Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 5) [2014] NSWLEC 175
• Hearing dates: 30 October 2014
• Decision date: 30 October 2014
• Jurisdiction: Class 4
• Before: Pepper J

Decision

Leave granted to rely upon the affidavit of Mr Michael Roderick affirmed 30 October 2014.

• Catchwords: PRACTICE AND PROCEDURE: application for leave to rely on additional evidence - whether evidence was relevant to central issue for determination - whether admission of evidence so late in the proceedings would prejudice the respondent - leave granted.
• Legislation Cited: Civil Procedure Act 2005, ss 56-61; Environmental Planning and Assessment Act 1979, s 78A(8)(b); Uniform Civil Procedure Rules 2005, r 31.19
• Cases Cited: Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127; Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166
• Category: Interlocutory applications
• Parties: Friends of Tumblebee Incorporated (Applicant); ATB Morton Pty Limited (First Respondent); Cessnock City Council (Second Respondent)
• Representation: Mr J Lazarus with Ms J Walker (Applicant); Ms H Irish (First Respondent); Submitting Appearance (Second Respondent); Environmental Defender's Office NSW (Applicant); ATB Morton Pty Limited (First Respondent); Marsdens Law Group (Second Respondent)
• File Number(s): 40027 of 2014

EX TEMPORE Judgment

Tumblebee Seeks Leave to Rely on Further Evidence

1 This was an application by the applicant, Friends of Tumblebee Incorporated ("Tumblebee"), in Class 4 proceedings currently being heard before the Court, to rely on an affidavit of Mr Michael Roderick, affirmed 30 October 2014. Mr Roderick is an ecologist who is currently working as the coordinator of the Woodland Birds for Biodiversity project at BirdLife Australia.

2 The application came on day four of what was initially listed as a two day trial, and moreover, during the concurrent evidence of the ecological experts. The application was opposed by the first respondent, ATB Morton Pty Limited ("ATB"). The second respondent, Cessnock City Council ("the council") has filed a submitting appearance.

3 At the conclusion of the application, leave was granted to Tumblebee to rely on the affidavit, with truncated reasons offered by the Court for its decision, due to time constraints. This judgment contains the more detailed reasons for the exercise of the Court's discretion, as promised on that occasion.

4 The factual background to this application is set out in Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127 (at [5]-[8]). It is not repeated here. Suffice it to say, that the central issue for determination by the Court in the proceedings is whether or not, pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), ATB's development application was required to be accompanied by a species impact statement ("SIS") because the application is in respect of development that is likely to significantly affect the Regent Honeyeater (a threatened species for the purpose of that provision) and its habitat ("the central issue").

5 The reason for the application, and an explanation for its extraordinary lateness, was contained in the affidavit of Ms Sarah Roebuck, affirmed 30 October 2014. Ms Roebuck is a solicitor acting for Tumblebee and is employed by the EDO NSW ("the EDO").

The Roderick Evidence

6 It is, first, convenient to provide more detail on the content of Mr Roderick's affidavit and the evidence Tumblebee sought to rely upon. This will assist in understanding the issue said to necessitate the receipt of the evidence.

7 Relevantly, Mr Roderick has prepared a number of papers relating to the Regent Honeyeater. In particular, he is the co-author of Swift Parrots and Regent Honeyeaters in the Lower Hunter Region of New South Wales: an assessment of status, identification of high priority of habitats and recommendations for conservation, a report for the Sustainable Regional Development Program, Department of Sustainability, Environment, Water, Populations and Communities, together with Mr D A Ingwersen and Mr C L Tzaros, BirdLife Australia (Melbourne, 2013) ("the 2013 Roderick report"). In addition, he has co-authored a report with Mr Ingwersen entitled "Observations of Regent Honeyeaters in the lower Hunter Valley of New South Wales during winter 2012", published in The Whistler 6 (2012): 44-45 ("the 2012 Roderick report").

