Wu & Kuo Childcare Pty Ltd v Brisbane City Council
[2022] QPEC 60
•23 June 2022
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council [2022] QPEC 60
PARTIES:
WU & KUO CHILDCARE PTY LTD
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)and
CANTAL HOLDINGS PTY LTD
(Co-Respondent)
FILE NO/S:
1223/21
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
23 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
23 June 2022
JUDGE:
Rackemann DCJ
ORDER:
THE CO-RESPONDENT BE GIVEN LEAVE TO CALL PETER LEYSHON AS A WITNESS AT THE HEARING OF THE APPEAL.
THE CO-RESPONDENT BE GIVEN LEAVE TO RELY UPON THE SUPPLEMENTARY STATEMENT OF PETER LEYSHON DATED 19 MAY 2022 AT THE HEARING OF THE APPEAL.
CATCHWORDS:
ENVIRONMENT AND PLANNING – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – ADMISSIBILITY OF REPORT – where the co-respondent made an application for leave to call an expert and rely on his supplementary report at the hearing of the appeal – where the expert had previously prepared a joint expert report which stated that there is a low level of economic need for the development proposed by the co-respondent – where the expert then prepared a supplementary report which stated that he had changed his opinion and now considers that there is a medium level of economic need – where the expert has explained that further and updated information which came to his attention after the joint meeting and report was the cause for his updated opinion – whether the change of opinion has a plausible accompanying reason and has not come about by improper means – whether leave should be granted to allow the co-respondent to call the expert as a witness and rely on the supplementary report.
LEGISLATION:
Planning and Environment Court Rules r 35B
COUNSEL:
L Walker for the appellant
R Yuen for the respondent
B Job KC for the co-respondent
SOLICITORS:
Mills Oakley for the appellant
City Legal for the respondent
Connor O’Meara Solicitors for the co-respondent
This is an application by the co-respondent brought pursuant to section 35B of the Planning and Environment Court Rules, for an order, or directions about a supplementary report prepared by an expert, namely Mr Leyshon, and for leave to call him as an expert at the hearing of the appeal which is now set down to commence on the 11th of July. Mr Leyshon is a well-known economist who has given evidence in this Court on many occasions.
Mr Leyshon was nominated as an expert by the co-respondent and took part in a meeting of experts with another economist, Mr Marcus Brown. Their meetings produced two joint reports, the second of which included a statement, by Mr Leyshon, that there is a low level of economic need for the development proposed by the co-respondent and that, whilst there will be an economic need for a number of additional child care spaces in the catchment over the period of 2021 to 2031, he accepts that another approved centre will absorb most of that need/demand. In coming to those opinions, Mr Leyshon had, in his consideration of the matter with Mr Brown, considered matters such as occupancy rates and the proportion of the market made up of children of five years of age.
Mr Leyshon has subsequently produced a supplementary report in which he says that he has changed his opinion. He now considers that there is a medium level of economic need for the proposed development. That is obviously a much more palatable conclusion from the perspective of the party who retain him in the litigation. Pursuant to section 35B, the co-respondent had an obligation, as soon as practical after receiving notice of the change of opinion, to obtain the supplementary report, serve a copy of it on each other active party and apply to the Court for orders or directions about it. Further, the expert concerned can only give evidence with the Court’s leave.
The requirement for the Court to grant leave before an expert who produces a supplementary report can give evidence allows the Court to scrutinise the change and the reasons given for the change. Whilst it would be a strong thing to prevent a witness from giving evidence, that may be an appropriate step in circumstances where, for example, the change of opinion does not, on its face, have any plausible accompanying reason or where the change has come about by improper means such as, for example, improper instruction from a client or third party.
Changes of opinion which seek to recant concessions made during the joint meeting and report process will obviously attract a greater level of scrutiny than others. In this case, Mr Leyshon has, both in the supplementary report and in affidavit material, provided an explanation for his change of opinion. The explanation lies in further and updated information which has come to his attention since the joint meeting and report process. In particular, following the publication of the second joint report in October last year, he was asked in January of this year, by a solicitor in employ of the firm representing the co-respondent, to prepare an individual report for the hearing.
That was a catalyst for him considering the 2021 Early Childhood Education and Care Service Census data, which had only become available on 7 December 2022, after the publication of the second joint report. Analysis of that data led him to question the analysis of occupancy rates and was a catalyst for him making further investigations which were pursued by the solicitors for the co-respondent obtaining non-party disclosure from other centres within the area. Disclosure was also obtained from the appellant. Further information was obtained about the proposed centre referred to in the second report and a statement from the intended operator was also obtained. It was a consideration of that further updated information that caused him to change his opinions for reasons which are more fully set out in the supplementary report, which I need not delay upon the detail of.
I am conscious that the experts, in the course of their meeting and joint reporting, ought to have made all of the inquiries they thought were relevant and that if, for example, Mr Leyshon had thought that further information from the intended operator was something that would have been of assistance, then it ought to have been requested during that joint report process. Similarly, if the experts had thought that detailed information from other centres was required, such information should have been requested at that stage. Yet the joint reports record that the experts, at that stage, thought they had made all inquiries they considered appropriate.
Be that as it may, however, the catalyst for Mr Leyshon having a concern about the basis for his opinion expressed in the second joint report was his analysis of the 2021 ECEC census data, which was simply not available at the time the experts held their joint meeting and produced their joint reports. And it is his analysis of that which caused him to have concerns and, he says, to make further investigations which led to the steps taken by the solicitors for the co-respondent to obtain disclosure of information from other centres.
Whilst counsel for the appellant indicated that Mr Leyshon’s change of view and the circumstances giving rise to it, might well be a matter of cross-examination as to credit at the hearing, it seems to me that a sufficient explanation has been given on the face of the matter to warrant the grant of leave to call Mr Leyshon as an expert and for the use of his supplementary report.
In reaching that conclusion, I am mindful that the change of opinion is one which, as I say, relies upon new and more complete information than was the basis of the earlier joint reports, and it seems to me that it is appropriate that the court have the benefit of evidence which takes account of that further updated and more complete evidence. I have also been mindful that, although the matter has been set down for trial, there is no suggestion that Mr Brown will not be able to deal with the contents of the supplementary report or the new evidence and information with which it deals.
The appellant was critical of the delay in bringing this application and what it referred to as the opaque way in which the facts were disclosed in relation to exactly when Mr Leyshon’s views changed and how that was communicated and when.
As I have already observed, it was in January that Mr Leyshon was asked about preparing a report for trial. On the 7th of February, there was a telephone discussion between the solicitors and Mr Leyshon, the consequence of which was a decision to obtain information about occupancy rates for one of the centres. Steps in relation to obtaining information in relation to other centres were taken in the course of March and early April. On the 23 of March, at the pre-callover review of the matter for the April sittings, the co-respondent brought on, on short notice, an application for there to be a further joint meeting and report process in order to consider the material and information. At that stage the affidavit material in support of the application disclosed the nature of the new information, but not the extent of the change of opinion by Mr Leyshon. That application was not successful. Thereafter the supplementary report was prepared. It is dated the 19th of May. It was served on the 24th of May and the hearing of the matter ultimately came on today.
Clearly, the matter could have been dealt with more expeditiously and the detail surrounding exactly when the change of mind occurred could have been explained in more detail. As senior counsel for the co-respondent pointed out, however, it appears that the change of opinion was one which occurred over time in consideration of additional material which was itself obtained over time. The failure to give any more detailed information and the extent of delay in bringing the application are not matters which, in the context of this matter, are of such gravity as to cause me to deny the relief sought, particularly in circumstances where it would appear that they are not accompanied with any substantial prejudice.
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