Stevenson and Ors v Nunn and Ors

[2011] QPEC 74

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stevenson and Ors v Nunn and Ors [2011] QPEC 74

PARTIES:

STEVENSON GROUP INVESTMENTS PTY LTD
ACN 101 112 127
(Applicant)

v

GRAHAM NUNN
(Respondent)
and
CODD STENDERS
(First Respondent)
and
TANGALOOMA PTY LTD ACN 010 997 707
(Second Respondent)
and
TANGALOOMA ISLAND RESORT PTY LTD
ACN 010 170 902
(Third Respondent)
and
BRISBANE CITY COUNCIL
(Fourth Respondent)
and
RJ & RM LEVER PTY LTD
(Fifth Respondent)
and
HIDEBOURNE PTY LTD ACN 010 652 436
(TRUSTEE)
(Twelfth Respondent)
and
TANGALOOMA PHOTO SHOP PTY LTD
ACN 113 674 427
(Seventeenth Respondent)
and
TANGALOOMA MORETON ISLAND RESORT
ACN 122 809 812
(Eighteenth Respondent)

FILE NO/S:

Planning and Environment Appeal No. 1861 of 2009

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

26 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2011

JUDGE:

Robin QC DCJ

ORDER:

See Paragraph [2]

CATCHWORDS:

Expert witness reverses opinion expressed in joint experts’ report on eve of hearing - whether leave ought to be given to depart from earlier opinion - circumstances in which applicant required to amend its statement of claim accordingly - respondents opposed hearing proceeding on basis the fire engineers’ evidence be taken later - entire hearing adjourned, likewise respondents’ applications for costs thrown away.

Planning and Environment Court Rules 2010 r 30(3)

Uniform Civil Procedure Rules r 149 r 429A

COUNSEL:

Mr S. J. Keim for the Applicant

Mr D Kelly SC and Mr M. F. Johnston for the Respondent, 1^st, 2^nd, 3^rd, 5^th, 12^th and 18^th Respondents

Mr M. A. Williamson for the 4^th Respondent

SOLICITORS:

Clinton Mohr Lawyers for the Applicant

Hopgood Ganim for the Respondent, 1^st, 2^nd, 3^rd, 5^th, 12^th and 18^th Respondents

Brisbane City Legal Practice for the 4^th Respondent

1. The court’s reasons for adjourning the listed seven day hearing of this application on the afternoon of the first day emerge from the discussion that took place in court.  It is convenient to set out a summary of those reasons now for the assistance of myself or another judge who may be called on to determine in the future what if any order ought to be made on the respondents’ application for costs thrown away by the adjournment.  If any misunderstandings on my part are revealed, the parties will have an opportunity to correct matters.

1. The orders made were as follows:

1.          Vacate the hearing dates commencing today at the respondents’ request.

2.          Leave to Applicant to amend its statement of claim to bring in matters contained in Dr Clancy’s report dated 24 May 2011 on or before 30 May 2011.

3.          Allow the Respondents until 30 June 2011 to amend their defence within which time any further expert report intended to be relied on must be served.

4.          Allow Applicant until 14 July 2011 to reply within which time any further expert report intended to be relied on must be served.

5.          The fire engineering experts are encouraged to confer with a view to clarifying or resolving differences if possible.

6.          Adjourn application for mention on 15 July 2011.

7.          Respondents’ applications for their costs thrown away by the adjournment adjourned to a date to be fixed.

1. The proceeding is an unusual one in which the applicant, which is owner of a number of units in an apartment building in a resort at Tangalooma, seeks a declaration that the approval under which the building was constructed which the respondent Mr Nunn issued some years ago is null and void.  The building is up.  The relief sought would, if granted, be a matter of grave concern for the respondents, which include the developer and owners of other units in the building, as well as the private certifier.  Whether, as a matter of discretion, the declaration sought or any similar one ought to be made, even if a legal case for it is made out, will plainly be an important issue in the proceeding.

1. The current proceeding follows others commenced by the applicant or associated entities in the predecessor of QCAT.  Little of the detail of these was revealed, but the impression the court has is that those proceedings concern whether or not the building was constructed in accordance with the approved plans.  It has been determined in this court that issues of that nature fall outside its jurisdiction.  See Stevenson Group Investments Pty Ltd v Nunn [2010] QPEC 114. I am not persuaded by the contention that the applicant today is attempting to circumvent that ruling. This proceeding is now (although it began as wider one) about whether the certifier ought to have issued an approval as he did. The lines of attack are that the building approved was not sufficiently in accordance with a general approval for the resort issued by the Brisbane City Council in 1983 and that the Queensland Fire and Rescue Service (QFRS) ought to have been brought in as a referral agency before any approval issued. The first aspect is complicated by the loss of the 1983 approved plans and competing contentions as to what they contained being advanced now.

