Land and Environment Court New South Wales Medium Neutral Citation: Roy "Dootch" Kennedy On Behalf of the Sandon Point Aboriginal Tent Embassy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 103 Hearing dates: 4 May 2012 Decision date: 04 May 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Application refused with costs Catchwords: EVIDENCE: whether leave to adduce expert archaeological evidence should be granted - evidence required to meet claim of destruction of Aboriginal cultural heritage - proceedings informally expedited - delay in making application - serious prejudice to applicant if leave granted - inadequate explanation given for delay in making application - application refused Legislation Cited: Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 76A, Pt 5 National Parks and Wildlife Act 1974, s 86 Uniform Civil Procedure Rules 2005, rr 31.19, 31.20 Cases Cited: Capital Airport Group Pty Ltd v Director--General of the NSW Department of Planning [2011] NSWLEC 22 Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Category: Procedural and other rulings Parties: Roy "Dootch" Kennedy On Behalf of the Sandon Point Tent Embassy (Applicant) Stockland Developments Pty Ltd (First Respondent) Wollongong City Council (Second Respondent) Representation: Mr A Oshlack, agent, c/o Indigenous Justice Advocacy Network (Applicant) Mr H El Hage (First Respondent) Submitting Appearance (Second Respondent) Mr A Oshlack, agent (Applicant) Herbert Geer Lawyers (First Respondent) Wollongong City Council (Second Respondent) File Number(s): 40116 of 2012 Ex Tempore Judgment Stockland Seeks Leave to Adduce Expert Evidence 1Stockland Developments Pty Ltd ("Stockland") seeks leave pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 ("UCPR") to adduce expert evidence from Dr Susan McIntyre-Tamwoy at the hearing of this matter on 8 and 9 May 2012. 2The applicant, Mr Roy "Dootch" Kennedy On Behalf of the Sandon Point Aboriginal Tent Embassy ("Mr Kennedy"), opposes leave being granted primarily due to the lateness of the application and the prejudice that would flow to him if it were granted. 3I accept Mr Kennedy's position and, for the reasons that follow, leave is refused. 4As pleaded, the proceedings concern an allegation that Stockland has breached an approval in relation to a residential housing development near Wollongong by undertaking work not authorised by the development consent for the purposes of clearing, excavating and constructing a shared roadway and related infrastructure on land owned by Wollongong City Council. Alternatively, Mr Kennedy asserts that the activity described above is being undertaken without any valid development consent or approval to do so, thereby breaching s 76A of the Environmental Planning and Assessment Act 1979 ("the EPAA") and/or Pt 5 of that Act. 5Mr Kennedy also pleads that Stockland has and continues to breach s 86 of the National Parks and Wildlife Act 1974 ("the NPWA") by causing damage, destruction or desecration of Aboriginal cultural heritage items on the land the subject of the constructed shared roadway. Leave is Required to Adduce Expert Evidence in Class 4 Proceedings 6Rule 31.19 of the UCPR relevantly provides as follows: 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. 7According to the affidavit of Ms Emma Fleming affirmed 3 May 2012, the solicitor employed by Herbert Geer, the legal representatives engaged on behalf of Stockland, Dr McIntyre-Tamwoy is an archaeological and heritage consultant who has had a long standing familiarity with the cultural and archaeological issues of the Indigenous community at Sandon Point. She has prepared cultural and heritage archaeological assessments in connection with matters relating to the site where the construction is taking place. 8Ms Fleming states in her affidavit that Dr McIntyre-Tamwoy's evidence is necessary to respond to claims made in the affidavit evidence filed on behalf of Mr Kennedy, namely, from Aboriginal Traditional Owners Ms Barbara Nicholson and Ms Yvonne Sims, concerning the alleged breach of s 86 of the NPWA and more generally in relation to cultural heritage issues relating to the Women's Area alleged to exist on or near the vicinity of the shared roadway presently under construction. This Area is part of the Aboriginal Cultural Heritage which is said to be adversely impacted by the construction. 9I have not seen the proposed expert evidence of Dr McIntyre-Tamwoy. This is because, as of the date of this application, the evidence has not been finalised although, according to Stockland, it can be filed and served later today. 