McKay v Commissioner of Main Roads [No 3] - [2010] WASC 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McKAY -v- COMMISSIONER OF MAIN ROADS [No 3] [2010] WASC 232

CORAM: BEECH J

HEARD: 26 AUGUST 2010

DELIVERED : 30 AUGUST 2010

PUBLISHED : 31 AUGUST 2010

FILE NO/S: CIV 1558 of 2007

BETWEEN: RODERICK DOUGLAS McKAY
KATHLEEN GLENYS McKAY
Plaintiffs
AND
COMMISSIONER OF MAIN ROADS
First Defendant
WESTERN AUSTRALIAN PLANNING COMMISSION
Second Defendant

Catchwords:

Evidence - Expert evidence - Admissibility - Whether opinion based on hearsay - Whether opinions within area of witness's expertise - Turns on own facts

Legislation:

Nil

Result:

Objections to evidence upheld, evidence ruled inadmissible

Category: B

Representation:

Counsel:

Plaintiffs:     Mr M J McCusker QC & Mr T Houweling
First Defendant            :     Mr K M Pettit SC & Ms F B Seaward
Second Defendant        :     Mr K M Pettit SC & Ms F B Seaward

Solicitors:

Plaintiffs:     Cornerstone Legal
First Defendant            :     State Solicitor for Western Australia
Second Defendant        :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
Duffy v The Minister for Planning [2003] WASCA 294
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McKay v Commissioner of Main Roads [2009] WASC 353
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [No 2] [2009] WASCA 183
Stubley v The State of Western Australia [2010] WASCA 36

BEECH J:

Introduction

The defendants object to the proposed evidence of Ms Dorothy Lucks, on grounds of expertise, hearsay and, to some extent, relevance. For the reasons that follow, I uphold the objection on grounds of hearsay. I would also uphold the objection on the ground of expertise.

Expert evidence - principles

The following well established principles respecting the admissibility of expert evidence are relevant.
In order to be admissible, an expert opinion must be in a field of specialised knowledge in which, or in the relevant part of which, the witness demonstrates that by reasons of specialised training, study or experience, he or she has become an expert. See the cases referred to in McKay v Commissioner of Main Roads [2009] WASC 353 [3] ‑ [5].
The expert must state the facts or assumptions on which the opinion is based or prove by admissible means the facts on which the opinion is based: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 375 ‑ 376, 389 ‑ 390; Pollock v Wellington (1996) 15 WAR 1, 3; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Duffy v The Minister for Planning [2003] WASCA 294.
The facts on which the opinion is based must be proved by admissible evidence. See the cases referred to in the previous paragraph and Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 [28] ‑ [29]. In Automasters, Steytler J (Murray & Wheeler JJ agreeing) said as follows [29]:
Where an expert relies upon the existence of some fact in support of an opinion, that fact must be proved by admissible evidence: R v Abadom [1983] 1 WLR 126 at 131; Pownall, at 375 - 376 and 389 - 390; English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 at 422 - 423; Makita at 731 - 732, 737 - 738 and 743 - 744; and McNeil v Commissioner of Taxation (2003) 202 ALR 35 at 52. Where an expert opinion is based entirely on inadmissible evidence, the opinion will itself be inadmissible: Pownall at 378. Similarly, where the inadmissible evidence is so intertwined with the admissible evidence that they cannot be separated, the whole body of evidence will be rejected: Pownall at 376 ‑ 377; Steffen v Ruban [1966] 2 NSWR 622. However, where the inadmissible evidence can readily be ascertained and discarded, leaving admissible evidence in support of the opinion, the opinion should be admitted, subject to weight: Pownall at 378.
As to non‑specific hearsay, see Pownall v Conlan Management; Automasters [30]; and Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [No 2] [2009] WASCA 183 [82]. In the context of an expert valuer, Ipp J explained that that term is used to apply to information obtained by an expert, which
forms part of his general experience, knowledge and expertise upon which he can draw 'to formulate his opinion and express working truths' … for example, to give a general exposition of the subject, to assess market trends, or to determine whether a particular transaction is aberrant or consistent with overall market conditions [Pownall (374)].
An expert must sufficiently reveal the reasoning, based on his or her expertise, from the assumptions to the conclusions or inferences. Thus, as it was put in Makita v Sprowles [85], expert evidence must explain how the expert's special knowledge applies to the facts and matters assumed to produce the opinion. To like effect in Pollock v Wellington (4), the process of inference by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made about its reliability.

