Kindimindi Investments Pty Ltd v Lane Cove Council and Another [2005] NSWLEC 345

Kindimindi Investments Pty Ltd v Lane Cove Council and Another [2005] NSWLEC 345

Paragraphs 4 and 5 of the expert statement were inadmissible because they stated that the consent was uncertain and referred to unresolved issues, thereby infringing the ultimate issue rule; paragraphs 29 to 31 were not pressed. The remaining evidence expressed opinions about alleged uncertainties in consent conditions without purporting to determine their validity, was capable of assisting the Court, and was relevant and admissible under s 55 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
01 July 2005
Procedural Posture
Judicial Review Proceedings / Interlocutory Judgment on Admissibility of Expert Evidence
Outcome
The expert evidence was admitted in part and rejected in part.
Legal Topics
['expert Evidence' 'opinion Evidence' 'relevance' 'ultimate Issue Rule' 'development Consent Conditions']
['evidence' 'planning and Environment' 'administrative Law'] ['expert Evidence' 'opinion Evidence' 'relevance' 'ultimate Issue Rule' 'development Consent Conditions']

Case Brief

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Procedural Posture

Judicial Review Proceedings / Interlocutory Judgment on Admissibility of Expert Evidence

Legal Issues

  1. 1 ['Whether the affidavit and statement of evidence of Nigel Dickson were relevant to the judicial review proceedings.' 'Whether expert opinion evidence concerning uncertainty in consent conditions was inadmissible because it addressed matters solely for the Court.' 'Whether s 80 of the Evidence Act 1995 permits expert evidence on the application of legislation or ultimate legal issues.' 'Whether the remaining parts of the expert statement were admissible under s 55 of the Evidence Act 1995.']

Ratio Decidendi

Paragraphs 4 and 5 of the expert statement were inadmissible because they stated that the consent was uncertain and referred to unresolved issues, thereby infringing the ultimate issue rule; paragraphs 29 to 31 were not pressed. The remaining evidence expressed opinions about alleged uncertainties in consent conditions without purporting to determine their validity, was capable of assisting the Court, and was relevant and admissible under s 55 of the Evidence Act 1995.

Court Disposition

The expert evidence was admitted in part and rejected in part.

Orders

  • ['The Court admits the affidavit of Nigel Dickson sworn on 1 June 2005 and the statement of evidence of Robert Nigel Dickson other than paragraphs 4, 5, 29, 30 and 31 inclusive.']