Ray Fitzpatrick Pty Ltd v Minister for Planning - [2007] NSWLEC 791

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
Ray Fitzpatrick Pty Ltd (in members voluntary liquidation)
RESPONDENT
Minister for Planning

FILE 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 1979

CASES 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 146

DATES 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 Ellison
RESPONDENT
Mr J J Webster SC with Mr Mark Seymour
SOLICITORS
Hunt & Hunt

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

29 November 2007

30627 of 2006

RAY FITZPATRICK PTY LTD (IN MEMBERS VOLUNTARY LIQUIDATION)
Applicant

MINISTER FOR PLANNING
Respondent
JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 791
Decision Date: 29 November 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales had before it a dispute between Ray Fitzpatrick Pty Ltd, the applicant, and the Minister for Planning, the respondent, concerning the admissibility of certain expert evidence in a land acquisition compensation case. The applicant objected to the admissibility of two reports prepared by SGS Economics and Planning, dated October 2006 and October 2007, on multiple grounds, including the failure to comply with the expert witness code of conduct and the lack of disclosure of underlying facts and assumptions. The court was required to decide whether the reports were admissible and, if not, whether they should be excluded under the discretion provided by law.

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