Land and Environment Court of New South Wales CITATION : Kindimindi Investments Pty Ltd v Lane Cove Council and Another [2005] NSWLEC 345 Kindimindi Investments Pty Ltd Lane Cove Council PARTIES : Fabcot Pty Ltd FILE NUMBER(S) : 40405 of 2005 CORAM: Cowdroy J KEY ISSUES: Evidence :- expert report - admissibility of statements by expert on application of statutory provisions - application of s 80 Evidence Act 1995 LEGISLATION CITED: Evidence Act 1995 ss 55, 80 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79; Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349; Naxakis v Western General Hospital and Anor (1998) 197 CLR 269; CASES CITED: O'Brien v Gillespie and Ors (1997) 41 NSWLR 549; R v GK (2001) 53 NSWLR 317; Visa International Service Association and Anor v Reserve Bank of Australia (2003) 131 FCR 300 DATES OF HEARING: 22/06/2005 DATE OF JUDGMENT: 07/01/2005 EX TEMPORE JUDGMENT DATE : 06/22/2005 APPLICANT I Hemmings SOLICITORS Hones Lawyers FIRST RESPONDENT LEGAL REPRESENTATIVES: M Craig SC SOLICITORS Wilshire Webb SECOND RESPONDENT J Ayling SC with R Lancaster SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 1 July 2005 40405 of 2005 KINDIMINDI INVESTMENTS PTY LTD Applicant LANE COVE COUNCIL First Respondent FABCOT PTY LTD Second Respondent INTERLOCUTORY JUDGMENT NO 1 Facts 1 Cowdroy J: The Court delivers hereunder the reasons for its decision given on 22 June 2006 relating to the admissibility of the evidence of Nigel Dickson. 2 The applicant seeks to rely upon an affidavit of Nigel Dickson sworn on the 1 June 2005 and on his statement of evidence which is exhibited to his affidavit. Mr Dickson (also described as Robert Nigel Dickson) is an architect and town planner. The content of his statement of evidence ("the statement of evidence") relates to the notice of determination ("the consent") issued by the first respondent and provides specific comments in relation to the conditions which are attached to the consent. 3 The respondents oppose the admission of such evidence. The objections are three-fold. Firstly it is submitted that the evidence sought to be adduced by Mr Dickson is irrelevant to judicial review proceedings. Secondly it is submitted that the evidence should be rejected because of the content of the opinions and conclusions expressed in Mr Dickson's statement of evidence. The respondents submit that the conclusions relate to matters which are solely the province of the Court. Thirdly it is submitted that the remainder of Mr Dickson's evidence relate to his observations concerning the scope of certain conditions attaching to the consent which combine both fact and law, thereby rendering them inadmissible. 4 In reply, the applicant acknowledges that paras 29 to 31 draw conclusions on the issues to be determined by the Court and are not pressed. However the applicant submits that the remaining evidence contained in the statement of evidence is relevant. It is submitted that such evidence would assist the Court in determining whether the terms of the consent are so vague as to render the consent invalid as found in Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349. Findings 5 Section 80 of Evidence Act 1995 (NSW) ("the Act") provides:- Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge. 6 In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83 Lindgren J referred to the effect of s 80 of the Evidence Act 1995 (Cth) ("the Cth Act"). Section 80 of the Cth Act corresponds to s 80 of the Act. His Honour held that s 80 did not displace the principle that evidence is not admissible of the application of the relevant law. His Honour said:- I find it convenient at the outset to state some principles of the general law against which, in my view, the effect of par 80(a) is to be determined. It is fundamental that the ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty. Although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible. The rationale underlying this fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant. 7 The observations of Lindgren J were followed by Tamberlin J in Visa International Service Association and Anor v Reserve Bank of Australia (2003) 131 FCR 300 at 439 and were referred to and tacitly adopted by Callinan J in Naxakis v Western General Hospital & Anor (1998) 197 CLR 269 at 306 (note 137). 8 Such principle has been the subject of consideration and confirmation by the Supreme Court of New South Wales: see O'Brien v Gillespie and Ors (1997) 41 NSWLR 549 at 557; R v GK (2001) 53 NSWLR 317 per Mason P at 326-7. 9 The interim report of the Australian Law Reform Commission entitled Evidence (Report No 26, 1985), as reproduced in Odgers, Uniform Evidence Law, 6th ed, 2004 at [1.3.4460], includes the following passage:- It is conventionally said that testimony may not be given upon the ultimate issue or possibly upon ultimate issues generally. Quite what constitute ultimate issues, however, has not yet been authoritatively ruled upon. Despite this the courts have continued to try to apply the ultimate issue rule. It has been suggested that the true analysis of the rule is that it prohibits a witness applying any kind of a "legal standard" to the facts, something which it is suggested is the function of the jury after instruction from the judge ... 10 In summary, such authorities establish that despite the provisions of s 80 of the Act an expert is not entitled to provide evidence relating to the application of legislation. To do so may attempt to decide the ultimate issue and usurp the role of the Court. 11 Since para 4 of the statement of evidence contains statements to the effect that the consent is uncertain and para 5 refers to the existence of "unresolved issues", such paragraphs infringe the ultimate issue rule. As such, paras 4 and 5 are rejected. 12 The remainder of the statement of evidence furnishes Mr Dickson's opinion concerning alleged uncertainties created by certain conditions of the consent. No conclusions are reached. Rather, the paragraphs contain Mr Dickson's opinion that certain conditions of the consent may be uncertain in the Mison sense. Since such opinions do not purport to make final determinations concerning the validity of those conditions, and the challenge based upon this ground does not succeed. 13 This leaves for determination the issue of relevance. Since the expert opinion may assist the Court in its determination of the validity of the consent, the Court considers that such evidence is relevant. The evidence is therefore admissible under s 55 of the Act. 14 Accordingly the Court admits the affidavit of Nigel Dickson sworn on the 1 June 2005 and the statement of evidence of Robert Nigel Dickson other than paras 4, 5, 29, 30 and 31 inclusive. 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.