New South Wales Court of Appeal CITATION : Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 revised - 07/12/2004 HEARING DATE(S) : 8 November 2004 JUDGMENT DATE : 6 December 2004 JUDGMENT OF : Spigelman CJ at 1; Santow JA at 2; Tobias JA at 3 DECISION : Appeal dismissed with costs. CATCHWORDS : PROCEDRUAL FAIRNESS - Conflicting methodology between experts - Court undertakes questioning of experts - Self-persuasion - Whether case taken out of hands of parties - Whether unfairness - Whether final opinion reached - s 38(2) Land and Environment Court Act 1979 - COURTS & JUDGES - Disqualification - Judge refuses to admit new material - Whether judge thereby expressing acceptance of contradicting opinion - Request to disqualify without foundation - EVIDENCE - Expert evidence - Conflict between parties' experts - Appointment of independent expert - Whether court appointed expert unfairly preferred - Whether judge weighed independent expert's evidence against parties' own experts - Claim without foundation Environmental Planning & Assessment Regulation 2000 Environmental Planning & Assessment Act, 1979. LEGISLATION CITED : Land and Environment Court Act 1979 Supreme Court Rules 1970 Land and Environment Court Rules 1996 Burwood Municipal Council v Harvey (1995) 86 LGERA 389 CASES CITED : Galea v Galea (1990) 19 NSWLR 263 Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) 144 CLR 253 PARTIES : Botany Bay City Council Rethmann Australia Environmental Services Pty Limited FILE NUMBER(S) : CA 40256/04 COUNSEL : A: Mr T Hale SC / M J McGrowdie R: Mr A Galasso SOLICITORS : A: Houston Dearn O'Connor, Burwood R: Minter Ellison, Sydney LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT L&E 10613/03 FILE NUMBER(S) : LOWER COURT Payne J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40256/04 L&E 10613/03 SPIGELMAN CJ SANTOW JA TOBIAS JA Monday 6 December 2004 BOTANY BAY CITY COUNCIL v RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED Judgment 1 SPIGELMAN CJ: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: On 27 May 2003, the respondent appealed to the Land and Environment Court (the Court) against the refusal by the appellant to consent to an application to construct a large materials recycling and fuel substitute generation plant on certain land in Moore Street, Botany within the Banksmeadow Industrial Area. Pain J, assisted by Commissioner Tuor, heard the appeal. A major issue in the appeal related to the noise impact of heavy vehicles attending the proposed development between 10pm and 7am on certain residential apartment buildings in the vicinity. 4 During the course of the hearing, the primary judge and the Commissioner requested the attendance of the noise experts retained on behalf of each party for the purpose of questioning them upon aspects of their statements of evidence with particular reference to their respective adopted methodologies upon which they could not agree. At the conclusion of that questioning as a consequence of the primary judge refusing to admit into evidence part of a report in reply by the respondent's noise expert, which had prompted the questioning in the first place, senior counsel for the appellant requested her Honour to disqualify herself from further hearing the appeal. She declined to do so. 5 Thereafter, the primary judge appointed an independent noise expert to provide a report to the Court with respect to the issues upon which the parties' noise experts could not agree. In her judgment, in which she granted consent to the respondent's development application, her Honour accepted the evidence of the Court appointed expert over that of the appellant's expert. 6 The appellant contends that the primary judge erred in law in three respects: firstly, in her conduct of the proceedings her Honour denied the parties, and in particular the appellant, procedural fairness in that she intervened in the proceedings by questioning the parties' noise experts in a manner which was excessive and which had the effect of taking the conduct of the proceedings out of the hands of the parties; secondly, her Honour erred in failing to disqualify herself from further hearing the proceedings; thirdly, her Honour erred in law in adopting the evidence of the Court-appointed noise expert instead of considering his evidence and weighing it against that of the parties' noise experts: it was asserted that she adopted the evidence of the Court-appointed expert in circumstances that justified the conclusion that her sole reason for doing so was that he was an expert appointed by the Court. 7 In my opinion, and as I shall demonstrate, the challenges by the appellant to the primary judge's conduct and decision have neither substance nor merit. It is for that reason that at the conclusion of the appellant's oral submissions we indicated to the respondent's counsel that we did not need to hear from him. Being without merit, the appeal should be dismissed. The relevant facts and the course of the proceedings 8 The nature of the proposed development was such that there was a requirement for night deliveries of waste material to the proposed facility. One of the critical points of potential impact was the intersection of Wentworth Avenue and Baker Street, Botany where several residences were located. The appellant contended that these residences, being already impacted by road traffic noise, would experience further unacceptable impact from the heavy traffic generated by the development during night-time hours. 