Land and Environment Court New South Wales Medium Neutral Citation: Bright v Acrocert Pty Ltd [2012] NSWLEC 173 Hearing dates: 20 July 2012 Decision date: 20 July 2012 Jurisdiction: Class 4 Before: Craig J Decision: (1)By consent and pursuant to Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 I substitute Brendan Lantry as the first respondent in the proceedings in place of Acrocert Pty Limited. (2)All documents served in the proceedings upon Acrocert Pty Limited are deemed to have been served upon Brendan Lantry and the notices of appearance filed on behalf of Acrocert Pty Limited is deemed to be an appearance on behalf of Brendan Lantry. (3)By consent I give leave pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matter pleaded in paragraph 25 of the applicants' Points of Claim dated 11 May 2012, as that matter is particularised in the letter dated 8 June 2012 from the applicants' solicitors to Laycock Solicitors (see Exhibit A). (4)I give leave pursuant to Pt 31, r 31.9 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matters pleaded in paragraphs 13 and 18 of the applicant's Points of Claim dated 11 May 2012. (5)Costs are reserved. (6)Orders otherwise in accordance with the Short Minutes of Order initialled by me and placed with the Court papers. Catchwords: PROCEDURE: - application for substitution of party pursuant to Pt 6 r 6.32 Uniform Civil Procedure Rules 2005 - application by consent - substitution order granted - liability and conduct of original party transferred to substituted party EVIDENCE: - expert evidence - application to adduce expert evidence in judicial review proceedings - whether leave should be granted pursuant to Pt 31 r 31.19 of The Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - expert evidence reasonably required - leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Anchor Mortlock Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd (1971) 2 NSWLR 278 Friends of King Edward Park v Newcastle City Council [2012] NSWLEC 113 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 ULV Pty Ltd v Scott (1990) 69 LGRA 212 Category: Procedural and other rulings Parties: Andrew Eddy Bright (First applicant) Mark William Deller (Second applicant) Acrocert Pty Ltd (First respondent) Robert and Sara Jakes (Second respondent) Helen Lynette Asimus (Third respondent) Representation: T G Howard (Applicants) C R Ireland (First respondent) S B Nash (Second and Third respondents) Mallik Rees Lawyers (First and Second applicants) DLA Piper Australia (First respondent) Laycock Solicitors (Second and Third respondents) File Number(s): 40246 of 2012 EX TEMPORE Judgment 1By a Notice of Motion dated 6 July 2012, the applicants seek two orders of present relevance. Those orders are: (i) that leave be granted to the applicants to amend their Summons and Points of Claim so as to remove Acrocert Pty Limited as a party to the proceedings and to substitute in its place Brendan Lantry as the first respondent; (ii) that leave be granted to the applicants to lead expert town planning or architectural evidence relating to the interpretation of the plans that are the subject of the Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 in respect of those issues pleaded in paragraphs 13, 17 and 25 of their Points of Claim. 2The orders sought in paragraph 1 of the Notice of Motion are agreed in by the respondents. That is a matter to which I will shortly return. The orders sought in paragraph 2 of the Notice of Motion are agreed in part. The part to which agreement has been reached relates to the allegations pleaded in paragraph 25 of the applicants' Points of Claim. There is a contest as to whether expert evidence should be allowed in respect of paragraphs 13 and 17. At this point it should be noticed that in the course of argument the applicants indicated that it was paragraph 18, rather than 17, which was intended to be the subject of its application. 3I turn first to the orders sought in paragraph 1 of the Notice of Motion. Mr Ireland of Counsel, who appeared for the first respondent, together with those instructing him, acts both for Acrocert Pty Limited and for Mr Lantry, the party sought to be joined. Mr Lantry is the certifier who provided the Complying Development Certificate that is sought to be impugned in these proceedings. He has indicated that he consents to being substituted as the first respondent in place of Acrocert Pty Limited. 4The power to order the substitution of one party for another party is found in Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 (the UCPR). Subrule (1)(d) of that rule enables the Court to order "the substitution of one party for another party or a former party". Subrule (2) provides: "(2) If the court orders the substitution of one party for another party or former party, all things previously done in the proceedings have the same effect in relation to the new party as they had in relation to the old, subject to any other order by the court." 