McKay v Commissioner of Main Roads [No 4]

[2010] WASC 272

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   McKAY -v- COMMISSIONER OF MAIN ROADS [No 4] [2010] WASC 272

CORAM:   BEECH J

HEARD:   5 AUGUST 2010

DELIVERED          :   6 AUGUST 2010

PUBLISHED           :  15 OCTOBER 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:

Practice and procedure - Expert evidence - Concurrent expert evidence - Agenda for concurrent expert evidence session - Whether expert should be permitted to answer a question on the agenda - Whether expert has a report on a question - Whether leave should be given for an expert to answer a question on which he does not have a written report

Legislation:

Nil

Result:

Mr Butterly and Mr Flugge may answer the question; Mr Berrie and Mr Berzins may not

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):

Nil

BEECH J: 

(These reasons are an edited version of reasons delivered in an unpublished format on 6 August 2010.)

Introduction

1. In this trial, expert evidence is to be taken concurrently.  Orders to that effect were made by consent well before the trial commenced in 2009.  Since 2009 the parties have agreed that in  concurrent expert evidence sessions  'subject to leave of the court, no witness should be allowed to speak to a question/topic unless he/she has a written report on the point'.

2. That agreed position was reflected in a document dated 10 November 2009 entitled 'Parties' Agreed Agenda for Planners'.  It was also reflected in the document provided by the plaintiff entitled 'Draft Parties' Agreed Position on Concurrent Expert Evidence Sessions' dated 25 June 2010.  It is common ground that this has been an agreed position since at least November 2009.

3. The defendants object to four witnesses giving evidence on the main question to be dealt with in the imminent concurrent planning expert session relating to rezoning of the subject land prior to the Inner Peel Regional Structural Plan (the IPRSP).  They contend that those four witnesses do not have 'a written report on' that question, within the meaning of the agreed position.

4. In response, the plaintiffs contend that the witnesses do have a written report on the question.  Alternatively, they contend that, to the extent necessary, leave should be given for the witness to answer the question, as contemplated under the agreed position.

The pre-IPRSP zoning question

1. It has always been the plaintiffs' case that, but for the proposed public works, the subject land would have been zoned urban at some time prior to the taking date, namely 20 July 2006.

2. In the course of the trial in November 2009, the plaintiffs provided additional evidence that brought into significantly sharper relief the element of the plaintiffs' case that the subject land would have been rezoned to urban during the 1990s and, in particular, prior to the IPRSP. 

3. In March and May 2010, the plaintiffs provided substantial further evidence in support of that 1990s rezoning case.

4. Some of the plaintiffs' experts provided reports in which they unambiguously expressed the opinion that, but for the proposed public works, had the plaintiffs made an application to rezone the subject land, it would have been rezoned to urban prior to the IPRSP.  These include Mr Rowe, Mr Robinson and Mr Scharf.

5. Witness statements or expert reports for the plaintiffs were also provided by Mr Butterly, Mr Berzins, Mr Flugge and Mr Berrie.  The defendants contend that the witness statements and reports of these four witnesses do not amount to a written report on the question of whether, but for the proposed public works, the subject land would have been rezoned to urban prior to the IPRSP.

6. It is that question that is the first and primary question for the concurrent evidence session of the planners regarding rezoning before the IPRSP (the primary pre‑IPRSP zoning question).  Consequently, the defendants contend that these witnesses ought not be permitted to express an opinion on the primary question at the concurrent session.

Background and history

1. Prior to a directions hearing on 29 June 2010, the parties provided a draft proposed trial programme.  It included provision for a 1990s planners' concurrent evidence session.  All of the witnesses now in contention were included in that proposed session.

2. However, as senior counsel for the defendants points out, that is not in itself inconsistent with the objection now raised by the defendants.  The defendants' approach did not challenge the presence of the witness in the 1990s planners' concurrent session.  The defendants acknowledge that persons whose witness statements related to matters occurring in the 1990s may, from the plaintiffs' perspective, have been thought to be able to contribute to that concurrent evidence session.  As the defendants submit, that is a different question from whether the witness is permitted to express an opinion on a topic on which they do not have a written report.  I will return to this point.

