Childs Family Kindergarten Limited v City of Sydney Council

[2006] NSWLEC 784

Land and Environment Court

of New South Wales

CITATION:	Childs Family Kindergarten Limited v City of Sydney Council [2006] NSWLEC 784
PARTIES:	APPLICANT Childs Family Kindergarten Limited RESPONDENT City of Sydney Council
FILE NUMBER(S):	10464 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Practice and Procedure :- court appointed expert in planning appeal - fees charged by court appointed expert greatly exceeded court appointed expert's estimate of fees provided to parties - court appointed expert unilaterally increased scope of work and hours spent - party's motion to limit court appointed expert's fees to estimate - court appointed expert's motion to be joined as party to appeal - court appointed expert not joined - no power and inappropriate for court appointed expert to be a party - court appointed expert's fees fixed in an amount less than charged but more than estimate
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96(6) Land and Environment Court Act 1979 s 38(2), s 39A, s 39(2) Land and Environment Court Rules 1996 Pt 6 r 1, Pt 39 r 5 Supreme Court Rules Pt 8 r 8
CASES CITED:	Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
DATES OF HEARING:	28/11/2006
EX TEMPORE JUDGMENT DATE:	11/28/2006
LEGAL REPRESENTATIVES:	APPLICANT no appearance APPLICANT ON NOTICE OF MOTION Mr N Eastman (barrister) SOLICITORS D C Balog & Associates RESPONDENT Mr S Kondilios (solicitor) SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

28 NOVEMBER 2006

10464 OF 2006

CHILDS FAMILY KINDERGARTEN LIMITED V CITY OF SYDNEY COUNCIL

JUDGMENT

1 HIS HONOUR: There are two notices of motion before the Court for determination. First, a court appointed expert, Dr Renzo Tonin, moves the Court to be joined as a party to class 1 proceedings which are current in the Court. Secondly, the respondent in those class 1 proceedings, the Council of the City of Sydney, moves the Court for an order, in effect, capping the fees Dr Tonin may charge the parties at the amount of the estimate Dr Tonin had provided the parties on the direction of the Court. I will deal with each motion.

Dr Tonin’s motion

2 The class 1 proceedings to which Dr Tonin applies to be joined involve an appeal by the applicant Childs Family Kindergarten Limited, against a decision of the respondent, the Council of the City of Sydney, under s 96(6) of the Environmental Planning and Assessment Act 1979 to modify a development consent, in particular, condition 18 concerning monitoring of noise.

3 The issues raised in the proceedings were narrow and concerned the issue of noise and the appropriateness of the particular condition, the subject of the modification application. The parties consented to the appointment of Dr Tonin as the parties’ single expert, referred to as a court appointed expert. I will come to deal with the terms of Dr Tonin’s appointment when I deal with a further notice of motion by the council that the fees of Dr Tonin be limited to the maximum of a fee estimate that Dr Tonin provided which is $10,000 including GST.

4 Dr Tonin provided his hourly rate which was recorded by the court at the time that the court appointed Dr Tonin. Subsequently, Dr Tonin provided an estimate of the fees that he anticipated he would charge for addressing the issues relating to noise. That estimate was in the range $5,000 to $10,000. This was provided in a table which described the category of the work as “simple” and that the typical scope of work for that category as “reviewing briefing documents, brief client and solicitor, visit the site, prepare brief report or affidavit, brief barrister, short court appearance”.

5 Dr Tonin undertook the preparation of a preliminary report to the parties as well as a final report for the parties. Subsequent to providing the final report Dr Tonin was asked by the Council to provide a clarification about a matter. Dr Tonin provided that clarification. The matter proceeded to hearing and Dr Tonin provided evidence at the hearing. Dr Tonin also responded to a report provided by the applicant’s acoustic consultant.

6 As events have transpired, Dr Tonin’s fees have increased dramatically past the estimate that he had provided to the parties of $5,000 to $10,000. Dr Tonin has issued a bill to the parties which is $22,594.38 including GST. Dr Tonin billed half of that cost being $11,292.19 to the Council. This was done in accordance with the usual procedure where a single expert has been appointed by the parties that they pay half each unless there be some other direction of the court.

7 The Council was concerned that the amount billed by Dr Tonin far exceeded the estimate that he had been previously given. The Council requested Dr Tonin whether he would reduce the bill, having regard to the estimate. Dr Tonin declined. The Council then moved the court by notice of motion that Dr Tonin’s fees for work up to and including the hearing on 15 September 2006 be limited to the maximum of the fee estimate that Dr Tonin had given namely $10,000 including GST. The Registrar directed that the affidavit that would be provided by the Council in support of its notice of motion be provided to Dr Tonin to afford him the opportunity to consider the motion and to provide his own affidavit or otherwise be heard at the hearing of the Council’s notice of motion.

