The Court of Appeal held that an expert report which identifies specific additional inquiries that a reasonable decision-maker ought to have undertaken, and opines on the nature and reasonableness of those inquiries, is relevant and admissible in Class 4 judicial review proceedings challenging compliance with s 5.5 of the EPA Act — even where the report also contains material going to the merits of the development. The Court held that where a primary judge exercises the discretion under UCPR Pt 31 Div 2 to exclude expert evidence but does so on the basis that the evidence is irrelevant, the question of whether the evidence is in fact irrelevant admits of only one answer and is reviewed on a correctness standard. The Court left open the question of how to manage portions of an admitted expert report that go to the merits rather than permissible inquiries, noting this could be addressed by the trial judge via s 136 Evidence Act limitations or other means.
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