Save Wallum Incorporated v Clarence Property Corporation Limited (No 3)
[2025] FCA 166
•11 March 2025
FEDERAL COURT OF AUSTRALIA
Save Wallum Incorporated v Clarence Property Corporation Limited (No 3) [2025] FCA 166
File number(s): NSD 872 of 2024 Judgment of: PERRY J Date of judgment: 11 March 2025 Catchwords: PRACTICE AND PROCEDURE – application to recall expert witnesses – where concurrent evidence has been given by engineering experts – where joint expert report prepared in expert conclave expressed areas of agreement and disagreement – where statement in joint expert report clear – where grant of leave would undermine the process whereby the engineering experts reached their agreed position – where grant of leave would involve additional costs to the parties and further extend the trial Legislation: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475(2)
Federal Court of Australia Act 1976 (Cth) s 37M
Cases cited: Brown v Petranker (1991) 22 NSWLR 717
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 3 March 2025 Counsel for the Applicant: Mr J Korman with Mr R Reynolds Solicitor for the Applicant: Blair Arthur & Associates Counsel for the Respondent: Mr R Lancaster SC with Ms J Davidson and Mr D Rowe Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
NSD 872 of 2024 BETWEEN: SAVE WALLUM INCORPORATED
Applicant
AND: CLARENCE PROPERTY CORPORATION LIMITED
First Respondent
BAYSIDE BRUNSWICK PTY LTD
Second Respondent
ORDER MADE BY:
PERRY J
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The applicant’s oral application for leave to recall Dr Cresswell and Dr Hedjripour is refused.
2.Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. BACKGROUND
This is an application by the applicant, Save Wallum Incorporated, to recall certain expert witnesses whose evidence in concurrent session with the respondents’ expert witnesses on the same topic has completed (the Application). The Application is opposed by the respondents.
By way of background, the applicant seeks an injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to restrain the first and second respondents from carrying out or authorising the carrying out of development works on the land at 15 Torakina Road, Brunswick Heads, NSW (the Land), subject to approval by the Commonwealth Minister for the Environment and Water under Part 9 of the EPBC Act, and slashing works on the Land.
The first and second respondents, Clarence Property Corporation Limited and Bayside Brunswick Pty Ltd, which are related companies, seek to develop the Land pursuant to a development approval issued by the Northern Regional Planning Panel. On 16 May 2023, the Planning Panel granted approval for the respondents to create 123 residential lots, 3 medium density lots, and 1 public reserve, together with associated vegetation management works, earthworks and construction of infrastructure, in 7 stages subject to various conditions (Development Approval). On 1 March 2024, after the approval of various management plans required by those conditions, Byron Shire Council granted a certificate permitting the respondents to proceed with “Early Stage One (1) Environmental Works including Weed Control, Ecological Restoration and Planting Only” (the Subdivision Works Certificate). The design and management principles for the approved development are described in the “Wallum Estate, Torakina Road, Brunswick Heads, Lot 13 DP 1251383. Early Works Stage 1, Construction Environmental Management Plan” (CEMP) and are set out in detail in the various management plans, namely the Stormwater Management Plan, Dewatering Management Plan, Sediment and Erosion Control Plan, Vegetation Management Plan, Surface Water and Groundwater Management Plan and Wallum Frog Management Plan.
The applicant contends that the development is likely to have a significant impact on various listed threatened species under the EPBC Act, namely:
(1)the Wallum Sedge Frog (WSF), the Long-nosed Potoroo (LNP) and the South-eastern Glossy Black-Cockatoo (SEGBC) which are in the vulnerable category under the EPBC Act;
(2)the Koala which is in the endangered category under the EPBC Act; and
(3)the Mitchell’s Rainforest Snail (MRS) which is in the critically endangered category under the EPBC Act.
(Together, the relevant listed threatened species.)
