HPC Urban Design and Planning Pty Ltd v Brisbane City Council

[2014] QPEC 21

[2014] QPEC 21

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

No 211 of 2013

HPC URBAN DESIGN & PLANNING PTY LTD          Appellant

and

BRISBANE CITY COUNCIL  Respondent

BRISBANE

2.15 PM, THURSDAY, 8 MAY 2014

DELIVERED EX TEMPORE
JUDGMENT

HIS HONOUR:   I’m to deal with an application made on behalf of the appellant.  The written submissions set out the general theme in paragraphs 1 to 4 and I will set them out. 

The appellant seeks the following orders in respect of costs:  (a) the co-respondent pay the appellant’s costs [indistinct] by the adjournment, and (b) the co-respondent pay the appellant’s costs, including the expert’s costs of and incidental to the further expert meeting process. 

(2) The breach by Telstra was the failure to comply with the court order of 16 August 2013 that required the parties to nominate experts by a particular date.  That breach has had the follow on consequence to that.  Mr Haymes did not participate in a joint expert meeting process;  he did not prepare his individual statement in accordance with the Planning and Environment Court Rules 2010 and his expert report was delivered later (as it was still, at the time, said by Telstra to be only a lay witness statement). 

(3) It was only on 7 May 2014 that Telstra conceded that the report contained expressions of opinion and sought to rely on those opinions as expert evidence. 

(4) The appeal is to be adjourned by reason of the late expert report.

The co-respondents – Telstra’s position is that the costs of all the parties should be reserved and four grounds are set out in support of that proposition. The position of the respondent counsel is that its costs should be reserved. Section 457 of the Sustainable Planning Act relevantly provides:

(1) Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.

(2) In making an order for costs, the court may have regard to any of the following matters –

(i) whether a party has acted unreasonably in the conduct of the proceeding, including, for example –

(ii) by causing an adjournment of the proceeding because of the conduct of the party;

(j) whether a party has incurred costs because another party has introduced, or sought to introduce, new material;  and

(l) whether a party has incurred costs because another party has defaulted in the court’s procedural requirements.

Subsection (3) makes it clear that the court’s discretion is not limited solely to a consideration of those grounds set out in subsection (2).  The appellant relies on each of the sections to which I have referred in support of its application.  By way of brief background, on 18 January 2012, the appellant lodged its appeal.  On 30 October 2013, the appellant delivered its list of issues, which, as I stated yesterday, raised, relevantly here, the issue of site selection.  After the delivery of the list of issues, on 25 October 2013, the co-respondent and respondent gave notice of their respective experts.  The co-respondent nominated a town planner and a visual amenity expert only, subject to the following caveat:

We reserve the right to nominate further experts in the event that additional issues that are unrelated to the above disciplines are subsequently notified pursuant to paragraph 5 of the order.  To enable us to brief the experts prior to their entering into conclaves, we request that the parties confirm, as a matter of urgency, whether it is intended that additional issues are to be modified.

No notice of such a witness intended to be called by any of the other parties was given.  The respondent nominated only one witness, being a town planner.  On 8 November 2013, the appellant gave notice of its experts, being a town planner and a visual amenity expert.  The decision to nominate only those witnesses was, no doubt, as a result of the positions taken by the respondent and co-respondent.  On 18 March 2014, the co-respondent advised the other parties:

We refer to paragraph 7 of the appellant’s list of issues and without any admission that there’s conflict with the respondent’s planning scheme, we advise that the co-respondent, in response to the appellant’s allegation that there are insufficient grounds to justify approval of the proposed development, intends to call evidence from Brendan Haymes, an engineer in the employ of Telstra who possesses experience in respect of telecommunications network requirements and the design and deployment, and by that I take to mean location, including the location of telecommunication towers.

There was some further correspondence on the 8^th of April concerning Mr Haymes which relevantly provided:

We refer to our letter of 18 March 2014 advising that the co-respondent intends to call evidence from Brendan Haymes.  We can inform you that the evidence of Mr Haymes will, among other things, be directed to the community benefit that will result in the event that the telecommunications facility is approved at the subject site.  It is the co-respondent’s position that there will be community benefit for the surrounding neighbourhood, including future residents of the appellant’s 26 lot development to the immediate west of the subject’s site.