1. As to the fire issue, which is to be treated as important, concerning as it does safety, part of the applicant’s case is that an ex post facto certificate obtained from the QFRS some months after the private certifier’s approval does not suffice to sort matters out.

1. Mr Keim SC’s opening of the case for the applicant did not get far, as the respondents insisted (and the court agreed) there ought to be dealt with first an application pursuant to r 30 of the Planning and Environment Court Rules 2010 for leave for new expert evidence from a fire engineer, Dr Clancy to be adduced by the applicant.

1. Dr Clancy came into the matter late, having been engaged when the respondents’ expert fire engineer, Mr Olsson, declined to confer with Mr Kennedy, a private building certifier who had been engaged by the applicant as an expert in that capacity and also, given some expertise which he professes in matters to do with fire engineering, although he lacks the qualification insisted upon by Mr Olsson.

1. Mr Olsson and Dr Clancy met on 21 March 2011 and produced a joint report on 4 April 2011 which appeared to show that Mr Nunn may not have a case to meet in respect of fire safety aspects.  If there were problems, they came from construction being different from what the plans indicated.

1. Mr Kennedy was brought in by the applicant’s solicitors to review the joint report; he raised points which Dr Clancy was requested to consider; having done so, he has changed his opinion.  That was foreshadowed in a communication to the respondents of 6 May 2011 enclosing what appeared to be a report of Dr Clancy.  If it ever was that, it has been supplanted by a fuller one made available only on 24 May 2011.  This version clearly presents a view that there were relevant issues relating to fire safety in the original plans proposed, and presumably in the plans approved by Mr Nunn, although the court did not get to see any plans stamped to show approval.  The issues in those plans necessitating referral to the QFRS, broadly, concern (a) the use of “Ezidek” which involves sheets of polyurethane adhering to the undersides of floor slabs in the five storey building for acoustic insulation purposes and (b) the location of gas lines, in particular in an enclosed vestibule where the fire stairs discharge persons evacuating the building.  Other considerations arose in consequence, such as location of fire hydrants.  The applicant’s case is that these issues relate to the original plans, as opposed to “as constructed” plans (assuming there are any) and bespeak an error on Mr Nunn’s part in failing to detect the issues and bring in the QFRS for expert referral agency advice.  It is not suggested that Mr Nunn ought to have had expertise at their level, rather, as Mr Keim agreed, that he was to pursue a kind of “check list” process which, if done properly, would have shown the need to bring in the QFRS.

1. Relying on AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, Mr Kelly SC and Mr Johnston for the respondents (other than the Council, which, represented by Mr Williamson, supported the other respondents), submitted that it was too late to adduce new expert evidence. Casagrande Investments Pty Ltd v Redland City Council [2010] QPEC 54; [2010] QPELR 688 was pointed to as an instance in this court of the late bringing in of an expert in a new field not being countenanced.

1. I took the view that this situation is special.  An expert who has already reported has, the court must assume genuinely, changed his view.  He has frankly acknowledged in a way that may prove embarrassing to him, that there were things he failed to notice.  Aware of them now, he has changed his opinion.  He is dealing with issues of safety which I think the court ought to approach with great seriousness, rather than apply the AON Risk principle without any investigation of the merits and importance of a litigant changing stance at a late stage.  I regard it as an unsound approach to treat an expert, whose duty is to assist the court, as committed for the purposes of the proceeding to a view expressed to the court which he has come to regard as fundamentally wrong.  I do not think that it is proper for the court to shut its eyes and ears to the expert’s revised view in circumstances like the present.  An earlier instance of exclusion of the QFRS (by a certifier who fell into additional errors) is Livingstone Shire Council v Brian Hooper and M3 Architecture [2003] QPEC 063; [2004] QPELR 308; see [45] ff.

1. The respondents indicated a determination to challenge the genuiness of Dr Clancy’s change of mind and to explore in detail the way in which it came about.  This is part of a general challenge to the good faith of the applicant, which Mr Kelly indicated was very important in the case and a subject that ought to be explored on an overall basis which examines the total picture of the actions and motives of the applicant’s principals, its agents and advisors.  For the moment the court has little alternative but to treat Dr Clancy’s change of mind as genuine; nothing pointing to a different conclusion was put before the court.

1. I determined that Mr Keim’s application under r 30 ought not to be acceded to unless he was prepared to apply to amend the applicant’s statement of claim. I ordered on 11 September 2009 that the matter ought to proceed on pleadings: see [2009] QPEC 082. Judge Wilson had appreciated on 27 July 2009 that the application was complex and somewhat confusing, that the relief sought and grounds relied on required further thought. The applicant (which has not had its current legal representation throughout) has presented multiple versions of its statement of claim. While acknowledging some force in Mr Keim’s argument to the effect that the pleadings (paragraph [46] of the current statement of claim in particular) let in the argument that the original plans contained the relevant features, on reflection I came to the view that the current version did not sufficiently comply with the requirements of the rules of pleading in the UCPR to clearly expose the applicant’s case, citing chapter and verse, so to speak, so that the other parties could understand and respond to it. Given my order that the matter proceed on pleadings, I considered it essential that what has this week become the applicant’s case ought to be clearly stated in the statement of claim. See UCPR 149(1)(c).

