Land and Environment Court of New South Wales CITATION : Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226 APPLICANT Andrew Aitchison PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : (1)0198 of 2002 CORAM: Talbot J KEY ISSUES: Evidence :- whether representative applicant can satisfy paramount duty to the Court as an expert witness pursuant to Expert Witness Practice Direction Practice and Procedure:- whether representative applicant can satisfy paramount duty to the Court as an expert witness pursuant to Expert Witness Practice Direction Land and Environment Court Act 1979 s 38, s 38(2), s 38(3) Environmental Planning and Assessment Act 1979 s 4, s 96, s 96(6), s 97 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No. 1 Expert Witness Practice Direction No. 20 cl 2, cl 5, cl 5(1), cl 18 Collins Thomson v Clayton [2002] NSWSC 366, unreported; Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, unreported; Field v Leeds City Council [1999] CPLR 833 ; CASES CITED: Kirsch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485, unreported; Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337; Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] 3 WLR 1104; Steven v Gullis [2000] 1 All ER(CA) 527; Whitehouse v Jordan (H.L.(E.)) (1981) 1 WLR 246 DATES OF HEARING: 19/11/2002 DATE OF JUDGMENT: 11/28/2002 APPLICANT Mr M E Ball (Agent) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr T F Robertson SC SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0198 of 2002 Talbot J 28 November 2002 Andrew Aitchison Applicant v Leichhardt Municipal Council Respondent Judgment Introduction 1 The applicant in this class 1 appeal is Andrew Aitchison, an architect who was initially engaged by the owner of the property the subject of the appeal, to prepare architectural plans and the accompanying Statement of Environmental Effects, together with an objection pursuant to State Environmental Planning Policy No. 1. Mr Aitchison was the applicant for development consent and was subsequently engaged by the owner to lodge the s 96 application the subject of the proceedings. He has been instructed by his client to liase with Leichhardt Municipal Council ("the council") for the purpose of obtaining an approval for the s 96 application. 2 In an Agreed Statement of Facts Mr Aitchison acknowledges that he will receive pecuniary benefits from his client, separate from those arising from giving evidence in the Court proceedings. 3 On 9 October 2002 the Registrar made directions pursuant to the Expert Witness Practice Direction No. 20 ("the Practice Direction"). 4 The parties have generally complied with the directions made by the Registrar except that the council's Town Planner, Mr Nash, and the applicant have not yet conferred as required. 5 The applicant moves the Court for, inter alia, the following order:- Pursuant to clause 5(1) of Practice Direction No. 18, the parties' expert witnesses (Mr. Andrew Aitchison, architect and Mr. Kerry Nash, town planner) are to conduct a joint experts conference in accordance with Expert Witness Standard Directions No. 2 in accordance with the following timetable: By 29 November 2002: Experts conference and joint report pursuant to Schedule 1 to be filed. 6 On 19 November 2002 the council was granted leave to file a notice of motion in Court returnable instanter. The council seeks the following relief:- The Council's town planner Mr Nash need not confer with the Applicant in the proceedings, Mr Aitchison. 7 An agreed list of materials to be placed before the experts was filed with the Court on 25 October 2002. The agreed list referred to both Mr Nash and Mr Aitchison as experts who would attend the joint conference directed by the Registrar. 8 Subsequent correspondence between the parties discloses that the council has raised an issue relating to the appropriateness of Mr Aitchison attending the joint conference, pursuant to the Practice Direction, as he is not in a position "to provide objective evidence to assist the Court in the proceedings". 9 The suggestion made by the council's solicitors that the owner engage an independent witness to facilitate compliance with the Court's direction has not been accepted by the applicant. 10 Pending a resolution of the arguments raised in regard to the conference between Mr Nash and Mr Aitchison, the hearing dates of 2-3 December 2002 were vacated by a consent order made on 19 November 2002. The council's argument 11 Mr Robertson SC, who appears for the council, begins with the proposition that a party cannot be its own expert in circumstances where cl 2 of the Schedule to the Practice Direction requires as follows:- An expert witness' paramount duty is to assist the Court impartially. That duty overrides the expert witness' obligation to the engaging parties. An expert witness is not an advocate for a party. 12 Moreover, cl 18 of the Schedule to the Practice Direction states as follows:- An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter. 13 According to Mr Robertson, traditionally the question of whether an expert witness is biased has been treated as a matter going only to weight and not admissibility. However, following the report made by Lord Woolf MR, Access to Justice,. Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1996 ("the Woolf report") and the proliferation of expert witness practice directions in several jurisdictions in England and Australia, further authorities have emerged. 14 The fundamental element of independence emphasised in the Practice Direction is a reflection of comments such as those made by Lord Wilberforce in Whitehouse v Jordan (H.L.(E.)) (1981) 1 WLR 246 at 256 – 7 as follows:- While some degree of consultation between experts and legal advisors is entirely proper, it [is] necessary that expert evidence presented to the court should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating. 