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Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4)

 

[2019] QSC 199

SUPREME COURT OF QUEENSLAND

CITATION:

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 4) [2019] QSC 199

PARTIES:

First Plaintiff: SANRUS PTY LTD AS TRUSTEE OF THE QC TRUST ACN 097 049 315

AND

Second Plaintiff: EDGE DEVELOPMENTS PTY LTD AS TRUSTEE OF THE KOWHAI TRUST ABN 26 010 309 529

AND

Third Plaintiff: H&J ENTERPRISES (QLD) PTY LTD AS TRUSTEE OF THE H&J TRUST ACN 077 333 736

AND

First Defendant: MONTO COAL 2 PTY LTD ACN 098 919 414

AND

Second Defendant: MONTO COAL PTY LTD ACN 098 393 072

AND

Third Defendant: MACARTHUR COAL LIMITED ACN 096 001 955

FILE NO/S:

SC No 8609 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

12 August 2019

DELIVERED AT:

Brisbane 

HEARING DATE:

5 August 2019; 6 August 2019; 7 August 2019

JUDGE:

Bond J

ORDER:

  1. The parties are directed to formulate orders consistently with these reasons –
  1. (a)
    granting leave to rely at trial on the parts of the joint expert reports in respect of which leave to rely was pressed during the applications;
  2. (b)
    granting appropriate leave to rely at trial on responsive expert reports rendered necessary by (a);
  3. (c)
    directing those reports to be filed and served within the time frames identified by the evidence adduced during the applications; and
  4. (d)
    granting the plaintiffs leave to amend as sought.
  1. The parties are directed to confer to reach agreement as soon as is practicable upon a further revised plan for the remainder of the trial which identifies when the reports mentioned in [1(c)] are to be delivered; and which identifies when and over what duration each expert witness' evidence will be adduced, and which adjusts the existing trial plan accordingly. 
  2. In default of agreement as to order 2, the competing versions of the further revised trial plan are to be presented to the Court as soon as is practicable for ruling upon the areas of disagreement.
  3. Except with the leave of the Court, no party will be permitted at the hearing of this proceeding to adduce any expert opinion evidence other than in the form of a report which has been authorised by order of the Court.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS – where the plaintiffs and defendants sought to rely on expert evidence outside that permitted by case management orders – where the defendants contended the plaintiffs needed leave to adduce further expert evidence which was substantive and not merely “in reply” – whether leave should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 165, r 367, r 426, r 429B

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered

Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279, cited

COUNSEL:

P L O’Shea QC, with J P O’Regan, and M G Lyons, for the plaintiffs

A M Pomerenke QC, with E L Hoiberg, and M J Hafeez-Baig, for the defendants

SOLICITORS:

Holding Redlich for the plaintiffs

Allens for the defendants

Introduction

  1. [1]
    I have identified the nature of the present trial in two previous decisions: see Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2018] QSC 308 (Sanrus No. 1) and Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2019] QSC 162 (Sanrus No. 2).  I will not repeat what I have written there and the present reasons should be read against the background of those decisions. 
  2. [2]
    Over the first 48 hearing days of the trial –
    1. (a)
      the evidence of the plaintiffs’ lay witnesses has been completed;
    2. (b)
      subject to two presently irrelevant caveats, the evidence of the defendants’ lay witnesses has been completed; and
    3. (c)
      the experts have met in 17 facilitated joint expert conclaves and have produced 17 joint expert reports. 
  3. [3]
    Monday 5 August 2019 was the 49th hearing day of the trial.  It was scheduled to be the day on which the hearing of oral evidence from the experts would commence.  The experts cover various disciplines involved in assessing the feasibility of a proposed coal mining development.  The expert evidence was scheduled to run until 6 September 2019.  The agreed trial plan contemplates that I would hear evidence from 29 experts during that period, with the experts broadly being grouped into their respective disciplines.  Within each grouping I would hear from the plaintiffs’ expert(s) and then from the defendants’ expert(s).  After all the oral evidence was completed the trial plan then contemplated that there would be an adjournment during which written submissions would be finalised and delivered.  Oral addresses would commence on 8 October 2019 and conclude on 21 October 2019.  The court calendar presently contemplates that I would be not listed in any other matters for the remainder of the year, which would give me about 8 or 9 weeks judgment writing time, before returning to an ordinary judicial calendar listing in 2020. 
  4. [4]
    Unfortunately, problems arose during the conduct of some (but not all) of the 17 joint expert conclaves.  Some of the experts sought to present new information and analyses for the very first time at the conclaves.  Although the relevant joint expert reports produced at the end of the conclaves dealt with other matters in the manner contemplated, the experts concerned also recorded their new material in the reports and expressed opinions by reference to that new material.  In large part their opposite numbers were not able to deal with the new material in the context of the conclaves, and, would, if the new material were permitted to be relied upon, need further time to do so.  
  5. [5]
    The result is that I now have before me applications by the defendants (and by the plaintiffs) for orders that their opponents should not be permitted to rely at trial on certain matters of expert analysis and opinion which have been expressed by their opponents’ experts in the joint expert reports.  There is also a related application by the plaintiffs for leave to amend their pleadings in particular respects, although that application rises or falls with the disposition of their application in relation to the new evidence of one of their experts.
  6. [6]
    It is common ground that the first substantive question in the resolution of the applications is whether the course taken by the experts who sought to present new material was permitted by case management orders which I made on 21 December 2018 (and amended slightly over the following months) concerning expert opinion evidence, the holding of joint expert conclaves and the production of joint expert reports. 
  7. [7]
    If it was not permitted, then the parties proposing to call that expert applied for leave to adduce the new material notwithstanding the extent of non-compliance with the orders.  Those applications give rise to the second substantive question, namely whether I should exercise a discretion to allow the new material.  As argued there was no dispute between the parties that if leave was given it should be on condition that the relevant opposing experts had the chance to consider the new material and to respond to it.   

