation to the court and the parties to proceedings.
The second and third respondents place particular emphasis on subrule (a). The third consideration is that given the nature of the proceedings as comprehended by the Summons and Points of Claim, there was always potential for expert evidence on a broad range of matters and yet the respondents did not know that the applicant intended to adduce expert evidence until 2 February 2011.
The second and third respondents also questioned the relevance, and therefore the admissibility, of Mr Shoobridge's report, but I have not been taken to the report and, in any case, I think that admissibility is more appropriately a matter for the trial judge except in a case where it is manifestly obvious that the expert evidence is inadmissible (which has not been submitted in this case).
The applicant for its part points, on discretion, to the absence of substantial prejudice to the respondents. I think that if directions had been sought by about 20 December 2010, a direction probably would have been made to file and serve expert evidence by about the time in fact it was filed and served. The second and third respondents respond that at least if directions had been sought by about 20 December 2010, they would have been on notice that an expert traffic report might be adduced in evidence.
The applicant further submits as a discretionary matter that the respondents also were in breach of r 31.19(1)(b) in that it was apparent to them by 2 February 2011 that the applicant may, and indeed would, adduce expert evidence, yet they did not seek directions from the Court in that regard promptly or at all. I think that submission is correct in terms of r 31.19(1)(b) which applies to all parties. However the default of the respondents in that regard was relatively minor compared with that of the applicant.
Weighing up the competing considerations, I think that on balance I should make directions under the rule. While I agree with the second and third respondents that the applicant's delay is inconsistent with a main purpose of Division 2 "to ensure that the court has control over the giving of expert evidence" and that the applicant did not seek directions promptly, nevertheless I do not think that the prejudice to the respondents is sufficiently strong when put in the mix with all other factors to preclude the Court from now making directions.
I make directions in accordance with the short minutes of order dated 18 February 2011 which I initial and place with the papers.
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Decision last updated: 01 March 2011
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