15 In Steven v Gullis [2000] 1 All ER(CA) 527, particularly at p 533, Lord Woolf MR, with whom the other members of the Court of Appeal agreed, upheld the decision of Moseley J (who had the conduct of the management of the case prior to the trial) to exclude the evidence of a witness who had refused to comply with the practice direction. This decision is to be contrasted with observations made by the members of the Court of Appeal in Field v Leeds City Council [1999] CPLR 833 to the effect that the fact that an expert surveyor was employed by Leeds City Council did not automatically disqualify him from giving evidence. In concurring with Lord Woolf MR, Waller LJ said at p 841 as follows:- The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence. 16 May LJ also concurred at p 842 as follows:- As to questions of opinion and generally, I entirely agree with my Lord, the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter. 17 Conversely, in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337, after citing Lord Wilberforce in Whitehouse, Evans-Lombe J refused to admit evidence of a witness on the basis that there was a relationship between the proposed expert witness and the party calling him which a reasonable observer might think is capable of making the views of the expert unduly favourable to the party however unbiased his conclusions might probably be (at p 2340). 18 The view expressed in Goldberg was subsequently expressly rejected by the Court of Appeal in Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] 3 WLR 1104. The subject witness in that case was retained on a contingency fee. Difficulties that might arise if an employee is excluded from giving expert evidence on behalf of an employer were discussed. After referring to a number of earlier decisions which proceeded on the basis that evidence from a biased expert should not be admitted and quoting, in particular, a passage from the judgment in Goldberg, the following paragraph appears in the judgment of the Court at 1127:- This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules. 19 Earlier in the judgment the court referred to Civil Procedure Rule r 35.3, which emphasises the overriding duty that an expert has to the court, as enunciating the long established principles in regard to the giving of expert evidence. 20 It appears, therefore, that despite the introduction of expert witness practice directions in England, the emphasis from weight to admissibility has not changed in respect of the evidence of experts whose views might be thought, by a reasonable observer, to be unduly favourable to a party. Furthermore, it seems that the question should be determined in the course of case management rather than at the trial. 21 In the course of his judgment in Collins Thomson v Clayton [2002] NSWSC 366, unreported, Austin J embraced the principles enunciated by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, unreported, as follows:- 7. ... An expert witness has a special and important role in judicial proceedings to assist the Court by providing objective and unbiased opinions about matters that bear upon the determination which the Court is called upon to make. The exclusion of an expert's evidence should only occur where the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the Court's task of determining the issues in the proceeding. The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to take into account by a court when deciding what weight to give to the expert's evidence, but it is not a ground for the Court rejecting evidence that may be of assistance to the Court in reaching the correct result. It is for the Court to do justice between the parties and in doing so should properly take into account all matters which bear upon the ultimate issues to be decided. The bias, actual, potential or perceived, of any witness is undoubtedly a factor which the Court must take into account when deciding the issues between the parties, but the hearing of evidence from such a witness does not mean that the Court will not be doing justice to the parties impartially. It is the Court, and not the witness, which has the task of doing justice to the parties and, in my view, the Court should not exclude from its consideration the probative evidence which expert witnesses may be capable of giving if the evidence which they do give can be shown to be probative and reliable. Accordingly, I am unable to agree with the view by Evans-Lombe, J. in the Liverpool Roman Catholic Archdiocese Trust case [Goldberg] and decline to follow it. 8. The principal rationale of the test of reasonable apprehension of bias is to ensure that decision makers are perceived to be truly independent in their decisions. A biased witness does not impugn the independence of the decision maker, especially where the proceedings are adversarial and the evidence can be tested. The possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court. The situation might be otherwise where the expert is appointed by the Court or where the role or function of the expert is more than that of a giver of evidence (whether that evidence be in the form of an opinion, as librarian of a body of knowledge, or otherwise). In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker, and, where the expert's role or function is such that there is actual decision making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. I can see no scope for that test, however, to exclude expert evidence that may assist the Court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence. 9. Experts do have duties to the Court to be independent. Those duties have some similarity to those owed by counsel conducting a case. The risk that such duties might be breached permits a testing of the partiality of a witness so that the Court may assess the assistance that can be gained from the expert evidence which is given. The product of the expert should itself be "the independent product of the expert, uninfluenced as to form or content by the exigencies of the litigation". The reason for these duties, however, stems from the need to ensure that the evidence which is before the Court is useful in the sense of being probative and reliable. The fact of partiality goes to those issues rather than to admissibility. It is for the Court to assess the value of the evidence. It is easy to conceive of instances of expert evidence where partiality could have no conceivable impact upon the reliability of the expert evidence tendered. 