8 What Dr Tonin decided to do, no doubt on advice, was to move the court by notice of motion to be joined as a party to the proceedings and, as a party, be heard to oppose the notice of motion filed by the Council in relation to capping Dr Tonin’s fees. It is that motion of Dr Tonin that I am now ruling on.

9 Mr Eastman of counsel who appears for Dr Tonin on the motion submitted that the court had power to order Dr Tonin to be joined as a party under three sources.

10 First, Mr Eastman referred to Pt 8 r 8 of the Supreme Court Rules which are adopted by Pt 6 r 1 of the Land and Environment Court Rules 1996. Mr Eastman relied, in particular, on Pt 8 r 8 (1)(b) which provides that where a person who is not a party is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the court on application by him may order that he be added as a party and make orders for the further conduct of the proceedings.

11 Secondly, Mr Eastman relied upon s 39A of the Land and Environment Court Act 1979. That section states that on an appeal under s 96(6), amongst other sections, of the Environmental Planning and Assessment Act 1979 (which section was the section that founded the appeal in this case):

“the Court may, at any time, on the application of a person order the joinder of a person as a party to the appeal if the Court is of the opinion…

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party; or

(b) that:

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.”

12 Thirdly, Mr Eastman referred to the power under s 38(2) of the Land and Environment Court Act that in proceedings in class 1 of the court’s jurisdiction (in which class this appeal is), “the Court is not bound by the rules of evidence but may inform itself on any matter in such matter as it thinks appropriate and as the proper consideration of the matters before the Court permits”.

13 In times past, this power has been used by the Court to allow persons to be heard as if a party so that the court is able to inform itself on matters which the person may be in a better position to inform the court than the parties - either the applicant or the council may be able to do. It is sometimes referred to as a Double Bay Marina order after the name of the case in which such an order was made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315.

14 Mr Eastman submits that any one of these sources of power allows the Court to join Dr Tonin as a party. The Court would exercise that power in all the circumstances so as to allow Dr Tonin to be heard in opposition to the Council’s notice of motion that his fees be fixed at a sum of $10,000 which evidently is much less than the fees that Dr Tonin has charged the parties to date.

15 Furthermore, Mr Eastman submits that there is a risk that the Court in ruling upon the Council’s motion could make findings that may be adverse to the reputation of Dr Tonin and that may affect the future livelihood of Dr Tonin as an expert either for parties or as a court appointed expert in this Court.

16 I am of the opinion that the Court does not have power under any of the sources of power referred to by Mr Eastman and, furthermore, it is contrary to the interests of the proper administration of the justice system that an expert, let alone a court appointed expert, be joined as a party to proceedings. I will explain shortly my reasons for each of these conclusions.

17 Firstly, each of the sources of power is predicated upon there being matters or issues in dispute between the parties in the proceedings. The Land and Environment Court is, of course, a statutory court of limited jurisdiction. It has jurisdiction to deal with the matters that the Land and Environment Court Act 1979 or any other Act vests in it. In this case, the Environmental Planning and Assessment Act 1979 under s 96 (6) gives the Court the power to determine an appeal against the consent authority’s decision to refuse an application under s 96 to modify a development consent. The matters that are in issue in any such appeal are limited by reason of the nature of the application. That application in this case concerns one condition of a development consent.

18 The Council filed a statement of issues as to why the modification sought by the applicant should not be made. Those issues form the basis for the contest between the parties. It goes without saying to note that not one of those issues raises anything to do with Dr Tonin’s fees.

19 When one looks then to each of the sources of power to which Mr Eastman has referred, namely the “matters in dispute in the proceedings” (see Pt 8 r 8(1)(b) of the Supreme Court Rules) or “an issue that should be considered in relation to the appeal” (s 39A (a) of the Land and Environment Court Act) or “the matters before the Court (s 39(2) of the Land and Environment Court Act), these all concern the matters or issues that are raised in the appeal.

20 The matter in relation to which Dr Tonin wishes to be heard, namely the capping of his fees, is not a matter which answers any of these descriptions. Accordingly, the Court does not have the power to join Dr Tonin as a party to the proceedings.

21 Even if there were to be power, it would be singularly inappropriate that Dr Tonin be joined as a party. Dr Tonin was appointed as the parties’ single expert, designated at the time as a court appointed expert. The purpose of that appointment was for Dr Tonin to give impartial evidence relevant to the matters that were in issue, namely the matters concerning the noise condition of the development consent, to assist the Court in coming to its determination of the appeal.

