Dibb v Transport for New South Wales [2024] NSWCA 157
Background
Respondent Transport for New South Wales compulsorily acquired the land of the appellants Mr and Mrs Dibb at Bruxner Park Road for the Coffs Harbour Bypass Project. The Valuer-General offered them $1,061,925 in compensation. The appellants disputed this amount and took their case to the Land and Environment Court of NSW.
The primary judge ruled that the respondent should compensate the appellants $1,330,000 for the market value of the property and $86,842 for disturbance costs. Both parties filed cross-appeals to challenge parts of the primary judge's decision.
Expert witness evidence
The respondent relied on evidence of Dr DM, an expert hydrologist and Mr DL, an expert valuer. The appellants contended that the evidence of Dr DM and Mr DL were inadmissible due to "adversarial bias".
The appellants submitted that Dr DM's hydrology evidence, as a whole, was unnecessary, and that:
- Dr DM "took advantage of the unavailability of the CAD software by testifying that he could not understand the survey data" and sought to "discredit the survey data" as it undermined his opinion;
- Dr DM's evidence at trial was "negative and unsubstantiated"; and
- Dr DM's approach was "at best cavalier, but more likely was an attempt to fabricate evidence to serve [the respondent's] narrative".
As to Mr DL, the appellants argued that:
- Mr DL deliberately excluded specific properties when evaluating comparable sales and incorporated properties that were not truly comparable to the Dibb's property;
- Although Mr DL claimed to have inspected the Dibb's property, this was doubtful due to the absence of proof of such a visit; and
- Mr DL was directed by the respondent to justify a valuation for the Dibb's property within the range of $740,000 to $800,000.
The court rejected the appellants' submissions. Having considered the reports of Dr DM and Mr DL, as well as the transcript of their oral evidence, it was ruled that there is no evidence to support the appellants' claim of adversarial bias. It was clear to the court that both experts conducted their task in accordance with the Expert Witness Code of Conduct.[131]
As to Dr DM, the court found:
- He had the necessary CAD software but nonetheless found the survey data unhelpful. While he was unable to resolve a question, there was no deliberate unhelpfulness or adversarial bias.[132]
- When Dr DM's evidence was found by the appellants as negative and unsubstantiated, these are simply points which appellants disagreed with.[133]
- Dr DM attended the Dibb's property and surrounding area, made observations and estimates in reliance upon those observations and other available data, including site information and LiDAR survey. [133]
With regard to Mr DL, the court held: [134]
- The appellants' claim of adversarial bias in his selection of comparable properties is unfounded.
- There is no evidence to support the accusation that he fabricated a second visit to the Property.
- Despite the appellants' written submissions suggesting that Mr DL "reverse engineered" his valuation task, his written and oral evidence does not support this claim. The transcript shows that he was thoroughly cross-examined and answered the questions appropriately.
Ultimately, the appeal was dismissed.
Key Takeaways:
- Allegations of adversarial bias lack merit if experts are found to adhere to the Expert Witness Code of Conduct.
- An expert's thorough cross-examination and consistent responses reinforce the credibility of his/her evidence.
- An expert's evidence based on observations, with no deliberate attempt to mislead, will be regarded by the court as professional and credible.
Read the full decision here.
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