9 The proposed facility was "designated development" as it fell within clause 32 of Schedule 3 to the Environmental Planning & Assessment Regulation 2000. The development application was accompanied by an Environmental Impact Statement (the EIS) as required by s 78A(8)(a) of the Environmental Planning & Assessment Act, 1979. 10 One of the matters addressed by the EIS was the issue of increased road traffic noise at the intersection of Wentworth Avenue and Baker Street. That impact was predicated upon certain traffic data provided by the appellant to the respondent's consultants as being the baseline for existing traffic at that intersection. The impact of the proposal on traffic noise was therefore determined in the EIS based on that data. 11 The hearing commenced before the primary judge on 21 October 2003. On that day Mr Graham Atkins, an experienced acoustic consultant retained by the appellant, gave his evidence and was cross-examined. During the course of his cross-examination it was revealed that Mr Atkins had information in his possession which demonstrated that traffic data surveyed in 2002 was far in excess of that which the appellant had provided to the respondent for the purpose of determining the traffic noise impact of the development in the EIS. It was contended that the practical effect of this new data was that the baseline for comparison of additional truck movements generated by the development would be increased as a consequence whereof the noise impact of those truck movements would be less than that contemplated in the EIS. 12 On 22 October 2003, the primary judge adjourned the hearing to 10 February 2004. At the commencement of the adjourned hearing counsel for the respondent sought to tender a report by Mr Neil Gross, an experienced acoustic consultant retained by the respondent, purportedly in reply to the report in chief of Mr Atkins. However, Mr Gross' report contained an assessment of the traffic noise impact of the proposal based upon a new traffic survey conducted on behalf of the respondent in December 2003. It was contended that that survey showed a further increase in baseline traffic thus further ameliorating the additional impact of trucks generated by the proposed facility. 13 Senior counsel for the appellant objected to the additional assessment by Mr Gross (the new assessment) essentially upon two bases. The first was that it had been received so late that Mr Atkins had not had an opportunity of considering it. In this respect, the Mr Atkins had concluded his evidence on 21 October 2003 and it was not thought that he would be further required. Secondly, it was submitted that it fundamentally changed the underlying acoustic and traffic considerations in the EIS and therefore raised a serious question as to whether the EIS needed to be supplemented and re-exhibited given that the proposal was "designated development". 14 Senior counsel for the appellant thus submitted to the primary judge that if the new assessment was to be admitted, he required an adjournment to enable Mr Atkins to consider and comment thereon and that, if such an adjournment was granted, it should be at the expense of the respondent. After further argument, senior counsel for the appellant conceded that the new assessment was clearly relevant to the respondent's case and that, as a consequence of the decision of the High Court in State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146, her Honour would in all probability be in error if she refused to admit it provided an adjournment was granted to enable the appellant to consider and comment upon it. 15 It is to be observed at this point that the hearing had already occupied two days in October 2003 and was set down for a further two days in February 2004. Accordingly, her Honour was faced with the prospect of a further adjournment of the hearing for at least four to five weeks, which was not satisfactory in terms of the management of the Court's business. Accordingly, being reluctant to adjourn the proceedings then and there, her Honour indicated that her preference was for Mr Atkins and Mr Gross to confer together as soon as possible for the purpose of ascertaining whether Mr Atkins' conclusions with respect to the traffic noise impact of the development would change upon the assumption that the traffic data obtained by the respondent in December 2003 and which formed the basis of the new assessment, was accurate. Her Honour indicated that once she knew whether Mr Atkins' views would change or not based on that assumed traffic data, she could determine how the matter would further progress. 