Council Expert Witness Survives Challenge

The acceptance of expert evidence provided by a Council employee by a Commissioner of the Land and Environment Court was unsuccessfully challenged in a recent appeal.

The appeal arose from an application to modify a development consent for the construction of a dwelling house. The consent, which was granted in 2001, incorporated a design for a driveway to access the dwelling and the modification application involved a significant reconfiguration of the driveway.† The driveway was steep and engineering evidence was called by both sides.

The councilís evidence was given by its development engineer.† He held formal academic qualifications in engineering surveying but not in engineering. He did however have extensive experience, spanning almost 40 years in local government, in domestic driveway design.

His evidence was challenged by the applicant on two grounds.† One was that he did not have appropriate qualifications to give expert engineering evidence to the Court as he had no formal engineering qualifications.† The other was that, as an officer of the council, he had a conflict of interests and could not be regarded as an appropriate person to give expert evidence to the Court.

Both grounds of challenge were rejected by the Court in a decision handed down on 10 April 2018.[1]

On the first ground, Moore J held that the qualification for a person to give expert evidence does not necessarily require that they have a university-based qualification. Instead, they should be able to demonstrate from their specialised training, knowledge or experience that they have obtained the necessary degree of specialised knowledge or skill to be regarded able to speak authoritatively about the subject matter in question.† In this case the council witness clearly had significant relevant experience and an appropriate and relevant qualification to give expert evidence on the technical aspects of the proposed driveway design. His Honour commented (at [72]) that:

Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare from being accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectual arrogance of the highest order. It would also be bad at law!

The Court also rejected the second ground of challenge, saying that neither the expert witness nor the council as his employer had any pecuniary interest or other direct or indirect interest in the outcome of the proceedings.

Moore J said that a conflict of interests could arise where an expert witness might be perceived as having a direct or indirect pecuniary interest arising out of their employerís role in particular proceedings and therefore did not meet the independence obligations imposed on expert witnesses.† Excluding a potential witness in such a case may not be unreasonable, depending on the particular circumstances. However, his Honour observed that such a situation does not arise in the case of a council employee when the councilís position in the proceedings is consistent with the position adopted by the council employee.† The Court noted that a contrary position arises where the position adopted by the council is inconsistent with the approach recommended by the council officer and observed that, to avoid such a conflict, it was customary for councils to engage external experts when that situation occurred.

[1] Doyle v Hornsby Shire Council [2018] NSWLEC 45.

For more information about this case, or†on council expert witnesses, please contact Alan Bradbury.