Ryan Nominees Pty Ltd v Western Australian Planning Commission - [2002] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RYAN NOMINEES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2002] WASC 45

CORAM: ROBERTS-SMITH J

HEARD: 15 MARCH 2002

DELIVERED : 21 MARCH 2002

FILE NO/S: CIV 2002 of 1997
Actions consolidated by Order of the Court dated 8 June 1999
CIV 2001 of 1997
CIV 2003 of 1997
CIV 2004 of 1997

BETWEEN: RYAN NOMINEES PTY LTD (ACN 008 767 557)
First Plaintiff
MICHAEL RYAN
Second Plaintiff
PHYLLIS COHEN
Third Plaintiff
STANLEY ARTHUR LAUTERBACH
MAVIS FRANCIS LAUTERBACH
Fourth Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant

Catchwords:

Procedure - Orders and directions - Exchange of expert witness reports - Whether "responsive" or new evidence - Whether party should be permitted to rely upon such evidence at trial - Reports previously obtained by party under Freedom of Information request - Whether constitutes "exchange" of reports by other party - Failure to comply with programming directions

Legislation:

Nil

Result:

Plaintiffs' application allowed
Defendant's application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Ms L E Rowley
Second Plaintiff            :     Ms L E Rowley
Third Plaintiff               :     Ms L E Rowley
Fourth Plaintiffs            :     Ms L E Rowley
Defendant:     Mr N C Monahan

Solicitors:

First Plaintiff                :     McLeods
Second Plaintiff            :     McLeods
Third Plaintiff               :     McLeods
Fourth Plaintiffs            :     McLeods
Defendant:     State Crown Solicitor

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

Trandos v Western Australian Planning Commission [2002] WASC 37

Case(s) also cited:

