Succar v Bankstown City Council [2012] NSWLEC 157

Land and Environment Court New South Wales

Medium Neutral Citation: Succar v Bankstown City Council [2012] NSWLEC 157 Hearing dates: 11 July 2012 Decision date: 11 July 2012 Jurisdiction: Class 1 Before: Pepper J Decision: Hearing dates vacated and consequential orders for the filing and serving of expert evidence made. Catchwords: PRACTICE AND PROCEDURE - late withdrawal of expert witness - initial application seeking orders for withdrawn expert to complete joint conferencing and joint report - application withdrawn and instead orders sought for vacation of hearing dates due to slippage of timetable occasioned by withdrawal of expert - failure of respondent to inform court of withdrawal in breach of previous court orders - alternative expert retained by respondent - duties of experts - hearing dates vacated. Legislation Cited: Civil Procedure Act 2005 ss 56, 58, 59, 60 Land and Environment Court Rules 2007 r 3.7 Uniform Civil Procedure Rules 2005 r 31.23, Sch 7 Cases Cited: Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141 Category: Procedural and other rulings Parties: Naief Succar (Applicant) Bankstown City Council (Respondent) Representation: Mr M Seymour (Applicant) Mr M Bonanno (Solicitor) (Respondent) G & S Law Group (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 10226 of 2012