8 The 2012 Roderick report was relied upon by both ecological experts in these proceedings, namely, Dr Stephen Debus, for Tumblebee, and Mr Craig Anderson, for ATB. More specifically, Dr Debus relied on the 2012 Roderick report to opine in an expert report attached to his affidavit affirmed 8 May 2014 ("the first Debus report"), at paragraph 22 (and following), that (emphasis added):

Following sightings of small numbers in the Lower Hunter and Central Coast, a breeding population was discovered in the HEZ in the early 2000s, in some recent years consisting of tens to approximately 100 birds, including offspring from breeding events in the HEZ (NSW Scientific Committee 2010, Roderick and Ingwersen 2012; Roderick et al 2013).

9 In the 2013 Roderick report (at p 28), Table 1: Summary Table of Records within the Study Area since 1992 indicates, for the 2012 entry with respect to the Regent Honeyeater, that it was:

Widely recorded and monitored at several sites at the Cessnock-Kurri area over 7 months of the year, with > 100 birds likely (see below).

10 When the reader 'sees below', under "2.7.2 Results of Monitoring of Subject Species within Study Area in 2012", the following is relevantly stated:

2.7.2 Results of Monitoring of Subject Species within the Study Area in 2012

Concurrent with the review of previously collated data, there was a significant presence of both Swift Parrots and Regent Honeyeaters in the Lower Hunter. This was due to widespread flowering of Spotted Gum within the Cessnock-Kurri forests that saw an influx of nectivorous species in the area. The coastal forests did not produce any reports of either species, owing to the failure of the Swamp Mahogany trees to produce blossom. BA, along with volunteers from HBOC, undertook monitoring of these birds along with collecting records from other observers.

This monitoring showed that it was likely that more than 100 Regent Honeyeaters were present within the Lower Hunter during this time, representing potentially around 20-25% of the total known current population. Of importance, records spanned from mid-autumn (6th May) virtually until summer (28th November) and it is feasible that the species may have bred in the region but went undetected. Birds were distributed across seven main sites, which included two sites where the species had not been recorded previously. All sites were dominated by Spotted Gum-Ironbark forests. Refer to Roderick and Ingwersen (2012) for specific details.

11 An important factual issue that the Court must determine in deciding the central issue referred to above, is the occurrence of the Regent Honeyeater within the Hunter Economic Zone ("the HEZ"). Although ATB also contended that relevant to this application was whether or not the population of birds that occurred in the HEZ constituted a breeding population or were the result of a breeding event (with respect, the submission was unclear), I agree with Tumblebee that this was a subsidiary issue for the purposes of the application, and unless, and until, it could be established that Regent Honeyeaters were actually present in the HEZ and in what numbers, any exploration of the activities of the birds in the area (breeding, or otherwise) or how they came to be located there, was immaterial for the determination of the application.

12 Dr Debus was cross-examined by Ms Heather Irish, counsel for ATB, in an attempt to undermine his statement in his 2012 report that a breeding population of Regent Honeyeaters was discovered in the HEZ which, "in some recent years", consisted of "tens to approximately 100 birds". The evidence elicited by Dr Debus during his thorough questioning revealed that, upon a careful analysis of the 2012 and 2013 Roderick reports, this estimate could not be justified on this material. This was particularly so when the 2012 Roderick report was interrogated.

13 The 2012 Roderick report was attached to Dr Debus' first report. It is in the form of an article in what appears to be a trade magazine compiled by twitchers, both amateur and professional. The Court was informed, albeit from the bar table, that The Whistler is not a peer reviewed magazine. A careful reading of the 2012 Roderick report indicates that it is not written with the precision and felicity that would be expected of a more rigorously scrutinised academic or scientific journal.

