Key points

• Experts have a paramount duty to the Court and are not “guns for hire”.
• If a party has Court orders in place to rely on particular named experts, it cannot subsequently seek to substitute those experts merely because those experts cannot support the party’s position in its entirety. This is expert shopping.
• To allow a party to change its experts on this basis would subvert the objects and purposes of the expert evidence rules in the Uniform Civil Procedure Rules, and the Expert Witness Code.

In Potter v Woollahra Municipal Council [2025] NSWLEC 80 (a case in which we acted for the Applicant), the Court held that when a party to proceedings has orders to rely on a named expert, it cannot subsequently seek to change that expert merely because that expert cannot support the party’s arguments in the case. This is classic expert shopping.

Background

The appeal concerned the review of a Registrar’s decision, in the context of Class 1 merit appeal proceedings in the Land and Environment Court, to grant the Respondent, Woollahra Council, leave to replace its experts in the proceedings on the basis that those experts could not “fully” support all of the reasons expressed by the Woollahra Local Planning Panel (WLPP) for refusing the development application.

The relevant facts were as follows:

• On 20 September 2024, the Applicant lodged a development application with Woollahra Council.
• On 11 April 2025, the Applicant commenced Class 1 appeal against the Council’s deemed refusal of a development application.
• On 15 May 2025, the Woollahra Local Planning Panel determined the development application by way of refusal. Those reasons were provided to Council on 22 May 2025.
• On 26 May 2025, the Council filed its Statement of Facts and Contentions which included the reasons given by the WLPP for refusing the development application.
• On 30 May 2025, the Court made orders, by consent, granting leave for the parties to rely upon particular named experts and for those experts to confer and prepare joint expert reports.
• On 13 June 2025, the Council’s experts advised Council that they could not support all of the WLPP’s reasons for refusal.
• On 1 July 2024, the Council sought, by way of motion, to change its experts citing that the originally appointed experts (who had been named in the Court orders made on 30 May 2025) could not support all of the WLPP’s reasons for refusal.

The Registrar granted leave to the Council to change its experts finding that:

“the complaint that the applicant has about this being expert shopping is actually a matter that is more appropriately dealt with in cross-examination, going to the opinion of the expert, not to my decision as to whether such leave that is being sought should be granted, to change the expert. That is the reason why I am granting the notice of motion today.”

Decision of the Court on Review

On review of the Registrar’s decision, Justice Beasley found that the Registrar should not have made orders permitting the substitution of the Council’s experts in circumstances where orders had already been made for the originally nominated experts to give evidence and having regard to the reasons put forward by the Council for the change, effectively that the Council was expert shopping.

The Court found that:

(a) being unable to support all of a party’s contentions in the proceedings is a “bad reason” for granting leave to substitute experts: [38]; and
(b) to allow a party to substitute their experts on this basis, would “subvert the objects and purposes of Division 2 of Part 31 of the UCPR, of the Expert Code”: [41]

Whilst a party may engage any expert it wishes, provided that expert has the relevant expertise and complies with his or her obligations under the UCPR and the Expert Code, once Court orders to rely on an expert have been made, a party cannot seek to then substitute that expert merely because that expert does not support all of the contentions the party wishes to rely upon in the proceedings. To do so would allow parties to expert witness shop which would subvert the promotion of justice and resolution of the real issues in dispute. It is also contrary to an expert’s obligations under the Expert Witness Code and the purpose of the provisions concerning expert evidence in the UCPR.

This decision is an important one which all parties should be conscious of in the context of Court proceedings.