1. I considered that, if the application was to consider the real issues, the amendment to the statement of claim ought to be allowed.  It was intimated that following an appropriate amendment, the court was minded to let in Dr Clancy’s new evidence.

1. Notwithstanding that Mr Olsson has already prepared a response statement of evidence asserting that Dr Clancy is wrong, he indicated that he would require several weeks to prepare a sufficient response report.  The court understands Mr Keim’s doubtfulness about this, but the proper thing to do is allow the respondents the time Mr Olsson says he needs.  The application is an extremely serious matter for the respondents, not just because property and other economic interests are in jeopardy: the private certifier’s reputation and professional standing may be very much on the line.

1. The court was anxious to avoid losing a lot of court time allotted and indicated willingness to separate the hearing, dealing with other evidence now, and leaving fire engineers’ for later on.  A firm date of the week of August 1^st was offered, with the possibility of earlier dates.  Mr Kelly took instructions and strongly opposed a bifurcated hearing.  He did not want the court’s inspection of the site, scheduled for next Monday, separated in time from the rest of the case, nor any interruption.  He submitted that credit was going to be of crucial significance, unusually for a hearing in this jurisdiction, not only in respect of Dr Clancy’s changed position but also regarding the “reconstruction” of the 1983 plans and the applicant’s overall motivation and conduct, and that he ought to be permitted to have the strengths and weaknesses of the various witnesses in this regard explored in a cohesive hearing; he did not want those who might be giving evidence some weeks in the future gaining some advantage from the course of cross-examination this week and next.

1. Bifurcated hearings are common in this jurisdiction, but usually occur because the completion of hearings takes longer than anticipated or because there are unforeseen disruptions.  I am unaware of cases where, before a hearing has really begun, a bifurcated hearing is arranged, although considerations of convenience of witnesses, availability of legal representatives and the like would explain exceptions.

1. With some misgivings, I acceded to Mr Kelly’s urgings and adjourned the hearing.  It was made clear that the applicant wished to proceed and complete the hearing as far as possible this week and the next, and that that was the court’s position as well, so that considerations of the court’s convenience and the ease with which the court could make a decision played no part.  The adjournment was granted solely on the basis that the respondents requested it and supported their request with some reasons.  They accompanied it with an application for costs, which are exceptional in this jurisdiction, although it might be unremarkable for them to be awarded to the respondent in circumstances like the present.  I was troubled by thoughts that the respondents were seeking some tactical advantage or ascendancy to put pressure of some kind on the applicant in their determination to abort the current hearing in its entirety.  I mentioned my concern that in the circumstances it might not be justifiable that experts (who have been engaged in fields other than fire engineering) are to be paid for twice.  It is impossible at this stage to make any judgment about the reasonableness of the respondents’ stance from the point of view of their winning a costs order of the magnitude that they might seek.  A factor in my unease was Mr Kelly’s suggestion of a special costs hearing (which would carry its own costs implications) for a day next week.  At the hearing of the substantive application more information, possibly pertinent to a costs argument, may well emerge, including relevant information regarding the motivation for and merits of the applicant’s claim. 

1. In principle, I think that it is incumbent on an expert who changes an opinion already given to the court to make the change known. That appears to be the philosophy of r 429A of the Uniform Civil Procedure Rules.  In this court, leave must be obtained if an expert desires to change an opinion in respect of a subject of agreement in a joint report.  See r 30(3) of the 2010 Rules, formerly r 29(3) of the 2008 Rules, which there was occasion to invoke in Jeteld Pty Ltd v Toowoomba Regional Council [2009] QPEC 83. The rule is not, in my opinion, intended to preclude changes of opinion by expert witnesses; it is there to establish the court as a gatekeeper to ensure that it is proper to receive new and different evidence from a particular expert. An interesting example of a “single expert’s seismic shift in position” from his written report to his subsequent oral evidence which occasioned the judge considerable difficulty is Barclay v Menzies [2010] FamCA 671, at paragraph [70] ff. See Ambrogi, “An Expert’s Change of Mind Can be Shattering”, FindLaw for Legal Professionals, 7 April 2011 for a description of two dramatic American instances. In King v Nolan [1992] 2 Qd R 498 an appeal against a judgement for a plaintiff in a personal injuries action was allowed on the basis of the trial judge’s excluding evidence by a defence expert of a changed opinion about the plaintiff based on viewing of videotape surveillance for non-compliance with r 149A(4)(e) of the District Courts Rules 1968 which in some respects was akin to r 429A of the UCPR. The Full Court’s approach is the one that should be taken regarding Dr Clancy’s situation.