In welcome news for developers that will surely have
councils up in arms, a judge of the Land and Environment Court
has turned decades of Land and Environment Court practice and
procedure on its head, by ruling that council staff / employees
such as council planners are biased and therefore prevented
from being expert witnesses in Land and Environment Court
cases. Their opinions will be excluded.
In Willoughby Council v Transport Infrastructure
Development Corporation (No 2) (August 2008), Justice
Lloyd refused to allow an expert report by a council planner to
be tendered in the Court proceedings as evidence. Although that
was a Class 3 (land acquisition) matter, the judgment was
sufficiently blanket in nature that it could be applied in
almost any Land and Environment Court matter.
Justice Lloyd relied upon the Expert Witness Code of
Conduct (requiring experts to be independent from the
parties), a 7-year-old High Court decision, and even an ASIC
Regulatory Guide, to rule that "the existence
of an ongoing or existing relationship between an expert
witness and a party results in a breach of the necessary
In this case, Justice Lloyd excluded the expert report by
Council's senior development planner, saying:
"In my opinion, the report of Mrs de Carvalho
should be rejected. She is not independent from a party but,
on the contrary, is an employee of a party...Finally, as I
have already noted, the report itself contains not only facts
but also partisan opinions, which demonstrate that she has
clearly adopted the role of an advocate for a party. I reject
the tender of the report".
The question of whether an expert is independent will turn
on its own facts and circumstances, but the ruling in this
matter stands to generally exclude Council staff from giving
expert evidence or preparing expert reports, other than where
they merely state factual matters. It may well prevent Council
staff from providing any "partisan opinion", which
really means that no opinion at all may be expressed if it
supports the Council's case.
We will watch with interest to see whether other judges and
commissioners of the Court follow and apply this ruling.
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