EX Tempore Judgment

The Council's Town Planning Expert Withdraws at Short Notice from the Proceedings 1Ultimately this application became one for the vacation of the hearing of Class 1 proceedings listed on 17 and 18 July 2012. 2Originally, the applicant, Mr Naief Succar, came before the Court by way of notice of motion filed on 5 July 2012, seeking an order that the Court direct Mr Sindhu Kaphle, a town planner employed by the respondent, Bankstown City Council ("the council"), to complete a joint report commenced by joint conference with Mr Will Nino by 4.00pm Tuesday, 10 July 2012. Mr Nino is Mr Succar's town planning consultant who was retained to give expert town planning evidence in the proceedings. 3Neither Mr Kaphle nor Mr Nino have filed individual experts' reports in the proceedings. Rather, on 31 May 2012 the Court ordered the two town planners to confer and prepare a joint report, with their evidence to be given concurrently during the proceedings. 4Orders 8(b), 13, 14 and 15 of those orders mandated as follows: 8(b) Experts are directed to give written notice to the Court and the party instructing them if for any reason they anticipate that they cannot comply with these directions. In that case, or if the experts have failed to comply with these directions, the parties will promptly list the matter before the Court for directions and give written notice to the other parties. Default without leave of the Court can result in the imposition of sanctions. ... 13. Notification of slippage in timetable Parties are to notify promptly the Court if there is any material slippage in the timetable. 14. Liberty to re-list The parties have liberty to restore on two working days' notice. 15. Concurrent evidence of experts At the hearing the evidence of experts is to be given by way of concurrent evidence, unless the hearing commissioner directs otherwise. 5The application by Mr Succar was supported by an affidavit of Mr Elee Georges. Mr Georges is the solicitor for Mr Succar. In short, according to Mr Georges' evidence, the need for the application arose because after joint conferencing and during the finalisation of a draft joint report, Mr Nino was informed by Mr Kaphle on 4 July 2012 that he "had been withdrawn from the case" and that another council officer would contact him in relation to the finalisation of the joint report. The draft report, at that stage, had been awaiting final confirmation from the council. The report had to be finalised by 6 July 2012. The reason given by the council for Mr Kaphle's sudden withdrawal was that of "personal reasons". The council has not sought to compel Mr Kaphle's attendance at the hearing by subpoena. 6As it transpired, the withdrawal was caused by Mr Kaphle's acute anxiety or "mental anguish" at the thought of being cross-examined, although no medical evidence to support this assertion (contained in an email from Mr Mark Bananno, the council's solicitor, to Mr Georges on 10 July 2012) was provided to either Mr Succar or the Court. Material produced by the council pursuant to a notice to produce issued to it by Mr Succar was entirely equivocal in this regard. 7Rather than comply with the orders quoted above, the council did no more than email Mr Georges on 5 July 2012 and inform him that Mr Kaphle was "no longer able to continue acting for the council". On behalf of the council, Mr Mark Bonanno informed Mr Georges that the council would seek to engage an external consultant and that "while the report will be later than anticipated, I do not believe that this will result in a material slippage" (emphasis added). Accordingly, the council sought to engage the services of an external town planning consultant, Mr Geoff Goodyer. 8How this belief could have been held by the council (repeated again by Mr Bananno on 10 July 2012, when the joint report was already four days late) when, at that stage, its expert town planner had withdrawn, the joint report was due to be finalised the next day and the hearing of the matter was only eight working days away, is difficult to comprehend. On any view, the sudden departure of Mr Kaphle meant that there was about to be "a material slippage of the timetable". The problem should have immediately been brought to the attention of the Court by the council. It was not. 9The explanation the council gave for not complying with the orders made by the Court on 31 May 2012 was that Mr Succar had filed the present notice of motion. That is to say, the issue would be imminently ventilated before the Court. I do not understand how this could in any way dispense with the need for compliance with orders made by the Court. Plainly it could not. 10It appears the council erroneously believed that it could, in effect, substitute Mr Kaphle with Mr Goodyer and that the latter could finalise the draft joint report in an expeditious manner. 11Of greater concern, to both Mr Succar and the Court, was a statement from Mr Bonanno, repeated in an affidavit affirmed on 10 July 2012 and filed in the Court and in cross-examination, that he sought confirmation from Mr Goodyer that he would "support the council's position", which Mr Goodyer provided. Taken at its worst, the statement suggests that Mr Goodyer may be less than independent and impartial. But absent any further details of the conversations between Mr Goodyer and Mr Bonanno, I am unwilling to make a finding to this effect. Ultimately, this will be a matter for the commissioner hearing the matter, should Mr Succar wish to pursue the issue further. 12It must be remembered that an expert witness' paramount duty is to the Court and not to the party engaging the expert (r 31.23 and cl 2 of Sch 7 of the Uniform Civil Procedure Rules 2005 ("the UCPR") and see Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141 at [36]). So much so is stated in the Expert Witness Code of Conduct (Sch 7 of the UCPR) ("the Code"). The Code expressly states that "an expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise" (cl 2(a), emphasis added). 13Clearly a party who engages in 'expert witness shopping' in order to obtain the services of a witness willing to provide evidence favourable only to that party risks compromising the impartiality of that expert evidence. 14Mr Succar cross-examined Mr Bonanno and adduced oral evidence from Mr Nino in an attempt to establish that concessions had been made by Mr Kaphle during the joint conferencing that the council now sought to resile from. He therefore takes additional issue with the withdrawal of Mr Kaphle and the substitution of Mr Goodyer. 15Given the potential seriousness of this allegation, which was not alluded to in the affidavit of Mr Georges, and given that to elicit such evidence would have required the Court to pierce the veil of confidentiality shrouding the joint conferencing process that took place between Mr Kaphle and Mr Nino, this was not an issue that the Court was willing to entertain in the absence of some cogent evidence properly crystallising the issue. I do not consider that seeking to adduce this evidence orally through Mr Nino, with no notice to the council, was either appropriate or fair. 16Having said this, should, at a later stage and in a proper form, Mr Succar wish to impugn the integrity of the joint conferencing and joint reporting process that occurred between Mr Kaphle and Mr Nino, or the circumstances surrounding Mr Kaphle's withdrawal from the proceedings, he is not precluded from doing so. In this regard, any orders that the Court formulates consequential upon today's application should strive to preserve Mr Succar's position in this regard. 17Similarly, if Mr Succar wishes to object to the evidence of Mr Goodyer on the grounds of any alleged impartiality, orders should be crafted to enable him to do so. In this regard, I am of the opinion that it is preferable that the parties exchange individual experts' reports prior to the preparation of any joint report. 18It follows that the hearing cannot proceed next week and must be vacated. The experts cannot, in the time available, produce individual reports, confer and finalise a joint report between now and 17 July 2012. Mr Georges deposes that this process will take approximately a week and that Mr Succar requires an additional week before the hearing with the joint report and the council's bundle of documents to properly prepare for the hearing. This evidence was not challenged by the council. 19Therefore, having regard to the overriding purpose contained in s 56 of the Civil Procedure Act 2005 to facilitate the "just, quick and cheap" resolution of the real issues for determination in the proceedings (as informed by the application of ss 58-60 of that Act), it is appropriate that the hearing on 17 and 18 July 2012 be vacated to enable the completion of the expert town planning evidence in light of the withdrawal of Mr Kaphle's participation in the proceedings.