14 It was the view of Tumblebee that as a result of views expressed by the respective experts in their reports, and the joint experts' report dated 25 July 2014, that the ecology and range of the Regent Honeyeater, and especially its occurrence in the HEZ, were not in dispute. This understanding was deposed to in the affidavit of Ms Roebuck. In forming this opinion, Ms Roebuck indicated, under cross-examination, that, in particular, she had relied on paragraph 12 of the report of Mr Anderson dated 14 July 2014, attached to his affidavit, affirmed 15 July 2014. Paragraph 12 states as follows:

12 I am for the most part in agreement with the report produced by Dr Debus as relates to the status and ecology of the Regent Honeyeater, the importance of the HEZ LEP area to the species as a component of the Lower Hunter habitat area, and the possible outcomes relating to cumulative impacts of large scale development within the HEZ LEP area.

15 In addition, Ms Roebuck also had regard to contention 4 of the joint report of experts filed on 25 July 2014, which provides that:

Contention/particular	Position of Mr Anderson	Position of Dr Debus	Matters agreed	Matters not agreed
4. The wider HEZ study area and contiguous forests periodically support an important population, of 40-100 birds, or up to 10-25% of the global population and 15-25% of the NSW population in some years.			We agree.

16 Ms Roebuck was cross-examined by Ms Irish in order to found a submission by ATB that the view held by Tumblebee that the presence of Regent Honeyeaters in the HEZ was not in contention, was not reasonable.

17 On the basis of the material put before the Court for the purpose of the application, I do not agree with this characterisation. While it may have been preferable to refine with precision whether or not the occurrence of the Regent Honeyeater in the HEZ was in dispute (irrespective of whether or not its occurrence was due to a prior breeding event or whether its occurrence constituted a breeding population), hindsight is, as may be observed, just that.

18 In her affidavit, Ms Roebuck goes on to state that it was not until Dr Debus was cross-examined that Tumblebee became aware that the factual matter alluded to above, was in dispute. This is significant because in Tumblebee's possession, and provided by it to the EDO in December 2013, was a spreadsheet of data regarding Regent Honeyeater records from BirdLife Australia. The spreadsheet had not been put into evidence by Tumblebee because of the assumption referred to above.

19 As a result of the unconcluded cross-examination of Dr Debus, Ms Roebuck contacted Mr Roderick on 29 October 2014, in order to confirm that the data contained in the spreadsheet provided to Tumblebee in December 2013 had been used for the purposes of preparing the 2013 Roderick report. Mr Roderick informed her that this was correct, but that the data may have been updated since the publication of that report. Ms Roebuck therefore requested a copy of the updated data used in the preparation of the 2013 Roderick report. This information was provided by Mr Roderick by way of a spreadsheet attached to his affidavit. It is this spreadsheet data that Tumblebee now seeks to rely upon.

20 The spreadsheet data is important because from 6 May to 28 November 2012 (the same time period used to compile the sightings of Regent Honeyeaters in the HEZ contained in the 2012 Roderick report, used in the 2013 Roderick report), it is apparent that on multiple occasions, multiple Regent Honeyeaters have been sighted in the HEZ. The spreadsheet provides information concerning the date and location of the birds sighted within the HEZ, and the number of birds sighted on each occasion. The data would appear, at this early juncture at least, to be cogent evidence that Regent Honeyeaters have, between May and November 2012, been located in the HEZ, and therefore, goes some way to validating the opinion expressed by Dr Debus in his first report at paragraph 22 (quoted above).

21 Having regard to the central issue for determination before the Court in these proceedings, the relevance of this new evidence becomes immediately apparent.

22 In his affidavit Mr Roderick sounds, however, a note of caution that the spreadsheet contains raw sightings data and, "as such, it is likely to include multiple accounts of some birds and it is likely that not all birds in the area were counted".

23 Email correspondence tendered to the Court by ATB indicated that Dr Debus was aware of the data in mid December 2013, but that he had "indicated he did not need these at this time". No reference was made to the spreadsheet data by Dr Debus in his later report dated 9 October 2014, attached to an affidavit affirmed by him of the same date ("the second Debus report").

