Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166

Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166

Leave should be granted to rely on the supplementary expert report because late publication of relevant scientific material has materially altered the expert's opinion on the principal issue for determination, the material is directly relevant, there is no prejudice to the parties, and the expert has complied with his overriding duty to assist the Court.

Parties
Applicant: Friends of Tumblebee Incorporated; First Respondent: ATB Morton Pty Limited; Second Respondent: Cessnock City Council
Jurisdiction
Australia
Judgment Date
21 October 2014
Procedural Posture
Interlocutory Application / Application for Leave to Rely on Supplementary Expert Report
Outcome
Leave granted to applicant to rely upon the supplementary affidavit of Dr Stephen Debus affirmed 9 October 2014
Legal Topics
Expert Evidence, Species Impact Statement, Development Assessment, Regent Honeyeater, Application for Leave
Environmental Law Civil Procedure Expert Evidence Species Impact Statement Development Assessment Regent Honeyeater Application for Leave

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Parties

Friends of Tumblebee Incorporated

Applicant

ATB Morton Pty Limited

First Respondent

Cessnock City Council

Second Respondent

Procedural Posture

Interlocutory Application / Application for Leave to Rely on Supplementary Expert Report

Legal Issues

  1. 1 Whether leave should be granted to rely on supplementary expert report due to late publication of scientific material affecting the content of the original report
  2. 2 Whether the supplementary material is relevant to the principal issue for determination—requirement for a species impact statement under the Environmental Planning and Assessment Act 1979

Ratio Decidendi

Leave should be granted to rely on the supplementary expert report because late publication of relevant scientific material has materially altered the expert's opinion on the principal issue for determination, the material is directly relevant, there is no prejudice to the parties, and the expert has complied with his overriding duty to assist the Court.

Court Disposition

Leave granted to applicant to rely upon the supplementary affidavit of Dr Stephen Debus affirmed 9 October 2014

Orders

  • Leave granted to applicant to rely upon the supplementary affidavit of Dr Stephen Debus affirmed 9 October 2014
  • First respondent to file and serve any expert evidence in reply to supplementary report by 9am, 27 October 2014