Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. The proceedings before me are for the judicial review of a decision of the Minister administering the Water Management Act 2000 (NSW).

2. The parties in their preparation of the matter engaged hydrology experts to provide a joint report. The experts, Dr Barma, and Dr Martens prepared two reports dated 25 March 2025 and 13 May 2025 respectively.

3. During the course of the hearing yesterday, the first day of the hearing, the defendant made an application to cross-examine the experts, or at least the expert that had been retained by the plaintiff.

4. Notice had been given to the Court that the application would be made by the provision of proposed short minutes of order. This occurred on the day before the hearing began.

5. The plaintiff had been given notice by telephone on 21 May and then more formally on the day before the hearing. The plaintiff opposed the defendant's application. In order to succeed on that application, the defendant needed leave of the Court. This is stipulated by the Court Rules. Uniform Civil Procedure Rule 31.19 states that any party intending to adduce expert evidence:

"must promptly seek directions from the Court in that regard."

6. More importantly, r 59.7 says that evidence in judicial review proceedings is to be given by way of affidavit:

"unless the Court otherwise directs."

7. The rule goes on to say that:

"Cross-examination is permitted only by leave of the Court. Leave should, if practicable, be sought prior to the hearing."

8. Bearing in mind the extra time and expense that would no doubt have been associated with the cross-examination of the experts, I proposed a course in which the experts could consider overnight some further questions to be drafted by the defendant but with notice of the questions first given to the plaintiff.

9. This morning, I was informed that the defendant's expert had been in a position to examine the questions and had formulated some answers. The questions and answers were tendered with the proviso that, if necessary, the defendant's expert would be made available for cross-examination.

10. The plaintiff opposed the tender. Its expert, Dr Martens, had not been able to examine the questions overnight. I allowed a short adjournment this morning to confirm his inability to deal with the new material. I was informed he was not available, but that information obtained yesterday was to the effect that he would not be available.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19781468e65b5d5f4ae877d9)

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