Casagrande Investments Pty Ltd v Redland City Council

[2010] QPEC 54

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Casagrande Investments Pty Ltd v Redland City Council & Ors [2010] QPEC 54
PARTIES:	CASAGRANDE INVESTMENTS PTY LTD ACN 010 058 474
Appellant
v
REDLAND CITY COUNCIL
Respondent
And
KEVIN BRUCE HUDSON
First co-respondent by election
And
RICHARD JAMES JACKSON
Second co-respondent by election
And
SANDRA DENISE PARCELL
Third co-respondent by election
And
CHRISTIAN DAVID COLEMAN
Fourth co-respondent by election
And
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
Fifth co-respondents by election
FILE NO/S:	3566 0f 2009
DIVISION:	Planning and Environment
PROCEEDING:	Ruling during appeal hearing
ORIGINATING  COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	7 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2010
JUDGE:	Judge Rackemann
ORDER:	That the tender of the social planning report of Dr Wendy Sarkissien be rejected.
CATCHWORDS:	PLANNING AND ENVIRONMENT – tendering of expert report – requirement of early notification subject to court order – tender on morning of trial of report of expert whose engagement had not been notified in accordance with directions
COUNSEL:	Mr Skoien for the appellant
Mr Ure for the respondent
Mr Hudson for the first co-respondent by election (self- represented), the third co-respondent by election and the fourth co-respondent by election
SOLICITORS:	McCarthy Durie Ryan Neil Solicitors for the appellant HWL Ebsworth for the respondent

[1] HIS HONOUR: The respondent has sought to tender, on the first morning of the
trial, a social planning report by Dr Wendy Sarkissien.

[2] The report goes to matters which would also fall within the scope for expert evidence by the town planners. I accept that Dr Sarkissien has a somewhat different qualification and that ordinarily, her evidence would be relevant and admissible, in addition to the evidence of the town planners, as not being someone in the same field of expertise.

[3] Objection is taken to the tender of the report on the basis of non compliance with earlier orders of the Court. This Court's method of dealing with experts is well- known. It relies upon the early notification of experts as between the parties. What then follows is a series of expert joint meetings, well in advance of trial, so that the matters the subject of expert evidence can be the subject of genuine professional discourse, unaffected by the parties or their legal representatives.

[4] In this case, in accordance with that system of management, the parties were ordered to notify the appointment of any of their experts by the 18th February 2010. Those experts were to meet on or before the 11th March 2010 and to produce a joint report.

[5] The town planners in the case were notified. They engaged in a joint meeting and produced a joint report. As is not uncommon, they found a large degree of common ground. Indeed they agreed that there were sufficient planning grounds to warrant approval notwithstanding the conflict with the planning scheme.

[6] The joint report by the town planners was published on the 13th May. Very shortly before the publication of the joint report of the town planners, who had reached that agreement, the council notified that it wished to call Dr Wendy Sarkissien.

[7] This notification came only a month before the trial. When Dr Sarkissien's report was eventually finished and published it reached conclusions about the inadequacy of open space. As I have said that could have been examined by the town planners.

[8] When the intention to call Dr Sarkissien was first notified, the appellant took objection, on the basis that her appointment had not been notified in accordance with the orders, that they had not appointed a like expert nor did they have the benefit of a joint meeting process. They maintained their objection to today.

[9] In the face of that objection, the council did not bring any application to the Court for a variation of the earlier orders, so as to permit it to notify an expert late. Its lawyers simply proceeded to turn up this morning and tender the report. No notification to the Court of any intention to notify an additional expert, or any unresolved issue in that regard was given at the pre-callover review, or at the callover.

[10] In my view, it would be unfair to now permit the council to rely upon the report of Dr Sarkissien. The appellant was entitled to know the names of the experts who the council had appointed at a much earlier time in order to allow it to obtain its own experts.

[11] The respondent contends that four weeks before trial was still sufficient time for the appellant to do so, however, it was perfectly at liberty to take the position which it did, that is, to object to the late notification of an expert so shortly before trial, and to maintain that objection in the absence of any application by the respondent for any variation in the Court's earlier orders.

[12] Accordingly, I now reject the tender.