The proposed evidence

Ms Lucks' proposed evidence is in her statement of 1 July 2010. She gave oral evidence on the voir dire to determine the objection to her evidence.
The thrust of Ms Lucks' proposed evidence relates to the preparation of and the conclusions stated in the Peel Region Infrastructure Plan (PRIP) (1/8/22‑138). The PRIP is MFI 55.
The PRIP was published in October 2006 and thus after the taking date. It was published by the Peel Development Commission.
Her business Sustainable Development Facilitation (SDF) was the principal contractor for the preparation of the report. She is the principal of SDF.
The work was conducted by a multi‑disciplinary team [8]. The team included a planner.
Although the date of publication was October 2006, Ms Lucks says that the data was collected prior to June 2006 [12]. Earlier, SDF, through her, had collected some data for a study entitled 'Positive Ageing in the Peel' [13].
She had discussions with local government planners and with developers to collate information on current outline development plans. There were population projections based on this analysis outlined in the Positive Ageing report [17].
She also refers to passages from Peel Away the Mask (3/9/192 ‑ 254) published in 2001 [19] ‑ [21].
She describes the process of data collection and analysis for the PRIP by the PRIP team [22] ‑ [23].
Ms Lucks says in her statement that the ODPs for 'estates that were in the process of being rezoned' [27] ‑ [28], were analysed. In her oral evidence she said that it was for OPDs that were approved or were expected to be approved (ts 4928).
One or more members of the team (mainly Ms Lucks) spoke to people from the Shire and the developers. Taking into account what they were told, together with other general information they had, the team then generated expected figures, for each future year, for each of the relevant ODPs. For each ODP, an expected number of persons to be housed each year was allocated. That took into account what they had been told, their general knowledge and their exercise of judgment (ts 4927‑ 4930).
The data was collected by July 2006 [24].
She refers to pages 13 to 14 of the PRIP (1/8/34 ‑ 35). Population projections in WA Tomorrow, November 2005, are referred to.
The report then refers to projected population growth based on 'local government planning data September 2006'.
In her evidence she said that the figures gathered by the PRIP team were for a different purpose to the projections in WA Tomorrow. The purpose of the PRIP was for a regional preparedness for growth. Figures were prepared based on looking at a specific region and what growth scenarios might be for the purposes of planning for services (ts 4926). Ms Lucks agreed that in a sense it was worse case scenario planning (ts 4926). See also her statement at [31] where she refers to the need for infrastructure planning to consider 'such potential growth parameters'.
The proposed evidence in Ms Lucks' statement made be broadly summarised as follows:
(a)An explanation of the process by which the PRIP was prepared and produced, and Ms Lucks' involvement in that process [6] ‑ [12], [22] ‑ [29].
(b)The use of data from another study in which Ms Lucks was involved, Positive Ageing in the Peel, as input data for the PRIP [13] ‑ [18].
(c)The reference to a report already published in 2001, Peel Away the Mask, as background to the PRIP [19] ‑ [21].
(d)Statements of what is said in the PRIP and what Ms Lucks' says was intended by certain statements in the PRIP [30] ‑ [46].
(e)To some extent (and the extent is not clear), expressly or impliedly, Ms Lucks' opinion to the effect of particular statements in the PRIP, for example possibly [30], [32], [36] ‑ [37], possibly [40] ‑ [42], [44], [45]. To the extent she identifies reasoning for the opinion, it is the reasoning in the PRIP.
(f)A summary, which I take to be a purported summary of those parts of the report already referred to in Ms Lucks' statement.
The summary is as follows:
1.The population growth within the Peel Region was experiencing what I call hyper‑growth.
2.The hyper‑growth was not dependent on a future construction of the Perth to Bunbury Highway or the regional recreation facility.
3.The Peel Region was growing exponentially within the Perth to Bunbury Highway or the regional recreation facility. These two planned constructions were brought about by the planning of government for an already fast growing state (Perth‑Bunbury Highway) and region (regional recreation facility).
8.The Peel Region has experienced growth leading to increased demand for urban land and is considered within the attached reports.
9.Growth in the subject area was likely to occur both as a result of radial growth from the City of Mandurah, in its own right as being close to water bodies and adjacent to rural areas, and in relation to economic growth corridors and centres. Such growth would be likely to occur through consumer demand and a stable population in existing adjacent urban areas.

