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Land and Environment Court - Working Party
8. Court Processes
8.1 Appeals to the Court
Although the Working party has received conflicting reports about the matter, the general view appears to be that a two-day case in the Land and Environment Court (and this appears to be a majority of them) rarely costs each party less than $20,000, and often far in excess of this. These figures take into account the costs of lawyers as well as experts. The Working Party sought some assistance from lawyers and councils concerned with appeals to the Court and found a noticeable tendency for submissions to deflate or inflate the costs and time of an appeal depending upon whether the person making the submission supported merit appeals or wished to abolish them. For instance, one council claimed that it costs at least $50,000 to conduct a two-day case in the Land and Environment Court – a firm of solicitors claimed that a two-day appeal can be conducted for less than $10,000.
The Environmental Planning Law Association presented a range between $20,000 and $25,000 for a two-day hearing in the Land and Environment Court. The Working Party accepts this estimate as accurate, and it believes it is far too high for most appeals.
It was also claimed that proceedings were excessively adversarial and some felt overborne and threatened by the process.
8.2 Compulsory “paper appeals”
The Working Party received submissions suggesting either that the Court should encourage parties to take up the option of having their appeal dealt with by way of documentary evidence and written submissions alone, or that simple or minor matters (variously defined) should be dealt with in this way as a matter of course, whether or not the parties consent.
For example, both of these options were canvassed in a submission made by the New South Wales Ombudsman:
“The Court currently has the power, with the consent of all the parties to the proceedings, to give its decision without conducting a hearing, relying instead on documentary evidence and written submissions exchanged by the parties and lodged in the Court. As far as we are aware, the Court’s power to reach decisions based on the papers before it in lieu of a hearing is rarely, if ever, utilised. Consideration should be given to the Court making more use of this power, possibly by expanding the power to allow the Court to direct that a matter be dealt with on the papers, whether or not with the parties consent.”
It was suggested that dealing with more planning appeals “on the papers” alone would lead to time and costs savings, and reduce the overly-adversarial quality of proceedings.
The Working Party developed a model for compulsory “paper appeals”, the main features of which are listed below, and presented it to the members of the Reference Group for comment.
- On appeal, development applications would be determined on the merits and de novo (as they are at present).
- Appeals would be decided by panels of commissioners.
- The panel would make its decisions primarily on the basis of documentary evidence and written submissions. (There would be no hearings of the type presently conducted.)
- The panel could refer questions of law to a judge of the Court (as commissioners are presently able to do).
- Where it was considered appropriate, the panel could request further information, whether by way of additional written submissions or evidence given in person.
- Parties could appeal against the panel’s decision to a judge of the Court, but only with leave. Such appeals would be by way of rehearing, and confined to the material placed before the panel.
The responses to the model were overwhelmingly negative, though it was supported by the Local Government and Shires Associations. A range of problems were identified. For example, there would need to be a facility for the panel to request further information, whether by way of additional written submissions or evidence given in person. It was suggested that asking questions in this manner, and waiting for answers, would be a source of delay, especially in relation to more complex matters. It was also suggested that, in practice, preparing written submissions may turn out to be more expensive for the parties than presenting their cases orally. Finally, there was concern that compulsory “paper appeals” would be unpopular owing to a lack transparency and opportunities for public participation.
The New South Wales Bar Association summed up the general opposition as follows:
“a single hearing in an open forum is the most efficient, fair and cost-effective model for resolving a multi-party dispute. There may be a place for ‘paper appeals’ in simple matters where the parties consent. But that procedure is totally inappropriate in the majority of cases presently litigated in development appeals made to the Court.”
In light of the views expressed in opposition to the compulsory “paper appeals” model, the Working Party has come to the conclusion that it should not be adopted. However, parties should still be given the option of having their appeal dealt with “on the papers” alone.
8.3 Cross-examination
The Land and Environment Court Rules 1996 provide that oral evidence of any expert cannot be given without the leave of the Court.
A great deal of costs are occasioned by people sitting in the Court while reports are being read or while experts are being subjected to what the Working Party describes as excessive and often useless cross-examination.
Most lawyers would not like to see the total abolition of cross-examination but many acknowledge a great number recognisethat at the present time much of it is excessive and unhelpful, notwithstanding the present rule of the Court that requires the permission of the Court before an expert can be cross-examined.
At one extreme it has been submitted that there should be no limit to cross-examination at all because it is said to be a useful way of exposing lack of integrity of experts and how it should be conducted should be left entirely to the legal representatives. Others would outlaw cross-examination altogether.
The Working Party does not doubt that a great deal of cross-examination is conducted for the benefit of people sitting at the back of the room rather than for the person who has to decide the issue. One submission was received to the effect that the cross-examination in one case was so effective that the expert witnesses said that they would not appear in the Land and Environment Court again. This, apparently, was a justification for a continuation of the present system. Anecdotal evidence supports the view that some experts are dissuaded from givingen evidence in the Court believing that they are exposed to unnecessary and offensive cross-examination.
