Westlink Pty Ltd v Lockyer Valley Regional Council (No 3)

[2013] QPEC 18

[2013] QPEC 18

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E APPEAL No 2606 of 2010

WESTLINK PTY LTD  Appellant

and

LOCKYER VALLEY REGIONAL COUNCIL                Respondent
and ANOTHER  

BRISBANE

12.43 PM, WEDNESDAY, 24 APRIL 2013

JUDGMENT

CATCHWORDS

Expert evidence- developer appeal - respondent council’s expert seeks to be excused in light of his taking of employment with developer’s consultants - he had already participated in preparing joint experts reports and given evidence at a hearing of the appeal on the merits.

Uniform Civil Procedure Rules r 426(2)
Planning and Environment Court Rules r 26(e)

HIS HONOUR:  This is an application by Mr McGowan, who has been engaged by the council as its visual amenity expert to be excused from further performance in that role.

My conclusion is that the application ought to succeed but on the basis as I adverted to earlier that the order would be made without prejudice to any party’s entitlement to subpoena Mr McGowan at the hearing to identify the expert reports he is party to and the evidence that he’s given.  I may prepare some fuller reasons for this view but important to it is the recent change of his employment which sees him now working for the appellant-developer’s consultants.  There are too many points of view open which would lead to the situation being characterised as unacceptable.  The circumstances are truly extraordinary in a way, Mr Gore having described this is a case of “apprehended reverse bias”.

Mr McGowan, who has already given evidence at a hearing of the appeal on the merits nearly two years ago, now finds himself in a situation I consider invidious. Cross-examined today he gave instances of ways in which circumstances might have changed in respect of the state and surrounds such that his expert views may require revision. The curious feature is that Mr McGowan’s expressed views for all relevant purposes coincided with those of the corresponding expert engaged by the appellant developer. Mr McGowan’s being excused is supported by the Council which can indeed point to the unsatisfactory appearance of its expert now being in the employ of the appellant’s consultants. Oddly, the Council has the opportunity, if Mr Chenoweth is engaged as the new expert as proposed, of its case on visual amenity issues being boosted by having the positive support of an expert in the field. Commonsense suggests that there are dangers there but I’m not suggesting for a moment that Mr McGowan or Dr Hassall or Mr Chenoweth who is coming into the matter are less than fully conscious of their duties as experts under rules 426 and following of the Uniform Civil Procedure Rules or the corresponding rules of this court.

So far as rule 426 sub-rule (2) is concerned, if Mr Hughes was contending that “person”, as referred to there, is capable of extending to Mr McGowan’s current employers, I disagree.  They are responsible for his emoluments as their employee but in my view, not for his fees or expenses.  That may well be the situation in other circumstances where someone who is not a party funds the engagement of an expert witness who is to be called by the party.  The same point arises under rule 26(e) of this court’s rules.  I don’t resile at all from views I’ve previously expressed, of which Mr Hughes reminded me that, this country, considerations such as bias apprehended or conflicting interests or duties do not preclude a court’s accepting as expert evidence the views of a person appropriately qualified see Newman v Brisbane City Council [2011] QPEC 87; [2011] QPELR 786 at [56], Serbian Orthodox Church School Congregation Sveti Nicola v Brisbane City Council [2012] QPEC 22; [2012] QPELR 468 at [16] and Parmac Investments Pty Ltd v Logan City Council & D J White Investments Pty Ltd [2009] QPEC 79 at pp 4-5..

I am inclined to make an order in terms of Mr McGowan’s application but with the addition of the words “without limiting the ability of any party to subpoena him at the hearing”. 

…

HIS HONOUR:   I will make an order as per the initialled draft.  It hasn’t attracted any particular comment by Mr Hughes except for his opposition to paragraphs 1 and 2; it does direct Dr Hassall and Mr Chenoweth meet and complete a joint report.  That’s inevitably going to add to the costs of Dr Hassall’s work which Mr Hughes estimates is $22,000 worth already.  It might have been possible to limit the extent of his future involvement.  The parties don’t seem to ask for that.  It remains to be seen if anything can be done down the track in respect of what might prove to be wasted costs.  I have observed during the hearing that my understanding from various events over the years that ethical considerations which drive professional people, particularly lawyers, to withdraw and often at a late stage in proceedings regrettably affect the expedition and cost of their client’s litigation.  In other words, the clients may well end up paying for giving effect to the ethical sensibilities of those they engage.

Order per initialled draft.

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