Nil

ROBERTS-SMITH J: By a chamber summons filed 27 September 2001, the plaintiffs sought various procedural orders and directions.
The defendant filed a chamber summons for further directions on 11 October 2001.
The plaintiffs filed an amended chamber summons for further directions on 21 February 2002 together with an affidavit of Linda Elizabeth Rowley sworn 27 September 2001.
The plaintiffs rely upon that and a second affidavit of Ms Rowley sworn and filed 11 March 2002.
The defendant relies on an affidavit of Brian Robert McMurdo sworn and filed 11 October 2001.
When these matters came on for hearing before me on 15 March 2002, Mr Monahan, for the defendant, sought to rely upon an affidavit of almost 250 pages which had been filed the previous day and which at that stage had not reached the court file. With the exception of par 8 (and annexed documents referred to in that paragraph and par 9) the affidavit contained material which was to be relied upon in support of the defendant's chamber summons. Given the volume of the material and the lateness of it, I refused leave to the defendant to read it. As a practical matter, I gave leave to rely upon it in respect of par 8 and the associated annexures (which responded to matters raised in Ms Rowley's affidavit of 11 March 2002) but struck out the balance. The defendant also sought to rely upon a further 76 page affidavit sworn that day and which Mr Monahan wished to hand up at the hearing. I refused leave due to the lateness of the material.
By their amended chamber summons the plaintiffs seek orders that:
(a)hypothetical development plans for the subject lands prepared by the defendant and supported by a planning report prepared by a senior planning officer of the defendant addressed to the City of Belmont dated 5 June 2001,
(b)a letter from the City of Belmont to the Senior Urban Designer WAPC dated 27 June 2001, and
(c)that part of a quantity survey report prepared by Messrs Ralph Beattie Bosworth dated 31 August 2001, so far as it supports the plans referred to in (a) above,
are properly to be characterised as primary architectural/design/planning/ engineering evidence upon which the defendant may not rely at trial without leave of the court.
By par 2 of the plaintiffs' amended chamber summons, the plaintiffs seek orders that Wood & Grieve reports dated 6 July 2000 and 1 June 2001 respectively and a Golder Associates' report dated 29 June 2000 are properly to be characterised as primary engineering evidence upon which the defendant may not rely at trial without the leave of the court. By par 2A an order is sought that the defendant may not rely at trial upon some 13 items, being valuation reports and associated photographs and correspondence, without leave. By par 3 of the amended chamber summons the plaintiffs seek an order that a planning report of K A Adam & Associates dated August 2000 provided by the plaintiff is properly to be characterised as a responsive expert report and may be relied on at trial pursuant to order 1 of the directions order dated 9 August 2001 without the need for further leave of the court.
By par 4, the plaintiffs seek orders that the court give further directions in respect of orders 10, 11 and 13 of the directions order dated 9 August 2000. Finally, apart from an application for costs in par 5, by par 6 the plaintiffs ask that:
"6.In the event that leave be given for the Defendant to adduce the evidence referred to in paragraphs (1), (2) and (3) above the Plaintiffs be entitled:
(a)to exchange any supplementary architectural/ design/planning/engineering valuation evidence they may consider to be necessary in the circumstances by six weeks from the date of the order;
(b)to legal costs and the costs of their consultants for:
(i)considering the defendant's evidence in respect of which leave has been given;
(ii)preparing additional responsive evidence;
(iii)the cancellation of the scheduled experts' conference; and
(iv)for attending any additional experts' conference required for the purpose of narrowing differences payable forthwith."
By its chamber summons dated 11 October 2001 the defendant seeks orders that:
"The Defendant may call and rely on the evidence enclosed in the letter of the Crown Solicitor's Office to Messrs McLeod & Co. dated 31 August 2001 as follows:
•reports of Wood & Grieve dated 1 November 2000, 1 May 2001 and 1 June 2001;
•report Golder Associates dated 28 March 2001 together with a Curriculum Vitae of Doug McInnes;
•letter from Ministry for Planning to City of Belmont dated 5 June 2001 with enclosed copy plans and report of the Ministry for Planning on those plans dated June 2001;
•letter from City of Belmont to Senior Urban Designer WAPC dated 27 June 2001;
•two sets of revised 'before' and 'after' drawings prepared by the Senior Urban Designer Ministry of Planning;
•report from Messrs Ralph Beattie Bosworth dated 31 August 2001; in addition to any other expert reports disclosed by the Defendant's (sic) to date."
The extension of time sought by par 3 was not pursued at the hearing for obvious reasons.
Procedural and programming orders were made in this (consolidated) matter by Heenan J on 27 April and 1 November 2000 and by me on 9 August 2001 and subsequently varied. So far as is presently relevant, those are:
"a)The Defendant to serve any expert engineering evidence upon which it wishes to rely by 5.00pm on 4 May 2000 failing which it shall not be entitled to rely upon expert engineering evidence at trial without the leave of the Court. (Order of 27 April 2000)
(b)The Plaintiffs to serve any responsive expert engineering evidence by 4 June 2000. (Order of 27 April 2000)
(c)The parties to exchange expert architectural/design/ planning evidence upon they wish to rely by no later than 15 December 2000. (Order of 1 November 2000)
(d)The parties to serve any responsive expert evidence upon which they wish to rely (other than valuation evidence) by no later than 31 August 2001. (Order of 9 August 2001)
(e)Non‑valuation expert witness conference to take place by no later than 28 September 2001. (Order of 9 August 2001)
(f)The parties to exchange expert valuation evidence by no later than 12 October 2001. (Order of 9 August 2001)
(g)A party who fails to provide or exchange evidence, witness statements or outlines of anticipated evidence in accordance with these directions shall not be permitted to rely upon the evidence to which they relate at trial. (Order of 9 August 2001)"