The broader context

  1. [8]
    It will assist the understanding of the view which I take about the orders which I made on 21 December 2018 if I explain something of the broader context applicable to case management orders of the nature of those which have been made by me and others before me in this proceeding.
  2. [9]
    The purpose of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and, it would follow, of the steps mandated by them, is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: UCPR r 5(1).  The Courts are required to apply the UCPR with the objective of avoiding undue delay, expense and technicality and of facilitating the purpose so stated: UCPR r 5(2). 
  3. [10]
    It is commonplace in complex litigation that Courts closely manage the interlocutory stages of such proceedings and make orders to alter the content and timing of the interlocutory steps in such proceedings to suit their particular nature.  It scarcely needs saying that in so doing the Courts are required to pursue the objectives stated in UCPR r 5(2) and that they seek to do so.
  4. [11]
    For the most part, Courts still require pleadings to be delivered.  In a plaintiff’s case the fundamental task of the statement of claim is to state the material facts which, if proved by evidence, will establish the cause of action on which the plaintiff relies and which will entitle the plaintiff to the relief it seeks: UCPR r 149(1)(b).  In a defendant’s case – leaving aside for sake of simplicity the case of a counterclaiming defendant – the defendant must plead denials, non-admissions or admissions in relation to the material facts pleaded by the plaintiff: UCPR r 165.  Each party is also subject to obligations to plead matters which, if not pleaded, might take their opponent by surprise (UCPR r 149(1)(c)), and there are also other matters which must be specifically pleaded (UCPR rr 149(1)(d), (e) and 150).  Sometimes compliance with those two requirements will necessitate pleading evidence.  However, that apart, a pleading states and particularises material facts: it does not state the evidence by which the material facts are to be proved: UCPR r 149(1)(b).
  5. [12]
    The function of pleadings is to state with sufficient clarity the case that must be met, so as to avoid surprise to the other party and to allow the issues to be narrowed: see Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ and Gaudron J at 286.[1]   In order that pleadings may fulfil that purpose, parties are confined to the case articulated by their pleadings.  Of course, confinement can be avoided by amendment, but that is only permitted in particular circumstances and, outside those circumstances, only if a judicial discretion is exercised to permit the amendment to occur.  The considerations relevant to the exercise of that discretion are well known: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and see Sanrus No. 1 at [70] and Sanrus No. 2 at [12] – [16].
  6. [13]
    Notwithstanding that pleadings do not state the evidence by which the pleaded material facts are to be proved, it has become commonplace in complex litigation that the Courts require the parties to disclose to each other before trial to a greater or lesser degree the evidence by which the parties will seek to prove the material facts they have pleaded (to the extent that proof is required because the material facts are disputed).  Thus one sees case management orders and directions requiring parties to deliver in advance of a trial –
    1. (a)
      affidavits, witness statements or witness summaries identifying the evidence their respective lay witnesses will give at trial; and
    2. (b)
      expert reports expressing the expert opinion evidence which their respective expert witnesses will give at trial.
  7. [14]
    Where the issues in a case have already been identified by the traditional process of pleadings (which for the most will not have stated the evidence by which the issues will be proved), what is the purpose of the superimposition of an order requiring the parties to identify to their opponents during the pre-trial process the evidence by which they intend to prove their pleaded cases? 
  8. [15]
    It is axiomatic that if case management orders have required the parties to disclose to their opponents the way they intend to prove their respective pleaded cases, that course was required because the Court determined that it would serve to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.  But recitation of that sort of motherhood statement is not a sufficient articulation of the purpose of requiring such a course.  The underlying purpose is to avoid surprise to the other party and to allow the issues to be narrowed, albeit at a more granular level than is achieved by the delivery of pleadings.  It is to allow any eventual trial to proceed in a more efficient manner than it might otherwise have proceeded.  In order to fulfil that purpose, it must follow that there is some degree to which the parties are confined to the manner of proving their case which they have flagged by the material which they have delivered in compliance with such case management orders.  That is why such orders conventionally also specify that the parties may not deliver evidence outside the constraints of the orders concerned, except with leave of the Court.  The extent of confinement which must be regarded as having been achieved by such orders and the attitude which must be taken to applications for leave will be very much a question of fact and degree, and will vary from case to case.  The considerations which would be relevant to the exercise of a discretion to permit evidence to be adduced outside the constraints imposed by the case management orders of the type under discussion are similar to those applicable to pleading amendment: see Sanrus No. 2 at [12] to [15]. 
  9. [16]
    Two particular cases relevant to case management orders of the nature of those referred to in [13] above should be mentioned.  First, such orders often admit of the delivery by the plaintiff – again leaving aside for the sake of simplicity the case of a counterclaiming defendant – of lay witness evidence “in reply” and also expert evidence “in reply”.  Second, such orders often require expert witnesses to attend joint expert conclaves and to participate in the production of joint expert reports.
  10. [17]
    As to the former case:
    1. (a)
      Meaning must be given to the fact that the order has provided that the evidence is “in reply”. 
    2. (b)
      Prima facie the use of that terminology flags an intention that the evidence “in reply” would be limited to evidence rebutting the evidence to which the evidence “in reply” was addressed.  As a general proposition, case management orders permitting of evidence “in reply” are not intended to provide gateways for evidence merely providing supplementary confirmation of a plaintiff’s case.  Nor, a fortiori, are they intended to provide a gateway to admit of new or alternative modes of proving the plaintiff’s case. 
    3. (c)
      The rationale for so construing such orders is the promotion of the purpose identified at [15] above.  So construing such case management orders is necessary to ensure fairness and to avoid the vice that if evidence “in reply” were to be extensively admitted it would be necessary to give the opponent the opportunity in turn to rebut the new “reply” evidence, with the consequence that issues would not be narrowed and the interlocutory process would meander on.[2]
    4. (d)
      The delivery of evidence purporting to be in reply but actually amounting to further evidence in chief would require leave.  But it may well occur sufficiently in advance of trial or be of such a nature that the failure to comply with the constraint intended by the words “in reply” is hardly worthy of remark, let alone of a contested application for leave to deliver the evidence notwithstanding failure to comply with the order.  In those cases, leave would be a formality.  But the closer to trial and the more disruptive reception of the non-compliant material would be, the more likely it is that there will be objection and the greater the weight there might be to the argument that fairness requirements might require the Court not to permit non-compliant material to be received into evidence.
  11. [18]
    As to the latter case:
    1. (a)
      UCPR r 429B(1) permits of orders directing experts to meet and to identify the matters on which they agree, to identify the matters on which they disagree and the reasons why; and to attempt to resolve any disagreement. 
    2. (b)
      UCPR r 429B(2) authorises the Court to set the agenda for such a meeting; to specify the matters which the experts must discuss; to direct whether or not legal representatives may be present and to give direction about the form of any report to be made to the court about the meeting; and to give any other directions the court considers appropriate. 
    3. (c)
      Again, the underlying purpose of such case management orders is the purpose identified at [15] above, namely avoiding surprise, permitting narrowing of the areas of dispute, and promoting the efficient conduct of the trial. 
    4. (d)
      Such orders contemplate that the experts, having been provided with each other’s reports, will meet to discuss them.  The purpose of requiring joint expert conclaves and joint expert reports is not to provide a gateway for new or alternate expressions of expert opinion whether for supplementing the proof of the party with the burden of proof, or supplementing the negation of that case.  How could it be if the underlying purpose of the conclave was to be fulfilled? 
    5. (e)
      On the other hand even when one accepts that there must be some limits, one must also recognise that the overriding duty of an expert giving evidence at a trial is to assist the Court (UCPR r 426) and case management orders of the type under discussion generally require joint expert reports to set out reasons for any disagreement which survives the joint expert conclave.  The fulfilment of an expert’s duty in relation to the conclave might, in a particular case, require the expert to set out as an explanation for disagreement with his or her opposite number something which has not previously been expressed in the expert reports taken to the conclave.
    6. (f)
      As with lay evidence in reply, the reliance on new material in a conclave might be of such a nature that the fact that an expert seeks to do so is not worthy of remark, let alone of a contested application concerning the new material.  Opposing experts may easily be able to deal with the new material at the conclave and it might not disrupt at all the orderly progress of the conclave (and production of joint expert reports) in accordance with the orders.  In such cases, leave would be a formality.  But the more disruptive is the attempt to bring new material to a conclave and the more disruptive reception of the new material is to the course towards trial, the more likely it is that there will be objection and the greater the weight there will be to arguments that fairness requirements may require the Court not to permit new material to be received into evidence.
    7. (g)
      Too restrictive an approach to the introduction of anything which might be characterised as new material might unfairly inhibit discussion at the conclave and the proper expression of expert opinion which is necessary for resolution of the proceeding.  But too liberal an approach to permitting new material could seriously disrupt scheduled timetables and would create a risk of descending into an unfair spiral of new evidence from one expert and then from the other, with consequent adverse effect on the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.  Indeed there could be no guarantee that the process of permitting new material to be adduced would actually spiral to a point of no dispute between the experts, there being a real possibility that an expert could come up with a new theory, thereby opening up the spiral. 
    8. (h)
      There is no easy answer to the question whether new material should be permitted to be relied on at a conclave or at a trial by the party calling an expert who has sought to introduce it.  But in a proper case it might well be necessary for a Court to make orders closing the gate to new material, notwithstanding that an expert suggests that they might be able to respond to some opposing point of view if they were given more time or permitted to introduce new material. 

