Mahadik v Jones [2024] NSWLEC 1411
Background
The applicant Mahesh Mahadik and respondents Carol and Lynn Jones are neighbours in Ingleburn, NSW. The respondents have lived there since 1987, where they have a mature grey ironbark tree (Eucalyptus paniculata) near their eastern boundary. The adjoining property was vacant until the applicant purchased it in 2012 and built his home in 2013. Branches and debris from the respondents' tree have fallen onto the applicant's property, causing damage. The applicant has applied to the court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking an order for the tree's removal to prevent further damage and injury.
Expert evidence
The respondents engaged Mr DJ, an expert arborist, who issued a report. While Mr DJ consented to adhere to the Expert Witness Code of Conduct outlined in Sch. 7 of the Uniform Civil Procedure Rules 2005 (NSW), this agreement was not part of the report itself but was documented in a separate note afterward.
It was held that while the rules of evidence are not strictly enforced in this case, which falls under the court's Class 2 jurisdiction, when an expert agrees to comply with the Code, their report carries more weight than a report that does not have such acknowledgment.[17] A delayed acknowledgment of the Code by an expert could suggest that the report was not prepared with the Code's standards in mind. However, by later recognising the Code, the expert may show that their report does adhere to the Code, even if this was not stated during the report's preparation or included in the initial document.[18]
The court cited First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261, which mentioned the Court of Appeal's observations in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Limited, as follows:
The Court may consider that the assumed "real risk" [that the expert will have committed to a particular form of opinion from which he or she will not withdraw] is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence.
However, it was found that Mr DJ has failed to meet the Code's requirements because: [a] he did not provide details of all investigations conducted; and [b] he conducted a risk assessment of the tree using the Quantified Tree Risk Assessment methodology but did not clearly outline the critical assumptions underlying his assessment in the report.[19]
Due to Mr DJ's failure to comply with the Code, his later acknowledgment and agreement to abide by it seem more like a mere formality for the original report. As a result, the court ruled that his report does not carry the weight of an expert report and his risk assessment cannot be relied on. Galwey AC thus decided to draw upon his own arboricultural expertise and experience, especially regarding tree risk.[20]
Key Takeaways:
- If an expert acknowledges the Expert Witness Code of Conduct after submitting their report, it may imply that the report was not originally prepared with the Code's standards in mind. However, such acknowledgment can still demonstrate compliance.
- If an expert did not comply with the Code, later acknowledgment of the Code will appear to be a formality and the court may determine that the report lacked the weight of an expert report.
- An expert may be found to have not met the Code's requirements by failing to provide comprehensive details of all investigations conducted and by not clearly outlining the critical assumptions in the risk assessment.
Read the full decision here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.