24 The receipt of the second Debus report into evidence was the subject of the decision in Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166. The second Debus report was necessitated due to the publication of an additional paper co-authored by Mr Roderick and published in September 2014. As was noted in Tumbebee (No 4) (at [6]-[7]):

6 The paper concerns:

(a) the contribution of the HEZ Regent Honeyeater breeding success and recruitment in relation to other Regent Honeyeater sites;

(b) the concentration of a Regent Honeyeater breeding event in 2007 in and around the HEZ but not in contiguous bushland in the wider Lower Hunter; and

(c) the occurrence of another Regent Honeyeater breeding event in and adjoining the HEZ in 2012.

7 Although, when preparing his first affidavit, Dr Debus was aware that the birds had been present in the HEZ in 2012, he was not aware, until the publication of the first additional document, that the birds had explicitly been recorded nesting there. This has led Dr Debus to conclude that the HEZ breeding area is "even more important than I understood at the time of writing my original affidavit".

25 As a result of the 2014 paper Dr Debus opined the following in his second report:

13 It is my opinion that the evidence presented in the Roderick et al. (2014) paper provides materially different, new information and perspective on:

(a) the relative importance of the Honeyeater's breeding events in the HEZ in 2007 and 2012, compared with other sites elsewhere and with the non-HEZ bushland in the Lower Hunter; and

(b) the HEZ as now potentially more important for the Regent Honeyeater than the Capertee Valley.

26 Again, ATB argued that the importance of establishing the occurrence of the Regent Honeyeater in the HEZ (and the 2012 breeding event) must have therefore been apparent to Dr Debus and Tumblebee (otherwise there would have been no necessity for the second Debus report), and hence, it must have been obvious to Tumblebee that it was a matter in dispute.

27 Again, I do not agree. The second Debus report is primarily concerned with the breeding events of the Regent Honeyeater in the HEZ in 2007 and 2012. That is to say, it is broader in scope and perspective than the mere fact of the occurrence of the bird in the HEZ. No criticism ought, therefore, to be directed to Dr Debus for failing to have regard to the spreadsheet data in his first or second reports.

Tumblebee is Granted Leave to Rely on the Roderick Evidence

28 Tumblebee submitted that leave ought to be granted to it to rely on Mr Roderick's affidavit, and in particular, the spreadsheet data annexed to it, essentially for three reasons:

(a) first, the evidence was relevant and important given the central issue for determination by the Court. If the evidence was not before the Court, the Court was at risk of determining the jurisdictional fact on potentially misleading expert evidence;

(b) second, reliance on the evidence and its receipt by the Court would not unduly delay the final determination of the matter and would not be likely to materially increase the costs of the proceedings; and

(c) third, while it was regrettable that the application was so late, the explanation provided by Tumblebee for the delay was reasonable in all the circumstances. Furthermore, as soon as it had become apparent to Tumblebee that the occurrence of the bird in the HEZ was a factually disputed matter and that the 2012 and 2013 Roderick reports could not be relied upon as providing the basis for the estimate given by Dr Debus of the presence of birds in the HEZ in his first report, it moved with alacrity in bringing the evidence to ATB's and the Court's attention.

29 Tumblebee indicated that the evidence of Mr Roderick was not being relied upon as expert evidence. That is to say, the evidence was being put forward as that of an employee of BirdLife Australia who, as part of his employment, managed a national database of Regent Honeyeater records. This assertion is consistent with the matters deposed to in his affidavit and as read by Tumblebee. Because the evidence is not put forward as expert evidence, r 31.19 of the Uniform Civil Procedure Rules 2005 does not apply.

30 In reply, ATB argued that:

(a) first, this was a "rear-guard" attempt to rectify the damage done to Dr Debus' evidence as a result of his cross-examination, and therefore, it would be unfair at this late stage in the proceedings to allow reliance upon the evidence. Moreover, there had to be finality in the evidence to be put before the Court. In other words, even assuming that the evidence was relevant and important, Tumblebee could not continue to put evidence before the Court in support of its contentions;

(b) second, in any event, the evidence was not as material or important as Tumblebee claimed given, as Mr Roderick conceded in his affidavit testimony, the unreliability of the raw sightings data; and

(c) third, ATB would be prejudiced in the form of "severe delay" because the hearing of the proceedings would not conclude until 2015. This submission was made in the context that ATB is the holder of a valid consent and it was the council, not ATB, that had formed the requisite opinion that an SIS was not required.

