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Expert Witness Survives Challenge

Medico Legal

The acceptance of expert evidence by a commissioner of the Land and EnvironmentCourt, New South Wales was unsuccessfully challenged in a recent appeal.

The appeal arose from an application to modify a development consent for the construction of a dwellinghouse. The consent, which was granted in 2001, incorporated a design for a driveway to access thedwelling and the modification application involved asignificant reconfiguration of the driveway. The driveway was steep and engineering evidence wascalled by both sides.

The council’s evidence was given by its developmentengineer. He held formal academic qualifications inengineering surveying but not in engineering buthad extensive experience, spanning almost 40 yearsin local government, in domestic driveway design.

His evidence was challenged by the applicant on twogrounds. One was that he did not have appropriatequalifications to give expert engineering evidence tothe court as he had no formal engineering qualifications. The other was that, as an officer of the council,he had a conflict of interests and could not be regarded as an appropriate person to give expert evidence to the Court.

Both grounds of challenge were rejected by the courtin a decision handed down on the 10th April 2018:Doyle v Hornsby Council (2018) NSWLEC 45.

On the first ground, Moore J held that the qualification for a person to give expert evidence is not thatthey have a university-based qualification but thatthey can demonstrate that from their specialisedtraining, knowledge or experience, they have obtained the necessary degree of specialised knowledgeor skill to be regarded as able to speak authoritativelyabout it. In this case the council witness clearly hadsignificant relevant experience and an appropriateand relevant qualification to give expert evidence onthe technical aspects of the proposed drivewaydesign. His Honour commented (at [72]) that: “Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare frombeing accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectualarrogance of the highest order. It would also be badat law!”

The court also rejected the second ground ofchallenge, saying that neither the expert witness northe council as his employer had any pecuniary interest or other direct or indirect interest in the outcomeof the proceedings. Moore J said that a conflict ofinterests could arise which could prevent a witnessfrom meeting the obligations for independence required of an expert witness where they might be perceived as having a direct or indirect pecuniaryinterest arising out of their employer’s role in particular proceedings. The exclusion of such a potentialwitness may not be unreasonable in such a case, depending on the particular circumstances.

However, his Honour observed that such a situationdid not arise in the case of a council employee whenthe council’s position in the proceedings is consistentwith the position adopted by the council employee.The Court noted that a contrary position arises wherethe position adopted by the council is inconsistentwith the approach recommended by the council officer and observed that, to avoid such a conflict, it wascustomary for councils to engage external expertswhen that situation occurred.

BAL Lawyers - Alan Bradbury

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