Martin Morris and Jones Pty Ltd v Shoalhaven City Council
[2012] NSWLEC 8
•01 February 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 8 Hearing dates: 1 February 2012 Decision date: 01 February 2012 Jurisdiction: Class 1 Before: Sheahan J Decision: The Notice of Motion is upheld. The respondent is restricted to one social impact expert, and should notify the applicant of which one it will rely upon, within 72 hours of these orders. Costs are reserved, and Exhibit A1 will be returned to the applicant.
Catchwords: PRACTICE AND PROCEDURE: restriction on number of experts on particular range of issues - duplication of expertise and experience - principles to apply Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 120
Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74
Woolworths Ltd v Blacktown City Council [2011] NSWLEC 1296
WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161Category: Procedural and other rulings Parties: Martin Morris & Jones Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)Representation: Mr M Staunton, Barrister (Applicant)
Mr N Simmons, Solicitor (Respondent)
Corrs Chambers Westgarth (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 11034 of 2011
EXTEMPORE Judgment
This class 1 appeal concerns a proposal for a large 'Dan Murphy' liquor outlet in Nowra.
The Council's contentions focus on " unacceptable social impact ", and inconsistency with aims and objectives of the relevant LEP. The contentions on the former exceed three pages, and on the latter run to five concise points.
The matter is before the Duty Judge today because the applicant wants an order limiting the respondent to " one expert in the field of social impact expertise" , pursuant to s 62(3)(b) of the Civil Procedure Act 2005 and Rule 31.20 of the Uniform Civil Procedure Rules 2005.
The Council wants to rely on Dr Alison Ziller on questions of disadvantage, proliferation, and alcohol-related harm and crime, and on Dr Judith Stubbs on the adequacy of social impact assessment ('SIA'). Dr Stubbs has expertise and experience in the local environment, but may encounter some opposition at the hearing because she was formerly retained by the applicant. The applicant does not seek to exclude Dr Stubbs at this point, but requires the Council to choose one of the experts.
The applicant tendered a review of the SIA prepared by Dr Ziller in January 2010 ( Exhibit A1 ), contending that she, therefore, has the necessary expertise to make the Council's case on that aspect of the matter. The court was taken to some of her observations in that review, including those referring in detail to the local environment.
Ms Simmons, for the Council, in her affidavit at pars 14-15, says that it is Dr Stubbs's relevant local experience, as well as her general expertise in the social impact field, which will preclude duplication of evidence, and avoid increased costs and hearing time for the applicant. All three experts can confer, produce a single report, and give concurrent evidence.
I do not consider time to be an issue in my deciding this motion. The issue of Council using Dr Stubbs was flagged prior to the setting of the timetable for evidence, albeit that the use of two experts was not raised at the directions hearing or before the deadline. The lateness was not serious, and particulars of the proposed dichotomy of social impact expert evidence were given only a few days after that deadline. The applicant contends that Dr Ziller can deal with both elements, as will its expert Mr James Lette. The parties could not agree, and the motion was quickly filed.
The principles to apply were summarised by Pain J in Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74, at [16]:
... it is necessary to emphasise the nature of Class 1 proceedings in this Court and that a commissioner with appropriate expertise will be determining the matter and will be expected to apply that expertise. I need to balance the desire of the Council to put before the Court all the experts it considers necessary with the concern for timely preparation of the matter for hearing and the need to avoid duplication of expert evidence...
Mr Staunton, counsel for the applicant, referred me to several other decisions of this court.
In Hinset Pty Ltd v Lane Cove Counc il [2011] NSWLEC 120, Pepper J allowed a second bushfire expert in circumstances where one had candidly acknowledged his limited expertise. Her Honour said:
22. While the Court is generally loath to permit a multiplicity of experts on a specific issue - if for no other reason than the greater the number of expert witnesses, the longer the proceedings take to hear and determine, and therefore, the more costly they become - in the somewhat unusual circumstances of the present case, it is appropriate that more than one bushfire expert be engaged by Hinset.
...
25. As Mr Swain has expressly stated, and consonant with the expertise outlined in his CV, he does not have the necessary training, study or experience to opine on evacuation management at a precinct level in a bushfire event.
...
27. ... given that each bushfire expert will only be giving evidence based on their discrete and separate areas of expertise, the capacity for evidential overlap is diminished. I therefore do not consider that the retention of both Mr Swain and Mr McMonnies will materially lengthen the conduct of the proceedings or add to the costs.
In WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161, both Dr Stubbs and Mr Lette were involved. The issues were very similar (at that stage of the history of the subject proposal) to those at the heart of the present case - both experts gave evidence on disadvantage, harm, and the use of SEIFA indexes.
In Woolworths Ltd v Blacktown City Council [2011] NSWLEC 1296, social impact was one central issue. Again, Dr Stubbs and Mr Lette gave expert evidence, including a joint report (see [45]-[57]), but the nuances of the local situation were different on the advantage/disadvantage issue (see [49]).
As Dr Stubbs's relevant range of expertise is clear from those cases, and that of Dr Ziller is clear from Exhibit A1 , I see no justification for allowing the Council to rely on both. The objectives of the CPA regime in general, and of rule 31.20 in particular, would not be served by allowing it.
The Notice of Motion is upheld. The respondent is restricted to one social impact expert, and should notify the applicant of which one it will rely upon, within 72 hours of these orders. Costs are reserved, and Exhibit A1 will be returned to the applicant.
Decision last updated: 01 February 2012
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