22 An expert, whether a party’s expert or a court appointed expert, has no interest in the outcome of the proceedings or in the matters that are in issue. The role is impartial and objective. It is to assist the court in drawing the necessary inference or conclusions from primary facts on an area in which the court may not be able to do that without the assistance of a person possessing special expertise.

23 The Court rules and practice directions as well as the nature of an expert’s role require that an expert be independent from the parties and from the matters in dispute. If the expert were to have a stake in the outcome of any decision of the court, that impartiality and the role of the expert in assisting the court would be seriously jeopardised.

24 Mr Eastman was not able to refer to any authority in support of the proposition that an expert, let alone a court appoint expert, can or should be joined as a party to proceedings. That is unsurprising. I cannot imagine that any court would uphold such an order either as a matter of power or as a matter of discretion. As I have said, there is a fundamental conflict between the role of an expert and the role of a party. Dr Tonin could no longer fulfil the function of being an expert, let alone a court appointed expert, if he were to be joined as a party. For these reasons, I decline to order that Dr Tonin be joined as a party to the proceedings.

25 Dr Tonin also seeks in the alternative, if he is not ordered to be joined as a party which I have held above is inappropriate, that he be legally represented at the hearing of the Council’s notice of motion. The notice of motion of the Council was filed on 18 October 2006 and was provided to Dr Tonin thereafter together with the affidavit in support by Ms Halls which was filed on 27 October 2006.

26 Dr Tonin had an opportunity to consider that motion and affidavit and indeed he responded by bringing this notice of motion. The appropriate course would have been for Dr Tonin to have appeared in person before the Court. He had been appointed by the Court as the parties’ single expert and he understood that that was his role. If there had been any difficulties with the discharge of his services, including running over the estimate it would have been appropriate for Dr Tonin to bring the matter back before the Court.

27 Similarly, insofar as we now are at the point where the Council seeks to cap the fees of Dr Tonin, it would be appropriate for Dr Tonin to be heard to explain his side of the story so that the Court can rule upon the motion. Unfortunately, Dr Tonin chose not to appear in person before the Court or even come to Court. Instead, he chose to be heard by legal representation, both a solicitor and counsel. The consequence is that the Council’s notice of motion which has been fixed for hearing today and will be determined today can only be dealt with by hearing Dr Tonin through his legal representatives who are in court today. It is not possible to hear Dr Tonin in person, although he has sworn a comprehensive affidavit which has been read on the motion and is before the Court.

28 I am not at all convinced that it is either appropriate or there is power to allow legal representation in the circumstances where a party seeks to move the court to cap a court appointed expert’s fee. However, because of the practical matter that I have noted above, namely that if legal representation were not to be permitted for Dr Tonin on the hearing of the Council’s notice of motion then there effectively would be no-one to put Dr Tonin’s point of view, I am prepared to allow Dr Tonin to be heard on the notice of motion by his legal representatives.

The Council’s motion

29 The second motion before the Court is the motion by the Council dated 18 October 2006, that the court appointed expert, Dr Tonin, be limited in the fees he be allowed for his work up to and including his attendance at the hearing on 15 September 2006, to the maximum of the estimate he had given which is $10,000 including GST.

30 In the previous judgment in which I dealt with the notice of motion by Dr Tonin to be joined as a party to the proceedings, I set out some of the history. I will not repeat that now. However, I do need to give a little bit more detail about how the fees were originally fixed and estimates were required to be given, which estimate is the foundation for the Council’s notice of motion.

31 When Dr Tonin was appointed by the Court as the court appointed expert on 27 July 2006, a court appointed expert information sheet was filed in court on that day. That sheet specified the remuneration of Dr Tonin to be as per the “schedule” and stated a figure of $375 plus GST. It then specified the dates by which documents were to be provided to Dr Tonin (8 August 2006), the date by which Dr Tonin was to “file and serve an estimate of the total fees to be incurred in this matter” (11 August 2006), the date by which Dr Tonin should serve a preliminary report (18 August 2006) and the date by which Dr Tonin should file and serve the final written report (11 September 2006). The schedule that was referred to in the sheet was a schedule of hourly rates and disbursements provided by Dr Tonin and that had the figure $375 next to the name of Dr Tonin circled. As a result of the Court making directions in accordance with the sheet, Dr Tonin was directed to file and serve an estimate of his total fees to be incurred in the matter by 11 August 2006.