The case management orders made in this case

  1. [19]
    In Sanrus No 1 and Sanrus No. 2, I set out details concerning the history of case management orders made in relation to the delivery of expert opinion evidence before trial in this case and the consequences for the conduct of this trial of steps taken in response thereto.
  2. [20]
    Prior to my orders of 21 December 2018, other orders had been made by judges with the management of this proceeding setting a timetable for the delivery of lay witness summaries and for expert opinion evidence, including expert opinion evidence in reply, by the plaintiffs. Sanrus No 1 dealt with circumstances in which the plaintiffs had, to the objection of the defendants, delivered a great deal of expert opinion evidence which went beyond what could properly be characterised as expert opinion evidence in reply. 
  3. [21]
    That judgment records that I granted the plaintiffs leave to amend their pleadings and to rely on the new expert evidence.  Those orders were made in my orders of 21 December 2018 at [1] to [6].  I made orders requiring the defendants’ further expert reports to be delivered in two tranches: first by 29 March 2019 and second by 14 May 2019: order 21 December 2018 at [7].  No provision was made for further expert evidence “in reply” from the plaintiffs’ experts.
  4. [22]
    I programmed facilitated expert conclaves (referred to in the orders as “joint expert conferences”) to occur in the period 10 June 2019 to 1 July 2019, for the purposes of the conduct of the joint expert conferences and the subsequent production of joint expert reports as soon as practicable and no later than 8 July 2019: order 21 December 2018 at [8] and [16].  (Whilst the conclaves were occurring, the trial was to proceed to receive lay witness evidence.)  My order was subsequently varied in relation to the dates by which the parties were complete these steps, but the concept of requiring a period of substantive conferral, following which the relevant experts would have a further and relatively short period to record the outcome of their conferral in the joint expert report by a defined end date was preserved.  Thus:
    1. (a)
      By paragraph 1 of my order of 3 June 2019, order [16] of the order of 21 December 2018 was varied to provide:

In respect of each of the topics set out in column A of Schedule A to this order, the facilitator and the experts identified in columns B and C are directed to meet during the periods set out in column D for the purpose of the conduct of joint expert conferences and the subsequent production of joint expert reports as soon as reasonably practicable and no later than the dates set out in column E of Schedule A.

  1. (b)
    The operative version of Schedule A was that substituted by paragraph 2 of the order of 13 June 2019 and entitled Schedule A2.
  2. (c)
    Schedule A2 provided for 17 conclaves organised by discipline.  For all but 3, the conclaves were to be held between 14 June and 5 July 2019 with the joint expert report to be produced by 15 July 2019.  Two conclaves were to be held between 14 June and 8 July 2019 with the joint expert report to be produced by 22 July 2019.  One conclave were to be held between 14 June and 5 July 2019 with the joint expert report to be produced by 22 July 2019.
  1. [23]
    My orders of 21 December 2018 required the parties to confer –
    1. (a)
      (by order [10]) to agree upon the number of joint expert conferences; the attendees thereto and,

[…]

  1. (c)
     the questions which should be answered at each conference; and
  1. (d)
     the materials to be placed before the experts for that purpose.
  1. (b)
    (by order [12]) to identify for the experts before the date of the conferences, the conference at which the expert was to attend; the other attendees; and –

[…]

  1. (c)
     the questions which should be answered at each conference; and
  1. (d)
     the materials to be placed before the experts for that purpose.
  1. [24]
    As to this, an instruction document was subsequently agreed to by the legal advisers for the parties and provided to all experts prior to the commencement of the conclaves.  In each case the document was, so far as is relevant, in the same terms.  The document provided (emphasis added):

1  The Joint Report

  1. (a)
    There is to be one joint expert report on this topic.
  1. (b)
    As only some experts may be involved in an issue or matter on this topic, it may not be the case that all experts are involved in the conclave at all times.
  1. (c)
    The joint expert report shall identify the experts involved in each issue or matter on this topic and their contributions to the report.

2  The Questions you are to address in your Chapter of the Joint Report

  1. (a)
    What are the issues or matters addressed in your reports and your corresponding expert's report which you agree upon?
  1. (b)
    What are the issues or matters addressed in your reports and your corresponding expert's report that you disagree upon?
  1. (c)
    In respect of the issues or matters that you disagree upon, what are the reasons for your disagreement?

3  Note

  1. (a)
    An expert who has not addressed an issue or matter in their reports may not address that issue or matter, for the first time in the conclave. For the sake of clarity, this does not prevent an expert responding to a fact or opinion on an issue or matter in another expert's report if the issue or matter is addressed in the first expert's report.
  1. (b)
    You are reminded to confine yourself to your areas of expertise.

4  Materials – you should take the following documents (at a minimum) to the conclave

  1. (a)
    This document.
  1. (b)
    The Table of joint expert reports (attached).
  1. (c)
    Your report/s (if struck-through, the strike through version of the report) and the documents you relied upon for the purpose of your report/s (including correct document ids).
  1. (d)
    A copy of paragraphs 13 to 18 of the order of 21 December 2018 as amended.
  1. [25]
    I specified a process for the appointment of a facilitator to chair the expert conclaves and to facilitate the production of joint expert reports: order at [13] and [14].  The Honourable Robert McDougall QC, retired judge of the Supreme Court of New South Wales was subsequently appointed, by my order dated 8 February 2019.  My order of 21 December 2019 directed that the facilitator be provided with copies of my order and of the pleadings, particulars and the expert reports: order at [15].
  2. [26]
    Orders [17] to [20] are particularly relevant for present purposes and are set out below (emphasis added):

Expert Evidence - Joint Expert Reports

[…]

  1.  The following directions are made in relation to the joint expert conferences:
  1. (a)
    The purpose of the joint expert conference is to enable the attending experts to prepare a joint expert report which, so far as possible, will identify the matters of expert opinion which are agreed and matters of expert opinion which are not agreed in relation to those questions.
  1. (b)
    [...]
  1. (c)
    Each party must ensure that their respective experts have copies of this order and of the material which is to be placed before them.
  1. (d)
    All matters which are discussed at the joint expert conferences will be confidential and 'without prejudice'.  However:
  1. (i)
    the joint report that is subsequently produced by the experts will not be confidential;
  1. (ii)
    the experts may disclose matters discussed at the joint expert conferences with the parties or their legal representatives, after the joint report has been signed by the relevant experts and the facilitator.  For the avoidance of doubt, disclosure by an expert as contemplated by this subparagraph (ii) does not affect the without prejudice status of the communications at the joint experts conference.
  1. (e)
    Neither the parties nor their legal representatives are to attend the joint expert conferences.
  1.  The following directions are made in relation to the joint expert reports:
  1. (a)
    The precise form of the joint expert report is a matter for the attending experts (with the assistance of the facilitator) to determine, bearing in mind their overriding duty to assist the Court impartially on matters relevant to their areas of expertise.
  1. (b)
    As far as possible, the joint expert report should canvass issues or groups of issues separately and distinctly in a way which permits succinct answer of the identified questions and, in the course of so doing, identification of:
  1. (i)
    relevant statements of agreed opinion;
  1. (ii)
    relevant statements of matters not agreed between experts with short reasons why agreement has not been reached;
  1. (iii)
    relevant statements of matters in respect of which no opinions could be given e.g. issues involving credibility of testimony or disputed fact.
  1. (c)
    The joint expert report must be signed by each of the attending experts.
  1. (d)
    The joint expert report should be certified by the facilitator as being the joint expert report produced after the joint expert conference convened in accordance with these directions.
  1. (e)
    No party or its legal representatives can seek or require to view the joint expert report (or any drafts thereof) before it has been finalised and signed by the relevant experts and the facilitator.

Evidence at Trial

  1.  Except with leave of the Court:
  1. (a)
    no party will be permitted at the hearing of this proceeding to adduce evidence-in-chief from a lay witness about a topic not identified in a summary of evidence filed and served to date or filed in accordance with these orders;
  1. (b)
    no party will be permitted at the hearing of this proceeding to adduce any expert evidence other than in the form of a report which has been filed to date or filed in accordance with these orders.

20.Further, except with the leave of the Court, opinion evidence will not be received at trial from an expert unless that expert has participated in the directed joint expert conference process and in the subsequent joint expert report.

