Shellharbour City Council v Minister for Planning

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shellharbour City Council v Minister for Planning [2011] NSWCA 195

Hearing dates:

13 July 2011

Decision date:

13 July 2011

Before:

Giles JA at [32], [40]; Hodgson JA at [1]; Campbell JA at [39]

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

EVIDENCE - Expert evidence - Requirement for directions in UCPR 31.19 - Evidence as to technical meaning of words used in statutory instruments - Directions not given because of marginal relevance - Whether error by primary judge shown - Need in some cases to state propositions to be established by expert evidence.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 75O
Environmental Planning and Assessment Regulation 2000 cl 8N
Shellharbour Rural Local Environmental Plan 2004
State Environmental Planning Policy (Major Development) 2005
Uniform Civil Procedure Rules (UCPR) r 31.19

Cases Cited:

Chapman v Chapman [2007] NSWSC 1109
Ex parte MacKaness and Avery Pty Ltd; Re Royce (1943) 43 SR(NSW) 239

Category:

Principal judgment

Parties:

applicant: SHELLHARBOUR CITY COUNCIL
first respondent: MINISTER FOR PLANNING
second respondent: DELFIN LEND LEASE LIMITED ABN 88 00 966 085

Representation:

applicant: T F Robertson SC/ J E Lazarus
first respondent: K M Richardson/ A Shearer
second respondent: A M Mitchelmore
applicant: Sparke Helmore Lawyers
first respondent: Legal Services Branch, Department of Planning
second respondent: Allens Arthur Robinson

File Number(s):

2011/216692

 Decision under appeal 

Citation:

Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107

Date of Decision:

2011-05-26 00:00:00

Before:

Pain J

File Number(s):

2011/40183

Judgment - on application for leave to appeal

1. HODGSON JA: Uniform Civil Procedure Rules (UCPR) r 31.19 provides as follows:

31.19 Parties to seek directions before calling expert witnesses

(1) Any party:

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

(4) This rule does not apply to proceedings with respect to a professional negligence claim.

1. On 25 May 2011 the…