This matter involves a very substantial body of expert evidence addressing, among other things, the potential impact, if any, on each of the relevant listed threatened species and whether there is a significant population of each species on the Land. Experts on each of the relevant listed threatened species and experts in hydrology and hydrogeology prepared individual reports and, in some cases, multiple reports, prior to the trial. Each group of experts also participated in an expert conclave without the presence of the parties or their legal representatives and produced a joint expert report in which areas of agreement and disagreement were identified.
This matter is now part-heard with the first tranche of oral evidence having completed on 3 March 2025. The remainder of the expert evidence is listed for hearing from 28 April to 2 May 2025, with final oral submissions to be made on 22 and 23 May 2025.
At the close of the first tranche of evidence, concurrent evidence was given by:
(1)the hydrological and hydrogeological experts called by the applicant, Dr Richard Cresswell and Dr Amir Hedjripour, and by the respondents, Dr Neil Sutherland and Ms Erin Holton (the engineering experts); and
(2)the experts in relation to the WSF, namely, Associate Professor Grant Wardell-Johnson who was called by the applicant and Mr Karl Robertson and Mr James Warren who were called by the respondents (the WSF experts).
The giving of concurrent evidence by these experts occupied approximately 4 days during which the Court sat extended hours and has now been concluded. This evidence took longer than had been anticipated by the parties, as a result of which it has been necessary to list 3 additional days for the trial (3 March, 22 May and 23 May 2025).
It is common ground that the evidence of the engineering experts is highly relevant to the evidence of the WSF experts, as well as to the evidence of the MRS experts who are yet to be called. As a result, I understand that the WSF experts heard the engineering experts’ concurrent evidence before giving their evidence in concurrent session, and that the MRS experts have also listened to the engineering experts’ evidence.
2. THE APPLICANT’S APPLICATION TO RECALL ITS ENGINEERING EXPERTS
By an oral application, the applicant seeks leave to recall Dr Cresswell and Dr Hedjripour. While the applicant indicated in oral submissions that they were flexible about the precise questions to be asked of their engineering experts, the applicant provided the Court with proposed questions to ask their engineering experts if leave is to be granted (the proposed questions), namely:
Dr Cresswell
At the trial, on 24 and 25 February 2025, you gave evidence to the following effect:
Quantification in critical parts of the development site had not been done (T309/4-5), that there would be benefit in having a transient model designed to see the effect of dropping the groundwater level on the frequency the groundwater breaks the surface (T341/35-37), and that modelling to understand environmental impacts is more complex than modelling for the sake of development and there are more questions that need to be asked to determine whether additional modelling is required (T400/9-14).
Please refer to paragraph 12 of the joint expert report.
In giving the testimony referred to above, did you intend to depart from paragraph 12 of the joint expert report?
Dr Hedjripour
At the trial, on 24 and 25 February 2025, you gave evidence to the following effect:
The "MUSIC" modelling, based on mean annual rainfall, does not take into account the variability of rainfall (T319/19-22) and was appropriate for less sensitive environments (T321/28-34), he had not seen any modelling that supports the proposition that the stormwater treatment devices are effective, that they perform, and how they perform in different climatic conditions and when interacting with groundwater (T336/29-32), and the location, size and level of the artificial frog ponds should have been determined by modelling (T366/44- 367/12).
Please refer to paragraph 12 of the joint expert report.
In giving the testimony referred to above, did you intend to depart from paragraph 12 of the joint expert report?
(Emphasis in the original.)
Paragraph 12 of the joint expert report of the engineering experts reads:
Design principles and actions have emphasised the need to retain water on-site, induce recharge and maintain low pH levels in groundwaters. The design and management principles described in the CEMP (and provided in detail in the Stormwater Management Plan, Dewatering Management Plan, Sediment and Erosion Control Plan, Vegetation Management Plan, Surface Water and Groundwater Management Plan and Wallum Frog Management Plan) provide comprehensive and appropriate, in-principal safeguards and habitat preservation that favour the WSF (and MRS) and should be strictly followed in our view.
