Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68

Most of the first Todoroski affidavit and report was inadmissible because the report did not state what model was used to produce the modelling results and opinions, and it was unsafe to infer from a reference to CALPUFF in the references section, or from later reports, what model or methodology had been used. The other objections did not justify wholesale exclusion: the assumed facts were sufficiently identified, the missing field notes went to weight rather than admissibility, and the dust plume photographs were admissible for the limited purpose for which they were used. The second Todoroski report was admissible because it expressly identified CALPUFF as the model used and...

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Class 5 Criminal Proceedings; Sentence Proceedings for Offences Under the Environmental Planning and Assessment Act 1979 / Voir Dire/admissibility Ruling on Expert Evidence Before Sentence Hearing
Outcome
Leda's objections were upheld in part. Most objections to the first Todoroski affidavit and report were upheld, but the second Todoroski affidavit and report and the third Todoroski affidavit were admitted in their entirety.
Legal Topics
['admissibility of Expert Opinion Evidence' 'common Law Expert Evidence Principles' 'expert Reports and Disclosure of Assumptions, Facts and Methodology' 'air Quality Modelling Evidence' 'offences Under the Environmental Planning and Assessment Act 1979']
['evidence' 'environmental Planning and Assessment' 'criminal Sentencing'] ['admissibility of Expert Opinion Evidence' 'common Law Expert Evidence Principles' 'expert Reports and Disclosure of Assumptions, Facts and Methodology' 'air Quality Modelling Evidence' 'offences Under the Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings; Sentence Proceedings for Offences Under the Environmental Planning and Assessment Act 1979 / Voir Dire/admissibility Ruling on Expert Evidence Before Sentence Hearing

Legal Issues

  1. 1 ['Whether the Todoroski expert evidence was inadmissible because the expert failed to disclose the scientific methodology or modelling on which his opinions were based.' 'Whether the Todoroski evidence failed to clearly identify the assumed or accepted facts on which the opinions were based.' 'Whether the absence of field notes from the 19 September 2017 site visit and soil sampling rendered the evidence inadmissible.' 'Whether reliance on dust plume photographs in Figures 6 and 7 of the second Todoroski report rendered that evidence inadmissible.' 'Whether the second and third Todoroski affidavits and reports cured or avoided defects in the first Todoroski report.']

Ratio Decidendi

Most of the first Todoroski affidavit and report was inadmissible because the report did not state what model was used to produce the modelling results and opinions, and it was unsafe to infer from a reference to CALPUFF in the references section, or from later reports, what model or methodology had been used. The other objections did not justify wholesale exclusion: the assumed facts were sufficiently identified, the missing field notes went to weight rather than admissibility, and the dust plume photographs were admissible for the limited purpose for which they were used. The second Todoroski report was admissible because it expressly identified CALPUFF as the model used and...

Court Disposition

Leda's objections were upheld in part. Most objections to the first Todoroski affidavit and report were upheld, but the second Todoroski affidavit and report and the third Todoroski affidavit were admitted in their entirety.

Orders

  • ['In the affidavit dated 16 March 2020 and the first Todoroski report, the following evidence is not admissible: the second sentence of paragraph 8 of the affidavit to the end of that paragraph; all of subparagraphs 3(a) and (b) of the report; paragraphs 19 and 20 of the report; the second sentence of paragraph 21...