Land and Environment Court New South Wales Medium Neutral Citation: Hogan v Health Administration Corporation [2020] NSWLEC 57 Hearing dates: 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Class 3 Before: Pepper J Decision: Hearing dates vacated. Costs reserved. Catchwords: PROCEDURE: application to vacate hearings dates due to non-compliance by expert town planners with orders for the filing of their joint report – matter raises complex planning issues – expert valuers require joint town planning report to complete their evidence – prejudice to both parties by non-compliance of town planners with orders – hearing vacated – costs reserved to be determined at a specially fixed hearing. Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60 Uniform Civil Procedure Rules 2005, r 31.32, Sch 7 Category: Procedural and other rulings Parties: Brendan James Hogan (Applicant) Health Administration Corporation (Respondent) Representation: Counsel: Mr N Eastman (Applicant) Ms B Tronson (Respondent) Solicitors: Project Lawyers (Applicant) Herbert Smith Freehills (Respondent) File Number(s): 2018/314598 Judgment The Parties Seek a Vacation of the Hearing Dates Due to the Failure of the Town Planning Experts to File Their Joint Report 1. This Class 3 compulsory acquisition matter was listed to be heard before me on 25-29 May 2020. 2. The matter was set down for hearing on 9 August 2019. At that time, evidence from neither the expert town planners nor the valuers had been finalised. Thus timetabling orders were made for the completion of this evidence in sufficient time for the hearing to occur. 3. However, non-compliance by the expert town planners in the serving of their joint report has meant that, for the reasons explained below, the parties have had to apply for the hearing to be vacated. 4. Having had regard to the material contained in the affidavit of Ms Sophie Volk sworn 14 May 2020, the solicitor for the respondent (the Health Administration Corporation ("HCA")), and the submissions of the parties, the Court has no option but to reluctantly accede to the application. Procedural History of the Expert Evidence 1. The sorry story of disregard of the Court's orders by the town planners was set out in Ms Volk's affidavit: 1. on 26 July 2019 the Court ordered that the joint expert town planning report be served by 20 December 2019; 2. on 5 February 2020 that order was varied by the Court by extending the time for serving the report to 11 March 2020; and 3. time was further extended on 1 April 2020 to 14 April 2020. 1. On 29 April 2020 Ms Volk sent an email to Mr David Haskew and Mr Anthony Rowan ("the town planners") noting that the parties had not been served with their joint report. Later that day, Mr Haskew replied stating that the report would be served by 6 May 2020. 2. May 6 2020 came and went. 3. Next it was the turn of Mr Brendan Hogan's (the applicant) solicitor, to write to the town planners on 8 May 2020 requesting confirmation that the joint report would be served that day. On this occasion it was Mr Rowan who replied, saying that their report would be served on "Tues/Wed of next week", that is, 12 or 13 May 2020. 4. If either of the parties are to be criticised, it is for failing to immediately relist the matter upon receiving this response given that the commencement of the hearing was only 12 or 13 days away. 5. On 13 May 2020 Ms Volk sent an email to the town planners again enquiring about the delivery of the joint expert report. Mr Rowan replied that he had received a version of the report the day before and that he had returned it to Mr Haskew later that afternoon. 6. As the parties submitted, and which I accept having read the file, these proceedings raise complex planning matters which have a direct and significant effect on the value of the property being acquired (a semi-detached residential dwelling in Randwick). 7. Because there was no order for the parties to serve individual expert valuation reports, there is presently no valuation evidence before the Court. The valuers require the joint expert town planning report to complete their joint expert valuation report. The valuers opined to Ms Volk that there is little utility in the preparation by them of a joint valuation report absent a joint town planning report because, as Mr David Lunney (the HCA's expert valuer) said in an email to Ms Volk dated 13 May 2020, "if there are disagreed matters it may be necessary for the valuers to consider two or more alternative town planning positions". This logic cannot be faulted. 8. Mr Lunney also indicated in the email referred to above that the time required for him to complete the joint expert valuation report following the receipt of the joint town planning report would be greater than two weeks because no individual valuation reports had been prepared. This time estimate appears to be reasonable. 9. Furthermore, as Ms Volk attests, even if the expert valuers could produce their joint report within a considerably truncated timeframe, sufficient time is nevertheless required by the legal representatives to the parties to digest the joint expert valuation report, to advise their clients, and to prepare the matter for hearing. Again, nothing unorthodox is contained in this submission. 10. In any event, the above speculation remains just that because, astonishingly, as at the date of this application the joint expert town planning evidence had yet to be served; no explanation has been forthcoming by the town planners for their delay; and the parties do not know when the report was likely to be forthcoming, notwithstanding that the hearing is due to commence in six working days' time. 11. Because the matter could not proceed without either the town planning evidence or the valuation evidence, the Court therefore had to vacate the hearing. In this instance, to do so was in conformity with the overriding purpose contained in s 56 of the Civil Procedure Act 2005, as informed by ss 57-60 of that Act. Experts Must Comply With Court Orders 1. It is axiomatic that an expert who is engaged by a party to provide her/his/or their expert opinion in proceedings must comply with all directions of the Court for the filing and serving of the expert evidence. The orders are not optional; near enough is not good enough This is because an expert witnesses' paramount duty is to the Court (r 31.32 and the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules 2005 ("UCPR")). 2. Lest there be any doubt in this regard, cl 5 of the Expert Witness Code of Conduct in Sch 7 of the UCPR makes it explicit that (emphasis added): 5 Duty to comply with the court's directions If directed to do so by the court, an expert witness must— (a) confer with any other expert witness, and (b) provide the court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing, and (c) abide in a timely way by any direction of the court. 1. By not complying in a timely way – or at all - with the orders of the Court with respect to the serving of their joint expert report, the town planners have caused the final hearing of the matter - a hearing that was set down nine months ago – to be vacated, with attendant costs to be thrown away. This is highly unsatisfactory. The Costs of the Vacation Application and the Costs Thrown Away 1. In light of the silence emanating from the town planners, it is appropriate that the costs of this application and the question of who, if anyone, is liable for the costs thrown away occasioned by the vacation of the hearing be reserved, especially having regard to the fact that these are compulsory acquisition proceedings in Class 3 of the Court's jurisdiction where the usual rule that costs follow the event does not apply. 2. The Court will therefore list the hearing of the reserved costs issue on 25 May 2020. Any party seeking an order that the costs be payable by a person who is not a party to the proceedings should file and serve an appropriate motion, together with supporting affidavit evidence, in advance of that date. 3. The Court will make consequential orders for the further preparation and setting down of the matter for final hearing upon further communication from the parties. Orders 1. The orders of the Court are therefore that: 1. the hearing dates of 25-29 May 2020 are vacated; 2. costs are reserved; and 3. the question of who, if anyone, is liable for the costs of the motion and the costs thrown away occasioned by the vacation of the hearing is fixed for hearing at 11 am on 25 May 2020 before Pepper J. ********** 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: 18 May 2020