Comiskey Group v Moreton Bay Regional Council

[2012] QPEC 68

[2012] QPEC 68

PLANNING AND ENVIRONMENT COURT

JUDGE R JONES

P & E Appeal No 2852 of 2010

COMISKEY GROUP	Appellant
and
MORETON BAY REGIONAL COUNCIL and OTHERS	Respondents

BRISBANE

..DATE 24/10/201

ORDER

HIS HONOUR:  I am required today to deal with what is essentially an application that the traffic engineer, Mr Holland, be substituted for the traffic engineer, Mr McClurg, for the reconvening of this matter which is to commence on 1 November 2012.

Mr McClurg gave evidence about a number of matters during the initial hearing of this appeal and, in particular, evidence concerning the South Pine Road/Bunya Park Drive intersection, and I indicate immediately that that was but one of a number of matters that all of the traffic engineers were required to deal with at the hearing of the appeal.

As I said, this application was brought today, 24 October 2012, and the matter is listed for two days' hearing, commencing 1 November 2012.

It would appear that over the last months progress has been made in a number of areas but, unfortunately, not to the extent of resolving all of the traffic issues between the parties.

The two dominant issues, if I could put it that way, that remain to be resolved would appear to be a satisfactory traffic solution for the South Pine Road/Bunya Park intersection and pedestrian safety issues.

It is proposed on behalf of the appellant that Mr McClurg would deal with the pedestrian safety issues and Mr Holland, as I said, with the traffic intersection issues.

Some time prior to 10 October, the appellant must have indicated its intention to call Mr Holland to give evidence in respect of that particular issue.  In response, on 10 October 2012, Mc Cullough Robertson, solicitors for the sixth co‑respondent by election, wrote indicating that they opposed Mr Holland being appointed and setting out their reasons for their objection.

There was a response to that letter but that response did not state the reasons why it was considered necessary to substitute Mr Holland for Mr McClurg.  That situation remains today, that is, that it has not been explained why it is considered necessary that Mr Holland should replace Mr McClurg.

As I've indicated, Mr McClurg gave evidence in the substantive hearing of the appeal and gave evidence over a number of days and was present whilst other traffic engineers gave evidence.  He clearly has the expertise, the qualifications and experience to deal with the Southpine Road/Bunya Park intersection issues.  It's also of relevance that he is still to be retained as an expert in this appeal for the appellants to deal with the pedestrian safety issues.

It is also of relevance that Mr McClurg has been involved in a number of joint expert meetings with the other traffic engineers still involved in this appeal and, as a consequence of that of course, has been a joint author of the joint reports prepared therefrom.  Mr Holland has not been a participant in those joint expert meetings and is not a signatory to the joint reports.

On balance, I consider that there are insufficient reasons to justify substituting Mr Holland at this stage for the reasons that I've given namely, that no satisfactory explanation has been provided.  Mr McClurg is clearly capable of giving the evidence that is likely to be required to deal with the remaining traffic intersection issue.  He, unlike Mr Holland, has been involved in the joint expert meetings and I should indicate that I also consider there's some merit in the submission made on behalf of the sixth co-respondent that to allow Mr Holland to give evidence and rely in part on the evidence given previously by Mr McClurg and/or rely on Mr McClurg's investigations and studies might introduce the risk of there being cross-pollination.  In the sense that Mr Holland would be seen to be adopting and throwing his weight behind Mr McClurg's opinions or, alternatively it may be required that Mr McClurgh is then required to give further evidence about opinions and investigations he had carried out as a consequence of the cross-examination Mr Holland.  That risk, perhaps whilst not being a major consideration, is nonetheless a relevant one.  For those reasons, the application is refused. 

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HIS HONOUR:  So the orders are as per that amended draft.

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