Synergy Environmental Planning v Cessnock City Council (No. 2)

[2005] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION:

Synergy Environmental Planning v Cessnock City Council (No. 2) [2005] NSWLEC 156

PARTIES:

APPLICANT
Synergy Environmental Planning

RESPONDENT
Cessnock City Council

FILE NUMBER(S):

11353 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Costs :- Second judgment to deal with written submissions on costs sought by the respondent.

DATES OF HEARING:

23 - 25/06/04

EX TEMPORE JUDGMENT DATE:

03/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr Kildea, barrister
SOLICITORS
Thompson Norrie

RESPONDENT
Mr Howard, barrister
SOLICITORS
Cleaves Mallik gibbs

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

21 March 2005

11353 of 2004 (No.2) Synergy Environmental Planning v
Cessnock City Council



JUDGMENT

1 This is the second judgment in appeal No. 11353 of 2003 between Synergy Environmental Planning and Cessnock City Council. This decision is in regard to costs applications by the respondent. The respondent contended in summary that the applicant should pay the respondent’s costs in relation to the joint experts’ conference including:-

(a) briefing experts on the joint conference;
(b) drafting questions for experts to discuss the conference;
(c) attempts to obtain applicant’s expert signatures to joint reports from the conference
(d) miscellaneous costs of attempting to co-ordinate experts to attend joint conferences and
(e) attempts to file joint experts reports.

2 The parties agreed:

1. That on the 23 February 2004, the Registrar directed that Standard Direction 2 applied to the joint conference of experts.
2. Experts were to hold a joint conference and file a report by the 9 June 2004.
3, On 17 May 2004 the respondent served its experts reports.
4. On 19 May 2004 the applicant served most of its experts’ reports.
5. Until the 3 June 2004 there were a number of drafts between parties of questions the experts should consider at their joint conferences.
6. The flora expert Mr Smith for the respondent and Mr Anderson for the applicant signed a joint report on 7 June 2004.
7. A joint conference of engineers and natural resource management, being Mr Keller for the applicant, Mr Leek for the respondent and Mr Smith for the respondent signed a joint report on some questions but did not deal with those considered beyond their expertise.

3 Disagreement arises on:

(i) a joint report was produced by the town planners, being Mr Leathly for the respondent and Mr Warnes for the applicant. But it gave opinions on one set only of extra questions put by the parties.
(ii) The main questions posed by the respondent remained in dispute. Mr Warnes would not sign Mr Leathly’s draft minutes of the joint conference on those questions. Mr Warnes produced his own set of draft minutes. Neither would sign the others minutes.
(iii) The bushfire expert Mr Swain for the applicant and Mr Hislop for the respondent and the natural resource management expert Mr Smith for the respondent met but did not produce a joint report as Mr Swain disagreed with the format of the questions.
(iv) The town planning, landscape and scenic quality experts met, being Mr Pollard for the respondent, Mr Leathly for the respondent, Mr Warnes for the applicant, Ms Dewsnap for the applicant, but could not agree on the correct draft of the minutes of the meeting.
(v) The respondent sought to file its versions of the meeting minutes.
(vi) The applicant said they should not be filed as the questions were in the form of interrogatories. They were not filed.

Conclusions

4 The result of the disagreements on joint conferencing was that the Court sought the experts to give concurrent evidence during the hearing and many of the questions posed by the respondent for the joint conferences were answered in the witness box.

5 They were, in most cases, questions that were suited to cross examination.

6 The expert direction seeks that the experts meet and discuss their individual reports as served on 17 May and 19 May 2004 to agree on what was common ground, to agree on what remained in dispute and to set down the reasons for continued disagreement.

7 It is hoped by this process that the parties may find sufficient common ground to resolve the dispute themselves or to reduce the matters on which the Court needs to hear evidence.

8 A further hoped for objective is the reduction of time and costs to the parties in resolving their differences.

9 In this case, the evidence during the hearing showed that the experts, who could not even reach agreement on a true record of their joint conferences, remain far apart on technical matters, necessitating a Court decision on the facts and merits of those issues.

10 The respondent may have been well intentioned in directing the experts to the questions it wanted answered, but they did appear as interrogatories, and did not lead some of the experts into a position of being able to reach a consensus sufficient for a signed joint report.

11 In the short time the new Directions for Expert Joint Conferencing have been in place, it is unusual for the process to have such a poor result. But the evidence showed in this case there were great differences of expert opinion on those matters and some agreement on others.

12 The conference process is one where progress can only be made by consensus. The only compulsion is to attend the joint conference. There is no compulsion for experts to reach agreement.

13 The Court finds no reason sufficient to award costs against either party on the matters sought.

1. Each party should pay its own costs in regard to the matters referred to in the respondent’s and applicant’s submissions of 27 August 2004 and 15 September 2004 respectively.

__________________
K G Hoffman
Commissioner of the Court
Rjs/ljr