16 Senior counsel for the appellant resisted the course proposed by her Honour. Although he had informed her that as evidenced in the joint experts conference report, there was no real disagreement between the experts, there being only a minor one which was "not of any great significance", he conceded before us that that was an understatement for there was, in fact, a significant matter of disagreement between the parties' noise experts relating to the methodology that each had adopted in assessing the relevant impact. Her Honour had noted this difference and her expressed concern was as to how she was to determine which methodology was correct. Accordingly, having stated that neither she nor the Commissioner were noise experts, she considered that they would be assisted by Mr Gross and Mr Atkins meeting and preparing a document in point form in a manner which would make clear to the Court the differences in their respective methodologies. Having completed that exercise, her Honour requested that Mr Atkins should indicate whether he was prepared to change his opinion as expressed in the joint report assuming the December 2003 traffic data was correct. 17 Further argument ensued with her Honour attempting to make clear to counsel her objective in requiring both experts to further confer with particular reference being made to their discussing their respective methodologies to see whether they could in fact reach some form of agreement. Mr Atkins and Mr Gross then came before her Honour and sought to explain their respective methodologies particularly with reference to whether certain vehicle movements should be taken into account or not. As a result of what was then advised to the Court by the experts and having been informed by both counsel that Mr Gross and Mr Atkins were at a stalemate regarding methodology, her Honour observed that she now appreciated that there were fundamental differences in approach, the extent of which she had been unaware of until that time. 18 At this point counsel for the respondent having noted the impasse between the experts, suggested that one way of resolving it would be for the Court to appoint an independent expert. Senior counsel for the appellant opposed this. Given the fundamentally different approach by each expert, her Honour understandably observed that it was "frankly difficult for the Court to know which is best". Her Honour then repeated her request that Messrs Atkins and Gross should set out in clear terms the nature of the fundamental differences in their methodologies. After a short adjournment her Honour said this: "Just to clarify the Court's position, we are still not clear if we do need the 2003 data so we have asked for this information overnight to be prepared by the experts so that we can better understand the assumptions of the experts made in relation to the 2001 data and if that is provided in a clear form and we're able to understand it, that will assist us in determining whether the Court does think it needs additional data and therefore whether the additional data should be the 2003 data that has been provided or whether it should be the 2003 or whatever. I don't know yet what the answer is but at this stage I haven't made a decision yet as to whether this information will come in or not. If I was to allow it in, the new data, then I can see that you would be prejudiced Mr Hale and then we consider adjournments but I'm not at that point yet." 19 At the commencement of proceedings on 11 February 2004, counsel foreshadowed that Messrs. Atkins and Gross had carried out the exercise that the Court had requested the day before. The primary judge then indicated that the Court wished to ask Messrs. Atkins and Gross "a lot more questions later on this morning". 20 After the evidence of another witness had been taken, her Honour indicated that it would be necessary to adjourn to enable herself and the Commissioner to read the experts' reports which had been prepared overnight. She then advised that at that stage she did not know whether there would be a need to ask any more questions of those experts. 21 Upon senior counsel for the appellant indicating that if the new assessment was admitted he would still require an adjournment, the primary judge indicated that she had still not determined whether to admit that material and would only do so if she considered that it would be of use. 22 After the luncheon adjournment her Honour indicated that she and the Commissioner had some questions they wished to direct to both Mr Atkins and Mr Gross. Senior counsel for the appellant queried why this was necessary to which her Honour responded that she wished to understand their evidence and, in particular, whether in the light of that evidence the new assessment would be of any assistance to the Court. She foreshadowed that in order to determine the issue as to the admission of the new assessment, it would be necessary for herself and the Commissioner to understand the evidence already given by the experts and, in particular, to further understand the methodology that each had adopted. Again, senior counsel for the appellant expressed concerns about what was to occur to which her Honour responded as follows (Black 2/268): "I've told you I need to ask these questions Mr Hale. We need to ask these questions so we can better understand the evidence that's already been given. If you feel the need based on the answers given by Mr Atkins that you need to re-open your case, or whatever, well then I can certainly entertain that. But at the moment I can assure you the questions are going to be of a fairly basic nature about the methodology used and why certain matters are in evidence, just the reasoning behind that, so that we can understand the evidence." 