Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2014] NSWLEC 134

Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2014] NSWLEC 134

ATB Morton Pty Limited did not demonstrate that Mr Anderson's opinions on planning matters were wholly or substantially based on appropriate specialised knowledge. The opinions were inadmissible, as Mr Anderson, an ecologist, lacked relevant planning expertise, and the reasoning supporting his opinions was not sufficiently disclosed. Consequently, the affidavits and the Dwyer Report were rejected.

Parties
Applicant: Friends of Tumblebee Incorporated; First Respondent: ATB Morton Pty Limited; Second Respondent: Cessnock City Council
Jurisdiction
Australia
Judgment Date
21 August 2014
Procedural Posture
Interlocutory Application / Evidentiary Ruling
Outcome
Objections upheld; evidence not admitted
Legal Topics
Expert Evidence, Opinion Evidence, Admissibility of Evidence, Compliance With Expert Witness Code of Conduct
Evidence Law Environmental Law Civil Procedure Expert Evidence Opinion Evidence Admissibility of Evidence Compliance With Expert Witness Code of Conduct

Case Brief

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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 / Evidentiary Ruling

Legal Issues

  1. 1 Whether Mr Anderson's evidence was opinion evidence inadmissible under s 76(1) of the Evidence Act 1995
  2. 2 Whether Mr Anderson's opinions were based on specialised knowledge under s 79(1) of the Evidence Act 1995
  3. 3 Whether the reasoning in Mr Anderson's affidavit and Dwyer Report was sufficiently disclosed

Ratio Decidendi

ATB Morton Pty Limited did not demonstrate that Mr Anderson's opinions on planning matters were wholly or substantially based on appropriate specialised knowledge. The opinions were inadmissible, as Mr Anderson, an ecologist, lacked relevant planning expertise, and the reasoning supporting his opinions was not sufficiently disclosed. Consequently, the affidavits and the Dwyer Report were rejected.

Court Disposition

Objections upheld; evidence not admitted

Orders

  • Tumblebee's objections to Mr Anderson's affidavit, Attachment H, and supplementary affidavit are upheld; this material is not admitted into evidence.