The proper construction of the case management orders made in this case

  1. [27]
    The meaning of the orders which I made is a matter of the objective construction of the terms which I used.
  2. [28]
    It will be immediately apparent from the foregoing discussion of the orders which were made and the steps which were taken pursuant to them, that the orders were made with an evident purpose consistent with that identified in my general discussion above at [15] and [18], namely to avoid surprise, to permit narrowing of the areas of dispute, and to promote the efficient conduct of the trial. 
  3. [29]
    To that evident end:
    1. (a)
      The experts were to answer questions specifically posed of them to prepare a joint expert report which would identify the matters of expert opinion which were agreed and matters of expert opinion which were not agreed in relation to those questions.
    2. (b)
      The relevant questions were those identified in an agreed instructions document.  The questions asked the experts to identify issues and matters on which they were agreed, on which they were disagreed, and in respect of the latter asked them to identify the reasons for their disagreement.  But the issues and matters the subject of the questions were those specified in their respective pre-existing written reports. 
    3. (c)
      To answer the questions, the experts were given specific and limited material, namely the instruction document; a list of the relevant reports; their own report(s) and the documents referred to therein, and, importantly the relevant parts of my order. 
  4. [30]
    Further, the orders at [19] and [20] imposed constraints against adducing expert opinion evidence which was not compliant with the joint conclave process which the orders created. 
  5. [31]
    As to the constraint at [19], it is true that there was no express requirement in the orders for the joint expert reports to be filed after they were produced, but I think that was the obvious contemplation.  I agree with the defendants’ submission that the preferable construction of order [19(b)] is that unless a joint expert report was “filed in accordance with these orders”, leave would be required to adduce the evidence contained in the report.  If a joint expert report had been produced in a way which did not accord with the orders, then leave would be required.
  6. [32]
    As to the constraint at [20], the requirement that opinion evidence would not be received at trial from an expert unless that expert had participated in the directed joint expert conference process and in the subsequent joint expert report, meant that the expert would have had to participate in the directed joint expert conference process in relation to evidence of that subject matter.  Thus if an attempt was made to adduce expert opinion evidence from someone who had not participated in the process at all, leave would be required.  But further, if an expert had participated in the conclave process on one subject, but an attempt was made to adduce expert opinion evidence from that expert on a subject matter where that expert had not participated in the conclave in respect of that subject matter, leave would be required.
  7. [33]
    There are a number of other important matters to note.
  8. [34]
    First, the express purpose of the joint expert reports was the identification of matters of expert opinion which were agreed and matters which were disagreed in relation to particular questions. 
  9. [35]
    Second, the issues and matters which the experts were to address in the joint expert reports were not at large.  The questions put to the experts were framed by reference to “issues or matters addressed in your reports and your corresponding expert's report”.  Where the question asked what were the reasons for disagreement, the disagreement at issue was disagreement in respect of matters and issues in those reports.
  10. [36]
    Third, the material before the experts was not at large.  It was specifically listed and, relevantly, was contained in their respective pre-existing reports and the documents referred to therein.  It did not admit of anything else.  It did not admit of experts for either side to bring new and fresh material and analyses to the conclave either in justification of their existing position or to advance and to justify some alternative position. 
  11. [37]
    Fourth, the joint expert reports were, so far as possible, to be framed to set out a “succinct answer of the identified questions” and where matters were not agreed “short reasons why agreement has not been reached”. 
  12. [38]
    Fifth, the experts were reminded of their overriding duty to assist the Court impartially on matters relevant to their areas of expertise.
  13. [39]
    In my view it was clear beyond peradventure that my orders (as implemented by agreed instruction documents) required the expert conclaves to take place by reference to the specified material in the agreed instruction document and not anything else.  The questions were to be answered by the experts succinctly by reference to that material and the discussions had between them.  Reasons why experts had failed to reach agreement were to be expressed shortly and, it would follow, by reference to the material which was before them at the conclave and not anything else.  
  14. [40]
    If, consistently with the expert’s overriding duty to the Court, an expert felt that she or he could not answer a question properly except by reference to material which was outside the specified material (and therefore not properly before the conclave), then the proper discharge of that expert’s duty consistently with the order I made would be for the expert to say just that in the joint expert report.  Once the report was signed, the question whether such an expert could be permitted to answer the question by reference to new material could be considered and ruled upon.  In my view it would not be consistent with the order I made for such an expert to proceed to set out in the joint expert report an opinion by reference to new material, let alone to set the material itself out in the report.  So doing would render the joint expert report to be something different to that which the orders contemplated.
  15. [41]
    As I have already stated, in a number of instances experts who attended joint conclaves have set out in a joint expert report signed by them opinions by reference to new material which had not been addressed in the pre-existing reports and have set out that material in the joint expert reports.  In my view the consequence is that the joint expert report concerned could not be regarded as a joint expert report which was “in accordance with” my orders of 21 December 2018.
  16. [42]
    As a general proposition, if a party wished to adduce at the trial expert evidence contained in such a joint expert report, they would need leave.  Obviously enough, if the non-compliant material were redacted from the report, then even though the report had not been produced in accordance with the orders, it could then be received.  Technically, leave might still be required, but obtaining leave would be a formality.  But if a party wished to rely on the non-compliant material then leave would be required and the considerations referred to in [15] and [18] above would apply.   

Was leave required?

  1. [43]
    The question of whether leave was required may be answered by reference to particular individual experts who adduced new material into the joint expert conclaves and the joint expert reports.  Thus:
    1. (a)
      The plaintiffs contended that leave was required because of new material by Mr Ellis (D) and Mr Parker (D).  The defendants contended that leave was required for new material by Mr Turner (P).  Their respective contentions affected parts of the Geology joint expert report.  
    2. (b)
      The defendants contended that leave was required because of new material by Mr Freeman (P).  (There are so many individual experts to be called in this proceeding that I have required a protocol to be adopted by the parties that when any written material refers to an expert they identify whether the expert is the plaintiffs’ expert or the defendants’ expert by inserting a post-nominal “(P)” or “(D)”, as appropriate.  I will adopt the same protocol.)  The defendants’ contentions about Mr Freeman (P) affected parts of the Offsite Water Supply joint expert report and the Offsite Power Supply joint expert report.
    3. (c)
      The defendants contended that leave was required because of new material by Mr Simpson (P).  Their contentions about him affected parts of the Onsite Mine Infrastructure joint expert report.
    4. (d)
      The defendants contended that leave was required because of new material by Mr Hall (P).  Their contentions about him affected parts of the Coal Price joint expert report; the supplementary Financial Modelling joint expert report; the supplementary Loss and Damage joint expert report; and the supplementary Commercial Viability of Stage 2 as at May 2005 joint expert report.
    5. (e)
      The defendants contended that leave was required because of new material by Mr Hill (P).  Their contentions about him affected parts of the Mine Planning joint expert report and the Equipment and Labour Operating Costs joint expert report.
  2. [44]
    It is necessary to identify the nature of the new evidence in respect of which it is suggested that leave is required, and then to express a view as to whether leave is required. 

The new material from Mr Turner (P), Mr Ellis (D) and Mr Parker (D) in relation to geology

  1. [45]
    One of the key differences between the respective geological experts was the choice of geological model referable to the Monto resource.  Mr Turner (P) relied on a geological model prepared by JB Mining in 2012.  Mr Ellis (D) considered that model to be unreliable and created his own geological ply model (the Ellis model).  Mr Turner (P) did not consider that the Ellis model represented the geology of the Monto resource. 
  2. [46]
    In Mr Ellis’ (D) 2019 report, Mr Ellis (D) relied on some analysis done by Mr Parker (D), for both the 2012 JB Mining model and the Ellis model.  He relied on that work (the First Parker Comparison) to demonstrate that the Ellis model was reliable. 
  3. [47]
    In the Geology conclave, Mr Turner (P) provided new material in the form of his own comparison (the Turner Comparison) by way of critique of the Ellis model.  In response to the Turner Comparison, Mr Ellis (D) asked Mr Parker (D) to perform an additional reconciliation (the Second Parker Reconciliation), which compared the Ellis model with both the 2012 JB Mining model and an earlier geological model produced by JB Mining in 2002. 
  4. [48]
    In the conclave and in the joint expert report, Mr Ellis (D) relied on the Second Parker Reconciliation in support of his views concerning the reliability of his model.  In support of that proposition he also produced a new model addressing what is referred to as a model of incorrect parting.  It is unnecessary to explain what this means.  However it constituted new material which, with the Second Parker Reconciliation, Mr Ellis (D) relied on to respond to the Turner Comparison.
  5. [49]
    The Turner Comparison, the Second Parker Reconciliation and the model of incorrect parting all constituted new material not contained in the material listed for the conclave.  A further problem was that Mr Parker (D) did not participate in the geology conclave (although he did participate in another conclave) and, in any event, no report proving up the First Parker Comparison or the Second Parker Reconciliation had previously been delivered by him.
  6. [50]
    Neither side opposed leave being given in respect of the new material so long as Mr Parker (D) provided an appropriate report and Mr Turner (P) was given an opportunity to prepare a supplementary report responding the Second Parker Reconciliation and the model of incorrect parting.  That would mean that the previously scheduled timetable for calling expert witnesses was slightly disrupted, and there would be no opportunity for the geology conclave to be reconvened in respect of such differences between the experts as might thereafter remain, and, accordingly no opportunity to revise the joint expert report in that regard.  
  7. [51]
    Nevertheless, it became evident that both parties were prepared to accept the extent of non-compliance with the directed joint expert conclave process which had occurred and that they were also prepared to accept the consequent disruption to the trial plan.  Accordingly, during the argument on the applications, they reached agreement on the orders which should be made in relation to this evidence.
  8. [52]
    On 6 August 2019, and to reflect that agreement, I made orders:
    1. (a)
      granting the defendants leave to rely upon the evidence of Mr Ellis (D) contained in sections 7.8 and 7.9 of the Geology joint expert report to the extent necessary;
    2. (b)
      granting the defendants leave to file and serve a supplementary report of Mr Parker (D), describing his work described as the “First Parker Comparison” and the “Second Parker Reconciliation” in sections 7.8 and 7.9 of the Geology joint expert report by 7 August 2019, to the extent necessary; and
    3. (c)
      granting the plaintiffs leave to file and serve a supplementary report from Mr Turner (P) responding to the “Second Parker Reconciliation” and the model of “Incorrect Parting” by 13 August 2019, or as soon before that as practicable.
  9. [53]
    I did not deal with the Turner Comparison (even though leave would have been required for it to be relied on) because the defendants did not press an objection to that material if the foregoing orders were made.