23 The primary judge and the Commissioner then commenced questioning the two experts which, according to senior counsel for the appellant, continued for a period of one and a half hours. The questioning commences on page 35 of the transcript of 11 February 2004 and concludes at page 72. It therefore covers some 37 pages out of a total transcript of 449 pages. I shall return to the nature of the questioning by the primary judge and the Commissioner of Messrs. Atkins and Gross when dealing with the appellant's submissions. 24 At the conclusion of the questioning of Messrs. Atkins and Gross, her Honour indicated that their attendance had been very useful and that she would now have to make a decision as to whether to admit in the new assessment. Senior counsel for the appellant suggested to her Honour that the new assessment had now been discussed for two full days to which her Honour demurred. In particular she said that there had been no discussion of the new assessment at all and that she had yet to make a decision as to whether it should be admitted. By this I understand her Honour to be saying, and it is borne out by the transcript, that she had neither dismissed nor considered the merits of the new assessment. 25 Having asked senior counsel for the appellant to identify what he was submitting, the response was that he: "would've thought now its probably too late". Her Honour then responded (Black 2/307): "Well I don't think it is because I've reached a conclusion, I doubt the additional data will assist the Court Mr Galasso. So I'm really interested to know if there's any – are you still going to press it? …the purpose of today was for us to basically understand the original matter better than – we realise we didn't understand it well enough and hence this afternoon and I don't think we'll be assisted by the Court." 26 Having declined to admit the new assessment upon the basis (as I understand it) that she did not consider that it would be of use given, no doubt, the fundamental difference in methodology adopted by Messrs. Atkins and Gross, senior counsel for the appellant then requested her Honour to disqualify herself from continuing to hear the appeal. He submitted that the new assessment, which her Honour had now decided not to admit, had been tendered by the respondent upon the basis that it was more up to date and, therefore, rendered the expert's opinions based upon the baseline traffic data in the EIS unreliable. According to senior counsel for the appellant there were therefore two possibilities: either the Court had taken the view that the new assessment would not cause it to change its preliminary view of the experts' evidence or alternatively, it had accepted the possibility that although the new assessment might be very beneficial to the respondent, it nonetheless did not need that evidence because its original evidence had been accepted. In other words, it was submitted that from the perception of the reasonable bystander, her Honour had already pre-judged the issue of traffic noise impact in favour of the respondent for otherwise she would have admitted the new assessment because it was favourable to the respondent's case. 27 Argument then ensued in which her Honour made it clear that the questioning of the two noise experts was purely to aid the Court's understanding of the methodology that each had adopted. Senior counsel for the appellant pressed upon her Honour that, in fact, she had considered the new assessment in conjunction with the experts' original evidence for the purpose of determining whether the former should be admitted. Her Honour then made this observation (Black 2/312): "Mr Hale just to explain what we think we've done. We've sought to understand the assumptions that have been applied by the two experts on the existing evidence which it became clear in the course of yesterday, we did not fully understand and it's – so the Court wants to be sure it's informed properly about the matters currently before it, in terms of the evidence in place at the moment. So it has now sought to better inform itself about the assumptions about the current evidence, not the new evidence and it's formed the view that it understands the assumptions, understands that evidence as it currently is. The receipt of new data which will entail further arguments about methodology, doesn't seem to us to be of benefit to the Court. So that's the – I've had no regard at all to the new evidence. It's not before me." 28 A little further on in the argument she again explained the Court's concern with the methodology that Mr Gross and Mr Atkins had adopted and that that she regarded as the key issue in the case. She said (Black 2/314): "The introduction of new data does not appear to us to be able to adequately help the Court in resolving what are essentially methodological problems." After further submissions from senior counsel for the appellant, her Honour determined that she did not intend to disqualify herself. 