At the start of their joint expert report, the engineering experts explained that: “Our initials are used to identify our individual points. The points of agreement feature no initials as they belong to all experts” (emphasis added). As such, paragraph 12, which appears under the heading “Matters of agreement” and the subheading “Approved management plans”, states the unanimous view of the engineering experts at the conclusion of their expert conclave.
The submissions made by the applicant’s counsel, Mr Korman, in support of the application to recall the applicant’s engineering experts, can be summarised as follows.
(1)The passages of the transcript of Dr Cresswell’s and Dr Hedjripour’s evidence referred to in the proposed questions is to the effect that the modelling which forms the basis of the CEMP and management plans are “faulty”. On its face, that evidence is inconsistent with [12] of the joint expert report of the engineering experts.
(2)The discretion to grant leave to recall a witness turns upon “what is just”. There is no a priori rule requiring that only in rare cases will leave be granted or otherwise constraining the discretion: Brown v Petranker (1991) 22 NSWLR 717 at 727-729 (Clarke JA (with whose reasons Handley JA and Waddell A-JA agreed)).
(3)While leave is ordinarily required before experts may resile from an agreed position, if, as here, evidence casts doubt on an agreed statement in a joint expert report, the interests of justice require the question of their agreement and their apparently contradictory evidence to be explored.
(4)It is premature at this stage to seek leave for Dr Cresswell and Dr Hedjripour to depart from their agreed position in the joint expert report. Leave would only be sought if Dr Cresswell and Dr Hedjripour answered “Yes” to the proposed questions.
(5)The evidence is highly relevant to the applicant’s case and the sworn testimony of Dr Cresswell and Dr Hedjripour should be given greater weight over the unsworn joint expert report of the engineering experts.
(6)The respondents would not suffer any prejudice at this stage of the proceeding were Dr Cresswell and Dr Hedjripour recalled. It was not a deliberate forensic decision on the part of the applicant’s counsel not to ask the proposed questions. Rather, the failure to ask the proposed questions while they were in concurrent session was an oversight. As such, this case is analogous to that in Brown. As Clarke JA held in Brown at 728, “Ordinarily the interests of justice would favour the grant of leave where the evidence sought to be adduced had been overlooked and the other party would not be prejudiced by the fact that the additional evidence is to be given after cross-examination and re-examination of the witness has been completed”.
I accept the importance of the evidence to the applicant’s case. I also accept that the applicant’s failure to ask questions along the lines of the proposed questions was not due to any forensic decision but as a result of an oversight (or, perhaps more accurately, the failure to ask leave for their engineering experts to depart from the agreed statement of opinion at [12] of the joint expert report).
Nonetheless, taken cumulatively, the following considerations lead me to the view that it would not be in the interests of justice to grant leave to the applicant to recall its engineering experts.
First, it is, with respect, artificial to attempt to partition the question of leave to recall its witnesses from the question of whether the applicant’s engineering experts should be granted leave to depart from an agreed opinion. The purpose in seeking to ask the proposed questions is to afford Dr Cresswell and Dr Hedjripour an opportunity to qualify or retreat from their agreed position and the applicant has made it clear that, if either or both of them wish to qualify their agreement with [12] of the joint expert report, then the applicant would seek leave for them to depart from their prior agreement. There is, in other words, little point in considering whether to grant leave to recall those witnesses without also considering whether, if such leave were granted, leave should also be granted for them to depart from, or qualify, their earlier agreement with [12] of the joint expert report.
Secondly, the statement at [12] of the joint expert report is clear and there is no basis on which it could be inferred that either Dr Cresswell or Dr Hedjripour misunderstood the statement or were misled as to what they were agreeing with. The paragraph is clear and unambiguous: see e.g. by analogy Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683 at [44]. Dr Cresswell and Dr Hedjripour also did not indicate in their evidence that they wished to qualify or retreat from their agreement with [12] of the joint expert report, despite their views regarding modelling. Indeed, as I shortly explain, the wording of [12] of the joint expert report is taken directly from Dr Cresswell’s expert report. Furthermore, there is no suggestion that Dr Cresswell or Dr Hedjripour wish to provide a supplementary report because they have changed their mind on what is clearly a material matter: cf the obligation under the Harmonised Expert Witness Code of Conduct at Annexure A to the Expert Evidence Practice Note (GPN-EXPT).
