Sandoval Investments Pty Ltd v North Sydney Council

[2006] NSWLEC 741

Land and Environment Court

of New South Wales

CITATION:

Sandoval Investments Pty Ltd v North Sydney Council [2006] NSWLEC 741

PARTIES:

APPLICANT:
Sandoval Investments Pty Ltd

RESPONDENT:
North Sydney Council

FILE NUMBER(S):

10341 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- Expert witnesses - leave to adduce further expert evidence where court appointed expert

CASES CITED:

Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303

DATES OF HEARING:

28/09/2006

EX TEMPORE JUDGMENT DATE:

09/28/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Wright, barrister
SOLICITORS
Minter Ellison

RESPODNENT:
Ms H Irish, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 September 2006

10341 of 2006

SANDOVAL INVESTMENTS PTY LTD v NORTH SYDNEY COUNCIL

JUDGMENT

HIS HONOUR

:

1 This is a class 1 appeal relating to the deemed refusal by the respondent council of a development application by the applicant for the demolition of an existing residential flat building and the construction of a new six storey residential flat building, with four levels of basement car parking and roof top terrace incorporating a pool, spa, and landscaping. The matter has been set down for hearing on 11 and 12 October 2006.

2 Jennifer Hill was appointed as a court appointed expert on 4 August 2006 to report on heritage matters. Her report of September 2006 was provided to the parties on 25 September 2006.

3 Before me are two notices of motion, one by each party. Each seeks leave for that party to file and serve a report by another heritage consultant addressing certain matters in the court appointed expert’s report, which each party says that the court appointed expert did not consider and which were relevant. The applicant has identified the expert to whom its application relates as Paul Rappoport. The respondent has identified the expert to whom its application relates as Stephen Davies.

4 The principles to be applied on an application such as those that I am hearing were considered in Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 at [13] by Lloyd J who said:

When there is a court appointed expert, a party to proceedings may not adduce evidence of any other expert on the question except with the leave of the court: SC Rules , Pt 39, r 6. In the usual course of events it is only the court appointed expert whose evidence will be admissible on the question that has been referred to that expert for report; hence the need for leave to call any other expert. Typically, one would expect a court to grant leave where, for example, it may be alleged that there are some flaws in the methodology adopted by the court appointed expert, or where something may have been overlooked by the court appointed expert. But the category of cases in which leave may be granted is not closed. The primary purpose for the appointment of a court appointed expert is to provide assistance to the court. The court retains the discretionary power to grant leave to call another expert. The discretion to do so is unfettered. If the court is of the opinion that it will be assisted by the admission of evidence of another expert, then it may, in the exercise of its discretion, admit that evidence.

5 It is relevant to take into account, in my view, whether the issue on which leave is sought to adduce evidence of another expert is an issue of an objective nature which usually only permits of one answer (for example, noise impacts) or, on the other hand, whether it is an issue on which reasonable expert opinions may differ. The present case falls into the second category. The Court may be more liberal in granting leave in a case in the second category because in such a case the Court is likely to derive assistance from competing views.

6 The applicant opposes the respondent’s motion on two grounds. The first ground is that it is said that Mr Davies is not truly independent of the respondent and therefore will not be able to comply with his obligations as an expert witness, including undertaking to be bound by the expert witness code of conduct.

7 I have been taken to some material which does not satisfy me that I could pass judgment on such an issue at this stage. Indeed, I think it is generally inappropriate to pass judgment on such an objection prior to trial, except perhaps in a clear case. Any expert witness must undertake to be bound by the expert witness code of conduct. Any expert witness is open to legitimate forensic testing, if there be some reasonable basis for such a course, as to the expert’s independence, but that should occur at trial, at least generally. Accordingly, I do not think that this objection is a sufficient reason for not granting leave to the respondent to call Mr Davies.

8 What I have said also covers a similar objection raised by the respondent to the applicant’s application seeking leave to call evidence from Mr Rappoport .

9 The second ground of objection by the applicant is that the matters which the respondent alleges that the court appointed expert failed to consider or discuss were, in good measure, in fact considered and discussed. The matters which the respondent has said were not considered or discussed in the court appointed expert’s report are set out in paragraph 6 of the affidavit of Rachel Mirosevich of 26 September 2006. The applicant does not take issue with the matters in paragraphs 6(c) and (d) of that affidavit, but submits that in fact the court appointed expert did consider the matters in paragraphs 6(a), (b) and (e).

10 The inquiry, I think, in a case of this type is not confined to whether a party is correct in saying that an expert has failed to consider a relevant matter, but whether that party’s perception that this has occurred is not unreasonable. In the present case, the respondent has that perception and I am not prepared to say on the material before me that it is unreasonable. On such issues, the Court may well be assisted by the admission of evidence of another expert. In the circumstances, I do not think it is necessary to conduct a detailed analysis of the contentions of the parties as to matters which they say have not been taken into account and then to compare those contentions with the court appointed expert’s report to see whether or not they are strictly correct.

11 I propose, therefore, to grant leave to both parties to rely on further heritage expert evidence as sought.

12 I make orders in accordance with paragraphs 1, 2, 3, 4 and 5 of the respondent’s notice of motion dated 21 September 2006. I also make orders in accordance with paragraphs 2, 3, 4 and 5 of the applicant’s notice of motion filed on 28 September 2006, but substituting in paragraph 2 for the word “report” the words “letter dated 27 September 2006”.