29 Further discussion ensued in which the Commissioner noted that if the new assessment was admitted and the appellant had the opportunity of providing a response to it, given the conflict between the experts in relation to their adopted methodologies, the Court would be no further advanced at the end of a six week adjournment in terms of whether it should accept the methodology adopted by Mr Gross or that by Mr Atkins. She pointed out that the purpose of questioning those two experts was to avoid the Court having to appoint its own expert but, given the continued fundamental difference between Mr Gross and Mr Atkins, the appointment of such an expert seemed the only way in which the issue could be resolved. Thus, as her Honour later observed, the whole reason for the Court appointing such an expert was to "cut through what is at the moment two completely diverse expert opinions". 30 Pursuant to Part 39 r 1 of the Supreme Court Rules 1970 as adopted by Part 6 r 1(1) of the Land and Environment Court Rules 1996, the Court appointed Dr Renzo Tonin as its expert. Dr Tonin produced a report which was duly tendered when the hearing resumed on 8 March 2004. Thereafter Dr Tonin was cross-examined by counsel for both parties after which counsel addressed and her Honour reserved judgment on 9 March 2004. It is to be noted that senior counsel for the appellant did not, apparently, seek to cross-examine Mr Gross. The primary judge's decision 31 The primary judge delivered judgment on 18 March 2004. After referring to the key issues and identifying the experts who gave evidence for each of the parties including Mr Atkins and Mr Gross, she acknowledged (at [15]) the appointment of Dr Tonin as an independent noise expert "to answer specific questions which had arisen due to the substantial differences in opinion of the noise experts for each party." 32 Her Honour dealt with the issue of traffic noise in [17]-[33] of her judgment. In so doing she referred at some length to Dr Tonin's evidence including certain conditions that he had proposed in order to ameliorate the noise impact of the additional traffic upon residential properties in the vicinity and which the respondent had accepted. 33 Under the heading "Sleep Disturbance", her Honour referred (in [23]) to the fact that all the experts had agreed that residents living in the area currently had their sleep affected by high levels of traffic noise at night. In [24] she referred to Mr Atkins' reliance upon a measure of 15 dB(A) above background of LA1(1)min as a measure of sleep disturbance, a measure with which Dr Tonin disagreed as inappropriate. She then noted (in [25]) that the main difference in the submissions made by the parties was as to the conclusions to be drawn from Dr Tonin's evidence. She then set out the parties' respective submissions. 34 Under the heading "Finding on Traffic Noise", her Honour (in [27]) referred to the submission of the appellant that it had a long-established policy of limiting night-time traffic movements in the area and that the evidence supporting such a policy included that of Mr Atkins. However, although she regarded such an objective as laudable as Mr Atkins had deposed, she found that there was no written policy framework translating that objective into a prohibition on night-time truck movements. 35 Her Honour (in [31]) then accepted the respondent's submission to the effect that Dr Tonin's evidence was that the relevant impact was reasonable and that, subject to conditions, the application should not fail on the basis of noise impacts. In coming to this conclusion she specifically noted that she rejected various submissions made on behalf of the appellant. She concluded this part of her judgment in the following terms: " The disparate approaches of the two noise experts retained by the parties proved very unhelpful in relation to traffic noise, necessitating the appointment of an independent expert. His analysis and conclusions differed markedly from the two parties' experts . My observations of the noise analysis required in this locality is that traffic noise from Wentworth Avenue must be included in any assessment of Baker Street near the intersection with Wentworth Avenue. Cars and trucks must be included when considering background noise, locations for collection of acoustic measurements must be agreed and these must be next to affected