GS Coal Pty Ltd v Cross[2017] QLC 40

LAND COURT OF QUEENSLAND

1. [1]
   GS Coal Pty Ltd and the other applicants applied for a mining lease to expand the Clermont Coal Mine. Mrs Cross, who lives on a property adjoining the proposed ML area, objected to the application. The application and objection were referred to the Court for a mining objections hearing.^[1]

2. [2]
   The matter is in the pre-hearing stage. The parties have nominated the expert witnesses they intend to rely on at the hearing. The next stage is for the experts to confer and produce a joint report about the issues on which they can advise.

3. [3]
   Mrs Cross has nominated Dr John Taylor as the expert witness she intends to call to inform the Court in relation to air quality impacts, one of her grounds of objection to the application. Some years ago, Dr Taylor was engaged to review meteorological and dust monitoring data for the Clermont Mine by its then operator, Rio Tinto Coal Australia Pty Ltd. Dr Taylor raised this with Mrs Cross who, properly, informed the lawyers for GS Coal.

4. [4]
   In conducting a mining objections hearing, the Court may take evidence, hear persons, and inform itself in a manner it considers appropriate.^[2] GS Coal submits the Court should not inform itself from an expert in circumstances where there is a real and sensible possibility that, in the course of doing so, the expert will misuse confidential information. A court of general jurisdiction will restrain an expert from giving evidence in those circumstances.^[3]

5. [5]
   The Court’s function for referred mining lease applications and associated objections is administrative.^[4] This means that many of the procedural provisions of the Land Court Act 2000 and Land Court Rules 2000 do not apply, including the rules relating to expert witnesses. Nevertheless, the Court does have the power to control its procedure for objections hearings, including by making directions that govern the procedure for the hearing.^[5]

6. [6]
   At the time this application was heard, directions about conferences of experts had not been made. However, the Court routinely makes directions about expert evidence in objections hearings which accord with the procedure defined in the rules. The Court has the same expectation of expert witnesses in an objections hearing as it does in proceedings conducted pursuant to the Court’s judicial function.

7. [7]
   Mrs Cross’ position on the application helpfully reduced the number of issues that need to be considered. She accepted the Land Court would adopt the approach to expert witnesses that GS Coal argued for. She accepted Dr Taylor owes GS Coal a duty of confidence because of his prior engagement in relation to the Clermont mine. She advised she will nominate a different expert witness if the Court considers there is a real and sensible risk Dr Taylor could misuse confidential information in fulfilling his role as an expert witness. However, she disputes there is such a risk.

8. [8]
   The risk GS Coal has raised is the risk Dr Taylor will breach his duty of confidence. There are four requirements for a claim for breach of confidence:^[6]

1. The information is question must be identified with specificity;

2. It must have the necessary quality of confidence;

3. It must have been received in circumstances importing an obligation of confidence; and

4. There must be an actual or threatened misuse of the information without consent.

9. [9]
   The information GS Coal is concerned about has been identified with specificity. It is data collected at meteorological data collection sites and dust monitoring sites operated by Rio Tinto around the mine for the period March 2008 to September 2011.^[7]

10. [10]
    Mrs Cross disputed the information is confidential because she has been provided with monthly dust deposition data reports for Clermont Coal Mine since the mine commenced operations in approximately 2007.^[8] However, those reports are summaries, not source information. It is source information provided to Dr Taylor that is in issue.

11. [11]
    Mrs Cross also noted meteorological data for the area is publically available on the Australian Bureau of Meteorology, for example the Bureau of Meteorology list includes information from Clermont Airport, which is 5.2km from the Clermont Coal Mine administration building.^[9] Again, that is not the information GS Coal is concerned about. The claim of confidentiality relates to site specific meteorological data derived from sampling sites conducted by the operators of the mine.

12. [12]
    The site specific data provided to Dr Taylor was not available to the public.^[10] I accept it was of a confidential nature.

