Synergy Environmental Planning v Cessnock City Council (No. 2) [2005] NSWLEC 156

Land and Environment Court of New South Wales

CITATION : Synergy Environmental Planning v Cessnock City Council (No. 2) [2005] NSWLEC 156

APPLICANT Synergy Environmental Planning

PARTIES : RESPONDENT Cessnock City Council

FILE NUMBER(S) : 11353 of 2003

CORAM: Hoffman C

KEY ISSUES: Costs :- Second judgment to deal with written submissions on costs sought by the respondent.

DATES OF HEARING: 23 - 25/06/04 EX TEMPORE JUDGMENT DATE : 03/21/2005

APPLICANT Mr Kildea, barrister SOLICITORS Thompson Norrie

LEGAL REPRESENTATIVES:

RESPONDENT Mr Howard, barrister SOLICITORS Cleaves Mallik gibbs

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

21 March 2005

11353 of 2004 (No.2) Synergy Environmental Planning v Cessnock City Council

JUDGMENT

1 This is the second judgment in appeal No. 11353 of 2003 between Synergy Environmental Planning and Cessnock City Council. This decision is in regard to costs applications by the respondent. The respondent contended in summary that the applicant should pay the respondent's costs in relation to the joint experts' conference including:- (a) briefing experts on the joint conference; (b) drafting questions for experts to discuss the conference; (c) attempts to obtain applicant's expert signatures to joint reports from the conference (d) miscellaneous costs of attempting to co-ordinate experts to attend joint conferences and (e) attempts to file joint experts reports. 2 The parties agreed: 1. That on the 23 February 2004, the Registrar directed that Standard Direction 2 applied to the joint conference of experts. 2. Experts were to hold a joint conference and file a report by the 9 June 2004. 3, On 17 May 2004 the respondent served its experts reports. 4. On 19 May 2004 the applicant served most of its experts' reports. 5. Until the 3 June 2004 there were a number of drafts between parties of questions the experts should consider at their joint conferences. 6. The flora expert Mr Smith for the respondent and Mr Anderson for the applicant signed a joint report on 7 June 2004. 7. A joint conference of engineers and natural resource management, being Mr Keller for the applicant, Mr Leek for the respondent and Mr Smith for the respondent signed a joint report on some questions but did not deal with those considered beyond their expertise. 3 Disagreement arises on: (i) a joint report was produced by the town planners, being Mr Leathly for the respondent and Mr Warnes for the applicant. But it gave opinions on one set only of extra questions put by the parties. (ii) The main questions posed by the respondent remained in dispute. Mr Warnes would not sign Mr Leathly's draft minutes of the joint conference on those questions. Mr Warnes produced his own set of draft minutes. Neither would sign the others minutes. (iii) The bushfire expert Mr Swain for the applicant and Mr Hislop for the respondent and the natural resource management expert Mr Smith for the respondent met but did not produce a joint report as Mr Swain disagreed with the format of the questions. (iv) The town planning, landscape and scenic quality experts met, being Mr Pollard for the respondent, Mr Leathly for the respondent, Mr Warnes for the applicant, Ms Dewsnap for the applicant, but could not agree on the correct draft of the minutes of the meeting. (v) The respondent sought to file its versions of the meeting minutes. (vi) The applicant said they should not be filed as the questions were in the form of interrogatories. They were not filed. Conclusions 4 The result of the disagreements on joint conferencing was that the Court sought the experts to give concurrent evidence during the hearing and many of the questions posed by the respondent for the joint conferences were answered in the witness box.