properties. There must be agreement on the appropriate logarithmic equations to be used and the criteria against which a proposal needs to be assessed, particularly for sleep disturbance, must be agreed. Where there are two experts with fundamental methodological disagreements it is incumbent on the parties to alert the Court to these difficulties early, preferably well before the hearing starts. In this case, while there was a joint statement prepared by the two noise experts and some disagreement was indicated, the full extent of that disagreement only became apparent after much questioning by the Court after several days of hearing ." (emphasis added) Did the primary judge err in law by excessively intervening in the conduct of the case? 36 The appellant submitted that it was denied procedural fairness by virtue of the conduct of the primary judge in excessively questioning Messrs. Atkins and Gross in such a manner as to have taken the case out of the hands of the parties. Reference was made to s 38(2) of the Land and Environment Court Act 1979 (the Court Act) which provides that in Class 1 proceedings of the Court's jurisdiction (as the present case was) "the Court is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits." 37 It was submitted that although it was accepted that s 38(2) permits some flexibility, it does not authorise the Court "to depart from the procedures normal to the superior court of record in this country": Burwood Municipal Council v Harvey (1995) 86 LGERA 389 per Kirby P at 403-404; per Mahoney JA at 409. 38 Although it was conceded by the appellant that the conduct of her Honour and the Commissioner in questioning Messrs Atkins and Gross was different in both nature and degree to the questioning by the trial judge in Harvey which attracted this Court's severe disapproval, nonetheless it was submitted that the extensive intervention which occurred in the present case involved her Honour descending into the arena in which she may well have succumbed to the "perils of self persuasion": Harvey at 397. 39 In Galea v Galea (1990) 19 NSWLR 263 at 281, the guidelines relevant to determining whether there has been an excessive intervention by a trial judge such as to deprive a party of a trial according to law, was stated by Kirby A-CJ (with whom Meagher JA agreed) in a series of propositions which I would summarise, so far as is relevant to the present case, as follows: (a) The test to be applied is whether the excessive judicial questioning has created a real danger that the trial was unfair: if so, the judgments must be set aside. (b) A distinction is drawn between the limits of questioning by a judge when sitting with a jury and when sitting alone in a civil trial. Greater latitude in questioning would be accepted in the latter case. (c) Where a complaint is made of excessive questioning, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his/her mind to further persuasion, moved into counsel's shoes and " entered the perils of self-persuasion ". (d) The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of and the intervention. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion. (e) It is relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. 40 Kirby P restated these principles in Harvey at 395-398. His Honour made the point that appellate supervision (particularly in appeals limited to questions of law such as the present) will show restraint and respect for the primacy of the judicial officer conducting the trial. Amongst other matters, considerations relevant to the approach which would be taken by the appellate court to a complaint of excessive judicial intervention in the conduct of a civil trial include the increasing realisation of the significance of the public costs involved in the conduct of court proceedings and of the obligation of judicial officers, at least to some extent, to take an active part to prevent injustices which may occur to parties and to the public as a result of the inefficient conduct of trials. 41 No-one doubts, as Kirby P observed (at 396), that a judicial officer in an Australian court must conform to certain restraints inherent in the judicial office and necessary to the manifestly neutral determination of the controversy before the court. Nevertheless, the present case is clearly distinguishable from that which this Court was dealing with in Harvey where the complaint was that the trial judge's interventions were too frequent, not confined to the beginning of the trial, not limited to mere clarification of the evidence and became increasingly energetic, numerous and even belligerent and argumentative when addressed to the witness in question. 42 In particular, his Honour considered that the relevant questioning involved an extremely detailed cross-examination which "did not merely seek to clarify the methodology which [the council's valuer] had adopted (which would have been permissible). It ended with what reads very much like an attack on the witnesses' conclusions and an attempt to extract admissions that the methodology which he had adopted was improper and the conclusions which he had drawn, fatally flawed." 