Posted on April 30, 2012 by Frances Tse

Whether expert reports in Class 1 proceedings can be provided to resident objectors

Justice Biscoe in the Land and Environment Court  recently considered the question of whether an objector in appeal proceedings in the Class 1 jurisdiction of the Court can be provided with expert reports. See Newcastle Muslim Association Incorporated v Newcastle City Council [2012] NSWLEC 20.

It is the first time that this question has been raised in circumstances where the objector has not been joined as a party to the appeal.

The case is relevant to any council who receives a request from an objector during the preparation for a Class 1 hearing for access to the applicant’s expert report.

Background

The question arose in the context of an appeal against a refusal for the development of a mosque and community facilities.

The Council had received over 1000 objections and several of the objectors requested Council provide them with the applicant’s expert reports that had been served during the course of the proceedings in order to fully understand the amended proposal.

Implied undertaking

In civil litigation, there is a rule that where a party is compelled, pursuant to a rule or an order of the court, to disclose documents to another party which are not yet admitted into evidence, there is an implied undertaking on the party obtaining the documents not to, without leave of the Court, use them otherwise than for the purposes of the proceedings. This is known as the ‘Harman principle’ and has been accepted by the High Court in Hearne v Street (2008) 235 CLR 125. The principle applies where the documents are required to be disclosed by, for example, a direction that affidavits or witness statements be served on the other party before the hearing.

Applicant’s submission

The applicants argued against provision of the expert reports to the objectors on the basis that:

• the expert reports were provided to the Council for the purpose of the parties to join issue and not generally for the purposes of the hearing,
• under the ‘Harman principle’ the Council was under an implied undertaking not to, without leave of the court, use the expert reports for any purpose other than for which they were given, and therefore could not provide them to objectors,
• leave should not be granted because access to expert reports by objectors could potentially lead to inefficiency or disruption at the hearing if objectors sought to respond inexpertly or to introduce, formally, or informally, expert evidence in reply.

Judgement

Biscoe J indicated that due to the unique status of objectors in Class 1 appeals, there was a preliminary question of whether the Harman principle in fact applied to provision of expert reports to objectors in such proceedings .

He stated that in his view, a party is free to give copies of its own expert reports to whomever it wishes. Due to the urgency of the matter, in this case, His Honour did not determine the question of whether the Harman principle applied to expert reports in Class 1, but proceeded on the basis that it did.

His Honour held that the proper interpretation of the implied undertaking which arises from application of the Harman principle, is that where documents are provided under a compulsive process of the Court, the undertaking is not to use the documents otherwise than for the purposes of the proceedings in relation to which the documents were produced, as opposed to some other proceedings or for a collateral purpose. He disagreed with the Applicant’s submissions that the documents could only be used for the particular purpose for which they were provided to the Council.

Biscoe J considered that, on the assumption that leave to provide the expert reports to the objectors was required, that leave should be granted because:

• it would provide opportunity for public involvement, in accordance with the objects of the Environmental Planning & Assessment Act 1979 (EPA Act, and
• the access by objectors to expert reports would likely improve the efficient conduct of the hearing because it could eliminate false issues and save time and would enhance the confidence of objectors in the transparency of the appeal process.

In making his decision His Honour referred to the ability of objectors to give evidence in Class 1 appeals, and the provisions of the Court’s Site Inspections Policy which deal with evidence by objectors, and the need for the council to ensure that they understand the proposal, including any amendments.

The outcome of this case does not mean that councils can automatically provide expert reports served by an applicant to objectors. The Court has not answered the question of whether leave is required before a council can do so.

However, given that the decision to grant leave was based on the status of objectors in Class 1 appeals and the objects of the EPA Act, rather than any particular circumstances of the case, the case sets a precedent for leave being granted to provide an applicant’s reports to objectors, if that leave is required and is sought.