Following that correspondence there was a series of emails which, in effect, contained a number of complaints, in particular in respect of disclosure and the assertion that the late delivery of the report, including that of Mr Haymes, would prejudice the appellant’s ability to prepare it’s case in an efficient way.  As I understand it, Mr Haymes’ statement was exchanged together with the other material relied on by the co-respondent on 24 April 2014.  Clearly by not being nominated as an expert, Mr Haymes did not participate in any of the joint meetings envisaged by the rules of this court and, in fact, dealt with in various orders of the court.  In my opinion, it was clear that at all relevant times Mr Haymes was, at least in part, being called by the co-respondent to give expert opinion evidence and accordingly, he should have been nominated as an expert on 21 October 2013. 

However, the relevant history does not end there.  Prior to the commencement of the proceedings on 6 May 2014, a subpoena was issued requiring Mr Haymes to provide certain documents.  At the commencement of proceedings, during the course of Mr Gore’s opening, it was indicated for the first time by the appellant that it objected to certain parts of Mr Haymes’ statement.  In fact, the objections went to some 45 paragraphs, or part thereof, of Mr Haymes’ statement.  Dealing with the objections took one full day.  In respect of the application concerning the objections, the appellant was largely unsuccessful – partially successful in respect of some matters in that the paragraphs were admitted subject to certain conditions, which I suspect will be readily met.  In short, the appellant only succeeded to a very limited extent, but nonetheless dealing with matters of importance, or potential importance, in this appeal. 

The reason for the apparent lack of success on the part of the appellant was because of my finding, which appeared to me to be an obvious one, that first, Mr Haymes was an expert and second, that he would be giving opinion evidence as an expert.  It was contended that the course of action taken by the appellant was appropriate given the co-respondent’s apparent attitude that Mr Haymes was not an expert but merely a lay witness.  The challenge being to the effect that a lay witness was not entitled to give such opinion evidence.  As I said, there’s little room for doubt that at all times Mr Haymes was intended to be relied on by the co-respondent, at least in part, to give expert opinion evidence upon which it would rely in support of its case.  That course of conduct, I must say, I find disappointing in that Mr Haymes ought to have been identified as an expert witness at the earliest practicable time. 

However, I find the course adopted by the appellant somewhat puzzling.  As I said, Mr Haymes’ report was not received until 24 April 2014.  However, even on the most cursory of glances, it should have alerted all the other parties to the fact that he was going to be relied on by the co-respondent as an expert.  And, in my view, the earlier material to which I referred, being the correspondence of 8 April 2014, and in particular that dated 18 March 2014, should have alerted the solicitor’s – and if not the solicitors, then counsel for the appellant – that Mr Haymes was indeed going to be called as an expert.  I fail to see how the identification of Mr Haymes as being an engineer possessing experience in respect of telecommunication network requirements and in the design and in deployment of telecommunication towers would not have alerted the appellant’s to the fact that he was going to relied on by an expert, at least in respect to some of his evidence.

It seems to me that, as from 18 March 2014 or at the latest date April 2014, the appellant would have appreciated that Mr Haymes was giving evidence in that capacity, but no objection was taken to that course of action on the part of Telstra.  Instead, as I said, complaints were really limited to matters dealing with delivery of  reports and deficiencies in disclosure.  Not only was no objection taken to the co-respondent seeking to rely on Mr Haymes, no further action was taken, for example, contending that more details of the role that Mr Haymes was to play in the litigation – there were no demands of that character, nor was there any suggestion that further joint expert reports might be required because of the introduction of Mr Haymes.  Instead, the course of action to which I’ve referred was adopted, namely his report was attacked on the basis that he had no relevant expertise.  That is, he was merely a lay person. 

To my mind, the approach adopted by both the appellant and the co-respondent smacks, to a degree, of the adoption of deliberate tactics.  On the part of the co-respondent by pretending – and I can’t think of any other way of describing their conduct – that Mr Haymes was not going to be relied on as an expert witness and therefore was not required to participate in the usual process concerning experts.   Ordinarily, of course, one might expect an order in favour, at least in the terms of 1(a), of those sought by the appellant to be made, but for the reasons that I have given I am concerned that the course of action adopted by the appellant may – and I stress may – have been motivated not so much out of any form of necessity or surprise but as the result of a conscious tactical decision, which upon not succeeding may have then been in truth at least in part the cause for the adjournment. 

On balance, I consider that I might be better informed at the end of the hearing of the appeal about these matters.  By then it will also be known in fact whether any further joint meetings and reports are required.  By way of preliminary observation I must say that I find the suggestion that it may in fact be the co-respondent that is entitled to a favourable cost orders somewhat surprising, however, I will deal with that matter when dealing with the appellant’s application.  Accordingly, I order as follows:  the parties costs thrown away as a consequence of the adjournment, including any costs associated with the joint expert meeting process are reserved.