Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 1) [2008] NSWLEC 154

The Court made an otherwise order admitting the evidence because Ms Lemmon's affidavit and oral evidence showed that, when preparing the earlier affidavits, she was aware of and accepted the substantive obligations in the expert code, including the paramount duty to the Court and the requirement of impartiality. The defendants' complaints about the media release, separation of fact and opinion, and use of equipment went to weight or other possible objections rather than showing a defect in preparation beyond the failure to acknowledge the code.

Jurisdiction
Australia
Judgment Date
14 April 2008
Procedural Posture
Prosecution / Objection by the Defendants to Admissibility of Opinions in Affidavits of an Expert Witness for Failure to Acknowledge Compliance With the Expert Witness Code of Conduct
Outcome
The defendants' objection based on failure to acknowledge the Expert Witness Code of Conduct was not upheld; the Court made an otherwise order and admitted the evidence.
Legal Topics
['expert Evidence' 'expert Witness Code of Conduct' 'admissibility of Affidavit Evidence' 'otherwise Order' 'voir Dire']
['evidence' 'criminal Procedure' 'land and Environment Court Procedure'] ['expert Evidence' 'expert Witness Code of Conduct' 'admissibility of Affidavit Evidence' 'otherwise Order' 'voir Dire']

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Procedural Posture

Prosecution / Objection by the Defendants to Admissibility of Opinions in Affidavits of an Expert Witness for Failure to Acknowledge Compliance With the Expert Witness Code of Conduct

Legal Issues

  1. 1 ['Whether opinions expressed in affidavits of Jedda Saffron Lemmon should be excluded because the affidavits did not identify and acknowledge compliance with the applicable Expert Witness Code of Conduct.' 'Whether the Court should otherwise order under Pt 75 r 3J despite non-compliance with the acknowledgement requirement.']

Ratio Decidendi

The Court made an otherwise order admitting the evidence because Ms Lemmon's affidavit and oral evidence showed that, when preparing the earlier affidavits, she was aware of and accepted the substantive obligations in the expert code, including the paramount duty to the Court and the requirement of impartiality. The defendants' complaints about the media release, separation of fact and opinion, and use of equipment went to weight or other possible objections rather than showing a defect in preparation beyond the failure to acknowledge the code.

Court Disposition

The defendants' objection based on failure to acknowledge the Expert Witness Code of Conduct was not upheld; the Court made an otherwise order and admitted the evidence.

Orders

  • ['An otherwise order was made under Pt 75 r 3J.' 'The failure to acknowledge the code was held not to be a reason to exclude the evidence.']