Mm Constructions (Aust) Pty Limited v Port Stephens Council (No. 3)

In this matter, Mm Constructions (Aust) Pty Limited sought damages from Port Stephens Council for alleged misfeasance in public office and negligence, stemming from the council's decision to deny a planning permit. The case reached the Supreme Court of New South Wales, where the plaintiffs aimed to call a town planner as a witness. This town planner had previously provided advice and representation to the plaintiffs during their application to the council and had subsequently assisted them in preparing their claim for damages. The council objected to the town planner's testimony, arguing that the individual's prior involvement rendered them incapable of providing an unbiased expert opinion, and sought to exclude the evidence under section 135 of the Evidence Act 1995.

The court needed to determine whether the town planner's evidence could be admitted, particularly focusing on whether the planner's previous advisory role and ongoing involvement with the plaintiffs' claim compromised their objectivity. The court also considered whether the evidence should be excluded under section 135 of the Evidence Act 1995, which deals with the admissibility of evidence obtained in a way that is unfair to any party. The plaintiffs argued that the town planner's expertise and prior knowledge were essential to their case, and that the planner's advice had been given independently and objectively.

The court, after a voir dire procedure, ruled that the town planner's evidence should be admitted. It found that the planner's past advisory role did not inherently disqualify them from providing an expert opinion, and that the planner's evidence was relevant and necessary for the fair determination of the case. The court held that the town planner's prior advice and involvement did not render their opinion inadmissible under section 135 of the Evidence Act 1995. The objection to the town planner's evidence was therefore overruled.

The court's decision allowed the town planner to give evidence in the case, providing the plaintiffs with an opportunity to present their case more effectively. The final orders of the court confirmed the admissibility of the town planner's evidence, paving the way for the case to proceed with the planned expert testimony.