Land and Environment Court New South Wales Medium Neutral Citation: CFT No. 8 Pty Ltd; Telado Pty Ltd v Sydney Metro [2024] NSWLEC 60 Hearing dates: 07 June 2024 Date of orders: 07 June 2024 Decision date: 07 June 2024 Jurisdiction: Class 3 Before: Duggan J Decision: See order at [19] Catchwords: NOTICE OF MOTION – leave sought to adduce expert evidence – leave opposed on the basis of misuse of commercially sensitive or confidential information – risk not a real or sensible possibility – leave granted Cases Cited: Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 215 Category: Procedural rulings Parties: CFT No. 8 Pty Ltd (Applicant) Telado Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: J M Horton KC and L Nurpuri (Applicants) A Shearer and J E Taylor (Respondent) Solicitors: Beatty Hughes & Associates (Applicants) Clayton Utz (Respondents) File Number(s): 2022/00391937; 2022/00391925 Publication restriction: No JUDGMENT Nature of proceedings 1. The proceedings relate to a claim for compensation for the compulsory acquisition of the Applicants' land by the Respondent. The proceedings are listed for hearing for 20 days commencing on 21 October 2024. 2. The Respondent filed Notices of Motion on 29 May 2024 seeking orders in effect for leave to file an expert report of Mr Tim Blythe, Town Planner, and the making of directions to facilitate the filing of such a report. The Applicants opposes the making of the order in so far as it nominates Mr Blythe as the Town Planner from whom the report will be commissioned. Facts 1. By orders made on 3 March 2023 the Respondent was granted leave to adduce expert evidence from a town planner named as Ms Helena Miller. 2. By further orders made on 26 April 2024 the orders confirmed that the Respondent was granted leave to adduce expert evidence from Ms Miller. Ms Miller's statement of evidence was served on 5 April 2024. 3. Ms Miller contacted the solicitor for the Respondent on 3 May 2024 to advise that she had been appointed to the role of Acting Commissioner of the Land and Environment Court effective from 13 May 2024. 4. Upon becoming aware of the appointment of Ms Miller, the Respondent's solicitors took steps to engage a replacement town planning expert. The Respondent's solicitor also advised the Applicants' solicitor of the appointment of Ms Miller and the need to engage an alternative town planner. 5. The Respondent's solicitor, Mr Brendan Bateman, deposed in his affidavit sworn on 7 June 2024 at pars 44 to 48 as follows: 44 Since Ms Miller's appointment, I have attempted to identify a suitable replacement town planning expert. Members of my team have made inquiries of five other potential town planning experts who I regarded as having suitable experience to be engaged in these proceedings. All five of those potential experts were unable to act in these Proceedings due to either capacity constraints or a conflict of interest. 45 My Blythe is the only suitable and available expert I have been able to so far identify in response to the inquiries referred to in paragraph 44 above. 46 My Blythe has finalised his report and it is ready to be served. My Blythe prepared his evidence without access to the confidential information in the Affidavit of Michael Peter Coombes filed 25 May 2024, Exhibit MPC-1, the Supplementary Affidavit of Michael Peter Coombes filed 6 November 2023 or Exhibit MPC-3. A copy of this report is behind Tab 10 of BB-2. 47 I refer to paragraph 50 of the affidavit of Mr Wisken affirmed 6 June 2024. The Respondent does not seek to have any of its other experts provide supplementary reports consequent to the substitution of Mr Blythe for Ms Miller. 48 I consider that Mr Blythe's engagement will facilitate the just, quick and cheap resolution of the real issues in the Proceedings given his familiarity with the subject matter. Even if some other expert was available (and, as indicated, I have been unable to identify another suitable expert), I expect that because they would not have the same familiarity it would take them more time (and given the complexity I expect substantially more time) to prepare a report and be more costly. Basis of opposition to Mr Blythe 1. The Applicants do not oppose the Respondent being granted leave to adduce evidence from an alternate town planner, however, it does oppose leave being granted to Mr Blythe on the basis that they contend that Mr Blythe has a real and likely conflict. 2. The Applicants identified the relevant principles to be taken into account in the determination of this issue as those identified in Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 215 at [26]-[27], where Nicholas J observed: 26 A court will intervene to restrain a threatened breach of duty if there is a real and sensible possibility of the misuse of confidential information (Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1). The principle is applicable to the relationship of expert witness and client (Protec Pacific par 62; Elliott v Ivey [Unreported, NSWSC 23 April 1998]). The fact that disclosure may be inadvertent is well recognised. In Carindale Country Club Estate Pty Ltd v Astill & Ors (1993) 42 FCR 307, p 313 Drummond J said: "... It has long been recognised that a solicitor who, with the best will in the world, is determined not to make use of one client's confidential information for the benefit of another client may still subconsciously draw on that information to the disadvantage of the former." 27 The risk of disclosure of confidential information extends beyond intentional disclosure to unintended or unconscious disclosure. The degree of risk is measured with regard to the particular circumstances of the case, including the nature of the relationship between the parties, the nature of the information and the circumstances in which it was imparted, and the sufficiency of any proffered undertaking of non-disclosure ( Wimmera Industrial Minerals Pty Ltd v Iluka Mid West Ltd [2002] FCA 653, pars 25, 27, 35; H Lundbeck A/S v Sandoz Pty Ltd [2011] NSWSC 1297, par 16). 