32 On 18 August 2006, Dr Tonin wrote to the Council’s solicitors and presumably also the applicant’s solicitors, advising of his fee estimate for the matter. That fee estimate was contained under a covering letter which said that it attached the “Scope of Work, Team and Fees” and a “Schedule of Hourly Rates & Disbursements” together with other documents. Dr Tonin requested that if the scope of work, fees and terms and conditions are acceptable, the parties solicitors should “sign and fax the Client Authority so that work may begin”.

33 The first attachment to Dr Tonin’s letter was entitled “Scope of Work, Team and Fees”. The scope of work was described as including:

“1. Review documents related to the case.

2. Conduct on-site noise investigation.

3. Prepare a technical report addressing the issues.

4. Provide a preliminary report to legal team.

5. Preparation of responses as required.

6. Give expert evidence in court.”

34 Dr Tonin was identified as the person who will be responsible for the work.

35 The cost of the provision of the scope of work so described was said to be based on “the rates of charge shown attached”. That attachment was a copy of the schedule that had been earlier provided to the Court showing the rate for Dr Tonin of $375.

36 The Scope of Work document continued saying that “On the basis of the briefing material provided, we anticipate this matter to be categorised as SIMPLE and accordingly the cost estimate range is that shown in the last column of that category in the table below”. Dr Tonin noted that fees would be split 50/50 between the parties. Dr Tonin then asked the parties “Would you please sign and fax back to the Client Authority attached to this fee proposal so work may begin”.

37 The “table below”, which was the cost estimate, had four categories of scope of work referred to by Dr Tonin: desktop, simple, detailed and complex. The typical scope of work for each of these four categories was given. As would be expected, as the category increased in complexity, the scope of work also increased. So, of particular relevance to this case, the desktop and simple categories of work did not include conducting noise measurements or performing calculations. However, these activities were required for the detailed and complex categories of work. Furthermore, the desktop and simple categories referred to the preparation of a brief report or affidavit while the detailed and complex categories referred to the preparation of a detailed report or affidavit. Furthermore, the length of the court appearance extended as the complexity of the scope of work increased.

38 The cost estimates for the various categories of work increased with the scope of work. So, for the desktop category, the estimate given was $2,000 - $5,000, for the simple category it was $5,000 - $10,000, for the detailed category it was $11,000 - $19,000 and for the complex category it was $20,000 - $38,000.

39 As I have noted, Dr Tonin informed the parties that he anticipated the matter would be categorised as simple. That category was ticked in the appropriate place in the table of cost estimates. Accordingly, the costs estimate was $5,000 to $10,000.

40 Underneath the table, Dr Tonin noted that:

“The ranges shown in the table are an estimate only and should not be taken to be an upper limit or fixed cost. The cost may vary as a result of additional time spent during surveys, additional computation time resulting from complexities arising or additional time spent writing reports requiring a more considered explanation of the issues, assessment or conclusions reached”.

41 However Dr Tonin went on to say:

“If the estimate is likely to be exceeded, we will communicate this to you at the earliest opportunity, however, this may not always be possible prior to completion of the report.”

42 In reliance on the estimated scope of work and cost, the parties duly signed and returned the client authority to Dr Tonin and he engaged in preparation of the stated scope of work.

43 In fact, Dr Tonin provided his preliminary report on 18 August 2006, the same day that he had provided his fee estimate to the parties. According to Dr Tonin, by that time, for the work he had done, including the preparation of the preliminary report, he had incurred $4,400 in fees. That meant he was already approaching the lower limit of his estimated total fee of $5,000.

44 In the preliminary report, Dr Tonin stated that he was approaching the brief on the basis of addressing the single matter articulated in the statement of issues, namely modification to condition 18 of the consent which specified noise levels applicable to the use of the subject site. Dr Tonin referred to the reports of Day and Cooper, the acoustic experts that had been engaged by the applicant, and stated that those reports discussed the applicable noise criteria and the results of noise measurements. Dr Tonin stated that unless his brief was expanded by both parties he would assume that the issue of whether or not the use of the development complies with any assumed standard is immaterial. Dr Tonin noted that, as he understood it, his brief was to provide expert assistance in relation to the application to modify condition 18. In para 4 of the preliminary report Dr Tonin stated,

“To assist me in interpreting those objectives and standards and the applicability to the Santo residence in particular, I propose to conduct noise measurements at the Santo residence. I am particularly interested in the character of the area and the nature of the noise emissions and whether there are any special circumstances which I should bring to the Court’s attention. I do not propose to do an assessment of whether the noise levels comply with any standard as this is beyond my brief (unless instructed otherwise as stated above)”.