31 In my opinion, leave ought to be granted to Tumblebee to rely upon Mr Roderick's affidavit. I have come to this conclusion having regard to the following factors and having regard to the matters contained in ss 56-61 of the Civil Procedure Act 2005 ("the CPA"):

(a) first, although the Court has considerable sympathy for the position that ATB would find itself in if this application was acceded to, and although the Court considers that there is much force in the submission made by Ms Irish that there must be a limit to the evidence that Tumblebee puts before the Court, nevertheless because of my finding that Tumblebee's belief that the occurrence of the Regent Honeyeater in the HEZ was not in contention was reasonable, I do not believe that the undoubted unfairness to ATB caused by the granting of leave is sufficient to outweigh the other factors that have caused me to exercise my discretion in favour of Tumblebee;

(b) second, the prejudice of "severe delay" complained of by ATB is somewhat muted by the fact that, as a result of various interlocutory applications made by both parties, the hearing of the matter would not have in any event concluded this year. That is to say, irrespective of this application, this matter would have continued part-heard into 2015. Furthermore, the cross-examination of the expert witnesses has not concluded and the witnesses have not been excused. At best, reliance upon this evidence will add no more than half a day to the hearing time. Having said this, it must be acknowledged that the legal costs to the parties are likely to increase as a result of the successful application insofar as further joint conferencing and a further supplementary joint report may be necessary in order for the parties to deal with the evidence;

(c) third, there can be no doubt that the evidence is relevant and significant. Reliance upon the evidence will prevent the Court from proceeding on a potentially incorrect factual basis, namely, that there were fewer occurrences of the Regent Honeyeater in the area the subject of the development approval than the experts previously understood. As stated above, this is an important finding of fact that must be made by the Court as part of its assessment pursuant to s 78A(8)(b) of the EPAA. If it is found by the Court, for example, that there have been no, or very few, recent occurrences of the Regent Honeyeater in the HEZ, then it is arguably less likely that the Court will find that the application was in respect of development on land that is likely to significantly affect a threatened species or its habitat thereby requiring an SIS. Evidence of the occurrences of the bird in the HEZ becomes all the more critical when, as has been agreed by the parties, as at 2011 it was estimated that only 350 to 400 mature Regent Honeyeaters remained in the world;

(d) fourth, although Mr Roderick has noted the unreliability of the spreadsheet data, this is the same data that forms the basis of the 2012 and 2013 Roderick reports that both ecological experts have relied upon to express their opinions. Thus any criticism of the data will concomitantly attach to the weight to be given to the expert reports; and

(e) fifth, I accept that upon realising that reliance on this evidence was required, Tumblebee acted with appropriate haste to bring the matter to ATB's and the Court's attention.

32 For all these reasons, I was of the opinion that granting leave to Tumblebee to rely upon Mr Roderick's affidavit would facilitate the "just, quick and cheap resolution of the real issues in the proceedings" (s 56 of the CPA).

33 Having said this, ATB have requested, and the Court agrees, that any further joint conferencing and supplementary evidence produced by the experts be strictly confined to commenting upon the raw sightings data contained in the spreadsheet annexed to Mr Roderick's affidavit, and the implications, if any, for the experts' earlier conclusions concerning the occurrence of the Regent Honeyeater in the HEZ.

34 It will be necessary for further directions to be made to accommodate the grant of leave pursuant to this application. The parties are therefore directed to formulate some draft short minutes of order in conformity with these reasons, which are to be finalised in a directions hearing before me on 3 November 2014 at 2pm. The exhibits will be returned at that directions hearing.

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Decision last updated: 03 November 2014