3. At the directions hearing on 29 June 2010, I referred the parties to their agreement that, subject to leave, no witness should be allowed to speak on a question unless he has a written report on the point.  I suggested that the agendas might be refined with that point in mind, to reflect which witnesses would be speaking on a topic and which would not (ts 2569).  Unfortunately, the parties do not appear to have communicated about this question until very recently.

4. Regrettably, it was not until the day before the scheduled commencement of the 1990s planners' concurrent session that the defendants advised the plaintiffs that they objected to Messrs Butterly, Berzins, Berrie and Flugge expressing an opinion on the primary pre‑IPRSP zoning question, on the ground that those witnesses had not written a report on the question.

5. There have been many iterations of the planning agenda and accompanying lists of attendees for this and other concurrent evidence sessions to be held in this trial.  It has been clear, in the course of that process, that attendance at a given concurrent session did not equate to being permitted to speak on every topic on the agenda for that session.  Indeed, it is that shared understanding that provides the framework for the parties' agreed position about the need for a written report on a question.

6. In those circumstances, the communication by the plaintiffs in June 2010 of an agenda with a given list of planners did not mean that the plaintiffs were necessarily proposing that all attendees would speak on every topic.

7. There was no evidence or submission from the plaintiffs that they had communicated to the defendants any assumption or understanding, on the plaintiffs' part, that, consistent with the agreed position, all proposed attendees could speak on every topic.  I am not satisfied that, if it existed, the defendants knew of any such assumption by the plaintiffs.  In those circumstances, I do not consider the defendants' delay in articulating their objection pursuant to the agreed position to be of great significance to the proper resolution of the defendants' objection.  There appears to have been a failure of communication on both sides.

8. On 30 June 2010, the planners engaged in expert conferral regarding the question of rezoning prior to the IPRSP.

9. A draft joint report was evidently produced and circulated shortly after that.  In the draft joint report statements are made about the opinions of a number of people, including Messrs Berrie and Flugge.  Messrs Butterly and Berzins did not participate in the conferral.

10. The conferral was done under the supervision of his Honour, Justice Chaney.  Contrary to the position advanced to Justice Chaney by the defendants, the conferral occurred in the absence of the lawyers.  I accept the defendants' submission that, in those circumstances, the fact that Messrs Berrie and Flugge engaged in the conferral on the broad pre‑IPRSP zoning question does not detract from the defendants' right to rely on the agreed position about the concurrent evidence sessions.

11. In the joint report, it is said that Messrs Berrie and Flugge, along with other planners relied on by the plaintiffs, hold the view that there was a very high likelihood that had the plaintiffs applied for rezoning prior to the IPRSP, approval would have been given.  The reasons given in the joint report for that opinion are quite general.  They are attributed to all of the experts who held that opinion.  In other words, Mr Berrie and Mr Flugge are not said to have expressed any distinct reasons for the opinion.

12. Senior counsel for the plaintiffs rightly accepted that the joint planners' report did not constitute a written report by a planner so as to enable the answering of a question in the concurrent evidence session.  However, he pointed to the joint report in support of the plaintiffs' application for leave.

13. The defendants' application and the plaintiffs' response to it give rise to two main questions in accordance with the parties' agreed position:

    1.Does each relevant witness have a written report on the primary pre‑IPRSP zoning question?

    2.If not, should leave be given to the plaintiffs to permit the witness to express an opinion on that question in the 1990s planners' concurrent expert evidence session?

14. However, as I will mention later, these questions may not be determinative.  The question of the appropriate procedure is ultimately for the court; the parties' agreement is not binding on the court.

15. It is convenient to deal with the issues witness by witness.

Mr Butterly

1. For the reasons that follow, I am satisfied that Mr Butterly has a written report on the primary pre‑IPRSP zoning question.

2. In March 2010, the plaintiffs exchanged some expert planners' reports in support of their pre‑IPRSP rezoning case.  At that stage, there was no report on that topic from Mr Butterly.

3. The defendants exchanged reports from Mr Moran and Mr O'Neill in response to the plaintiffs' pre‑IPRSP rezoning case.

4. Mr Butterly's report of 11 June 2010 responds to those statements of Messrs O'Neill and Moran.

5. Mr Butterly says there are two propositions central to the opinions of Messrs Moran and O'Neill:

   (a)there was sufficient zoned urban land at Austin Cove, Riverland Ramble and the Murray River Country Estate; and

   (b)strategic planning instruments drafted by the State did not identify the land for urban purposes.

