Reported Decision: (2007) 157 LGERA 100
Land and Environment Court
of New South Wales
CITATION: Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 PARTIES: APPLICANT
RESPONDENT
Ray Fitzpatrick Pty Ltd (in members voluntary liquidation)
Minister for PlanningFILE NUMBER(S): 30627 of 2006 CORAM: Jagot J KEY ISSUES: Evidence :- separate question - admissibility of evidence - non-compliance with expert witness code of conduct - expert not aware of expert witness code of conduct when engaged or when reports prepared - expert not aware of use of first report in court proceedings - multiple authors of first report - reports did not disclose underlying facts and assumptions - reports inadmissible - discretionary exclusion LEGISLATION CITED: Evidence Act 1995
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979CASES CITED: Abbey National Mortgages plc v Key Surveyors Nationwide Ltd and Others [1996] 3 All ER 184;
Ainsworth v Burden [2005] NSWCA 174;
Ballina Shire Council v Jacobson & McMillan (2006) 146 LGERA 156;
Harding v Bourke (2000) 48 NSWLR 598;
Investmentsource v Knox Street Apartments [2007] NSWSC 1128;
King v Great Lakes Shire Council (1986) 58 LGRA 366;
Macquarie Bank v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
Notaras & Anor v Hugh & Ors [2003] NSWSC 167;
Portal Software v Bodsworth [2005] NSWSC 1228;
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16;
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146DATES OF HEARING: 28 November 2007 EX TEMPORE JUDGMENT DATE: 29 November 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr B A Coles QC with Mr R C Beasley
SOLICITORS
Minter EllisonRESPONDENT
Mr J J Webster SC with Mr Mark Seymour
SOLICITORS
Hunt & Hunt
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
29 November 2007
30627 of 2006
RAY FITZPATRICK PTY LTD (IN MEMBERS VOLUNTARY LIQUIDATION)
ApplicantJUDGMENTMINISTER FOR PLANNING
Respondent
Jagot J:
1 An issue has arisen between the parties to these proceedings concerning the admissibility of certain evidence and, if the evidence is admissible, whether it should be admitted into evidence at the hearing in the circumstances of the case.
2 The proceedings involve an objection under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 to the amount of compensation offered by the respondent for the acquisition of land at Blacktown. The dispute is a substantial one with the applicant's claim for compensation being just over $136 million. The proceedings have not yet been fixed for hearing. However, but for the dispute about the present evidence, the matter is at a stage where (relevantly):
(1) All experts other than town planners and valuers have filed and served principal and joint reports.
(2) The questions to be answered by the four town planners in their joint report have been agreed and await resolution of the…
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- Case
- [2007] NSWLEC 791
- Decision Date
CaseChat Overview and Summary
The court held that the reports were not admissible as they did not comply with the applicable practice note and practice direction, which required that expert witnesses be made aware of the expert witness code of conduct before preparing their reports. The court found that the authors of the reports were unaware of the code when they prepared the reports, and that this failure to comply with the code was not a mere technicality but a fundamental problem that could not be rectified retrospectively. The court also found that the reports were inscrutable and did not disclose the underlying facts and assumptions, which made them incapable of being meaningfully tested. The court concluded that the admission of the reports would result in significant prejudice to the applicant and the proceedings as a whole. Therefore, the court exercised its discretion under the law to exclude the disputed evidence.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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