Development plans

I shall use the term "defendant's alternative development proposal" to refer to those materials specified in par 1 of the plaintiffs' amended chamber summons.
The plaintiffs contend that this material is primary expert evidence other than valuation evidence which had to have been served by 4 May 2000 (insofar as it was engineering evidence) or expert architectural/design/planning evidence which had to have been served by 15 December 2000.
In her affidavit of 27 September 2001, Ms Rowley points to certain parts of the pleadings from which she says it is clear the development potential of the subject lands is in issue.
I am told that in their primary statements of evidence the defendant's witnesses cast their opinions on the basis the appropriate method of valuation was comparative sales. They consequently did not advance an opinion based upon development possibilities.
On the other hand, in their primary evidence, the plaintiffs' expert witnesses put forward a particular hypothetical development proposal which they contended was the highest and best use of the subject lands.
Ms Rowley argues the defendant's alternative development proposal in no way purports to respond to, nor comment upon the plaintiffs' hypothetical development plans and reports and so is not "responsive evidence" at all, but primary evidence which cannot now be relied upon without leave of the court – which in the circumstances should not be given. She says that this is so is apparent from "a plain reading of the objected to reports (sic)" (plaintiffs' outline of submissions par 4).
The immediate difficulty with this submission is that the point is contested by the defendant (which says the material is responsive) but none of it is before me. One would have thought it self‑evident that if a Judge is being asked to make a determination of the character of a document as being responsive to another document or not, then in the absence of some appropriate express consent or agreement between the parties, that could only be done by comparison of the relevant documents. I am, however, left in the position of having to decide the issue solely on the basis of what the parties' representatives say about the material.
For the plaintiffs it is argued that it was open to the defendant to put forward a hypothetical development plan supported by engineering and planning reports at the appropriate point, which the plaintiffs contend was the exchange of such primary evidence by 15 December 2000. The plaintiffs contend that having so chosen, it is now open to the defendant to do no more than comment upon the plaintiffs' hypothetical scenarios; but the defendant's alternative development proposal now constitutes new and primary evidence which the defendant ought to have adduced at the primary exchange stage. It is said to be a new design, developed by the defendant and supported by costing and planning opinions of other witnesses, to all of which objection is taken.
The plaintiffs complain that for the defendant to be able to put forward a fresh design at the responsive stage precludes the plaintiffs' experts from the opportunity to comment upon it at the responsive stage (that is at 31 August 2001). It is further submitted that were the defendant able to do this, there would be the prospect of further delay in the timetable of a matter which has already been entered for trial and the imposition of a further financial burden on the plaintiffs. In any event it is submitted that the alternative design proposal now sought to be advanced by the defendant can have no purpose in the valuation exercise since the material was all prepared significantly after the defendant's valuation reports upon which the defendant seeks to rely at trial. The valuers make no valuation based on those plans and supporting reports.
Ms Rowley points to par 7 of the affidavit of Mr McMurdo dated 11 October 2001 in which he deposes:
"7.The hypothetical development design options prepared by the Ministry for Planning and submitted to the City of Belmont, was (sic) provided to enable the City of Belmont to provide a critique of the hypothetical development potential of the subject properties, in particular to respond to the hypothetical development design options submitted by the plaintiff's (sic) solicitors under the report of Morley Davis Architects, etc. The letter from City of Belmont to Senior Urban Designer WAPC dated 27 June 2001 enclosed in the defendant's solicitors (sic) letter dated 31 August 2001 addressed the relative merits of the two different sets of designs proposed, in light of advice previously provided by the City of Belmont as contained in the planning report of Urban Focus. I verily believe that the evidence enclosed in the defendant's solicitors (sic) letter dated 31 August 2001 is a response to the hypothetical development proposals previously put forward by the plaintiff's solicitors."
Mr Monahan relies upon what I said in respect of a similar application in Trandos v Western Australian Planning Commission [2002] WASC 37 at [35] and [37]. I held there that if evidence responds to, or answers the other party's "primary evidence", rather than merely gratuitously asserting "new" evidence, then it is "responsive" within the meaning of case management orders made by the court, and that the test for "responsiveness" requires a factual analysis of the document in issue, the focus of which should be on matters of substance rather than form.
Mr Monahan says that in the present case the plaintiffs provided reports from Morley Davis Architects and Page Kirkland Ward Quantity Surveyors and "before" and "after" drawings which related to the hypothetical development potential of the properties, on 19 December 2000. The purpose of the defendant's alternative development proposal is to respond to, or answer, that "primary evidence" put forward by the plaintiffs, which relates to the issue of the hypothetical development design options which would be available for the properties.