6. Mr Butterly expressed his disagreement on both those points.  Paragraph 8 of his statement relates to questions of land supply and demand, and the approach of the Minister to rezoning, in the 1990s.

7. Paragraph 9 identifies a number of strategic planning considerations that are said to have been overlooked by Messrs Moran and O'Neill.  With what I consider to be an immaterial exception, those considerations all relate to the pre‑IPRSP planning environment.  Mr Butterly then expresses a view that by careful consideration of six matters (to all of which he had earlier referred), he considers that the subject land would have had high prospects and opportunity for rezoning had it not been affected by the highway.

8. Senior counsel for the defendants emphasises that that paragraph does not identify the relevant time.  To my mind, read in the context of the report as a whole, it is apparent that Mr Butterly is referring to the period of time prior to the IPRSP.

9. Consequently, I am satisfied that Mr Butterly is permitted to answer the primary pre‑IPRSP zoning question.

Mr Flugge

1. The plaintiffs rely on a number of passages in reports of Mr Flugge in contending that he has a written report on the primary pre‑IPRSP planning question.

2. The first two passages relied upon by the plaintiffs from his earlier reports (exhibit 182A [36], exhibit 182B [18]) do not assist the plaintiffs in this argument.  They express an opinion that rezoning might have happened 'as early as 2001'.

3. Mr Flugge's supplementary statement of 9 November 2009 is exhibit 182C.  To my mind, Mr Flugge has not expressed an opinion in that statement to the effect that had an application been made, the land would have been rezoned to urban prior to the IPRSP.  Paragraph 6 goes no further than to say that, had the McKays and Riverland Ramble made a joint application, it would have provided the council with 'the opportunity to consider' an expanded urban node.  I do not discern, from pars 9 and 10, an opinion that the land would have been approved for rezoning to urban prior to the IPRSP.  Paragraph 9 appears to be more directed to the configuration of the Ravenswood node in the hypothetical IPRSP as it would have been constructed without the proposed public works.  Note in that regard the reference to 'urban deferred' land on Lot 41.

4. Next, the plaintiffs point to par 58 of Mr Flugge's statement of 30 March 2010 (exhibit 182D; see also [94], which is in the same terms):

   58.Having been intimately involved in development proposals within the Peel Region and more specifically within the district of the Shire of Murray, I consider that:

   a.The subject land satisfied all the relevant criteria for rezoning, consistent with land such as Riverland Ramble and the Murray River Country Estate which, despite having not been identified in strategic planning documents, received rezoning to enable urban development.

   b.Ravenswood was identified as a key site between Mandurah and Pinjarra where urban and commercial development were able to be undertaken which was reflected within the 1994 Shire of Murray's commercial and Local Rural strategies.

   c.The McKay land is better located than the Murray Lakes/Austin Cove development which was supported for rezoning by Amendment 3 to Town Planning Scheme No 4 and further supported in 1997/98 by way of Amendment 115 to Town Planning Scheme No 4 after the first amendment had lapsed.

   d.Development initiatives in the Peel Region were largely developer initiated and driven, consistent with the principles of orderly and proper planning as I have enunciated above.

   e.The McKay land located along Pinjarra Road was sterilised for urbanisation before 1997 as a result of it having been identified for public purposes and would otherwise have in any event been included in the 1997 Inner Peel Region Structure Plan but for the identification for the public purposes for which it was eventually resumed [58].

5. Paragraph 58 is open to more than one reading.  It is capable of being read as setting out a number of considerations leading to a conclusion in subpar 58(e) that the subject land would have been included in the (hypothetical) IPRSP assuming there were no proposed public works.  However, it is open to a contrary reading.  Subparagraphs 58(a) to (d) may be read as involving a stand‑alone proposition, separate from 58(e), that the subject land would have been rezoned (prior to the IPRSP) applying the same criteria as were applied to Riverland Ramble and the Murray River Country Estate.  Such a reading is supported by the use of the words 'in any event' in subpar 58(e).

