Rouse v Palerang Council [2011] NSWLEC 1029

Land and Environment Court New South Wales

Medium Neutral Citation: Rouse v Palerang Council [2011] NSWLEC 1029 Hearing dates: 17 February 2011 Decision date: 17 February 2011 Jurisdiction: Class 1 Before: Moore SC Decision: Evidence admitted Catchwords: Voir Dire; bias Legislation Cited: Expert Witness Code of Conduct Uniform Civil Procedure Rules 2005 pt 31 r 23 para 3 Cases Cited: Aitchison v Leichhardt Municipal Council [2005] NSWLEC 648 Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21 Category: Procedural and other rulings Parties: D Rouse (Applicant) Palerang Council (Respondent) Representation: Mr S Gavagna (Applicant) Goodman Law Mr A Bradbury (Respondent) Williams Love & Nicol File Number(s): 10885 of 2010

Judgment 1I have conducted a hearing on a voir dire in this matter, concerning the question of whether or not Mr Rouse, the town planner who has been retained by the owners of the property in the proceedings and who is himself the nominal applicant in these proceedings, that not being a disentitling factor (see Aitchison v Leichhardt Municipal Council [2005] NSWLEC 648 per Talbot J on that question), should be permitted to give evidence. 2The application is made that he should not be permitted to give evidence, on the basis that he has shown actual bias in favour of the owners of the properties' cause, and that that is contrary to the provisions of the Expert Witness Code of Conduct, that is appended to the Uniform Civil Procedure Rules 2005 . 3Three elements of bias are relied upon by Mr Bradbury, solicitor for the council, in support of his contention that Mr Rouse should not be permitted to give evidence. The first of them, from a document which is in evidence in the substantive proceedings, is a paragraph from that document which became exhibit 1 on the voir dire. The terms of that document that are in evidence on the voir dire, are a paragraph that reads as follows: "Given that we have been working with council staff to obtain a positive outcome with regard to the overall development of Mr and Mrs Denehy's property over a period of two years it is both disappointing and disconcerting that we continue to deal with a negative report to council based on the claim that inadequate information has been provided." 4That document was prepared by Mr Rouse, and the paragraph that is contained in it, are dated 2 September 2010. It is clear from my interpretation of the paragraph, that, in that paragraph, Mr Rouse was not expressing any concern about, or identification with, the merits of the proposal in any specific regard, but was merely dealing with a concern that the council continued to believe that he (and potentially others, including the owners of the property), had not provided adequate information to the council. That comment, made on 2 September 2010, predates the commencement of the proceedings, such commencement occurring on 1 November 2010. 5Because of the absence of any identification with the cause of the merits of his clients in that comment, I am satisfied that there is nothing in the comment in the paragraph of 2 September 2010 that can found a basis for, or contribute to, the rejection of Mr Rouse as a witness in these proceedings. 6The two subsequent comments that are relied upon by Mr Bradbury, have a significantly different contextual position. Despite some reservations on my part about the revealing of matters that took part during a joint conference, I was satisfied that I ought to permit Mr Rouse to be questioned, on the voir dire, about comments he may have made during the course of the joint conference with Mr Laycock, the planner retained by the council to deal with these proceedings, both at the joint conference which took place on site, immediately after the unsuccessful conciliation conference on 18 January, and in phone conversations on 8 and 9 February. The comment that was put to Mr Rouse, in his oral evidence on the voir dire, was that he had indicated that he felt personally involved in the matter, and on a subsequent occasion, that he had "a client to represent here". 7Mr Rouse gave evidence consistent with a number of questions that were canvassed in a decision cited by Biscoe J in Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21, questions that I do not consider it necessary to detail in these proceedings. However, his uncontradicted evidence was that the opinions that he had expressed were his own and were based on relevant planning documents and other information, and that he had, in the preparation of his initial report, done so for the assistance of the Court. 8His explanation for the two comments, the tenor of which was not denied by him, was that he had responded to suggestions by Mr Laycock that he had not had adequate regard to the Expert Witness Code of Conduct and to the requirements of the relevant part of the Civil Procedure Rules contained in pt 31 r 23 para 3, to have considered, adopted and applied the Code of Conduct in the preparation of his statement of evidence. 9Mr Rouse indicated, in his oral evidence, that he had responded as he had admitted to the conversations, the tenor of which has been put to him by Mr Bradbury, because he considered that his personal integrity and competence had been questioned by the placing of the Code of Conduct in front of him, or being alluded to by Mr Laycock. 10Whilst matters arising out of the terms of Mr Rouse's statement of evidence are matters that can be the subject of submissions as to such weight as might be given to them, I am satisfied on the basis of Mr Rouse's explanations and the lack of any fiscal contingency arrangements, or other economic interest in the proceedings (that being the evidence that was given in open court as part of these proceedings) that I should permit him to give evidence on behalf of the applicants in these proceedings. Tim Moore Senior Commissioner 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. Decision last updated: 11 April 2011