45 He then proceeded to express his preliminary views, including that condition 18 could be modified without compromising the objectives of the LEP and the DCP.

46 On 21 August 2006, that is just three days after he provided the preliminary report and the estimate that the scope of work was simple and did not involve conducting noise measurements or calculations, Dr Tonin undertook an on-site noise assessment. It is not entirely clear what that on-site noise assessment involved and more particularly whether it involved a scope of work beyond that which he had referred to in para 4 of the preliminary report. But in any event the cost of Dr Tonin undertaking that on-site noise assessment was approximately $5,900.

47 Dr Tonin says that he commenced preparation of the final report, on 27 August 2006. He notes that prior to commencing the preparation of that final report, the fees that he had incurred by reason of doing the preliminary report and the on-site noise assessment had amounted to about $10,300. It can be seen, therefore, that even before Dr Tonin’s preparation of his final report, his appearance in court or the other matters that Dr Tonin referred to in the estimated scope of work had been carried out, he had already exceeded the upper limit of $10,000 that he had provided only nine days before.

48 Unfortunately, Dr Tonin did not advise either the applicant or the Council or the Court that the estimate that he had made had already been exceeded or seek the parties’ or the Court’s approval for an increase in the estimate. As I have noted, Dr Tonin, in his estimate provided on 18 August 2006, had notified parties that there was a possibility that the estimate could be exceeded if more work was needing to be done or if work took longer, but he had also said that he would advise the parties at the earliest opportunity if this occurred unless that was not possible. Dr Tonin does not say in the affidavit that he has provided to the Court that it was not possible in the circumstances of this case to advise the parties that the estimate had been exceeded.

49 Dr Tonin then undertook the preparation of the final report. The preparation of that final report took between 27 August 2006 and 3 September 2006 when he provided it to the parties and the Court. In that time, Dr Tonin incurred a further approximately $5,700. This brought the total fees that had been incurred by Dr Tonin for his work to date to $16,000, over three times the lower estimate and one and a half times the upper estimate provided to the parties and the Court. Again, Dr Tonin did not advise either the applicant or the Council or the Court that the estimate had been exceeded or seek approval for an increase in the estimate.

50 Subsequent to Dr Tonin providing the final report, the solicitors for the Council requested Dr Tonin to address some further questions that arose by reason of the matters stated by Dr Tonin in his final report. This is a usual circumstance where a court appointed expert has been appointed in class 1 proceedings. Often there needs to be some clarification of what a court appointed expert states in a final report. It is reasonable for a court appointed expert to anticipate that such requests could be made. Nevertheless, it seems that the request that the solicitors made was interpreted by Dr Tonin as requiring substantial work.

51 Dr Tonin provided a supplementary report on 13 September 2006. In that supplementary report, Dr Tonin refers to the fact that he had undertaken on-site noise assessment on 21 August 2006. Dr Tonin stated in the supplementary report that although he had prepared graphs showing the results of the on-site noise assessment that he had conducted and that he had attached those graphs as annexure C to his final report, he did not analyse the graphs at the time of preparing that final report as he was instructed by both parties that this work fell outside the scope of his brief. This statement of Dr Tonin provides some corroboration that Dr Tonin’s scope of work stated in the fee estimate he provided on 18 August 2006 and the contemporaneous preliminary report provided on that day which referred to going to Mr Santo’s place to conduct noise estimates, did not provide for the comprehensive on-site noise assessment that Dr Tonin decided to do on 21 August 2006. Nevertheless, Dr Tonin stated in his supplementary report that in order to respond to the question posed by the Council’s solicitors, he considered it was now necessary to analyse the data that he had fortuitously obtained by his on-site noise assessment on 21 August 2006.

52 In this way, the work that Dr Tonin had already done of the on-site noise assessment became relevant and presumably fell within the scope of the brief that was provided by reason of the Council raising supplementary questions. Dr Tonin’s preparation of the supplementary report that was delivered on 13 September 2006 incurred a further $4,000 in fees.

53 Subsequent to providing that supplementary report, there was the hearing on 15 September 20906. Dr Tonin did some minimal preparation for that hearing and then attended on 15 September 2006 and he charged for his attendance on that day. That attendance at the hearing was, of course, within the scope of the works that had been estimated on 18 August 2006.

54 At the conclusion of the hearing on 15 September 2006, Dr Tonin had incurred $22,584 worth of fees. There was the need for Dr Tonin to do some further work after the hearing but this arose as a result of matters raised by the applicant and the Court made an order that Dr Tonin’s fees incurred after 15 September 2006 should be paid for by the applicant alone. Accordingly, the notice of motion that is before me today does not deal with any costs incurred by Dr Tonin after 15 September 2006.

