Posted on November 6, 2019 by 4

Who Should you Believe? – Expert Witness Credibility in the Land and Environment Court

Proceedings in the Land and Environment Court often involve the use of expert evidence. Two recent decisions cast light on issues in the preparation of expert evidence that may affect the credibility of an expert witness.

The comments made by the Court demonstrate the importance of properly interacting with expert witnesses to preserve the independence and credibility of expert witnesses, and the opinions and reports they provide.

Huajun Investments Pty Ltd v City of Canada Bay Council (No 3) [2019] NSWLEC 42

The relevant facts 

In this case, the Applicant had engaged an external planning consultant (Planning Consultant) to prepare a cl4.6 request in support of a development application. An affidavit of the Planning Consultant was filed in support of a motion seeking leave to rely upon a further amended version of the cl4.6 request.

The Planning Consultant was cross-examined on a clean version of the further amended cl4.6 request as well as a tracked changes version which identified the differences between it and an earlier version already in evidence. He was also cross-examined on the processes involved in preparing and settling the terms of his executed affidavit.

In cross-examination, the Planning Consultant admitted that the further amended cl4.6 request was the product of extensive drafting by the Applicant’s solicitors and two workshops conducted in the chambers of the Applicant’s junior counsel, involving the active participation of the Applicant’s junior counsel, an instructing solicitor and the Applicant’s architect.

The issues raised by the Court 

The Court raised issues relating to the Applicant’s solicitors’ involvement in the drafting of the Planning  Consultant’s affidavit and the further amended cl4.6 request, as well as the work-shopping process relating to the preparation of the further amended cl4.6 request.

Regarding the Planning Consultant’s affidavit, the Court found that, despite the Planning Consultant proposing that certain changes be made to the initial draft affidavit (which had been prepared by the Applicant’s solicitors) to reflect what the Planning Consultant considered to be the appropriate content of his evidence, some of the more substantive amendments proposed by him ‘… did not find their way into the executed version of the document…’ (see paragraphs [87] to [89]).

Regarding the further amended cl4.6 request, the Court found that, rather than being a ‘mere revision‘, it was ‘…more truthfully, substantially a new document’. Further, it was not clear ‘how much (or, perhaps, more correctly, how little) of the analysis in fact reflects [the Planning Consultant’s] opinion rather than words put in his mouth, like the words from a marionette in a sophisticated puppet show’ (see paragraphs [91] to [92]).

On this basis, at paragraph [94], the Court stated in its reasons for concluding that it was not appropriate to grant leave to allow the Applicant to rely on the further amended cl4.6 request:

… if leave was given to rely on the new document, I could not be confident that that which was contained in it was a true reflection of [the Planning Consultant’s] evidence. Despite [the Planning Consultant] indicating, in re-examination, that the opinions expressed in the proposed cl4.6 request were ones which he could adopt and support, the nature of the workshopping process… was such that I was not able to conclude that the document genuinely reflected [the Planning Consultant’s]  opinions.

DeBattista v Minister for Planning and Environment [2019] NSWCA 237

The relevant facts 

In this case, a Council had engaged an external urban design consultant (Urban Design Consultant) to prepare an expert report in support of a planning proposal.

Two drafts of the Urban Design Consultant’s report were submitted to Council and subject to extensive commentary by the Council, including requests for significant changes.

The third and final version of the Urban Design Consultant’s report reflected the adoption of comments made by the Council. However, the adoption of those comments was not identified in that version of the report, which appeared on its face to have been prepared by the Urban Design Consultant without any intervention from the Council.

The issue raised by the Court 

In the Court of Appeal, White JA found that this case provided an example of a client placing pressure on a professional retained by the client to produce an opinion consistent with the client’s wishes.

At paragraph [12], His Honour commented on the effect of the Urban Design Consultant’s retainer where he stated:

In this case, the pressure was all the greater because apparently the terms of the professional’s retainer were that it would not be paid if the Council were dissatisfied with the opinion provided. No professional should assent to such a term. No ethical client should demand it.

His Honour also commented on the Council’s request that the Urban Design Consultant provide a draft of its expert report to the Council for review and comment before the report was finalised and submitted to the Department of Planning and Environment. In His Honour’s view, it is generally ‘bad practice for a person in such a position to agree to provide his or her opinion or report to the client in draft’  (see paragraph [10]).

In summary, at paragraph [9], His Honour stated that there was an ethical issue relating to:

… the use of consultants, usually professionals, whose apparent independence is to be relied upon by their client, whilst their client seeks to control the opinion expressed. The ethical issue is critical to lawyers, and many other professionals and their bodies whose independence is to be relied upon, either by legislative or regulatory authorities (such as the Department in the present case) or the market. Lawyers, town planners, valuers, accountants, rating agencies, and a myriad of other professional or quasi-professional disciplines whose opinions or reports will be relied on by persons other than their own clients, all have an obligation to preserve not only the appearance but the reality of their independence.

Key takeaways

• The Expert Witness Code of Conduct (Code) at Schedule 7 to the Uniform Civil Procedure Rules 2005 removes any doubt about the role of an expert witness where it states that an expert witness ‘is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness’.
• Great care needs to be taken to ensure that the evidence of an expert witness is not compromised by the manner of their engagement or the manner in which their expert opinion is created.
• Expert witnesses who provide reports for use in litigation are bound by the Code, which expressly requires the provision of a supplementary report(s) where there has been a material change in the opinion of the expert witness.
• If an expert witness mistakes the facts, does not properly address the questions put to them, or is asked to address a reformulated question in light of revised instructions resulting in a material change to their opinion, this should be addressed by way of a supplementary report prepared in consistency with the Code.

While White JA’s comments about the use of draft reports are noted, the review of an expert report in draft is an important part of the process of ensuring that the expert witness has answered the questions put to them and fulfilled their general duties to the Court. Such a review should not aim to influence the opinion of the expert. It should instead be directed to ensuring that the expert has undertaken the assigned task properly.

The decisions can be read here and here.

To discuss this blog, please contact Carlo Zoppo, Partner on 8235 9705 or Sophia Urlich, Lawyer on 8235 9708.