The first question here is whether the defendant's alternative development proposal is properly characterised as "responsive". If it is, the defendant may rely upon it. If it is not properly to be so characterised, then by virtue of the orders previously made, the defendant would not be able to rely upon it at trial without leave and the question then would become whether or not I should grant leave.
I adhere to what I said in Trandos about the principles to be applied in an exercise of this nature. In addition, I accept the defendant's submission that in principle the presentation of an alternative proposal may be characterised as "responsive", so long as it can fairly be regarded, on a commonsense view, as being in answer or responding to, something put forward by the other party. I accept that principle does not require that the only form which responsive material can take is the negative of the other party's primary material; the latter may be answered by advancing a positive alternative – which is what the defendant says it has done here.
Mr Monahan submits the starting point is the report of Ms Kasia Betka of Urban Focus dated December 2000 (annexure LER 2 to Ms Rowley's affidavit dated 27 September 2001) ("the Urban Focus report").
That report begins with a description of the location and topography of the area in which the subject land lies. It sets out the historical government and private development context, and the current zoning. It then turns to an explanation of what is termed the "Springs Concept Plan" as at 20 August 1996.
Paragraph 7 of the Urban Focus report covers the likely alternative zoning of the foreshore (resumed land) as at 20 August 1996 (assuming the land had not been reserved in the Metropolitan Region Scheme), and addresses the City of Belmont's likely response to any development proposal, having regard to the relevant statutory schemes and the policies of the Council and the Western Australian Planning Commission.
As I have said, I do not have the benefit of the materials in respect of the defendant's alternative development proposal.
The plaintiffs' position is concisely articulated in a letter from their solicitors to the defendant's solicitor dated 25 September 2001 (annexure LER 6 to Ms Rowley's affidavit of 27 September 2001, p 48), in which it is asserted that the defendant's development proposals are new proposals upon which the plaintiffs' experts have not had an opportunity to comment. The letter states that those materials are plainly not responsive and if the defendant had wished to adduce evidence of an urban development on the plaintiff's land, that evidence should have been exchanged at the primary evidence exchange stage because the pleadings had made plain from the outset that the plaintiffs' position is that the highest and best use of the land is for urban development.
The plaintiffs assert that the defendant's alternative development proposal is not responsive. The defendant maintains that it is. In these circumstances the onus must be on the plaintiffs to satisfy me on the balance of probabilities that as a matter of fact the material is not responsive.
It is not correct to say that the Urban Focus Report is predicated on a comparative sales approach. That may be true of the defendant's valuation evidence, but I do not know, as that is not before me either. The Urban Focus report does address the issue of potential development of the subject lands, albeit it does not advance a specific hypothetical proposal. It refers to the planning constraints and makes a number of assumptions leading to expressions of opinion about the nature and extent of development which would be likely to have been approved.
In my view it is not without significance that the report of Mr Ken Adams of August 2001 (annexure LER 3 to Ms Rowley's affidavit of 27 September 2001) provided by the plaintiffs as responsive to the defendant's Urban Focus report, expressly states that its purpose is to investigate and advise upon the development potential of the subject lands, in response to the Urban Focus report.
It is apparent therefore that the report provided by the defendant originally as primary expert evidence, did deal with the issue of development potential, although it chose to treat it by statements of general application rather than by way of a specific proposal.
I accept Ms Rowley's contention that it appears clearly from par 7 of Mr McMurdo's affidavit of 11 October 2001 that the defendant's alternative development proposal is new. But that does not determine the question. It is put to me on behalf of the defendant that it was prepared to enable the defendant to respond to the plaintiffs' development proposal by application of the development constraints, requirements and principles described in the Urban Focus report, to a comparison of the plaintiffs' development proposal and an alternative. As I understand it, the defendant would say that the plaintiffs' proposal would have fallen outside the relevant criteria and would not have been approved – and that if the court were ultimately to conclude that a development of some kind would have been the highest and best use of the land, then such development could not have been greater than the defendant's alternative proposal.
It is important to be guided by considerations of fairness and principle. In light of the pleadings and the programming orders made, I think if the defendant did wish to advance evidence that if development of some kind was the highest and best use of the subject lands, then that could not be greater than a specific development proposal in accordance with parameters set out in the Urban Focus report, that could, and should, have been done as part of its primary expert evidence.