55 The Council’s case is simple. It says that in accordance with the directions of the Court when Dr Tonin was appointed in July 2006, he was required to provide a fee estimate to the parties and the Court. Dr Tonin complied with that direction, although a few days late, and provided his fee estimate. That fee estimate, as I have said, set out the scope of work, described the scope of work as being simple and gave an estimate of $5,000 to $10,000. It also contained a statement that if the estimate is likely to be exceeded the parties would be advised at the earliest opportunity, although that might not always be possible.

56 The Council says that Dr Tonin at no time advised the parties that the estimate had been exceeded. It was not until Dr Tonin provided his final bill of $22,584 (which was to be split half between the council and half between the applicant) that the parties became aware that the fee estimate had been grossly exceeded.

57 The Council submits that in these circumstances, each of the parties, but particularly the Council because it is the moving party, should be required only to pay half of the maximum of the fee estimate provided by Dr Tonin which was $10,000.

58 Dr Tonin, through his counsel, submitted that the Court fixed the remuneration of Dr Tonin only at the hourly rate of $375 and did not fix the remuneration in accordance with the fee estimate. The direction that Dr Tonin provide to the parties and the Court a fee estimate did not have the effect of fixing, pursuant to Pt 39 r 5(1) of the Supreme Court Rules, Dr Tonin’s remuneration in accordance with that estimate. So, Dr Tonin submits, he was entitled to carry out work in discharge of the brief to provide his expert opinion on acoustic matters relevant to condition 18 of the consent to such an extent as he considered to be appropriate.

59 Dr Tonin’s counsel accepted that there should be some qualification to that licence and that qualification is that the work done should be reasonable. But it is submitted that Dr Tonin in his affidavit has set forth why each of the tasks that he did was reasonable and why the amount of work that he did on the tasks was reasonable. Dr Tonin was not cross-examined and no other evidence was adduced to suggest that what Dr Tonin did was other than reasonable. Accordingly, the qualification that Dr Tonin’s counsel would accept may apply was not activated and Dr Tonin was entitled to be paid at the rate of $375 for how so long as Dr Tonin worked on the brief. That work happened to lead to the result of a total of $22,584.

60 In my view, the proper course would have been for Dr Tonin to do what he said he would have done in his fee estimate and that is, if the scope of work or the time taken to discharge the scope of work was anticipated to vary beyond that which had been estimated and provided to the parties, Dr Tonin ought to have advised the parties at the earliest opportunity of those facts and sought approval for an increase in the time taken, the scope of work and the estimate. If the parties did not consent then Dr Tonin properly should have brought the matter back before the Court and the Court could have ruled on any proposal to enlarge the scope of work or to increase the hours spent on the scope of work or to increase the estimate of fees that would be incurred.

61 The adoption of this course would have provided protection for both Dr Tonin and for the parties.

62 Parties to litigation in the court make estimates of the likely cost of litigation based, in part, upon the fee estimates that have been provided by experts who are to be called to give evidence. All litigation is costly. Decisions have to be made about whether the amount of money being spent to obtain any particular evidence is worth the expenditure.

63 In this case, the parties were provided with an estimate of both the scope of work and the estimate of the cost of doing that scope of work by the parties’ single expert, Dr Tonin. Both parties considered and determined to accept that scope of work and that cost.

64 Where the scope of work and the time taken to do work increases, evidently the cost will increase. In this case, there was not just a marginal increase in the scope of work, the number of hours spent on each task that comprised the scope of work or the concomitant total cost. As the figures show, the increase is four and a half times the lower estimate and almost two and a half times the upper estimate provided by Dr Tonin. This is a serious departure from the estimate that had been provided to the parties.

65 If Dr Tonin had done as he said he would do, and that is to notify the parties if his estimate was to be exceeded at the earliest opportunity, the parties would have been in a position to determine whether Dr Tonin’s retainer as a court appointed expert should be continued, whether Dr Tonin should be permitted to incur further costs in discharge of the task of providing expert evidence, and if so whether there should be a fixing of the remuneration for those tasks that the parties or, failing agreement, the Court may decide is appropriate.

66 By Dr Tonin failing to notify the parties and unilaterally altering the tasks and increasing the amount of work, he did not provide the parties with that opportunity. As a consequence, the parties are significantly disadvantaged by Dr Tonin’s conduct.

67 Equally, Dr Tonin would have been protected if he had taken the course that I have said would have been appropriate of notifying the parties if his estimates were to be exceeded and notifying the court if the parties were not able to agree to a new estimate. He would have been protected because he would not have undertaken the significant extra tasks that he undertook and incurred the significant extra hours that he incurred in doing the work.