5In the present case, no "other order" is sought. Mr Ireland accepts that Mr Lantry is bound by the conduct of Acrocert Pty Limited in the conduct of the proceedings to date. He also accepts that the conduct of Acrocert Pty Limited that is binding on Mr Lantry includes a liability for costs, should such an order be made in the course of the proceedings. Any such costs are payable as if the liability for them arose from the time that the proceedings commenced. Consistent with the consent of the relevant parties, I will, in due course, make the substitution order that is sought. 6The respondents accept that expert evidence is appropriate to be led in relation to paragraph 25 of the applicants' Points of Claim. That paragraph is pleaded in the following terms: "25 SEPP (Exempt and Complying) only applies to developments that comply with the development standards specified in Part 3, Division 2 of that SEPP. The development the subject of the Complying Development Certificate does not comply with all of the standards specified therein." 7The position taken by the respondents in respect of matters pleaded in paragraphs 13 and 18 of the Points of Claim is, as I have indicated, different from that which they take in respect of paragraph 25. They oppose a direction for expert evidence to be led in respect of the former paragraphs. Those paragraphs are as follows: "13.The plans purportedly approved by the Complying Development Certificate depicted a building comprising more than one dwelling, or which when completed would comprise more than one dwelling. 18The development the subject of the Complying Development Certificate includes the addition of a third storey." 8By Points of Defence filed by each respondent, the allegations made in each of paragraphs 13 and 18 of the Points of Claim are denied. No further elaboration of the defence is contained within the pleading filed by each respondent. 9The applicants contend that the interpretation of the plans that are the subject of the Complying Development Certificate are likely to give rise to some controversy which cannot, either appropriately or adequately, be addressed by way of submission. To the extent to which the pleadings are in the form of assertion and denial, they provide support to the contention by the applicants that the interpretation of the plans is controversial. 10Having regard to the case sought to be made by the applicants, I accept that it is for the Court to determine whether the plans that are the subject of the Complying Development Certificate engage the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The essence of the applicants' submission in support of the present application is that, by reason of the conjecture between the parties as to the interpretation of the plans, the assistance of appropriately qualified experts is required. 11In order for expert evidence to be led in a matter such as the present, leave is required in accordance with Pt 31, r 31.19 of the UCPR. Subrule (2) of that rule relevantly provides that directions under the rule may be sought at a directions hearing or pursuant to a notice of motion. Unless that leave is given in accordance with subrule (2), the provisions of subrule (3) would prevent the calling of expert evidence at trial. 12The purpose to be served by the requirement for leave imposed by the rule is to ensure that the Court "has control over the giving of expert evidence" and also to ensure that such evidence is restricted "to that which is reasonably required to resolve the proceedings": UCPR r 31.17. The considerations relevant to the determination of an application under UCPR r 31.19 were addressed by Biscoe J in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 where his Honour said at [71]: "71 In considering whether or not to grant leave under UCPR 31.19, the Court should have regard to the guiding principles in ss 56 to 60 of the Civil Procedure Act, including the following: (a)the discretionary power should be exercised in accordance with the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings: s 56(1) and (2); (b)for the purpose of furthering the overriding purpose, the proceedings are to be managed having regard to (amongst other things) the 'efficient disposal of the business of the court' and 'the timely disposal of the proceedings ... at a cost affordable by the respective parties': s 57; (c)the court is obliged to follow the 'dictates of justice' which include having regard to the degree of difficulty or complexity to which the issues in the proceedings give rise: s 58; and (d)the court must also implement its practice with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: s 60." 13Reference must also be made in the present context to the decision of the Court of Appeal in Shellharbour City Council v Minister for Planning [2011] NSWCA 195. In a judgment concurring with that of the presiding judge, Giles JA rejected a submission made on behalf of the applicant in that case that leave should be granted in accordance with UCPR r 31.19 once it was demonstrated that evidence might be relevant and admissible. His Honour continued at [35]: "35 It should be made clear that this is not the correct approach to directions under r 31.19 of the UCPR. 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." 