10The parties agreed to an expedited hearing, although no formal orders for expedition were made. This was, in part, to meet the concerns of Mr Kennedy that, while the construction of the shared roadway continued, there was ongoing destruction of Aboriginal cultural heritage and to avoid further delay and expense caused by any application for temporary injunctive relief to alleviate this situation. The Application is Refused 11It is unusual for expert evidence to be adduced in proceedings commenced in Class 4 of this Court's jurisdiction. This is because typically such proceedings concern applications for judicial review, the grounds of which do not readily lend themselves towards the need for expert evidence. 12However, and notwithstanding that I have not been furnished with the affidavits of Ms Yvonne Sims or Ms Barbara Nicholson, in these proceedings I accept Stockland's submission that in order to refute the alleged breach of s 86 of the NPWA, by demonstrating either that no Aboriginal cultural heritage items exist on the site or that if they do, they are not being adversely impacted by the construction, expert archaeological evidence may be required. 13Mr Kennedy opposes the application on two grounds: (a) first, the delay in making the application has meant that it is impossible for Mr Kennedy to adduce any expert evidence in reply given that there are only two full working days between now and the final hearing of the matter next week; and (b) second, to permit expert evidence from a white archaeologist is somehow discriminatory and unfair. This is because it is being adduced in reply to evidence of Aboriginal Traditional Owners who have had no archaeological training. 14I do not understand how relying on the expert evidence of Dr McIntyre-Tamwoy is in any way discriminatory. Dr McIntyre-Tamwoy's cultural and ethnic origins are wholly irrelevant to this application. And whether or not the Aboriginal Traditional Owners have any archaeological training is a matter going to the weight to be accorded to their evidence and does not result in any unfairness to Mr Kennedy. 15The more compelling submission made by Mr Kennedy is that if leave were granted to adduce this expert evidence serious prejudice would flow to Mr Kennedy because it would be impossible for him to respond to it in the available time prior to the hearing commencing. 16Ms Fleming deposed that the reason why the application is so late is because of a breach of the timetable by Mr Kennedy in the filing and serving of his evidence. When orders were made by consent on 2 March 2012 for the preparation of the matter for hearing, Mr Kennedy was directed to file and serve his evidence by 26 March 2012. This did not occur until 10 April 2012. This, Stockland submitted, caused a consequential cascading delay in the filing and serving of its evidence. 17Even assuming, for present purposes, the correctness of the latter submission, this reason is inadequate by way of explanation as to why it has taken Stockland approximately three weeks since the receipt of Mr Kennedy's evidence to make this application. 18Having said this, there is some force in the contention that it was not until Stockland was in possession of the entirety of Mr Kennedy's evidence, and in particular, his evidence concerning the alleged breach of s 86 of the NPWA, that it was in a position to determine whether or not any expert evidence was required in order to meet that claim. 19But, to reiterate, this is not a satisfactory explanation for the delay in making this application. Stockland conceded that at some point very soon after 10 April 2012 it became apparent that it may need to adduce expert evidence of the type foreshadowed by today's application. It is at this point in time that the present application for leave should have been made, not three working days before the final hearing. 20That the parties had consented to an expedited hearing of the matter made the necessity for a timely application all the more acute. Indeed, as a matter of prudence, such an application should have been made after receipt by Stockland of the points of claim on 2 March 2012. Once leave had been obtained, Stockland could have subsequently determined if the expert evidence was necessary in light of Mr Kennedy's evidence. In the meantime, appropriate directions for the filing and serving of expert evidence, if any, could have been made (see r 31.20 of the UCPR). 21It is plain from the terms of r 31.19 that the consequences of not seeking directions in accordance with the rule and not complying with any such directions are potentially dire (r 31.19(3)). It is also clear that a party intending to adduce expert evidence must "promptly" seek directions from the Court in this regard (31.19(1)(b)). But the requirement that a party seeking to rely on such evidence must make an application with all due haste is not mandatory and an application will not automatically fail on this basis. However, it may be expected that where there has been significant delay in making the application that a reasonable explanation for the delay will follow. 