I accept Ms Rowley's submission that to permit the defendant to advance that proposal as "responsive" evidence would be unfair to the plaintiffs because unless further orders were made and the timetable further extended and further costs were incurred by the plaintiffs, it would not be possible for the plaintiffs to respond to, nor to otherwise adequately deal with the defendant's alternative development proposal.
There would be no difficulty with, and there could be no proper objection to, the defendant's experts responding to the plaintiffs' development proposal evidence by attacking the factual assumptions upon which it is based or the costing factors attributed to it, whether by application of the criteria already articulated in the Urban Focus report or otherwise. This is not to say that would necessarily be the only way in which the defendant might adduce expert evidence which is properly responsive. But as I comprehend it the defendant's alternative development proposal goes well beyond that.
In short, in my view, if the defendant wished to lead evidence of a particular development proposal as being the highest and best use of the lands, it should have done so as primary expert evidence.
It follows that I would uphold the plaintiffs' application in respect of the orders sought at par 1 of the amended chamber summons and I would refuse leave to the defendant to rely upon the defendant's alternative development proposal evidence at trial.

Primary engineering evidence

Paragraph 2 of the plaintiffs' amended chamber summons identifies three reports to which objection is taken. At the hearing on 15 March the application was pursued only in respect of one of them, namely the Wood & Grieve Report dated 1 June 2001. That was in light of advice from Mr Monahan that the defendant had never intended to rely upon the reports dated 6 July and 29 June 2000 respectively.
In her affidavit of 27 September 2001, Ms Rowley deposes that the Wood & Grieve report is "fresh primary engineering evidence" supporting the hypothetical development scenarios of the defendant and as such falls into the same category as the defendant's alternative development proposal. In Mr Monahan's outline of submissions ([2]) this report is described as:
"Wood & Grieve Engineers – Rivervale Foreshore – Foreshore reserve resumption – review of Ministry for Planning development options for Lots 34, 45 and 603 Riversdale Road, Rivervale."
It follows that this report would fall into the same category as the documents referred to at par 1 of the plaintiffs' amended chamber summons and I accordingly make the same ruling in respect of it.