22 Thus it is clear the recent authorities in England, Victoria and New South Wales (see also Kirsch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485, unreported) consistently point to acceptance of the principle that the opinion of an expert witness in respect of whom there may be an apprehension of bias as a consequence of a relationship with a party is not, on that account, precluded from admission as evidence. 23 However, Mr Robertson relies upon s 38 and, in particular, s 38(3) of the Land and Environment Court Act 1979 ("the Court Act") for the purposes of setting the context for this Court's Practice Direction and the receiving of evidence in classes 1, 2 or 3 of the Court's jurisdiction. Pursuant to s 38(2) the Court is not bound by the rules of evidence and subject to relevance the Court has the power to obtain the assistance of any person having professional or other qualifications in respect of any issue arising for determination in the proceedings pursuant to s 38(3) of the Court Act. Moreover, he relies on the clear provisions of the Practice Direction itself, which effectively state that witnesses cannot be recognised as experts unless they have the relevant independence from a party. 24 The point that Mr Robertson is making is that it is not a question of relationship between the expert and the party because the expert is the party. Thus, he says, it is inconceivable that Mr Aitchison, as applicant and the retained architect, who, in the latter capacity, will receive pecuniary benefits separate from those arising from the giving of evidence to the Court, can bring the expected degree of independence demanded by the concept and objectives of the Practice Direction. It is, therefore, not appropriate in the circumstances that the council's expert witness be directed to comply with cl 5(1) of the Practice Direction whereby the witness will be required to confer, endeavour to agree and report jointly to the Court with Mr Aitchison. The applicant's argument 25 Rather than making a responsive submission in respect of the legal arguments put by Mr Robertson, Michael Ball, who appears as agent for the applicant, seeks to distinguish the authorities on the facts of this case. Mr Ball is a Town Planner. 26 Firstly, Mr Ball points out that the applicant, Mr Aitchison, as appellant, is acting as an agent for the owner. This situation, he says, is not unusual as the Environmental Planning and Assessment Act 1979 ("the EP&A Act") contemplates that any person may make an application for development application with the consent of the owner of the subject land. Section 97 of the EP&A Act allows an applicant, who is dissatisfied with the determination of the council as consent authority, to appeal to the Court within the prescribed time. Section 96 allows that a consent authority may, "on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority" modify development consent granted by it. Pursuant to s 96(6) "an applicant who is dissatisfied with the determination of the application" may appeal to the Court. An applicant is not defined in s 4 of the EP&A Act nor, so far as I can ascertain, does the Environmental Planning and Assessment Regulation 2000 take the matter any further. 27 Mr Ball reminds the Court that the Practice Direction has been made by the judges of a specialist court exercising a specialist jurisdiction, particularly in classes 1, 2 and 3. The regime created by the Practice Direction, therefore, must be regarded in the context of the jurisdiction being exercised by the Court. Mr Ball contends that in a practical sense, even though Mr Aitchison is technically the agent of the owner, his duty to the Court, as reiterated in the Practice Direction, overrides any duty he may have to his principal. It would be exactly the same if the owner had personally lodged the appeal application but nevertheless retained Mr Aitchison as the architect for the project, including the role of an expert witness to support the appeal. 28 Moreover, Mr Ball argues that, as pursuant to cl 2 of the Schedule to the Practice Direction the expert witness has a paramount duty to assist the Court impartially, that duty expressly overrides the expert witness' obligation to the engaging party. Furthermore, he says, an expert witness is not an advocate for a party. 