New material from Mr Parker (D) in relation to excavator rehandle

  1. [54]
    The Mine Planning joint expert report recorded that Mr Hill (P) thought that an allowance for excavator rehandle of 2.1% of excavator prime material was appropriate but that Mr Parker (P) thought that 6% was an appropriate analysis.  However Mr Parker realised that although the estimate of 6% was identified in his report of 4 May 2018 and was not new, but by mistake the consequential adjustment had not been included in Mr Parker’s (D) workings and was therefore not reflected in the downstream quantification by Mr B Hall (D), Ms Power (D) and Mr Samuel (D).
  2. [55]
    The defendants acknowledged that leave was required for new material responsive to the mistake and sought leave to rely upon some further evidence to be provided by 9 August 2019 quantifying the consequences of Mr Parker’s (D) 6% estimate of excavator rehandle material, which quantification evidence would then need to flow through to other downstream quantification.  In the absence of the evidence, the plaintiffs were not able to given any concrete response as to the degree, if any, of disruption that the grant of such leave might cause, but their present anticipation was that what was proposed was unlikely to cause any difficulty or significant disruption. 

The new material from Mr Freeman (P)

  1. [56]
    In his report taken to the conclave process Mr Freeman (P) had opined that a particular pipeline alignment between the Paradise Dam and the mine site would be a suitable way to deliver necessary water supply to the mine development the subject of his report.  In their written reports, the defendants’ experts were critical of the viability of that alignment because it proposed traversing a national park.  In response, at the joint expert conclave Mr Freeman proposed for the first time a new pipeline route for the supply of water which he thought would avoid the national park problem and offered an opinion as the associated expenditures.  The proposal was reflected in various parts of the joint expert reports for Offsite Water Supply and Offsite Power Supply.
  2. [57]
    The evidence was plainly new material not contained in the material listed for the conclave.  The expression of new opinion and the material on which it was based required the grant of leave.  If leave were to be granted, the defendants’ experts Mr Smith, Mr Cavanagh and Mr Harradine would need to respond by supplementary written reports, but the evidence of Ms Morrison from the defendants’ solicitors – whose estimates of the requisite time for those and other experts to prepare responsive reports was not challenged and which I would accept – revealed that they could do so within a timeframe which would not cause significant disruption to the trial plan (although that proposition proceeded on the assumption that no attempt would be made to reconvene the affected conclaves or to revise the affected joint expert reports).

The new material from Mr Simpson (P)

  1. [58]
    The Onsite Infrastructure joint expert report recorded the following:

Mr Simpson has been advised by with Mr Freeman that Mr Freeman did not allow for these items in his water and power supply estimate. Mr Freeman has advised Mr Simpson that a direct cost rate of $224/m for water pipeline and a direct cost rate of $159/m for power transmission should be used, aligning with Mr Freeman’s unit rate for the relevant off-site components of this infrastructure. Mr Simpson has measured approximately 500m of required pipeline, resulting in approximately $0.11m for pipeline additional costs, and Mr Simpson has measured approximately 1,500m of required transmission line, resulting in approximately $0.24m for powerline additional costs. Mr Simpson has therefore formed the opinion that an additional $0.35m of direct costs would have been incurred for the on-site components of the water supply pipeline and power transmission lines.

Mr Hall’s opinion is that information presented yesterday by Mr Simpson in the preceding paragraph is new evidence that was not contained in either Mr Simpson’s report or raised during the conclave. Mr Hall further notes that Mr Freeman was not part of this conclave or his reports considered for this conclave. Mr Hall has been instructed by the facilitator Mr McDougall to allow the inclusion of this new evidence in this report.

  1. [59]
    The comments by Mr Hall (D) recorded on the face of the joint expert report are sufficient to demonstrate that the expression of new opinion by Mr Simpson and the material on which it was based required the grant of leave. 
  2. [60]
    The defendants also sought to oppose parts of the report which recorded a new proposal by Mr Simpson (P) to increase the capacity of his ROM dump station to enable 10 mtpa product coal to be produced, at an alleged cost of $3 million.  That too was evidently new and would require the grant of leave.
  3. [61]
    If leave were to be granted, the defendants’ experts Mr Hall and Ms Power would need to respond.  The evidence revealed that they could do so within a timeframe which would not cause significant disruption to the trial plan (although that proposition too proceeded on the assumption that no attempt would be made to reconvene the affected conclaves or to revise the affected joint expert reports).

The new material from Mr Hall (P)

  1. [62]
    The defendants contended that Mr Hall produced new evidence as follows:
    1. (a)
      In the Coal Price and Exchange Rate joint expert report for conclave as identified in Items 32-41 of the annexure to their application.
    2. (b)
      In the supplementary Financial Modelling joint expert report as identified in Items 42-48 of the annexure to their application.
    3. (c)
      In the supplementary Loss and Damage joint expert report as identified in Items 49-58 of the annexure to their application.
  2. [63]
    They contended this new evidence then flowed through to the evidence of Hill (P) in the supplementary Commercial Viability joint expert report as identified in Items 59-64 of the annexure to the their application.
  3. [64]
    The new evidence from Mr Hall (P) comprised new evidence as to the validity or appropriateness of the various coal pricing scenarios.  The probability of occurrence of these scenarios had been addressed in reports by Mr Browne (P), but in the new evidence Mr Hall (P) sought himself directly to express views on those and related questions.  Further, although Mr Hall (P) had previously calculated the net present value of cash flows having regard to Mr Browne’s (P) probability weighted coal pricing scenarios, he now sought to express new evidence as to coal price scenarios and probability weightings involving a different mix of scenarios and different probability weightings.  Although this was flagged in the Coal Price and Exchange Rate joint expert report, it was not ultimately produced until 25 July 2019 as part of the supplementary Financial Modelling joint expert report.
  4. [65]
    I was taken to the evidence during argument and agree with the defendants that the new evidence is neither capable of being characterised as a succinct answer to the actual questions which Mr Hall (P) was asked nor as a short statement of the reasons for disagreement based on the material provided for the conclave.  Although it is not entirely clear whether some part of what he had previously opined might have involved an implicit expression of views about the appropriateness of the use of the pricing scenarios for a particular purpose, it is, I agree, reasonably clear that Mr Hall (P) now seeks to address their use for a purpose which he had not addressed before and that he has advanced a new and altered analysis.  Further, the evidence as to coal pricing that came in via the supplementary report for financial modelling was not part of the joint expert conference or joint expert report on coal price. 
  5. [66]
    In my view, this new material could not be adduced without leave.
  6. [67]
    If leave were to be granted, the defendants’ experts Mr Barkas, Mr Gye and Mr Gray would need to respond by supplementary written reports, but the evidence of Ms Morrison revealed that they could do so within a timeframe which would not cause significant disruption to the trial plan. (As before, that proposition proceeded on the assumption that no attempt would be made to reconvene the affected conclaves or to revise the affected joint expert reports).