Defendant's valuation evidence

In her affidavit of 11 March 2002, Ms Rowley deposes that on 12 October 2001 she delivered the plaintiffs' valuation evidence to the defendant's solicitor, but no valuation evidence was provided by the defendant to the plaintiffs in exchange.
She states that by letter dated 15 October 2001 she wrote to the defendant's solicitor confirming the delivery of the plaintiffs' valuation evidence and noting that the defendant had not served any valuation evidence. She referred to the orders made on 9 August 2001 and requested the defendant's suggestions as to how the matter might be progressed.
She deposes that by response dated 19 October 2001 the defendant's solicitor forwarded a copy of the defendant's chamber summons filed (but not then served) on 11 October 2001, seeking in part an extension of time for the finalisation of the defendant's further valuation evidence. The letter further advised that as noted in a letter from the defendant's solicitor dated 14 May 1998, the valuation evidence relied upon by the defendant had already been disclosed to the plaintiffs' solicitor and that the defendant's valuers were reviewing the expert evidence "recently exchanged". The May 1998 letter is LER 6 to Ms Rowley's affidavit of 11 March 2002. Relevantly it reads:
"Your office has, I believe, already obtained copies of the reports relied upon by the defendant pursuant to your FOI application on behalf of each of the plaintiffs. I note also that no copies of such reports were requested by you by way of inspection. In those circumstances, it seems to me that forwarding further copies so (sic) of the expert reports to be relied upon by the defendant would be wasteful. If, however, there are any reports you require further copies of or which you in fact do not possess copies of, please advise me accordingly and I will arrange for copies to be forwarded to you."
As I understand it, the expert reports there referred to in May 1998 were ordered to be provided for the purpose of mediation which had been programmed.
At par 9 of his affidavit sworn 11 October 2001, Mr McMurdo deposes:
"9.The evidence exchanged on 31 August 2001 between the parties has been referred to the defendant's valuers, Mr P Travaskis of Chesterton International and Mr P Logan of Egan National Valuers, who had previously provided valuation advice to the defendant. Both valuers have advised that in view of the quantity of information submitted for review, and in light of other commitments they will be in a position to finalise updated valuation reports by 11 October 2001, as ordered by the Court. I verily believe that the defendant will not be in a position to engage other valuers to provide such updated valuation advice within the time limited (sic). Annexed hereto and marked with the letters 'BRM1' and BRM2' are responses from Mr Travaskis and Mr Logan respectively. The defendant accordingly respectfully requests that the time for exchange of the parties (sic) valuation evidence be extended to 16 November 2001."
The letter from Chesterton International (BRM1) refers to the letter and documents received by courier at that office on 18 September 2001 and notes that Chestertons had provided previous valuation advice on the subject properties dating back to 1996 but had not had any involvement with the matter since mid‑2000. The letter goes on to state that due to the firm's existing workload and commitments it would be unable to comply with the request to exchange valuation evidence and lists of comparable sales evidence by 12 October 2001. Detailed analysis of the large volume of documents and plans received on 18 September would be required and that would involve a considerable amount of time. Mr Travaskis advised that the firm's valuation advice and report could not be completed until mid‑November 2001. In the facsimile message from Egan National Valuers dated 20 September 2001 (BRM2) Mr Logan referred to the defendant's solicitor's letter dated 7 September "just received" and the "extensive reports and documents provided" to assist a review of a valuation undertaken by Mr Logan some years ago when he was with the firm Knight Frank. He stated that he would be pleased to refocus on the matter and prepare a valuation report for exchange, but given his commitments to other clients he would not be able to attend to the matter for another five to eight weeks and then a further two to three weeks would be necessary to finalise the report. He apologised for not being able to meet the nominated timetable but noted that the instructions "come as a surprise and at a very busy time".
At par 8 of his affidavit of 14 March 2002, Mr McMurdo deposes that it was his understanding at the time of his letter dated 19 October 2001 to the plaintiffs' solicitors (BRM10) that they were in possession of complete copies of all the valuation evidence referred to in the schedule annexed to the letter from the defendant's solicitor to the plaintiffs' solicitor dated 14 May 1998 (annexure LER 6). He deposes that he had no indication that the plaintiffs' solicitors did not have complete copies of the defendant's valuation evidence and no request or advice from those solicitors appears to have been made in that respect to that effect notwithstanding the terms of the defendant's solicitor's letter dated 14 May 1998 (LER 6). He concludes that the first time he became aware that the plaintiff's solicitors were not in possession of complete copies of the relevant documents was when he noted Ms Rowley's second affidavit on the morning of 12 March 2002.
The defendant's solicitor's letter (BRM10) in this regard said only that the valuation evidence relied upon by the defendant had already been disclosed, as noted in their letter to the plaintiffs' solicitors dated 14 May 1998.
Finally, in her affidavit of 11 March 2002, Ms Rowley points out that it is clear from the defendant's solicitor's letter dated 14 May 1998 that the reports there referred to were to be utilised for the purpose of mediation. She says that by implication therefore, they were supplied in confidence and could not be used for the purposes of litigation. She further deposes that in any event no reports were supplied to the plaintiffs' solicitor under cover of the defendant's solicitor's letter of 14 May 1998 on the expressed basis that the latter was of the understanding that copies had been obtained by the plaintiffs' solicitors under an application made pursuant to the Freedom of Information Act 1993 (WA). However, she states that only some of those itemised on the schedule had been obtained under the FOI legislation – she notes two sets of photographs and two reports which, so far as she has been able to ascertain, have never been seen by the plaintiffs' solicitors. She further points out that some of the reports in fact so obtained pursuant to an FOI application were edited. Annexure LER 7 to her affidavit is an example. As is readily apparent, the editing takes the form of a blank piece of paper having been placed over the relevant portion of the report. In each instance the material so edited (out) relates to the actual valuation.