Thirdly, the oral evidence of Dr Cresswell and Dr Hedjripour referred to in the proposed questions can fairly be described as critical of the modelling taken into account in preparing the management plans. However, the fact that they share criticisms of the modelling and that better, more comprehensive modelling could have been undertaken does not necessarily mean that they disagree with the agreed position that “[t]he design and management principles” described in the CEMP and underlying management plans “provide comprehensive and appropriate, in-principal safeguards and habitat preservation”. This is particularly so given the caveat to the joint view at [12] that the CEMP and management plans should be “strictly followed” (emphasis added) and that the monitoring regime is required to be undertaken for five years post construction under the management plans.
Fourthly, the language of [12] of the joint expert report is taken verbatim from the expert report of Dr Cresswell who, it will be recalled, was called by the applicant. Further, the proposed questions are framed as leading questions. While the applicant contends that the precise wording of the questions to the applicant’s engineering experts could be the subject of submissions and that it is not wedded to the particular wording of the proposed questions, it is difficult to see how a question about the consistency of Dr Cresswell’s oral evidence with [12] of the joint expert report (and, therefore, also [48] of Dr Cresswell’s expert report) could be framed otherwise than in a leading fashion. It follows, as Ms Davidson for the respondents contends, that the applicant is effectively seeking to cross-examine its own expert witness in order to give him the opportunity to retreat from his evidence, despite the applicant’s other engineering expert and the respondents’ engineering experts’ complete agreement with this aspect of Dr Cresswell’s evidence as expressed in the joint expert report.
Consequently, a grant of leave to allow the agreed statement at [12] of the joint expert report to be revisited would also undermine the process whereby the engineering experts reached their agreed position independently, impartially and without influence from the parties: see [2.2], [3.1] and [4.1] of the Expert Evidence Practice Note (GPN-EXPT). In so framing the issue, I do not suggest any improper intention in the applicant seeking to further question this agreed position. Rather, as Rares J, for example, explained in Rainbow at [43]:
The purpose of the joint experts’ conferences and reports is to enable the Court to have the assistance of a joint position, expressed by independent experts after discussion among them, unaffected by the view of parties who retain them. Those conferences and reports enable the experts to express their opinions in accordance with their overriding obligation to the Court as to the matters about which they agree and those on which they disagree. This ensures that the Court will be informed as to the real issues in the expert evidence that it will need to resolve.
(Emphasis added.)
Finally, while the evidence has not yet closed, the engineering experts’ evidence has completed, as has the evidence of the WSF experts which relied upon the engineering experts’ evidence. Furthermore, the respondents correctly contend that, if Dr Cresswell and Dr Hedjripour were to answer “yes” to the proposed questions, the respondents would be entitled to have their engineering experts give evidence on that issue, necessitating the giving of further evidence in concurrent session. It may also prove necessary to recall the WSF experts. As such, a grant of leave permitting the applicant’s engineering experts to qualify or depart from their agreement to [12] of the joint expert report would involve additional costs to the parties and further extend the trial in circumstances where the trial has already overrun. In those circumstances, the respondents would suffer prejudice by the grant of such leave, contrary to the applicant’s submissions, and the grant of leave cannot be said to further the overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Relevantly, s 37M of the FCA Act provides that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Thus, for example, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, the Court held at [51] that:
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
It follows for these reasons that the application for leave to recall Dr Cresswell and Dr Hedjripour should be refused. While I have reserved costs, it is my tentative view that costs should be costs in the cause.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. Associate:
Dated: 11 March 2025
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