The new material from Mr Hill (P).

  1. [68]
    Mr Hill (P) was the plaintiffs’ mine planning expert.  Mr Parker (D) was the defendants’ expert in that area.  Mr Hill (P) set out new opinion evidence and analyses in the Mine Planning joint expert report as identified in Items 14-31 of the annexure to the defendants’ application and also in the Equipment and Labour Operating Costs joint expert report as identified in Items 12 and 13 of the annexure to the defendants’ application.
  2. [69]
    Ms Morrison’s explanation of the nature of and consequences of reception of this new evidence reveals that it would cause far more disruption than the any of the other new evidence.  It is necessary to explain why and to what degree before turning to the question whether I should permit it to be received.
  3. [70]
    I turn first to the new mine planning evidence.
  4. [71]
    The changes which Mr Hill (P) proposed to the mine planning joint expert report to accommodate his new analyses were the subject of an email from the facilitator on 23 July 2019 (which was the day after the deadline for production of the report).  The facilitator wrote, amongst other things:

[…] Ken Hill made a redraft available yesterday a little after 5pm.  It is about 67 pages long with appendices.  There are also 7 electronic files, which are said to be too large to send by email.  Fred Parker says, with what would appear to be some justification, that he would need many days to review and comment upon the material.

It is not for me to allocate responsibility, let alone blame.  My tentative view, for what it is worth, is that it is not appropriate for one expert to dump a load of new material – whether or not it falls within the bounds of the issues established by the underlying reports – at so late a stage of the proceedings, and at or indeed after the deadline for finalisation of the JERs.

  1. [72]
    For present purposes, the significance of the facilitator’s observations was only insofar as they demonstrated relevant facts.  I must form my own judgment as to whether the course followed was permissible, and, if not, whether to grant leave for it to occur.
  2. [73]
    The material Mr Hill (P) sought to add to the Mine Planning joint expert report included the following:
    1. (a)
      In section 6.1 and Appendix A of the Mine Planning joint expert report, dealing with “free dig depth” (which is the depth of waste material that is planned to be excavated without drilling and blasting prior to excavation), Mr Hill (P) referred to and annexed a new expert report that he had commissioned from a third party expert who was not a participant in the conclave.  Mr Hill (P) wrote that he did so “to provide further reasoning why [he] holds his pre-existing view”.  The plaintiffs did not press any application for leave to rely upon this material.   
    2. (b)
      In section 6.7 of the Mine Planning joint expert report, the experts addressed various matters concerning the technical and practical feasibility of the mine schedules which Mr Hill (P) had formulated in the reports which were included in the material to be dealt with in the mine planning conclave.  In the joint expert report Mr Hill (P) included new material to which the defendants object in relation to four areas relevant to that topic in sections 6.7.3, 6.7.5, 6.7.6 and 6.7.7.  He deposed to having “conducted the further analysis that is described in sections 6.7.3, 6.7.5, 6.7.6 and 6.7.7 of [the Mine Planning joint expert report] to test the issues that Mr Parker had raised in relation to those matters in his 1 May 2019 report […] so as to determine whether those issues affected the schedules that I prepared in my 2018 reports.”
  3. [74]
    As to section 6.7.3 “Practicality of Mining Block Sequence”:
    1. (a)
      Mr Hill (P) refers to a mining access strategy he has developed making use of endwall roads, ramps and haul roads which was presented in a series of new schematic diagrams set out in Appendix E[3] and said to be supported by “the full SPRY schedules and Deswick haulage models”. 
    2. (b)
      The new mine planning models and output evidence were not provided to Mr Parker (D) until 5.30pm on 22 July 2019 (after the deadline for production of the joint expert report). 
    3. (c)
      Mr Hill (P) relied on this new material to provide supplementary support for his previously expressed views that the mine schedules he had proposed in his 2018 reports were appropriate.
    4. (d)
      The joint expert report recorded Mr Parker (D) as stating that Mr Hill did present the results of the new work he had done during the conclave but only provided the new mine planning models for the first time at 5:30pm on the date the joint expert report was due and that Mr Parker had no time to review the models and comment on them.
    5. (e)
      Until Mr Parker (D) reviewed this new evidence, including by reference to the SPRY model, he would not know what aspects of the modelling may have been changed in order for Mr Hill (P) to make the statements which he had in the joint expert report.
    6. (f)
      It would take Mr Parker (D) 7.5 days to carry out that review.  Further time would be needed to write the report setting out the outcome of his review.  Then it would be necessary for other experts called by the defendants (namely Mr Hall (D), Ms Power (D) and Mr Samuel (D)) to prepared revised reports and updated financial models consequent upon that further review.
  4. [75]
    As to section 6.7.5 “Waste fragmentation delays”:
    1. (a)
      In section 6.7.5, Mr Hill (P) refers to having undertaken a “more detailed analysis of a typical mining sequence to more accurately determine the time of all activities including delays for fragmentation”.  This detailed analysis was set out in Appendix F and a new “Strip A23 Turnover Calculation” excel spreadsheet.  Mr Hill (P) stated that the new analysis showed that “the relevant sequence can be achieved approximately 50 days quicker than the timeframe within the A53 and A64 schedules”.
    2. (b)
      The joint expert report recorded Mr Parker (D) as stating that Mr Hill did present the results of the new work he had done during the conclave but only provided the new mine planning models for the first time at 5:30pm on the date the joint expert report was due and that Mr Parker had no time to review the models and comment on them.
    3. (c)
      Until Mr Parker (D) reviewed this new evidence, including by reference to the SPRY model, he would not know what aspects of the modelling may have been changed in order for Mr Hill (P) to make the statements which he had in the joint expert report.
    4. (d)
      It would take Mr Parker (D) 5 days to carry out that review.  Further time would be needed to write the report setting out the outcome of his review.  Then it would be necessary for other experts called by the defendants (namely Mr Hall (D), Ms Power (D) and Mr Samuel (D)) to prepared revised reports and updated financial models consequent upon that further review.
  5. [76]
    As to section 6.7.6 “Excavator relocation frequency”:
    1. (a)
      Mr Hill (P) conceded that his original schedules had unconstrained movement of excavators as described (and, in fact, as criticised) by Mr Parker (D).  However he stated that such unconstrained movement “is not what is planned to occur”.  Mr Hill (P) then stated that these were the schedules contained in his 2018 reports contained “process short cuts […] which enabled the schedules to be produced in the available timeframe for the Court”.  (I comment that evidently this new material would have been in his 2018 report, but Mr Hill thought he had not had sufficient time to do so.)
    2. (b)
      Mr Hill (P) then described that he had “undertaken an exercise to constrain equipment movements to apply further practical restrictions to the equipment schedule”.  That gave rise to a changed version of his previous A53 mining schedule.  He then made a number of claims as to the outcome of this exercise, which ultimately he relied on as demonstrating that the previous A53 mining schedule was achievable.
    3. (c)
      The joint expert report records Mr Parker (D) as responding:

Mr Hill states that he has run a new scenario with modifications to the excavation scheduling model that reduce the number of excavator relocations without significantly impacting schedule quantity outputs.

Mr. Parker states that Mr. Hill presented results of his new modelling work during the Conclave but the underlying scheduling model evidence for the first time at 5:30PM on 22 July 2019 and that Mr Parker therefore had no time to review and comment on this new information prior to the submission of this report.