68 Accordingly, Dr Tonin would not have suffered the potential opportunity cost of doing work for which he might not be paid. He would have been able to provide to the parties and the court the reasons why it was, in his considered opinion, necessary to do the extra tasks beyond that which he had advised the parties on 18 August 2006 and why the number of hours that would need to be spent in doing those tasks would be far in excess of that which he had estimated on 18 August 2006.

69 It is important to keep in mind the proximity of the dates upon which Dr Tonin is doing these tasks. To recap, on 18 August 2006, Dr Tonin provided his fee estimate which described the scope of work as simple, as requiring only a brief and not a detailed report and as not requiring conducting noise measurements or calculations. On the same day, he provided his preliminary report where he says that he is going to undertake some noise assessment on Mr Santo’s property. He then undertakes, on 21 August 2006, the on-site noise assessment and he works on that noise assessment up until, but not including, 27 August 2006. So within the scope of nine days his estimate of the categorisation of the scope of work, the tasks that he would do within that scope of work, the number of hours required for the tasks, and the fees were already exceeded and yet Dr Tonin remained silent.

70 If he had disclosed to the parties and the Court why it was that he needed to do that on-site noise assessment, why it was of utility and why it would cause the preparation of the final report to not be a brief report but to be a detailed report which would incur a further $5,700, the parties could have had the opportunity to consider whether that was expenditure worth spending. If the parties or the court considered it was, then Dr Tonin could have been authorised to do that and a cap set as to how much Dr Tonin should incur. Similarly, when it came to the supplementary brief, that supplementary brief was made more complex and incurred more fees because Dr Tonin chose to use the on-site noise assessment that he had unilaterally undertaken without the express consent of the parties.

71 I have not forgotten in making these comments that Dr Tonin did say in para 4 of his preliminary report that he was proposing to undertake some noise assessment on Mr Santo’s land. However, I do not think it is a fair reading of that preliminary report that Dr Tonin would carry out a detailed, on-site noise assessment costing $5,900. It is to be remembered that the preliminary report was written on the same day that he estimated the fees to be $5,000 - $10,000 and stated that the “simple” scope of work would not require noise measurements or calculations or a detailed report.

72 So, Dr Tonin would not be in the position he is in today if he had done what he said he would do and that is provide notification to the parties at the earliest opportunity if the fee estimate and the scope of work which founded that fee estimate were to alter from that which he had given to the parties. Rather, the likely outcome is that lesser work would have been required and lesser costs would have been incurred.

73 In the circumstances that I have outlined, no matter what decision I make, someone is going to be disadvantaged. If Dr Tonin’s submission is upheld and the Court does not re-fix the remuneration under Pt 39 r 5 to be a sum less than the $22,584, both the Council and the applicant will become liable to pay an amount far in excess of that which Dr Tonin disclosed to them and in respect of work which they had not authorised Dr Tonin to carry out. In saying that last point, I mean to say not the general job of providing acoustic evidence but the number of hours and the particular task that Dr Tonin chose to carry out. Those were matters that Dr Tonin never disclosed to the parties or give them an opportunity to determine whether they wished to incur that cost liability.

74 On the other hand, if the Council’s motion is upheld and the fees are fixed at $10,000 or some other sum, Dr Tonin would have carried out work and incurred fees for which he would not be recompensed.

75 Either way, therefore, somebody is going to be disadvantaged. This disadvantage would, of course, have been avoided if Dr Tonin had done what he said he would do namely advise the parties and the Court if the estimate had been exceeded.

76 In the circumstances, I consider that Dr Tonin should receive remuneration in excess of that which he estimated, however, I do not consider he should receive the full amount that he has claimed. This probably means that both parties are disadvantaged to some extent but in my opinion it leads to a fairer outcome between the respective parties and Dr Tonin.

77 The reason why Dr Tonin should receive an amount in excess of his fee estimate is that Dr Tonin was requested to do a supplementary report. That supplementary report did address matters which, upon a fair examination of the questions and his response, could be said to be outside of the scope of work that Dr Tonin estimated in his report of 18 August 2006. Accordingly, the matters could not be matters which Dr Tonin could have anticipated either in deciding into which category he would place the scope of work, that is whether it be desktop, simple, detailed or complex, or in informing his calculation of the number of hours and hence the cost estimate.

78 The nature of the questions perhaps also made appropriate the doing of some on-site noise assessment. Certainly, Dr Tonin quickly seized upon the fact that he had done on-site noise assessment and incorporated it into his supplementary report. On the face of that report, without getting into the merits of it, it does seem that the supplementary noise assessment turned out to be relevant to the response that he gave.