43 The foregoing principles were repeated by Giles JA, with whom Handley and Powell JJA agreed, in Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 where his Honour said: "60 A judge should not depart from his role as a judge and take up the role of an advocate. But particularly when sitting without a jury (as was his Honour), the judge may intervene to control, to clarify, or to make known a provisional view. In modern times it is to be expected that the judge will not be a silent spectator, but will so intervene in the interests of ensuring a just and expeditious trial. As was said by Kirby P in Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397, determining whether judicial intervention had crossed the line from the permissible to the impermissible requires an exercise of judgment by the appellate court, and the ultimate question is whether the conduct complained of has undermined the fairness of the trial so as to render it, in law, no trial at all. In some circumstances even extensive questioning by the judge will not undermine the fairness of the trial ( Burwood Municipal Council v Harvey , at 398). 61 The exercise of judgment must take into account the course of the trial, why and when the judge's interventions occur, and their frequency, length and terms. A distinction must be drawn between intervention which suggests that an opinion has been reached which can not be altered by further evidence or argument, and intervention which is neutral or which suggests only an opinion which is provisional, put forward to seek clarification, to test the evidence or to invite further persuasion. The distinction reflects that a judge finding the facts is, and is taken to be, able to correct and allow for preliminary opinions formed when reaching a final decision (see Galea v Galea at 281)." 44 In my opinion, the present case does not even come close to the point where this Court might even give preliminary consideration to upholding the appellant's complaints. I am of this view for the following reasons. 45 Firstly, and critically, a close reading of the relevant part of the transcript reveals that the tone of the questioning adopted by both her Honour and the Commissioner was benign in the extreme. Their questions did no more than request each of the experts to explain in the simplest terms possible the particular methodology that he had adopted. Her Honour made it perfectly clear to each witness that she and the Commissioner were asking very basic questions for the purpose of enabling them to understand the assumptions he had made in his evidence and the reasons why he had adopted his particular methodology. 46 Secondly, there was no hint of cross-examination in the questions that were asked. None of the questions purported to challenge any of the witnesses' responses. The question was a clear case of an inquirer seeking clarity. 47 Thirdly, there was no attempt to suggest that the methodology explained if each of Mr Atkins and Mr Gross was incorrect or flawed in any way. Practically all the questions asked of the experts by either the Commissioner or the primary judge were patently directed to exploring and understanding the experts' evidence and to obtaining as simple an explanation as possible of what was obviously to them a technical and complex subject. 48 Finally, it is clear that each expert was given every opportunity, without any limitation or interruption, to provide the explanation which the questioner sought. That is no doubting the reason why this questioning occupied 37 pages of transcript. It was due to the lengthy and detailed answers given by each expert to the questions asked. 49 It follows from the foregoing that the questioning of the witnesses by her Honour and the Commissioner of which the appellant complains was far from excessive and was entirely permissible. Any criticism of that questioning is, in my respectful opinion, entirely without foundation. It follows that that questioning did not constitute a departure from the rules of procedural fairness governing the conduct of the trial by taking the case on the issue of traffic noise out of the hands of the parties; nor did it in any way come close to undermining the fairness of the trial. Did the primary judge err in refusing to disqualify herself? 50 The appellant put the issue in the following terms: whether on 11 February 2004, the parties or the public might entertain a reasonable apprehension that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the traffic noise question. It was submitted that the parties and the public might indeed entertain a reasonable apprehension of bias "from prematurity of decision". 51 In essence the appellant's submission was that the primary judge, in her questioning of Messrs. Atkins and Gross, was attempting to ascertain the respective strengths of the evidence of each of those experts. By refusing to admit the new assessment, which was favourable to the respondent, the only view a reasonable bystander could come to as a consequence of that decision was that her Honour had determined that the strength of the respondent's case was such as to render the admission of that assessment unnecessary. 