The admissibility of the evidence

To the extent that Ms Lucks' statement is in category (a), I do not consider it to be relevant. The PRIP was published after the taking date. If Ms Lucks' opinions, based on the PRIP, were admissible, this evidence would be relevant. As I will explain, I think Ms Lucks' opinions are inadmissible. Senior counsel for the plaintiff did not identify, and I am unable to identify, any fact in issue the probability of which could rationally be affected, directly or indirectly, by evidence of this kind. (See Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2]; Stubley v The State of Western Australia [2010] WASCA 36 [78], [321] ‑ [322].)
For corresponding reasons, category (b) evidence is irrelevant.
Evidence in category (c) is no more than secondary evidence of the contents of the Peel Away the Mask report.
In my opinion, category (d) evidence in Ms Lucks' statement is not relevant. Leaving aside the extent to which it reflects her opinion (which is dealt with in category (e)), in my view a statement of what is said in the PRIP, or what was intended by a statement in the PRIP, has no evidentiary value. It is secondary evidence of the contents of a document, or impermissible subjective evidence about how a document is to be understood or what was intended by it.
That brings me to category (e). To the extent that Ms Lucks is, in her witness statement, expressly or impliedly expressing an opinion to the effect of a statement made in the PRIP, in my view the opinion evidence is inadmissible. That is so, in my opinion, for two reasons.
First, in my view, any such opinions by Ms Lucks are based entirely on facts which are inadequately specified or not proven or proposed to be proven by admissible evidence. Alternatively, any admissible elements are so intertwined with inadmissible elements that they cannot be separated. The facts on which the PRIP's conclusions were based involved the collection of information from a number of sources. The team who prepared the PRIP considered and analysed the information and, in some cases, selected from it. The information is not adequately identified. Nor is it proved, or proposed to be proved by admissible evidence. There is nothing in the evidence to date, or the witness statements which have been exchanged, which would prove the facts on which the PRIP was based. It is those facts on which any opinion expressed by Ms Lucks is based. Further, senior counsel for the plaintiffs did not suggest, in oral argument, that the plaintiffs might seek to prove the facts on which the PRIP and thus Ms Lucks' opinion are based.
Of course, what is said in the PRIP about what third parties such as planners and developers said to the PRIP team is not evidence of the truth of such statements. It is inadmissible hearsay for that purpose. It is not 'non‑specific hearsay' (see [6] above).
The point can be illustrated by reference to the population figures in the PRIP. These are said to be based on the ODP and discussions with developers and planners. The ODPs are not in evidence (or proposed to be). To the extent that the contents of the discussions with developers and planners are identified, there is no evidence or proposed evidence to prove the facts stated by the developers and planners.
Further, I am not satisfied by Ms Lucks' statement, curriculum vitae and oral evidence that the topics on which she expresses an opinion in her statement are in a field of specialised knowledge in which, or in the relevant part of which, she has, by reason of specialised training, study or experience become an expert.
Ms Lucks' academic qualifications do not equip her to express any of the opinions that she purports to express. Her B Sc was a general science degree, looking at genetics, geology and psychology (ts 4904). In 1985 she completed a post‑graduate program in entrepreneurial development in Scotland, addressing 'unemployment issues in terms of economic growth', which involved 'broad scale strategic planning' (ts 4905, 4903). She also completed an MBA thesis on international development, which related to land use management, 'but not specifically in terms of town planning ' (ts 4905).