29 Mr Ball submits, therefore, that Mr Aitchison is not precluded from assuming the duty and obligation imposed upon him by cl 2 solely as a consequence of being the applicant acting in the capacity of the agent of the owner of the property. There is no evidence otherwise before the Court that Mr Aitchison is not in a position to bring the required degree of impartiality to the giving of his evidence and his participation in the process of joint conferencing in the interlocutory stages. Mr Ball further contends that in the circumstances Mr Aitchison is in no different position to any other expert witness who might be called on behalf of the appellant such as a town planner or heritage consultant. The issue would not arise if Mr Aitchison had merely prepared the development application on behalf of the owner and the owner had subsequently personally lodged the development application, as well as the s 96 application followed by the application to this Court by way of appeal. Mr Ball recognises that the case could well be different if an owner/applicant was coincidentally an architect who elected to act on his own account and to propound the expert evidence himself. Conclusion 30 The Agreed Statement of Facts makes it clear that the council, and hence the Court, is well aware that Mr Aitchison is engaged by the owner of the property to pursue the original development application and the s 96 application. It is not suggested from the facts before the Court that the applicant has any interest in the subject property beyond that which he has pursuant to the contract of his engagement as an architect. Although in a strict sense Mr Aitchison acted as the agent of the owner when he lodged the applications with the council and subsequently the application to this Court, he nevertheless can be regarded as an independent contractor with the owner for the purpose of drafting the plans, preparing for the hearing and giving evidence as an expert in support of the application. This nonetheless opens the question of whether he has the necessary degree of independence and impartiality to allow him to participate in the process established by the Practice Direction. 31 The authorities relied upon by Mr Robertson deal with cases where the rules of evidence apply. The arguments have been directed principally to the distinction between determination of weight and the admissibility of evidence in accordance with the rules of evidence. For present purposes, however, the rules of evidence do not apply. The Practice Direction nevertheless dictates that an expert witness must recognise and discharge a primary obligation and duty to the Court. 32 I am not persuaded that, in the present circumstances, Mr Aitchison should be precluded from participating in the process of joint conferencing established pursuant to the Practice Direction merely because he is nominally the applicant and hence, technically, the appealing party. His representative capacity as agent for the owner does not of itself transform his position and interests to that of the owner exclusively for all purposes. The paramount obligation to act impartially in accordance with the Practice Direction overrides whatever obligation he may owe to his client. 33 An agreement between the experts can only be reached if they concur with each other. In the event of disagreement, reasons for the disagreement are to be provided to the Court. It is only following the publication of those reasons that the Commissioner or Judge hearing the matter will have the opportunity to decide whether the bias of Mr Aitchison is sufficient to corrupt his evidence and then, to what extent. The fact of partiality has a bearing on the probative value of his evidence, particularly where it is contrary to the evidence of another expert. I am not prepared to rule at this point of the proceedings that the evidence of Mr Aitchison is inadmissible. Nor that he is not able to participate in a joint conference for the reasons put forward by the council. 34 I must make it clear, however, that in so deciding I have paid particular regard to the context in which this Court regularly exercises jurisdiction. The regime established by the EP&A Act contemplates that development applications may be made by an owner or a third party with the consent of the owner. It is common practice for a development application to be submitted to the consent authority by an expert acting on the owner's behalf, generally a consultant. Appeals by way of application to this Court are often made in the name of the representative who originated the application to the consent authority. Any well informed observer would be aware of this. 35 I am not aware of any case where the evidence of an expert has been rejected solely on the ground that the expert is also the person who made the application as the agent of a client. On the other hand, I am aware of many cases where the evidence of an architect or town planner, who is also the applicant acting in a representative capacity, has provided expert evidence to the Court. This Court is well equipped to adjudicate whether the evidence of such a witness is probative and reliable. 36 If the witness is not able to assist the Court impartially then the opportunity exists for the witness to volunteer that such a conflict exists or for the other party to adduce evidence to that effect. In either case a direction might not be made pursuant to the Practice Direction. The Court has a discretion to deal with such a contingency. I am not satisfied that in the present case Mr Aitchison should be regarded as incapable of providing admissible evidence, subject to weight. For the reasons already explained, I am not convinced that he is not able to assist the Court impartially notwithstanding his position as the applicant acting in his capacity as the agent of the owner of the property. 37 The Court, in due course, will decide the extent of weight to be given to his evidence taking account of his ongoing interest in the outcome of the proceedings. 38 It follows, therefore, that I am satisfied Mr Aitchison is not in such a position that he must be regarded as incompetent to confer with the opponent's expert pursuant to the Court's direction. Orders 39 The appropriate orders in the circumstances are to the effect that the applicant is entitled to order No. 1 in notice of motion dated 13 November 2002 and that the respondent's notice of motion dated 19 November 2002 be dismissed. Directions will be made accordingly. The exhibit may be returned. 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