22No such explanation was provided in the present case. This is because r 31.19 was engaged either upon receipt of the points of claim on 2 March 2012 (at the earliest), or sometime shortly after the receipt of Mr Kennedy's evidence on 10 April 2012 (at the latest). Either way, in my opinion, Stockland did not promptly seek directions from the Court as required by the rule (Capital Airport Group Pty Ltd v Director--General of the NSW Department of Planning [2011] NSWLEC 22 (at [6])). 23In Capital Airport Group, notwithstanding delay by the applicant, the Court granted leave to adduce expert evidence. However, in that decision there was an absence of substantial prejudice to the respondents occasioned by the granting of leave. It is distinguishable from the present case on that basis. 24In Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 Pain J refused the Council's application for a direction to rely on expert evidence. This was because the Court was not convinced that, in a matter that primarily raised issues of statutory construction, the expert evidence sought to be adduced would be of assistance. In that case expert evidence was sought to be adduced from an ecologist to provide advice to the Court on the meaning of particular phrases in a State Environmental Planning Policy and on the meaning of a single phrase in a Local Environmental Plan. The Court resolved that the issues raised in the proceedings required the application of orthodox principles of statutory construction for which expert evidence was unnecessary. 25An application for leave to appeal her Honour's decision was dismissed with costs by the Court of Appeal (Shellharbour City Council v Minister for Planning [2011] NSWCA 195). That Court held that Pain J was correct to take the view that a substantial contest of experts would be a waste of time and money having regard to the unlikelihood that their evidence could be of assistance. In so concluding, Giles JA made the following observation concerning the correct approach to directions under r 31.19 of the UCPR (at [35]): 35 ... The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible. 26In the present case, to accede to Stockland's application three working days before the final hearing of the matter would not, in my opinion, facilitate the overriding purpose contained in s 56 of the Civil Procedure Act 2005 of the "just, quick and cheap" resolution of the real issues for determination in these proceedings. The application must therefore be refused. Costs 27Stockland submitted that the costs of the application should either be reserved or that each party should bear their own costs. This was because of the initial delay by Mr Kennedy in filing and serving his evidence which, it contended, had resulted in the lateness of the present application. 28Mr Kennedy refuted this and submitted that it was appropriate that costs follow the event, and moreover, that a special costs order should be made fixing the quantum of the costs payable in the amount of $830. This amount equated to the costs of the return airfare and associated expenses that Mr Oshlack, appearing as agent for Mr Kennedy, had incurred. Mr Kennedy submitted that this amount should be payable within 14 days. 29It is the failure of Stockland to provide a satisfactory explanation for the minimum three-week delay in making the application, together with the consequential prejudice flowing to Mr Kennedy, that has resulted in this Court declining Stockland's application. In this respect, whether or not Mr Kennedy was initially late in filing his evidence is largely irrelevant. It is Stockland's delay, and not that of Mr Kennedy, that has caused the application to fail. In these circumstances, it is appropriate that costs are awarded in favour of Mr Kennedy. 30Having said this, the order is for an award of Mr Kennedy's legal costs. Accordingly, it is not appropriate and, in any event, no evidence was furnished to support the claim, that a costs order be made in the fixed sum specified. Nor has an appropriate basis been established for the payment of Mr Kennedy's costs to be made within 14 days. Orders 31The orders of the Court are therefore as follows: (1)Stockland's application for leave to adduce expert evidence is refused; and (2)Stockland is to pay Mr Kennedy's costs of the application. ********** 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: 08 May 2012