Botany Bay City Council v Minister for Planning and Infrastructure & Ors (No 2) [2014] NSWLEC 101

Land and Environment Court New South Wales

Medium Neutral Citation: Botany Bay City Council v Minister for Planning and Infrastructure & Ors (No 2) [2014] NSWLEC 101 Hearing dates: 17 July 2014 Decision date: 17 July 2014 Before: Beech-Jones AJ Decision: Part of Table B to the affidavit of Gilead Chi-Li Chen rejected. Balance admitted. Legislation Cited: - Evidence Act 1995 (NSW), s 50 Cases Cited: - Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141 - Re Idylic Solutions Pty Ltd - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568 Category: Interlocutory applications Parties: Botany Bay City Council (Applicant) Minister for Planning and Infrastructure (First Respondent) Stateland BKK Pty Ltd (Second Respondent) Prosha Pty Ltd (Third Respondent) Stateland East Pty Ltd (Fourth Respondent) Fifth Respondent: BKK JV Pty Ltd Representation: Counsel: T.S. Hale SC, D. Hume (Applicant) A. Shearer (First Respondent) C.R. Ireland (Second to Fifth Respondents) Solicitors: Houston Dearn O'Connor (Applicant) Department of Planning & Environment (First Respondent) McCulloch Robertson (Second to Fifth Respondents) File Number(s): 2013/040953