52 In my opinion, there is no merit in this submission. I regard it as clear that any reasonable bystander, having heard the questioning of Messrs. Atkins and Gross which took place as well as the reasons given therefor which followed the appellant's application for her Honour to disqualify herself, could be in no doubt that the reason why her Honour refused to admit the new assessment was because she considered that it would be of no utility. This was because the questioning in respect of which complaint was also made and which immediately preceded her Honour's decision not to admit the new assessment, did no more than highlight the irreconcilable differences between the two experts in terms of the methodology adopted by each which would not be resolved by its admission and the granting of an adjournment to enable Mr Atkins to respond to it. This was because any such response on the part of Mr Atkins would necessarily be based upon his own methodology in the same way as the new assessment was based upon Mr Gross' methodology. As the Commissioner noted, the Court would not, six weeks hence, be in any better position to resolve the issue as to whose methodology was correct than it was at the time that the questioning concluded. 53 It thus follows that no basis exists upon which a reasonable bystander could possibly perceive that by refusing to admit the new assessment the primary judge was inferentially expressing acceptance of the opinions and methodology adopted by Mr Gross. The respondent's solution that the Court appoint an independent expert, and her Honour's ultimate adoption of this course, puts the matter beyond doubt. Accordingly, in my opinion this ground of challenge has no substance and should be rejected. Did the primary judge misuse the evidence of the court appointed expert, Dr Tonin? 54 I have already referred to the power of the Court to appoint of its own motion an independent expert in any proceedings before it and at any stage of those proceedings: see Part 39 r 1 of the Supreme Court Rules 1970 adopted by Part 6 r 1(1) of the Land and Environment Court Rules 1996. Obviously, it is the duty of the Court to look at the independent expert's report and to obtain from it (with or without cross-examination), whatever assistance it can. Furthermore, the Court was not bound to accept the report: Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) 144 CLR 253 at 269. Nor does the obtaining of a court appointed expert's report relieve the court of the duty of considering all the evidence in the case. However, as pointed out by Samuels JA in Mifsud v Campbell (1990) 21 NSWLR 725 at 728D, "it is unnecessary for the judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected". Further, as his Honour also observed: "A failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her." 55 The appellant submitted that, firstly, her Honour's reasons for judgment reveal that she made no real endeavour to weigh the evidence of Dr Tonin against that of Mr Atkins or Mr Gross and, secondly, that although it was open to her Honour in her conclusions to accept the evidence of Dr Tonin on its merits, in fact her Honour had given primacy to Dr Tonin's evidence from the commencement of her judgment solely because he had been appointed by the Court. 56 Again, in my opinion, there is no substance to these submissions. The reasons for the appointment of Dr Tonin are clearly set out in [33] of her Honour's judgment, which I have extracted in [35] above. It is clear from that paragraph and, in particular, from those parts which I have emphasised, that taken in conjunction with the preceding paragraphs of her judgment dealing with the issue of traffic noise, her Honour was faced with an irreconcilable difference between Mr Atkins on the one hand and Mr Gross on the other as to the appropriate methodology to adopt necessitating the appointment of Dr Tonin as an independent expert to resolve the impasse. 57 It is hardly surprising that, in these circumstances, her Honour considered that she should adopt Dr Tonin's findings. It is apparent that she considered the opinions of Mr Atkins and Mr Gross but, for the reasons referred to, was not prepared to give the evidence of either of them any weight. That left the evidence of Dr Tonin which it was clearly open to her accept. There is nothing in her Honour's reasons that would justify the contention that the only reason she adopted Dr Tonin's evidence was because the Court had appointed him as its expert. Conclusion 58 In my opinion, each of the challenges advanced by the appellant fails. If I may be permitted to adopt the vernacular, none of them reached first base. 59 I would therefore propose that the appeal be dismissed with costs. ********** Last Modified: 12/15/2004 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.