Although Ms Lucks appeared to rely on her academic qualifications as providing some support for her expertise in planning and demography matters, she said that she would not describe herself as a town planner or demographer (ts 4905 ‑ 4906, 4918).
In seeking to establish her expertise, Ms Lucks mainly drew on experience gained over the last 20 years (ts 4901). She described her area of expertise as being 'regional development planning, integrating planning in sustainable development' involving 'integration of economic social and environmental imperatives in relation to regional development' (ts 4901).
Based upon Ms Lucks' evidence, including the examples she gave at ts 4903 and 4924, and based upon the curriculum vitae, I take Ms Lucks to be referring to a very broad level planning for regional development. The vast majority of the work experience particularised in her curriculum vitae relates to projects involving agricultural, economic, enterprise, resource, social and community development, undertaken in developing countries to address issues of poverty. Planning for regional development in that context is to be distinguished from the established discipline of town planning.
Ms Lucks broadly accepted a description put to her of her work, but wanted to add to it. It was suggested to her that she was 'a generalist' who tries to apply and accommodate the disciplines of planning, demographics, environment engineering and so on to sustainability problems. She said that her focus would be strategic planning in relation to regional development (ts 4918).
Ms Lucks does not use the phrase strategic planning in the sense that a town planner does. A town planner divides town planning into two main areas, statutory planning and strategic planning. Ms Lucks refers to strategic planning in a different sense, as a process of planning that might be undertaken by any organisation, including a company, involving strategic thinking, looking at evidence for future planning (ts 4922).
What she did in her work for the PRIP was summarised in par 10 of the statement (ts 4919). There was a town planner in the PRIP team to provide expertise in that area (ts 4923).
I am not satisfied by this evidence that the opinions Ms Lucks expresses, or may express, in her witnesses statement are in fields of specialised knowledge in which, or in the relevant part of which, she has demonstrated that by reason of her training, study or experience she has become an expert.
I start with the topic of population figures. Taking Ms Lucks' evidence as a whole, it is not entirely clear whether she expresses any opinion to the effect that the population figures produced for the PRIP might be preferred to the WA Tomorrow forecasts as forecasts of the likely population. She appeared to disavow such a suggestion in her oral evidence (ts 4928). On the other hand, in some passages in the PRIP, quoted in pars 30, 37 and 41 of her witness statement, it is said on the basis of the local government data that the population growth is likely to substantially exceed the WAPC predictions in WA Tomorrow. To the extent that she is expressing any opinion to that effect, I am not persuaded that she is qualified to do so.
In par 42 she refers to a passage in the PRIP making a statement about the extent of land available for development. I am not persuaded that a question of the available supply of land for development is a topic on which Ms Lucks has relevant expertise.
Similarly, in par 45 she appears to express a view about the reason that local government planners identified the regional recreation facility. Again, I do not consider that that is a topic on which she has relevant expertise.
For those reasons, the opinions expressed by Ms Lucks are inadmissible.
It follows from what I have already said that the summary by Ms Lucks, at the end of her statement, is also inadmissible. It is no more than a purported summary of statements made in the PRIP and the earlier parts of her statement, all of which are themselves inadmissible. There is no other reasoning expressed for the opinions stated in the summary.

Conclusion

For these reasons, I would uphold the objection to the tender of Ms Lucks' statement.
Nothing in this decision excludes or affects any evidence of any publication, prior to the taking date, of the population figures in the PRIP, or like figures.