ex tempore Judgment

Application by Applicant to read affidavit of Gilead Chi-Li Chen; see transcript p 60 1The applicant seeks to read an affidavit of Gilead Chi-Li Chen, who is a senior strategic planner. The affidavit annexes two tables. In his affidavit Mr Chen explains how it has been compiled. The background to the reading of this affidavit is that the applicant previously sought leave to adduce expert evidence in an endeavour to demonstrate that the various plans of the development that is objected to involved non-compliance with the Residential Flat Design Code (the "Code") (see Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141) ("Botany Bay City Council"). In Botany Bay City Council at [20] the Court of Appeal in refusing that leave stated, inter alia, as follows: "As to the Tayler affidavit, the Council contended that this was directed to the two issues raised by the particulars (i) and (ii) to [27] of the Points of Claim: (a) the number of units which did not comply with the minimum sizes in the Code; and (b) the large number of ways of redesigning the proposed units to ensure that they were compliant with the Code, as required by condition B2(a) of the Project Approval. However, the first matter did not require the expertise of an architect. It involved looking at various plans and related documents to determine the number of non-compliant units. Expert evidence is not required to prove matters which can be readily discerned from documents." 2Inspired by that observation the applicant has sought to adduce two tables that are annexed to Mr Chen's affidavit and rely upon s 50 of the Evidence Act 1995 (NSW) to support their admission. Section 50 states: "Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and (b) given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. 3To explain the potential application of s 50 to these tables it is necessary to describe them further. The first table involved Mr Chen sighting the plans for the project that were approved as well as a revised version. He also listed the identifying code on the plan for the apartment, the apartment size and the number of bedrooms. 4Having completed that table Mr Chen then prepared the second table, being table B. In table B Mr Chen set out eight columns. The first column is the identifier for the relevant apartment from the plans, the second column is the apartment size, the third column is the number of bedrooms, the fourth column is the apartment type. The description of apartment type appears to be either corner apartment, cross through apartment, single aspect apartment, depending upon the apartment's configuration. 5The fifth column is headed "RFDC apartment type". This column refers to a table to be found at the top of p 69 of the Code which lists fifteen types of apartments ranging from studio to three bedrooms with variations, depending on whether they are cross-through, maisonette, corner or cross-over, et cetera. 6Mr Chen's affidavit, when read with this column of the table, reveals that for many of the apartments on the plans, they clearly corresponded to an apartment as listed in the table. However, he also explains that not all of the apartments could be so easily categorised. He then gives a clear explanation of the approach he adopted in seeking to categorise the apartments as shown on the plans compared to the apartments shown in the table on p 69 of the Code. 7The next column of the table then sets out the corresponding area set out in the table for the type of apartment listed in the Code. The seventh column is headed "Comply with SEPP 65", although in latter parts of the table it is also headed "Compliance with RFDC". In this column Mr Chen inserted either the word "yes" or "no". The last column is headed "Notes". The notes appear to be confined to a brief statement in respect of those apartments, as shown on the plans, where it was not clear what the corresponding type of apartment in the table in the Code, if any, was and briefly states which one was chosen. 8No point of objection was taken in relation to s 50 that no request for a direction had previously been sought. Instead the basis for the objection was that the preconditions for admissibility of evidence by way of summary was not established. I am satisfied that the adducing of evidence concerning the size and type of the apartments from the plans would not otherwise be possible to be undertaken conveniently for the Court to examine, because of the volume and complexity of the documents in question. The prospect of the Court scouring numerous plans with a magnifying glass and calculator to determine this aspect of the proceedings is not an attractive one for any of the parties, much less the Court. 9The objection that is taken, however, is that at least parts of the table, if not all of it, effectively constitute an exercise of judgment on the part of Mr Chen, which has the effect that his tables travel outside the concept of a summary. Counsel for the second and fifth respondents, Mr Ireland, has taken the Court to the decision of Ward J in Solutions Pty Ltd - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568. In that case the plaintiff attempted to adduce in evidence a summary of the contents of over 6,000 documents. 10It is evident from her Honour's judgment that parts of that summary involved the author of the summary exercising a significant level of judgment as to their content. Thus her Honour noted that the author had "reached conclusions as to the way in which particular deposits or investments or transactions should be treated" (at [58]). 11At [63] her Honour stated as follows "There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point)." 12The use of the words "rather than for example comprising conclusions or statements of opinion" in this passage does need to be treated with some caution. It is self evident from s 50(3) that the mere fact that a summary might involve some opinion does not, of itself, mean that the section cannot be invoked. Were it otherwise there would be no reason to exempt the application of the opinion rule from the operation of s 50. 13However, questions of fact and degree are involved. There must be a point at which the level of exercise of any judgment or subjective opinion in the formulation of the alleged summary means that what is really being adduced is not, in fact, a true summary of the contents of two or more documents. In some cases the determination of this may be a matter of form rather than substance. 14In this case, for example, I have already described how the fifth column of table B involves an attempt by the author to categorise the apartments as shown in the plan according to the apartments listed in the table in the Code. As noted the author has experienced difficulties with some of the apartments in finding a corresponding entry in the Code. If all that the table did was reveal an unexplained judgment as to the fact that a corresponding apartment was chosen, then there would be an obvious difficulty in concluding that it is a summary. However, as the affidavit has explained with clarity the very simple process by which that has occurred this means that overall, in my view, that fifth column still amounts to a summary. In substance the fifth column is simply to be read as though the heading was describing, at least in relation to the contestable apartments, the process that is set out in [11] to [14] of Mr Chen's affidavit. Thus, as I have said, the true substance of what the fifth column is in fact summarising is clarified by the affidavit. It still answers a description of being a summary. 15Returning then to the tables in question. Table A attached to Mr Chen's affidavit does not involve, in my view, anything other than a summary. He has simply picked out the apartment numbers, their areas as shown on the plans, and identified the number of bedrooms that each such apartment has. 16Table B has two problems. The first is that one page of it, as shown on p 382, includes a "summary" which purports to express a statement as to how many comply with the Code. I think the only safe course with that page is to reject it. It is to be treated as a submission. 17Similarly, the seventh column of the table, which reveals Mr Chen's conclusion as to whether a particular apartment shown in the plan complies either with SEPP 65 or the Code, travels beyond any form of summary, and thus falls outside s 50(1). That column will be rejected and instead treated as a submission. However, for the reasons I have already given, the balance will be admitted. I so order.