  1. (d)
    Ms Morrison made further enquiries of Mr Parker (D) who took the same attitude has he had expressed in relation to other new matters, namely that he needed to review the model before responding.  However he wanted to check whether any restricted excavator movement had affected production and waste volumes as well as equipment operating hours and therefore operating costs, which he thought that it had.
  2. (e)
    It would take Mr Parker (D) 7.5 days to carry out that review.  Further time would be needed to write the report setting out the outcome of his review.  Then it would be necessary for other experts called by the defendants (namely Mr Hall (D), Ms Power (D) and Mr Samuel (D)) to prepared revised reports and updated financial models consequent upon that further review.
  1. [77]
    As to section 6.7.7 “Dozer push destinations”:
    1. (a)
      The reports of Mr Parker (D) had criticised the mine schedule done by Mr Hill in relation to the extent of dozer push dumping contemplated.  Mr Parker (D) thought that the practicality of the proposal had not been demonstrated.
    2. (b)
      Mr Hill (P) disagreed and supported his analysis.  But he also recorded in the joint expert report new material.  He stated had re-run his A53 haulage model restricting the dozer push dumping to the lowwall dump immediately adjacent each block and presented new haulage modelling to support the proposition that his initial mine schedules were practical.
    3. (c)
      The joint expert reports recorded the response of Mr Parker (D):

Mr Hill states that he has run a new scheduling scenario with modifications to the dumping and haulage scheduling model to restrict dozer push destinations without significantly impacting schedule quantity outputs.

Mr. Parker states that Mr. Hill presented results of his new modelling work during the Conclave but the underlying landform and dynamic haulage model evidence for the first time at 5:30PM on 22 July 2019 and that Mr Parker therefore had no time to review and comment on this new information prior to the submission of this report.

  1. (d)
    It would take Mr Parker (D) 5 days to carry out the necessary review.  Further time would be needed to write the report setting out the outcome of his review.  As before, it would be necessary for other experts called by the defendants (namely Mr Hall (D), Ms Power (D) and Mr Samuel (D)) to prepared revised reports and updated financial models consequent upon that further review.
  1. [78]
    The new material in relation to excavator relocation frequency which appeared in the Mine Planning joint expert reports flowed on to the Item 10 of the Equipment and Labour Operating Costs joint expert report.  Mr Hall (D) would be the defendants’ expert responding to this material, but, obviously, he had not had the opportunity to do so.  There was one further aspect of new evidence which Mr Hill (P) had included in that report, namely evidence in Item 11 of that report of allegedly comparable projects which supported his view about ROM stockpiling.  As to that Mr Hall (D) responded in the joint expert report in the following terms:

I note that in my opinion the information about Meandu and Wandoan is new evidence not contained within Mr Hill’s previous report. I have not had the opportunity to check the relevance of these sites as valid reference sites for Month [sic], or to check the accuracy of the data presented. Similarly in my opinion the financial assessment of the impact of the differences is new evidence that is not contained within Mr Hill’s reports and I have not had the check the accuracy of this calculation. I have been instructed by the facilitator Mr McDougall to include this new evidence in this report.

  1. [79]
    I agree with the defendants that all the foregoing material from Mr Hill (P) was new material, not capable of being characterised either as a succinct answer to the actual questions Mr Hill (P) was asked or as a short statement of the reasons for disagreement with opinions expressed by his opposing experts.  In some respects it was additional new material which supplemented the case in chief, but in other respects it was plainly substantively new material not previously presented.  The material could not be adduced without the leave of the Court.
  2. [80]
    I accept the evidence presented by the defendants about the extent of disruption the reception of this evidence would cause.  Indeed it was not challenged before me.  It appears from the foregoing that the extent of time to review the new material by Mr Parker (D) would be extensive.  He would need of the order of an additional 5 to 10 days to write the report identifying the outcome of his review. In total, the time he would need for review and report would be 7 weeks.  Downstream effects on other defendants’ expert would be less extensive: 2 weeks for Mr Hall (D) for the work on mine planning and 3 to 5 days on ROM stockpiling and 2 and 3 days respectively for Ms Power (D) and Mr Samuel (D).

Observations as to the overall impact of permitting the new evidence

  1. [81]
    The formulation of the trial plan in relation to the expert evidence was a matter of evident complexity.  Assessment of the impact of the delays which would be occasioned by allowing the foregoing new material to be adduced is also a complex issue. 
  2. [82]
    During the course of argument I was shown a draft trial plan (CRT.500.006.0001) which sought to plot the impact on the existing trial plan of allowing the fresh evidence and permitting responsive material as proposed.  The argument before me proceeded on the basis that I could use that document to assess that impact for the purpose of making my decision.
  3. [83]
    Essentially, the reception of the new evidence would require changing the order of some witnesses, would introduce a 3 week break in the middle of the period for the expert opinion evidence and, overall, would add about another month to the length of the trial.  The parties would be able to use the 3 weak break usefully for work on their ultimate submissions.  One consequence was to eat into the time available to me to work on the judgment after submissions are received.  If the court calendar was to allocate me the same amount of judgment writing time, reception of the new evidence would mean that I would not be able to return to an ordinary judicial calendar listing until about a month later in 2020 than originally contemplated. 

Conclusion as to leave

  1. [84]
    I have expressed the view that the subject matter and content of the impugned parts of the joint expert reports was such that before reliance could be placed at trial on those parts, leave would be required. 
  2. [85]
    The views I have formed have meant that I have found it to be unnecessary to explore these two arguments advanced by the defendants:
    1. (a)
      first, that minor failures to comply with certain requirements as to time specified by my order would require leave, even if the subject matter and content of the impugned parts of the reports created no problem; and
    2. (b)
      second, if on the proper construction of my orders leave was not required, then because the course adopted was outside the spirit of the orders, I should exercise a discretion (which they contend I have under UCPR r 367) to exclude the new material.
  3. [86]
    I express no view on the merits of either argument.

Should leave be given?

