Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2007] NSWSC 1529

New South Wales Supreme Court

CITATION : Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2007] NSWSC 1529

HEARING DATE(S) : 17 October 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 17 October 2007

DECISION : Articles admitted on limited basis

CATCHWORDS : EVIDENCE – expert evidence – literature published in non-peer reviewed journals – admissibility as evidence of knowledge on which opinion based.

Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) PARTIES : Robert Simkin (sixth plaintiff) Glen Federick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)

FILE NUMBER(S) : SC 2267/05

Mr T Alexis SC w Ms P M Sibtain (plaintiffs) COUNSEL : Mr T G Parker SC (first & second defendants) Mr J R Clarke (third & fourth defendants)

Wise Legal (plaintiffs) SOLICITORS : Clayton Utz (first & second defendants) Esplins (third & fourth defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday 17 October 2007

2267/05 Joan Street & 7 ors v Luna Park Pty Ltd & 3 ors JUDGMENT (ex tempore - on admissibility of evidence) 1 HIS HONOUR: The plaintiffs tender an affidavit of Philip Edmonds, sworn 27 August 2007, which exhibits valuations of the Dwyer property at 2/6 Cliff Street, the Hesse property at 1601/10 Glen Street and the Billington property at 801/12 Glen Street, Milsons Point. Each valuation is expressed to be upon a retrospective basis, as at the date of acquisition by the relevant plaintiff, and subject to the hypothesis that the purchaser was aware not only that the developer had lodged a Development Application, but also that the developer would be relocating a number of the larger thrill rides as well as the children's rides, to the area north of Coney Island or, alternatively, that there would be risk or potential for the noisy thrill rides to be located and operated in the area north of Coney Island. In the way in which the case has been conducted, it is, I think, the second or alternative assumption that is probably the relevant one. 2 The defendants object to the reception into evidence of Mr Edmonds' further affidavit, essentially on the basis that material on which he relies to support the approach he has taken to discounting value for exposure to noise is inadmissible and does not, therefore, support his conclusion. 3 There is no doubt that Mr Edmonds is qualified to give opinions as to the value of land, which is ultimately what he does in his report. Once it is accepted that he can give an opinion as to value and is qualified to do so, it is necessary that he explain his rationale for reaching the opinions and conclusions that he expresses. 4 Once an expert is qualified to give evidence in a particular field of study or knowledge, it is not necessary that the expert have experience in every single sub-set of hypotheses or issues that may arise in the course of expressing an expert opinion. Often, for example, in fields of science and medicine, well-qualified experts will be required to offer opinions on events or circumstances that have not previously arisen, but to which they bring their expertise to form an hypothesis or opinion as to the explanation. They are entitled to do so, notwithstanding that they have not seen or considered those particular circumstances before. 5 Mr Edmonds appears to have felt constrained by the absence of assistance derived from comparative sales to look for other methods of ascertaining the impact of exposure to noise, or the possibility of noise, on the value of the subject properties. For that reason, he has apparently adopted what some may consider an esoteric approach. I do not, for a moment, mean to suggest that is necessarily inappropriate; it is novel or different. The fact that an expert adopts a novel or different approach does not mean that the expert is not qualified to express an opinion based on that approach. 6 In order to explain his rationale, Mr Edmonds has referred to a body of knowledge or learning, some of which is comprised in exhibits to his report - in particular, the documents at tabs 10, 11, and 12. As has been submitted, it is not material that it appears in a peer review journal. Even if it were in a peer review journal, that would not make it any more admissible than it presently is, but experts are not limited to peer review journals for informing the body of study and knowledge on which their opinions are based. 7 The tender of this material, as I understand it, is not for the purpose of proving the facts or opinions contained in it, but for the purpose of illustrating the body of knowledge on which Mr Edmonds' opinion is based, so as to facilitate understanding and, for that matter, testing of his opinions. The tabs in question will admitted on that limited basis. 8 The circumstance that the facts and opinions contained in those articles and excerpts will not themselves have been proved does not render inadmissible opinions based upon the body of knowledge and study which they represent. An expert does not have to prove by admissible evidence every step in the rationale which underlies his or her opinion from first principles. It is not necessary to prove in evidence every text book, article, lecture, speech or class that an expert has attended from which his or her expert knowledge or opinion is derived. 9 For the foregoing reasons, I will read the affidavit of Philip Edmonds, sworn 27 August 2007, and the documents annexed to it. I order pursuant to Evidence Act 1995, s 136 that the documents contained in tabs 10, 11, and 12 be evidence only of the fact of their contents and not the truth of the facts and opinions which they contain.