6. Mr Flugge's report of 18 June 2010 (exhibit 182E) responds in detail to the statements of Mr Moran and Mr O'Neill.  The response is in the form of a detailed response on particular points.  Strictly speaking, in this report Mr Flugge has not expressed an opinion that the land would, but for the proposed public works, have been rezoned urban pre‑IPRSP.  He does express the opinion at point 18 that there was 'every potential for the plaintiffs' land to have been included for rezoning consideration if not affected by the highway reserve'.

7. In support of being granted leave, the plaintiffs also point to the earlier joint planning report of February 2009.  Question 2.4 was directed to the hypothetical rezoning question.  The first part of the answers given dealt with the period 1974 to 1997.  Thirteen reasons are set out for the opinion expressed by numerous witnesses, one of whom is Mr Flugge.  Arguably, the joint report is unclear as to whether it is dealing with zoning pre‑IPRSP or with the designation in the hypothetical 'no public works' IPRSP in 1997.  It seems to me that the better view is that that part of question 2.4 is dealing with both. 

8. In the end there is, I accept, room for doubt as to whether Mr Flugge has expressed an opinion on the primary pre‑IPRSP zoning question.  However, at the least, he has expressed a number of opinions that are allied to and related to that question.  If he has not expressed an opinion on the primary pre‑IPRSP zoning question, he has gone close to doing so.  Moreover, he has given detailed responsive evidence to Mr Moran's and Mr O'Neill's evidence on the primary question.  Thus, if it were found that leave were required, and leave was refused, Mr Flugge could respond in detail to the reasoning of Mr Moran and Mr O'Neill as they articulate it in the 1990s planners' concurrent evidence session, but he could not himself express his opinion on the primary pre‑IPRSP zoning question.  That would seem to me to be an artificial constraint on the process, not calculated to achieve the object of assisting the court to decide the issues.

9. To the extent that it is necessary, I would grant leave to Mr Flugge to give evidence on the primary pre‑IPRSP zoning question.

Mr Berzins and Mr Berrie

1. Mr Berzins and Mr Berrie can be dealt with together.

2. The plaintiffs point to passages in each of Mr Berzins' first two statements.  The passages in his first statement (exhibit 189A) do not amount to an opinion on the primary pre‑IPRSP zoning question.  Mr Berzins says no more than that an application would have been considered on its merits [28], [31].

3. His second statement (exhibit 189B) responds to the May 2010 statement of Mr Moran.  Mr Berzins says:

   Unlike Mr Moran, in the absence of the highway, I am not as certain that a rezoning proposal would not have succeeded on the subject land if a professionally prepared rezoning proposal had been lodged for consideration having regard to the approval of Austin Cove (1990) Riverland Ramble (1995) and Murray River Country Estate (1996).  I am of the view that any rezoning application would have been considered similarly to the examples cited above had it been made over the McKay land (49C/88).

4. There is substantially no reasoning expressed in support of this opinion.

5. Similarly, in par 4 of Mr Berrie's statement of June 2010, he states that it would have been reasonable to expect the Shire of Murray, based on past performances, to have initiated a rezoning amendment for the subject land in like manner to the Riverland Ramble estate, with similar prospects for a final approval.  Again, the reasons for that opinion are not spelled out.  It is in the nature of a bald statement.

6. The defendants have not objected to the admission of these passages.

7. The question is whether these bald statements, in their context, mean that each of Mr Berrie and Mr Berzins 'has a written report' on the primary pre‑IPRSP zoning question.  That involves a question of construction of the parties' agreed position.  To my mind, the evident purpose of the parties' agreement is to avoid surprise and consequential prejudice arising when an expert witness is in the witness box and says things not previously revealed.  (That said, there are limits on which the agreed position is apt to achieve that objective.  If an expert provided a report with an opinion and accompanying reasons and then expressed different or additional reasons, while those different or additional reasons could be the subject of cross‑examination, the agreed position would not constrain the expression of such additional reasons.) 