14I take heed of these statements of principle. Nonetheless, I am satisfied in the present case that the leading of expert evidence directed to matters pleaded in paragraphs 13 and 18 of the applicants' Points of Claim is evidence that is reasonably required to resolve the principal issue in the proceedings. While the adducing of expert evidence in proceedings involving judicial review is an exceptional course to take, these proceedings stand apart from the norm. Either the plans that are the subject of the Complying Development Certificate that is sought to be impugned meet the requirements of the Exempt and Complying Development SEPP or they do not. The question to be determined is one involving jurisdictional fact. The Court is therefore required to determine for itself whether those facts exist or existed at the time at which the Certificate was issued. The determination of this fact will clearly involve interpretation of the plans to which the Certificate relates. 15It is said that the Court has expertise in matters pertaining to environmental and planning law which often involves the consideration of architectural plans. That proposition cannot be denied. However, the complexities of plans, even for a substantial residential dwelling, as are the present plans, can often give rise to conjecture that is not easy to resolve. I also take account of the fact that this matter, being in Class 4 of the Court's jurisdiction, must be determined by a judge of the Court who does not have, at least by training, the same expertise that some of the Commissioners of the Court might have and might exercise when determining a development appeal. 16Some support for the decision I have reached in the present case emerges from discussion concerning the leading of expert evidence in judicial review proceedings by Priestley JA in ULV Pty Ltd v Scott (1990) 69 LGRA 212 at 224 . His Honour was considering the limited circumstances in which expert evidence might be led in a case challenging the validity of a development consent granted by a local council. In the course of that judgment he referred, with apparent approval, to the judgment of Street J in Anchor Mortlock Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286. 17The latter case involved proceedings for breach of copyright in architectural plans and the building of project homes in accordance with those plans. A question to be determined was whether there was substantial similarity between houses erected by the defendant and plans for which copyright was owned by the plaintiffs. Expert evidence was allowed, directed to the similarities or dissimilarities, as the case may be, between the plans and the buildings as constructed. In the context of this evidence, Street J referred to the benefit derived by the Court from the debate between experts upon these matters, not for the purpose of allowing them to usurp the function of the Court but rather to allow the Court to be aided by the debate when determining whether or not the requisite similarities had been demonstrated. 18This, so it was said, was a permissible use of expert evidence. It seems to me that there is little difference, in substance, between the debate allowed among experts in the Anchor Mortlock case and that which is to be had in the present case. The exercise to be undertaken is to determine whether the plans that are the subject of the Complying Development Certificate satisfy the provisions of the relevant SEPP, having regard to the matters pleaded in paragraphs 13 and 18 of the Points of Claim. 19Also relevant to the exercise of the discretion afforded by the rule is the circumstance that the parties accept the need for expert evidence directed to paragraph 25. As the retaining of experts is accepted to address that paragraph, it seems to me that the additional evidence directed to paragraphs 13 and 18 will add little to the overall costs and time involved both in preparation for and at the hearing of the proceedings. 20In summary, I am satisfied that the leading of expert evidence for the purpose identified is reasonably required to resolve the principal issue arising in these proceedings. For the reasons stated, I do not believe that the direction proposed would hinder the efficient and expeditious disposal of the proceedings. 21The orders that I make are therefore as follows: 1. By consent and pursuant to Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 I substitute Brendan Lantry as the first respondent in the proceedings in place of Acrocert Pty Limited. 2. All documents served in the proceedings upon Acrocert Pty Limited are deemed to have been served upon Brendan Lantry and the notices of appearance filed on behalf of Acrocert Pty Limited is deemed to be an appearance on behalf of Brendan Lantry. 3. By consent I give leave pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matter pleaded in paragraph 25 of the applicants' Points of Claim dated 11 May 2012, as that matter is particularised in the letter dated 8 June 2012 from the applicants' solicitors to Laycock Solicitors (see Exhibit A). 4. I give leave pursuant to Pt 31, r 31.9 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matters pleaded in paragraphs 13 and 18 of the applicant's Points of Claim dated 11 May 2012. 5. Costs are reserved. 6. Orders otherwise in accordance with the Short Minutes of Order initialled by me and placed with the Court papers. ********** 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: 26 July 2012