  1. [87]
    There was no debate between the parties as to the approach which I should take to the question of leave.  They agreed that the statements of principle outlined by me in Sanrus No 2 at [12] to [15] were sufficient.  Accordingly, bearing in mind that my overarching obligation is to ensure that the trial is fair, I should exercise my discretion weighing in the balance:
    1. (a)
      the point the litigation has reached in the trial;
    2. (b)
      the extent of any failure to comply with the directed timetable;
    3. (c)
      the adequacy of the plaintiffs’ explanation for its delay in presenting the real case it wanted to take to trial;
    4. (d)
      the prejudice which would be caused to the defendants if leave is granted;
    5. (e)
      the prejudice which would be caused to the plaintiffs if leave is refused, including whether the plaintiffs might be denied a fair opportunity to present their real case;
    6. (f)
      the effect on other litigants awaiting resolution of their proceedings; and
    7. (g)
      the extent to which prejudice on either side can be ameliorated by alteration to the existing timetable.
  2. [88]
    I have identified how, consequent upon agreement being reached during argument, I gave leave to the defendants in respect of their own desire to adduce evidence from experts in respect of geology other than by compliance with the conclave process.  That leave was conditional upon the plaintiffs’ expert having leave to rely on a further supplementary report.  No provision was made for the conclave to be reconvened in respect of such differences between the experts as might thereafter remain, and, accordingly no opportunity to revise the joint expert report in that regard.
  3. [89]
    The only other aspect of leave pursued by the defendants was that which was necessary to address the mistake which had been made in relation to the consequences of the evidence of Mr Parker (D) in relation to the estimate of excavator rehandle.  The defendants did not oppose the plaintiffs’ experts having leave to address anything which arose out of such leave being granted, if it became necessary so to do.  The plaintiffs did not advance any substantive argument against the grant of leave. 
  4. [90]
    The remaining issues concerned whether leave should be given in respect of the new material from the plaintiffs’ Mr Freeman, Mr Simpson, Mr Hall and Mr Hill.  The evidence revealed that leave could be granted in respect of the first three experts without serious disruption to the trial plan.  Mr Hill’s evidence concerned mine planning was in a different category and would give rise to serious disruption to the trial plan, as already explained. 
  5. [91]
    The defendants opposed any grant of leave in respect of the new material from the plaintiffs’ experts Mr Freeman, Mr Simpson, Mr Hall and Mr Hill.  However they conceded that so long as their corresponding experts were given the opportunity identified by the evidence of Ms Morrison they could not point to any significant prejudice to them.  They did not suggest that the expenses involved in prolongation of the trial should weigh significantly in the balance.  Their argument in opposition to leave was directed solely at: (1) the demonstrated failure by the plaintiffs’ experts to comply with the intention of the Court orders, and (2) the fact that the prolongation of the trial would have an inevitable adverse impact on the administration of justice in the Supreme Court because of its affect on other litigants awaiting resolution of their proceedings.  They accepted that they could not point to any particular prejudice to them which could not be ameliorated by the requisite alterations to the timetable identified by Ms Morrison. 
  6. [92]
    I observe that the first limb of the defendants’ argument was weakened by the fact that they too had needed leave in respect of significant parts of their expert evidence in relation to geology.  There is some merit, to which I will return, in the second limb.
  7. [93]
    For their part, the plaintiffs suggested that the new material was capable of being characterised as setting out the reasons why their experts expressed disagreement with the gravamen of criticisms which were made by the defendants’ experts, and they would suffer prejudice if they were not permitted to rely on those explanations at trial.  They suggested that it would be unfair to contemplate a trial in which their expert witnesses were effectively hamstrung in their capacity to respond to criticisms which had been made and that I should not contemplate the possibility that an expert might have to say in cross-examination that he had an answer to a criticism but was not permitted to present it.  In the particular case of Mr Hill (P) they suggested that Mr Parker (D) had acted unreasonably by not receiving the new material from Mr Hill (P) piecemeal and, accordingly, not all of the responsibility for the disruption caused by any reception of new evidence from Mr Hill (P) could be laid at their feet.
  8. [94]
    I reject the implicit criticism of Mr Parker (D).  The evidence does support the proposition that even though the new material by Mr Hill (P) was not finalised until the day the joint report was due, some (undefined) parts of the new material had been finished earlier and could have been made available to Mr Parker (D).  However, it does not lie in the plaintiffs’ mouths to advance this proposition when Mr Parker (D) has not ever been confronted with it and is not now in the position to respond to it.  Further, it was Mr Hill (P) who was bringing the new material to the conclave when the orders did not permit that to be done.  And, in any event, given the unchallenged evidence concerning what Mr Parker (D) needs to do in order to consider the new material, and the time it will take for him to do it, the criticism has no merit.
  9. [95]
    There is a some merit in the plaintiffs’ argument about cross-examination.  On the other hand, the truth is that at some time a line will always have to be drawn so as to stop the process of response and counter-response in relation to expert opinion.  Indeed, the defendants already accept that in relation to Mr Hill’s (P) attempt to adduce new third party opinion evidence.  The question is really whether that line has already been drawn or should be extended to the extent of permitting Mr Hill’s new evidence and, accordingly, responsive material from the defendants’ relevant experts.
  10. [96]
    How should I balance these arguments in this case?
  11. [97]
    Both sides have been permitted to adduce new evidence and analyses in relation to geology.  Mr Turner (P) has been permitted to rely on new material. The defendants have obtained leave for new material from Mr Ellis (D) and Mr Parker (D) and Mr Turner (P) has been permitted to respond.  Conclaves will not be reconvened nor will joint expert reports be amended in relation to the ultimate development of that new evidence.  But its reception is not significantly disruptive to the existing trial plan and I have permitted it to occur.  The new evidence of witnesses other than Mr Hill, seems to me to be in the same category as the new geology evidence.  It seems to me that I should permit that new evidence because its reception is not significantly disruptive to the existing trial plan.   True it is that I will not have the benefit of the conclave process in relation to this new evidence, but on the other hand no attempt was made to point to this as an aspect of prejudice.
  12. [98]
    The evidence of Mr Hill (P) is in a different category because of the degree of disruption its reception will cause.  If it had been the only evidence which was non-compliant with the conclave process and the only cause for disruption of the trial plan, there might have been more to be said in favour of refusing leave.  But in the way the argument was presented, the ultimate question for me is whether the adverse impact on other litigants of my continued unavailability for other work due to a one month extension of this already long trial outweighs the prejudice to the plaintiffs to which the plaintiffs have pointed.  Albeit with some reluctance, I conclude that it does not and that the balance of relevant factors favours the grant of leave in the circumstances of this case. 
  13. [99]
    I make the following orders:
  1. 1.
    The parties are directed to formulate orders consistently with these reasons –
  1. (a)
    granting leave to rely at trial on the parts of the joint expert reports in respect of which leave to rely was pressed during the applications;
  1. (b)
    granting appropriate leave to rely at trial on responsive expert reports rendered necessary by (a);
  1. (c)
    directing those reports to be filed and served within the time frames identified by the evidence adduced during the applications; and
  1. (d)
    granting the plaintiffs leave to amend as sought.
  1. 2.
    The parties are directed to confer to reach agreement as soon as is practicable upon a further revised plan for the remainder of the trial of the proceeding which identifies when the reports mentioned in [1(c)] are to be delivered; and which identifies when and over what duration each expert witness' evidence will be adduced, and which adjusts the existing trial plan accordingly.
  1. 3.
    In default of agreement, the competing versions of the further revised trial plan are to be presented to the Court as soon as is practicable for ruling upon the areas of disagreement.
  1. 4.
    Except with the leave of the Court, no party will be permitted at the hearing of this proceeding to adduce any expert opinion evidence other than in the form of a report which has been authorised by order of the Court.

Footnotes

[1] This authority has been cited with approval in the Queensland Court of Appeal on many occasions, including Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2018] QCA 358 per Fraser JA at [42]; Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors [2011] QCA 252 per Philippides JA at [22]; GO & MJT Nominees Pty Ltd v Hollywells Homewares Pty Ltd & Anor [2010] QCA 368 per McMeekin J at [20].

[2] Although the problems created by too liberal an approach to what constitutes evidence in reply delivered as part of pre-trial case management are not as acute as those created by too liberal an approach to permitting evidence in rebuttal at the trial itself, there is some equivalence between the rationale underlying limiting the former and the rationale which justifies the limitations which the law applies to a plaintiff’s attempt to admit rebuttal evidence at trial (as to the nature of which see J D Heydon, Cross on Evidence (LexisNexis, 2019) at [17620] to [17730], particularly at [17700], and the cases there cited.)

[3] The joint expert report erroneously refers to appendix F rather than appendix E.

Close

Editorial Notes

  • Published Case Name:

    Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 4)

  • Shortened Case Name:

    Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4)

  • MNC:

    [2019] QSC 199

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    12 Aug 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 308 19 Dec 2018 Plaintiffs' application for leave to rely on reports delivered outside a Court directed timetable allowed; plaintiffs' application for leave to amend their statement of claim granted; consequential alterations to Court directed timetable allowed; defendants' cross-application for an order that plaintiff not be permitted to rely on certain expert reports refused; plaintiffs' to pay defendants' costs thrown away on the indemnity basis: Bond J.
Primary Judgment [2019] QSC 144 07 Jun 2019 Plaintiffs' application for further disclosure pursuant to r 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) on the grounds of waiver of privilege dismissed (with ancillary directions as to document removal and redaction): Flanagan J.
Primary Judgment [2019] QSC 162 26 Jun 2019 Plaintiff's application for leave to adduce further expert evidence (and other ancillary orders) part way through the hearing of a trial refused: Bond J.
Primary Judgment [2019] QSC 185 01 Aug 2019 Defendants' application for leave to rely on two affidavits as lay evidence mid-way through trial granted subject to conditions: Bond J.
Primary Judgment [2019] QSC 199 12 Aug 2019 Plaintiffs' application for leave to rely at trial on new material in the joint expert reports and consequential leave to amend the plaintiffs' statement of claim granted; defendants granted leave to rely at trial on responsive expert reports: Bond J.
Primary Judgment [2019] QSC 210 27 Aug 2019 Provisional rulings on defendants' objections to expert evidence: Bond J.
Primary Judgment [2019] QSC 214 29 Aug 2019 Consequential directions as a result of the Court of Appeal's (majority) decision in [2019] QCA 160: the plaintiffs have leave to produce a further report from Mr Chris Hartley by 3 September 2019 with ancillary directions as to what the evidence is to be directed to: Bond J.
Notice of Appeal Filed File Number: Appeal 6710/19 27 Jun 2019 -
Appeal Determined (QCA) [2019] QCA 160 20 Aug 2019 Appeal from [2019] QSC 162 allowed; orders made on 18 June 2019 set aside; appellants permitted to adduce expert evidence in the form of the report of Mr Chris Hartley filed 10 June 2019 (save for certain paragraphs): McMurdo JA and Bradley J (Applegarth J dissenting).

Appeal Status

{solid} Appeal Determined (QCA)