Ms Rowley notes that despite the statement that the defendant was reviewing its expert valuation evidence as at 19 October 2001, no such reports had been received by the plaintiffs' solicitors as at the date of swearing her affidavit – that is almost five months later.
On 29 October 2001 she had written to the defendant's solicitors advising that no valuation evidence within the meaning of the order of 9 August 2001 had been supplied by the defendant and she was therefore not able to provide responsive valuation evidence.
She further notes that the defendant had not provided responsive valuation evidence to the plaintiffs' valuation evidence by the due date of 26 October 2001.
The defendant's position in relation to the reports itemised under cover of the Crown Solicitor's letter dated 14 May 1998 is that they were not supplied solely for mediation and hence were not confidential. Mr Monahan submits that given that fact and that the defendant's solicitors (in LER 6) offered to provide to the plaintiffs' solicitors, on request, copies of any of the documents not already in their possession, the defendant's solicitors assumed (and were entitled to assume) that the plaintiffs' solicitors had full copies of the relevant documents and that the evidence had therefore been "exchanged" within the timetable. He submits that the concept of "exchanging" expert evidence does not require the physical exchange of documents which are already in the possession of the other party. Ms Rowley's contention on that is that even if the reports that were provided, were not solely for the mediation conference and were therefore not confidential, there is nonetheless an obligation on a party to actually provide physical copies of documents which a court has ordered be exchanged.
According to Ms Rowley, the 1996 valuation reports were provided in May 1998. She submits that it is clear from Mr McMurdo's affidavit of 11 October 2001 that the defendant's intention was to later provide expert valuation evidence later – indeed, that was the reason for the defendant's application at that time for the date of exchange of the parties' valuation evidence to be extended to 16 November 2001. It was only subsequently that the defendant indicated it intended to rely on the 1996/97 valuation reports.
I am informed that the relevant reports were not provided to the plaintiffs' solicitors by the defendant until 14 March 2002.
I accept the defendant's submission that as a matter of principle, the concept of "exchanging" expert evidence does not necessarily require the physical exchange of documents which are already in the possession of the other party – although that will almost invariably be required in practice. Whether or not an actual physical exchange is required will depend upon the circumstances. If a party knows as a matter of fact that a particular report or document which it is required to provide to the other party, has previously been provided to that other party, then it may not be necessary to provide another copy. Clearly enough though, in those circumstances, there would be an obligation on the first party to confirm that the other party has the document, that it is the same document, and that the other party is content to proceed on the basis that the first party's obligation has been complied with.
There is obvious force in Ms Rowley's submission that the defendant's solicitors' notification of 19 October 2001 that the defendant intended to rely upon the 1996 and 1997 valuation reports, was a belated attempt to recover from the problem of its non‑compliance with the deadline of 12 October 2001 and that until that point, it was clearly the defendant's intention to obtain and rely upon then up‑to‑date expert valuation evidence. That indeed is the whole gravamen of par 9 of Mr McMurdo's affidavit sworn 11 October 2001. It would have to be asked why the valuers had not been approached well before September 2001 to undertake that task.
Mr Monahan submits that given the clear indication in the defendant's solicitors' letter dated 19 October 2001 that they believed the plaintiffs already had the defendant's valuation evidence and it was therefore unnecessary to supply further copies, the plaintiffs' solicitors could have made it clear they did not in fact have all the material. To a point there is a degree of truth in this. The impression I have from the limited correspondence and affidavit material before me is that the solicitors were writing to each other in demanding and peremptory terms and were not inclined to think what it was the other side was actually saying. They were dealing with each other with a mind‑set of conflict rather than cooperation and the communication between them was less than it should have been as a result. The defendant's solicitors thought the plaintiffs already had the 1996/97 valuation reports because they had obtained them through the processes of FOI. They considered the plaintiffs' assertion that the defendant had failed to comply with the court order that valuation reports be exchanged by 12 October 2001 by not serving copies of the reports, to be unreasonable and no more than bloody‑mindedness. The plaintiffs' solicitors seem to have thought the defendant's solicitors were being obstructive and evasive and assumed they were aware not all the reports had been obtained under FOI and those that were had been edited. But they never actually said that until it appeared in Ms Rowley's affidavit of 11 March 2002.
Be all that as it may, however, the fact remains that it was the obligation of the defendant pursuant to the programming orders of the court, to exchange its valuation evidence with the plaintiffs' by no later than 12 October 2001. That was a serious obligation. It was for the defendant to ensure it was complied with.
In my view, even if the position of the defendant's solicitor as conveyed in their letter dated 19 October 2001 had been conveyed on or before 12 October 2001, a mere reliance on the plaintiffs' solicitors having themselves obtained the reports as the result of an FOI application, for a different purpose, over three years previously, was not compliance with either the spirit or terms of the order. Furthermore, once the plaintiffs' solicitors had made it clear they regarded that as non‑compliance, the defendant's solicitors should have promptly provided full copies of the reports.
Despite that non‑compliance, given the failure of the plaintiffs' solicitors to actually tell the defendant's solicitors that they did not have the reports (or full copies of them) and so in effect contributing to the continuation of the latter's misapprehension (although that was not justification for failure to comply with the order anyway), I am prepared to grant leave to the defendant to rely upon the 1996/97 valuation reports at trial.