13. [13]
    Dr Taylor received that information in circumstances importing an obligation of confidence. That is consistent with the terms of his retainer.^[11] In his professional capacity, Dr Taylor received information about the mine’s activities, which was not common or public knowledge, for the purpose of preparing an expert report.^[12]

14. [14]
    The remaining question is whether there is a real and sensible risk the confidential information will be misused. This does not depend on Dr Taylor’s intention. GS Coal did not suggest Dr Taylor had breached or would breach his duty deliberately. Dr Taylor’s professionalism and his honest intentions are demonstrated by his decision to raise the issue for consideration.

15. [15]
    Here, though, the Court is concerned with the risk of an unconscious or inadvertent breach of confidence.^[13] The risk might be considered less likely to be realised because Dr Taylor is alert to it. However, GS Coal submitted the real and sensible risk arises from the nature of the evidence itself, rather than Dr Taylor’s intentions. The particular confidential information has central relevance to the issues Dr Taylor would address.

16. [16]
    In her Notice of Expert and Lay Witnesses, Mrs Cross notified Dr Taylor would address air quality and then explained that issue more specifically. In summary, Dr Taylor would address the following issues:^[14]

1. (a)
   The complex air dispersion operating in and around the proposed extension.

2. (b)
   Whether air quality impacts on near neighbours and the Clermont community from the proposed expansion are sufficiently understood.

3. (c)
   The alleged inadequacies of a model used to assess air quality for an EIS for the existing mine. The alleged inadequacies are that the model is unable to represent complex effects relevant to dispersion based on “meteorological observations”; and that it is based on data for the region “and not site specific surface meteorological measurements”.

4. (d)
   Alleged adverse air quality impacts from spontaneous combustion.

5. (e)
   Alleged inadequate dissemination of air quality monitoring data to the public.

17. [17]
    The third of those issues is of most direct relevance, although the data may also relate to any but the last of them. The explanation of the air quality issues demonstrates the central relevance of the site specific dust deposition and meteorological data to Dr Taylor’s role as an expert witness in this matter. Without any intention to do so, Dr Taylor may well draw upon his understanding of the circumstances of the Clermont mine, including where, what, and how they monitor dust and meteorological conditions, in providing advice about those issues.

18. [18]
    The purpose of procedures for expert evidence is to ensure the Court is assisted in understanding matters of specialist expertise. The primary duty of an expert witness is to the Court. That prevails over any duty to the party who pays their fee.

19. [19]
    In a recent judgment of the Court of Appeal, his Honour President Sofronoff provided helpful guidance about the extent of that duty:^[15]

“Experts occupy a special position as witnesses. With irrelevant exceptions, no other witness can give opinion evidence. An expert’s opinion often, perhaps usually, relates to disciplines that are unfamiliar to a judge hearing a case. Consequently, unlike the position of a witness of fact whose duty is merely to answer questions in a responsive way, an expert has a duty positively to assist the Court. This duty may require a level of candour and voluntary disclosure on the part of an expert that might involve prejudicing the case of the party that called the expert. Nevertheless, the duty to the Court, that is to say the duty to assist the Court in finding the truth of the matter, overrides any obligations owed to the party who pays the expert’s fees.”

20. [20]
    It can be hard for an expert witness to be aware when they are putting their duty to their client ahead of their duty to the Court. That difficulty would be compounded by Dr Taylor’s additional duty to his former client, which extends to the other party in this case. That challenges his suitability to fulfil the role of an expert witness in this matter.

21. [21]
    Given the central relevance of the confidential information to the issues he would be asked to address, I am satisfied there is a real and sensible risk Dr Taylor could unconsciously or inadvertently misuse confidential information.

22. [22]
    In closing, I emphasise this finding is no reflection on Dr Taylor’s character either personally or professionally. I have no cause to doubt Dr Taylor in either respect.

23. [23]
    Mrs Cross said she would engage another expert if the Court concluded as I have. It is unnecessary, therefore, to make any order directed to either Mrs Cross or Dr Taylor.

24. [24]
    The matter will be listed for directions when Mrs Cross has had sufficient opportunity to investigate the options for engaging another expert on air quality issues. The date for directions will be fixed by the Registry after consultation with the parties.

FY KINGHAM

PRESIDENT OF THE LAND COURT