79 It is also, in my opinion, likely that if Dr Tonin had informed the parties or the Court that the fee estimate that he had provided on 18 August 2006 would be exceeded by reason of the need to do further work, the Court would have permitted Dr Tonin to enlarge the scope of work and enlarge his fee estimate to do the steps that he ultimately did do.

80 Accordingly, I consider that Dr Tonin should be recompensed for doing the supplementary report and on-site noise assessment as particular tasks that were beyond the scope of the works and assessment. The amount of the work done, in terms of hours spent and ultimately the dollars that is applied to that hours spent, may well be reasonable in the way that Dr Tonin says, that is, that in his professional opinion he took no more time than was reasonable to do the particular tasks at the hourly rate that had already been agreed.

81 That is not the basis upon which I consider that there should be some reduction in the fees. It is because of the fact of the unfairness to both the applicant and the respondent caused by Dr Tonin’s conduct in not notifying them of the increase in the scope of work and the increase in the cost that would necessarily flow from increasing the scope of work. As I said, if Dr Tonin had notified the parties they would have objected to the increase in the scope of work and in the fees going from the estimate of $5,000 - $10,000 to $22,584. Equally, the Court, in my opinion, would not have permitted that amount of work and that cost to be incurred for what was a reasonably straight forward matter.

82 The only way in which that unfairness can be cured to some extent is to reduce the amount that can be charged by Dr Tonin whilst still allowing him an additional amount for the work that he had done. Making the best estimate that I can, I would allow the sum of $18,000 for Dr Tonin.

83 Accordingly, I would exercise the power under Pt 39 r 5(1), to fix the remuneration of the court appointed expert in this matter, Dr Tonin, up to and including 15 September 2006 at $18,000. The Council’s proportion would be half of that, namely $9,000.

84 Insofar as it is necessary to say that if there had been a previous exercise of the power under Pt 39 r 5, then this is a re-exercise of the power, such power being a power which can be re-exercised from time to time. That is the basis upon which the fees are fixed.

Costs

85 I now come to deal with the question of costs of the two notices of motion. I will deal first with the notice of motion brought by Dr Tonin.

86 Dr Tonin had been given by the Registrar the opportunity to provide to the Court any evidence, including any affidavit, that he wished to raise with the Court on the hearing of the Council’s notice of motion to limit his fees. Dr Tonin was advised of this opportunity and was provided by the Council with both its notice of motion and its affidavit.

87 Dr Tonin elected that that was not a sufficient opportunity for him and that he preferred to participate in the capacity of a party. I have ruled that I consider that that course, both as a matter of power and discretion, was inappropriate. The consequence, however, of Dr Tonin electing to proceed by that means, including his notice of motion, a voluminous affidavit in support and the legal argument that has been made, has been to cause the Council to incur costs in meeting that notice of motion and application.

88 The nature of Dr Tonin’s application is one where costs ordinarily ought to follow the event. As it has been said many times, an order for costs is not punitive, but is compensatory. For the reasons that I have given, the - 23 -

89 means by which Dr Tonin elected to move the court was inappropriate and the council has unnecessarily incurred costs. They ought to be compensated for that. Accordingly, I consider that Dr Tonin should pay the council’s costs of the notice of motion of Dr Tonin filed 22 November 2006 as agreed or assessed.

90 I now come to the Council’s notice of motion. This falls into a different category. The Council sought to move the Court that there be a fixing of the court appointed expert’s fees. Regardless of whether Dr Tonin had moved the Court to apply to be a party, or had otherwise sought to be legally represented at the hearing of the Council’s notice of motion, the Council would still have had to move the Court, adduce the evidence and make submissions to show why it was appropriate that the remuneration should be something less than what Dr Tonin had actually incurred.

91 In circumstances where the Council would have had to incur the costs in any event, I consider it is not appropriate that Dr Tonin should have to pay the costs of the Council. I also note that the full amount sought by the Council was not acceded to in my judgment although I do not consider that that is a sound basis upon which to decide how to allocate costs. In the circumstances, both Dr Tonin and the Council should pay their own costs in relation to the notice of motion of the Council of 18 October 2006.

1. The remuneration of the court appointed expert, Dr Tonin, be fixed at $18,000, to be paid half each by the parties.

2. Dr Tonin is to pay the Respondent’s costs of his notice of motion dated 22 November 2006, as agreed or assessed.

3. Dr Tonin and the Respondent are to pay their own costs on the Respondent’s notice of motion.
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