K A Adam & Associates' planning report ("the Adam report")

This is a report dated August 2000 provided by the plaintiffs as responsive to the primary planning evidence of the defendant.
The defendant contends the Adam report responsive but "new" evidence and so cannot be relied upon by the plaintiffs at trial without leave.
Mr Monahan acknowledges that the express purpose and format of the Adam report indicates that it is a response to the defendant's Urban Focus report, but says one must look to its substance to ascertain whether it really does respond to or answer the defendant's material, or whether that description is just a cloak under which new evidence is sought to be introduced. He submits that on examination "too little" of the Adam report does actually respond to the Urban Focus report; the bulk of it fails to confine itself to a response, or answer, to the Urban Focus report and instead in substance "gratuitously asserts new evidence" or is otherwise merely generally repetitive of the plaintiffs' primary expert planning evidence.
A comparison of the Urban Focus report (annexure LER 2 to Ms Rowley's affidavit of 27 September 2001) and the Adam report (annexure LER 3 to that affidavit) clearly shows the latter to be responsive to the former both in format and in substance. The preparation of reports by experts is often very much a matter of individual style and approach. The expert may see it as necessary to repeat earlier material so as to place what follows in context. Nor would it be unusual for new information to be advanced as a response to the material being addressed. So long as the content is reasonably put forward for that purpose, it should be regarded as "responsive". I am satisfied the Adam report may properly be characterised as responsive to the Urban Focus report.

Further directions

The remaining issue outstanding on these chamber summonses is the plaintiffs' prayer for a further directions in respect of orders 10, 11 and 13 of the programming orders made on 9 August 2001. Those orders were that:
"10The parties to exchange lists itemising all reports and studies relevant to the property and its environs by no later than 14 December 2001 for the purposes of agreeing that such reports and studies may be introduced in evidence at trial without further proof, and failing such agreement, this matter be raised for further consideration at the next directions hearing thereafter.
11The parties prepare, agree upon and file the following by no later than 14 December 2001:
(a)a detailed chronology referring to relevant steps taken or events occurring concerning the properties and their environs;
(b)a series of plans, diagrams, maps and photographs of the subject lands and their environs;
12The parties prepare and file the following by no later than 14 December 2001:
(a)a list of issues for determination;
(b)an outline of contentions of law;
13The parties serve by no later than 20 working days before the date fixed for the commencement of the trial:
(a)a list of witnesses intended to be called;
(b)witness statements or outlines of the anticipated evidence to be adduced from each witness and where those witnesses refer to documents, a list of the documents to be referred to by the witness in examination‑in‑chief."

I would have thought order 12 should also have been included.
In her affidavit of 11 March 2002 Ms Rowley deposes that by letter dated 13 December 2001 she sent to the defendant's solicitors a detailed chronology, the series of plans, diagrams, maps and photographs and a list of reports and studies, in accordance with the order of 9 August 2001. She says no response was received to that letter. Consequently, by letter dated 17 December 2001, she wrote to the defendant's solicitor again pressing for agreement to, or amendment of, the documents. She says no response has been received to that letter. Finally, she states that by letter dated 18 December 2001 she forwarded a copy of the plaintiffs' outline of contentions of law and list of issues for determination and requested the defendant's similar document. She says there has been no response to that letter.
There is nothing in the defendant's affidavit material which says anything about this and Mr Monahan informed me that he had no instructions in relation to it and knew nothing about it. He was unable to proffer any explanation for the defendant's failure to comply with those orders. That is quite unsatisfactory.
At the same time, nor has there been compliance by the plaintiffs. Orders 11 and 12 for example required the parties to prepare and agree upon certain documents so that the agreed documents could be filed by 14 December 2001. I would not have thought a letter from the plaintiffs' solicitors dated 13 December 2001 enclosing the plaintiffs' documents for discussion and agreement, could realistically be seen as an appropriate attempt to comply with the orders. That should have been done much earlier.
I will hear counsel in respect of those orders of 9 August 2001 and on the orders to be made to give effect to the findings expressed above.