As will be seen, it is a recommendation of the Working Party that for a “minor” developments there will be no cross-examinations, no transcripts and the matter will be considered on site, although the commissioner must produce written reasons for his or her decision.
It is also a recommendation of the Working party that all cross-examinations should be the subject of the leave of the Court, and not just cross-examination with respect to experts as is presently the case. For self-evident reasons Cross-examination should be not be allowed where it is unhelpful, and if allowed it should be stopped if it becomes offensive.
It has been suggested that some cross-examination of experts takes place because the parties before the Court do not believe that expert evidence has been read and understood by the person deciding the case. It is said that cross-examination (and for that matter some examination in chief) is used as a means of directing the Court to matters about which it is believed the Court is ignorant because reports have not been read. If that is true the remedy is not to allow cross-examination, but for members of the Court to ensure that they have read all reports and understand them before they consider the question whether cross-examination should be allowed or not.
The Working Party acknowledges while it may be difficult for lawyers to discontinue habits such as bowing to presiding members and generally expecting proceedings to be the same in an administrative appeal tribunal as they are before the court of law where private rights and entitlements are being litigated, it believed some effort ought to be made to accommodate the criticism that what may appear to be quite normal unthreatening conduct to a lawyer is sometimes intimidating to a person who is not familiar with legal practices.
The Land and Environment Court Rules 1996 provide that oral evidence of any expert cannot be given without the leave of the Court. Presently the rule is confined to expert evidence but there is no reason why the same rule should not apply to all witnesses.
Recommendation 20: Cross-examination
Rule 16(d) of Part 13 of the Land and Environment Court Rules 1996, which provides that oral evidence of any expert may only be given with leave of the Court, should be amended so that the leave requirement applies to all witnesses, not just experts.
A judge or commissioner should not allow cross examination unless he or she is satisfied that it will contribute to his or her understanding of the issues in dispute, and to control it accordingly
If Recommendations 25 and 26 are adopted, this recommendation would not affect conferences conducted to decide minor matters.
8.4 Use of experts
Some submissions raised the possibility that the Court should make a greater use of independent experts, especially in relation to disputes about particularly technical matters. Currently, under Parts 39 and 72 of the Supreme Court Rules 1970, the Court has the power to refer matters to an independent referee and to appoint court experts.
Against this it has been suggested that:
“referral of matters to an external referee undermines the role of the Court in acting as a consent authority, as it leaves the determination of many matters of fact to a person not subject to the same provisions as judges or commissioners of the Court; and has the potential to disadvantage parties where a matter is dealt with in a “piecemeal” fashion with some issues being referred to referees and others dealt with directly by the Court.”
While the Land and Environment Court has the power to refer matters to an independent referee, the Working Party is not aware of any instances where the power has been exercised inappropriately.
The Working Party notes, however that as an alternative to the use of independent experts, the Court could encourage greater use of conferences of expert witnesses. Where the Court considers it appropriate, it should direct expert witnesses to confer of its own motion. The Court should consider amending its Expert Witness Practice Direction 1999 to provide more details about conferences of expert witnesses, with the Supreme Court’s new Practice Note No. 121: Joint Conferences of Expert Witnesses being considered as a possible model. The stated aim of the Supreme Court’s new practice note is to promote the just, quick and cost effective disposal of proceedings by identifying and narrowing the issues in dispute, consequently shortening the trial and enhancing the prospects of settlement.
The Working Party further suggests that the Land and Environment Court’s Expert Witness Practice Direction 1999 should make it clear that when a joint report is submitted by experts to the Court, the issues still in dispute can be openly discussed by the experts in the presence of the Court. Rather than the present system of examination in chief, cross-examination and re-examination of expert A, followed by examination and re-examination of expert B, experts A and B can openly discuss their views in a manner dictated by the presiding member. This would not necessarily eliminate cross examination. It would be left to the discretion of the presiding member, after such a discussion or during such a discussion, whether questions also could be asked by the parties.
Recommendation 21: Use of experts
The Court should encourage conferences of expert witnesses. Where the Court considers it appropriate, it should direct expert witnesses to confer of its own motion. The Court should consider amending its Expert Witness Practice Direction 1999 to provide more details about conferences of expert witnesses, with the Supreme Court’s new Practice Note No. 121: Joint Conferences of Expert Witnesses being considered as a possible model.
8.5 Order of presentation
The Working Party acknowledges the claims by some lawyers representing councils that requiring councils to open the proceedings gives the appearance that the councils have to persuade the Court that the development should be refused rather than that the applicant persuade the Court that the development should be permitted. Nonetheless someone has to start the proceedings and inform the Court of the issues. It is a common practice in all administrative appeals for the person representing the body appealed from to open the proceedings and explain to the tribunal the issues for determination. That is because it is assumed that, in the case of the council, the Court will get a more objective overview from a body discharging a public function than it would from an individual pursuing his or her own interests. It is not a question of anyone having an onus of proof. Notions of onuses of proof and the like have no part to play in the hearing of an administrative appeal. The Working Party is of the opinion that the present practice should continue.
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