1. In my opinion, taking into account the evident purpose of the parties' agreed position, a witness 'has a written report' on a question only if he or she has expressed an opinion in writing with some accompanying reasoning.  The supplementary statements of Mr Berzins and Mr Berrie are not evidently directed to the primary pre‑IPRSP zoning question.  Rather, they provide responses to limited aspects of the reports of Mr Moran or Mr Moran and Mr O'Neill.  In that context, each contains a bald statement to the effect I have already summarised or set out.  In my opinion, Mr Berrie and Mr Berzins do not have a written report on the primary pre‑IPRSP zoning question.  Consequently, in accordance with the parties' agreement, they are not to be allowed to deal with that question unless leave is granted.  I turn to the question of whether leave should be granted.

2. I have explained why I consider that the defendants' delay in articulating the objection is not a factor of great significance.

3. Determining whether leave should be granted invites attention to the interests of justice and the risks of prejudice to each party.

4. Senior counsel for the plaintiffs submits that there is no prejudice or surprise to the defendants because the defendants know what the opinion of the witnesses is.  That may be true, but they know little of the reasons for the opinion.

5. The potential prejudice identified by the defendants is the articulation by these witnesses of reasoning of which the defendants have no notice.

6. In identifying potential prejudice to the plaintiffs, it is, I think, important to bear in mind that issues of competing expert evidence are not determined on the basis of weight of numbers.  If one expert expresses an opinion and gives certain reasons, a statement from another expert that he or she agrees with that opinion and with those reasons does not add to the weight of the evidence.  It is the substance and cogency of the reasoning that determines whether an opinion is to be accepted, not the number of people who hold the opinion.

7. The plaintiffs will have available at least five expert planners who will opine on the primary pre‑IPRSP zoning question, namely Messrs Rowe, Robinson, Auret, Butterly and Flugge.  Those expert planners evidently hold opinions substantially to the same effect, in material respects, as Messrs Berrie and Berzins.  The refusal of leave would cause prejudice to the plaintiffs only in the event that Mr Berrie or Mr Berzins articulated some reasoning different or additional to those five other witnesses.  To date, that has not occurred.  Neither has articulated any reasoning in the reports that have been exchanged.  Further, insofar as reasons are expressed in the joint planners' report arising from conferral (to which Mr Berrie but not Mr Berzins is a party), those reasons are shared by numerous other planners who will be called by the plaintiffs.

8. In those circumstances, it seems to me that the plaintiff would only be prejudiced by the refusal of leave in the event that, in the witness box, Mr Berrie or Mr Berzins articulated new reasoning for the opinion.  That is the very event that would occasion prejudice to the defendants.

9. Moreover, the plaintiffs did not submit that they expect Mr Berrie or Mr Berzins to express any reasons different from the five who will give evidence for the plaintiffs on this question.

10. The objects of taking expert evidence concurrently include to assist the court in understanding the competing arguments and to reduce or confine the differences of view between experts.  It is not an object of the use of concurrent expert evidence to expand the evidentiary material by enabling an expert to go substantially beyond what has already been expressed in the material exchanged or to add weight of numbers behind an opinion already expressed by another witness. 

11. In the circumstances, I am not persuaded that I should grant leave to Mr Berzins or Mr Berrie.

12. For the sake of completeness, I would mention an additional point.  Had I concluded that the bare statements in the reports of Messrs Berzins and Berrie amounted to having a written report on the question, I would, nevertheless, have raised with the parties whether, in the circumstances, those witnesses should, anyway, not be part of the concurrent evidence session.  I express no concluded view on the point, not having heard from the parties.  My tentative view is that, in circumstances where the plaintiff has available five witnesses giving an opinion on the point, who have articulated much more detailed reasoning, and given the terms of the reports by Messrs Berrie and Berzins, the evidence of Messrs Berzins and Berrie would most appropriately be received in the conventional way, by individual evidence‑in‑chief and cross‑examination.  However, for the reasons I have explained, it is not necessary to express a concluded view on that question.

Conclusion

1. For these reasons:

   (a)Mr Butterly and Mr Flugge can answer the primary pre‑IPRSP zoning question; and

   (b)leave is required for Mr Berrie and Mr Berzins to do so and is refused.

2. The latter conclusion gives rise to questions whether Messrs Berrie and Berzins should be part of the 1990s planners' concurrent session at all.  I will hear from the parties on that question.