Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1)
[2008] NSWLEC 154
•14 April 2008
Land and Environment Court
of New South Wales
CITATION: Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154 PARTIES: PROSECUTOR
DEFENDANTS
Wollongong City Council
Ensile Pty Limited
Robert Martin (aka Bob) HogarthFILE NUMBER(S): 50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007 CORAM: Jagot J KEY ISSUES: Prosecution :- failure to acknowledge expert code - whether evidence admissible - whether Court should otherwise order - failure inadvertent - evidence admitted LEGISLATION CITED: Land and Environment Court Rules 2007
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005CASES CITED: Investment Source v Knox Street Apartments [2007] NSW SC 1128
Kirch Communications v Gene Engineering Pty Limited [2002] NSW SC 485DATES OF HEARING: 14 April 2008 EX TEMPORE JUDGMENT DATE: 14 April 2008 LEGAL REPRESENTATIVES: PROSECUTOR
Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton
SOLICITORS
Kells the LawyersDEFENDANTS
Mr T F Robertson SC with Mr T G Howard
SOLICITORS
Burrell Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
14 April 2008
50019 of 2007
50047 of 2007WOLLONGONG CITY COUNCIL
ProsecutorENSILE PTY LIMITED
Defendant50021 of 2007
50048 of 2007WOLLONGONG CITY COUNCIL
ProsecutorJUDGMENTROBERT MARTIN (AKA BOB) HOGARTH
Defendant
Jagot J:
1 This is an objection by the defendants on a global basis to various opinions expressed in a number of affidavits of Jedda Saffron Lemmon which arises from the fact that, in none of those affidavits, Ms Lemmon identified and acknowledged her compliance with the applicable Expert Witness Code of Conduct.
2 Under rule 5.2 of the current version of the Land and Environment Court Rules 2007, Pt 75 of the Supreme Court Rules 1970 applies to these proceedings. Part 75 rule 3J, at the time the affidavits were prepared, provided that an expert witness engaged for the purpose of giving evidence in proceedings was required to comply with the Expert Witness Code of Conduct in Sch 7 to the Uniform Civil Procedure Rules 2005. These obligations included that the expert’s report contain an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it. As I have said, none of Ms Lemmon’s affidavits comply with that requirement. Accordingly, under rule 3J(3), the evidence has not been validly served and is not to be admitted into evidence unless the Court otherwise orders.
3 The prosecutor says that the Court should otherwise order in the circumstances of a further affidavit from Ms Lemmon of 14 April 2008, deposing to the fact that before she prepared her earlier affidavits she had been provided with a copy of this Court’s Expert Witness Practice Direction 2003 and Sch 1 (the expert witness code of conduct) relating to various other proceedings. The code of conduct to which Ms Lemmon refers in this paragraph of her affidavit is in substantially the same terms as Sch 7 to the Uniform Civil Procedure Rules. Also in the same affidavit, Ms Lemmon refers to the fact that when she prepared her previous affidavits in these proceedings, she was aware of and agreed to be bound by this Court’s Expert Witness Practice Direction 2003 and Sch 1 (the expert witness code of conduct). In the final paragraph of her most recent affidavit, Ms Lemmon confirms further that she has read the code as it appears in Sch 7 of the Uniform Civil Procedure Rules and agrees to be bound by it and has noted that nothing in her evidence changes as a result.
4 Ms Lemmon gave evidence on the voir dire. She acknowledged that she had not complied with the code by meeting all of its requirements, including the required acknowledgement. She denied that she did not have in mind anything in the code when she prepared the affidavits, saying that she had been in regular discussions with the solicitors at that time about various matters, including separating facts from opinions, the need to be impartial, the need to describe what she had seen in reference to her training, although she pointed out that these conversations would have taken place almost two years ago. When asked whether the solicitor mentioned that she had a paramount duty to the Court rather than to the Council, Ms Lemmon responded to the effect that that went without saying and said that, in the course of her employment, her duty was to say what she saw rather than having any particular obligation otherwise. She also denied that she had lost impartiality and became an advocate for her client, saying that her involvement in a media release (which was the subject of a number of questions on the voir dire) was a consequence of a decision of the manager. Ms Lemmon was instructed to provide information to facilitate that manager’s decision and did so.
5 Most of the cases relating to the making of other orders under the equivalent provisions to rule 3J arise in the context of civil rather than criminal proceedings. One of the most recent cases is that of McDougall J in Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2007] NSWSC 1128 where his Honour summarises many of the earlier decisions, in particular at [23] through to [41]. One of those decisions is Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485, where Campbell J decided that a person who was an officer of a party who had not been engaged particularly for the purpose of providing opinion evidence, was not an expert witness at all within the meaning of the rule. But it seems to me that case is distinguishable from the present case because Ms Lemmon’s affidavits have been prepared specifically in contemplation of the proceedings as opposed to the situation in Kirch where the expert’s report had not been prepared in contemplation of the proceedings. The consequence in that case of the rule not applying was that there was no requirement for the court otherwise to order and the report was admissible.
6 The cases disclose the importance of compliance by an expert witness with the code of conduct, including the acknowledgement of compliance which obviously has the salutary effect of bringing to bear in the mind of the expert all of their obligations under the code.
7 In this case I am satisfied that I should otherwise order, in accordance with rule 3J, notwithstanding the submissions of the defendant based on four factors to the contrary, namely:
- first, proximity between the witness and the client which makes it particularly acute that there be compliance with the code;
- secondly, what is said to be a failure in substance in the affidavits to separate fact from opinion;
- thirdly, a failure in substance in the affidavits to bring to bear the expertise upon the use of certain equipment; and
- fourthly, the submission that these substantive matters show that there has not been a mere technical breach of the code but rather a substantive failure to implement the code, leading to real and practical prejudice.
8 My reasons are that Ms Lemmon’s affidavit discloses that she was aware of the substantive obligations in the code when she prepared her affidavit and accepted those obligations at that time. This is not a case of a mere retrospective adoption of the code. Moreover, the oral evidence supports the conclusion that Ms Lemmon understood the central obligations in the code about her paramount duty to the Court rather than her client and the requirement for impartiality. I am satisfied that those matters were in mind when the affidavits were prepared, at least for the purposes of the question of admissibility, having regard to rule 3J.
9 The matters referred to by the defendants relating to the media release do not seem to me to go ultimately to admissibility, but rather to questions of weight. I have reached the same conclusion about the submissions with respect to alleged failures to separate fact from opinion and failures to bring to bear expertise upon the use of certain equipment. It seems to me those matters would found other objections to the affidavit evidence which no doubt might well be made and can be ruled upon. But they do not show any form of defect in the preparation of the evidence other than the actual failure to acknowledge the code itself.
10 Accordingly, on the basis of the affidavit of 14 April 2008, I am going to make an otherwise order, as referred to in rule 3J, and conclude that the failure to acknowledge the code is not a reason to exclude the evidence.
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