1. The Applicants identified the following factors that were relevant in the consideration of the appointment of Mr Blythe: 1. The Applicants have filed evidence in the proceedings which contain commercially sensitive and confidential information relating to the process to secure the rights for over-station development (OSD). That information has been the subject of written undertakings which have been provided by the Respondent's experts; 2. Mr Blythe provided advice to the Valuer-General on the acquisition of the Applicants' Land; and 3. Urbis, Mr Blythe's firm, is engaged by the Respondent to provide town planning support for the CBD East Project, although Mr Blythe is "not involved". 1. The Applicants contented that there is a real possibility that any commercially sensitive and confidential information that Mr Blythe becomes aware of could be misused, even subconsciously, such that the Court should decline to grant leave to adduce evidence from him. 2. The degree of risk associated with any unintended or unconscious disclosure (which concerns a project worth more than $6 billion) is not one that could ever be recovered by the enforcement of a confidential undertaking. Consequently, although one has been proffered, it is insufficient. Further, having regard to Mr Blythe's previous involvement in acting for the Valuer-General, being a director of a firm that has advised a commercial competitor with respect to the same land, and has had, or continues to have, involvement in the tender process for the OSD process, there is a cumulative and well-founded discomfort that Mr Blythe could be capable of acting as an independent witness. Leave ought to be refused. 3. The Respondent's evidence as deposed by Mr Bateman indicates that: 1. Mr Blythe's report has been prepared without him being given access to the contents of the Applicants' evidence over which a confidentiality order will be sought. Notwithstanding, Mr Blythe has offered to give the same undertaking as to confidentiality as was required of the Respondent's other expert witnesses; 2. The advice to the Valuer-General was sought as to the highest and best use of the acquired land specifically excluding any potentiality for an amalgamation of the adjoining land at 33 Bligh Street. Further, the documents that he was briefed with by the Valuer-General did not contain any confidential information and were available to both parties when submissions were made to the Valuer-General; 3. As to the matters relating to the OSD tenders: 1. In a tender to Sydney Metro to provide planning advice in relation to a number of OSD sites Urbis submitted on the basis that it would not be precluded from acting for future private bidders if appropriate probity systems were in place. Mr Blythe was not involved in preparing the tender and whilst Mr Blythe was nominated in the tender as a director, he has not had any substantive involvement in the work; 2. Urbis has been engaged by Brookfield to provide planning advice in connection with the Brookfield tender for the OSD sites and is in competition with the Applicants in such a tender process. Mr Blythe, pursuant to the confidentiality and probity arrangements implemented at Urbis, has no role in the Brookfield tender and has no knowledge or information in connection with that tender; and 3. Whilst Mr Blythe is appointed to the Board of Urbis neither the OSD planning approvals nor the Brookfield tender has been discussed at board meetings and that such matters are not dealt with at board level having regard to the Urbis probity arrangements. Determination 1. Having regard to the totality of the evidence adduced in the Notices of Motion, I am unable to be satisfied that there is a real and sensible possibility of the misuse of confidential information such that there would be a threatened breach of duty of confidentiality by Mr Blythe. 2. Senior Counsel for the Applicants conceded in submissions that the issues relating to the engagement by the Valuer-General would not give rise to such a possibility. He further conceded that there was no evidence that Mr Blythe presently held such confidential information such that there was, at present, a risk that there was a real or possible risk of the duty of confidentiality being breached. Rather, what was relied upon was that there was a risk that he could come to have some yet unidentified confidential information that he may inadvertently disclose. 3. In assessing this risk, adopting the principles set out above, I accept that I am to measure the degree of risk having regard to the particular circumstances of the case, including the nature of the relationship between the parties, the nature of the information and the circumstances in which it was imparted, and the sufficiency of any proffered undertaking of non-disclosure. 4. In this case, in order for Mr Blythe to come into possession of any confidential information it would need to be disclosed by the Applicants or otherwise provided by the Respondent's solicitor. The nature of the anticipated breach only relates to material confidential to the Applicants. Mr Blythe may have, or come to have, confidential information of another person cannot relevantly be the basis for the present claim with the attendant undertaking as to confidentiality. 5. If Mr Blythe comes to hold any of the Applicants' confidential information as part of these proceedings the disclosure of such information would either need to be an intentional breach of the undertaking or an unintentional breach. There is no evidence to suggest that I should not consider that Mr Blythe will intentionally act in breach of the undertaking. I do not consider such a situation is a real and present risk. As to the inadvertent breach, no circumstances have been identified which would present such actions as a real risk, other than an assertion of "human nature" by senior counsel for the Applicants. The undertaking in relation to these proceedings and the probity arrangements at Urbis are such that an unintentional disclosure of confidential material would require not only Mr Blythe's inadvertence but the participation of another actor who would be similarly bound by the probity arrangement at Urbis to permit the transmission and misuse of the information. Such multilayered disclosure does not appear likely such that the risk is real and sensible. 6. Accordingly, I grant leave to the Respondent to rely upon the expert town planning evidence of Mr Blythe in the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2024