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- Unreported Judgment
Van der Est v Queensland Rail Limited (No 3) QLC 38
LAND COURT OF QUEENSLAND
Van der Est & Anor v Queensland Rail Limited (No 3)  QLC 38
Gordon William Van der Est
Donella Maree Van der Est
Queensland Rail Limited
ACN 132 181 090
8 August 2019 [ex tempore]
8 August 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the parties’ experts had produced joint reports and participated in the Court Managed Expert Evidence procedure – where the applicant applied to re – open the expert reporting process based on a conflict between eye-witness accounts and the experts’ flood modelling evidence – where the application was refused
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the applicant submitted that costs should be reserved pending the results of further expert reports – where that submission reinforced the uncertainty of the application – where the applicant was ordered to pay the costs of the application
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175;  HCA 27, applied
P Hackett (instructed by H Drakos & Company Solicitors) for the applicants
D Gore QC, with J Brien (instructed by Clayton Utz) for the respondent
- Mr and Mrs Van der Est own a property that they say was inundated when a Q Rail embankment near their property failed. The claim is listed for hearing early next year. The hearing dates were fixed to meet the convenience of counsel for the parties. The Court could, in fact, have heard it earlier. The case has been through a CMEE process conducted by an experienced member of the Court. It resulted in joint reports from experts in three areas of expertise: surveyors, hydrologists and valuers. Each of the joint expert reports identify limited areas of disagreement which have clarified the case and narrowed the issues for trial.
- Mr and Mrs Van der Est seek to reopen the expert evidence process. They have applied for order requiring the surveyor engaged by Queensland Rail to advise whether he accepts certain survey measurements taken by the surveyor engaged by them and for the hydrologist engaged by both parties to undertake further investigations and prepare further reports. Counsel for Mr and Mrs Van der Est considerably reduced the scope of the application during his oral submissions, abandoning any reliance on material that related to anything other than the following two requests.
- The first request arises from two measurements referred to in a report by Mr Somerville, the surveyor engaged by his clients. They are measurements of the ground level of a shed on the Van der Est’s property and the floodmark on a storage cabinet presumably in the shed in that place at the time of the flood although that is not, it seems, deposed to in the material. The Van der Ests asked Mr Byrom, the surveyor engaged by Queensland Rail, to confirm that he accepts those measurements to be accurate. The second request is for a meeting – a further meeting of and joint expert report by the hydrologists about, firstly, the accuracy and reliability of the LVRC model they used to inform each of their three joint expert reports taking into account certain information that I will return to and, secondly, whether the ARTC model simulates a second and higher flood peak after the property was inundated because of the embankment failure.
- To give context to this second request, the LVRC model was one developed by the local council for its purposes which for three joint expert reports the hydrologists both accepted as appropriate and as providing accurate results. Since the last joint expert report, Mr Giles, the hydrologist engaged by the Van der Ests, seeks to resile from his acceptance of the LVRC model because of, firstly, Mr Somerville’s further measurements already referred to, secondly, his analysis of the raw data from certain storm gauges which he now thinks is inconsistent with the modelling results and his concerns about the accuracy of the rainfall data used in the model and, finally, his view that another model may provide a better representation of what occurred.
- Counsel for Q Rail accepts the Court has power to make the orders sought but opposes the application for a number of reasons including the following. First, the Van der Ests are seeking an indulgence of the Court and have not provided persuasive evidence in support of their application. Secondly, on the material before the Court, the further work required of the experts lacks utility, and, thirdly, the Van der Ests have not demonstrated how it would affect the outcome or the shape of the case.
- The application seems to me to rest on three pieces of evidence. The first is the evidence by Mr Van der Est that he and his wife were stranded on the embankment throughout the period covered by the hydrologists’ joint expert reports and he did not observe a second flood peak after the peak that followed the embankment failure. This eyewitness account, they say, is inconsistent with the results of the modelling. Neither party asserts that any model can provide certainty about what occurred. At the hearing, this Court will have to determine how to interpret and what weight to give to modelling results and eyewitness accounts. The fact that the model plots a second higher peak and Mr Van der Est and another eyewitness did not perceive one is an important conflict that the Court will have to resolve, and it is not appropriate that I say anything more about that at this stage.
- If the Court accepts there was a second peak after the rail embankment failed, that has implications for the Van der Ests’ case that QR is liable for damage to its property. Properly, counsel for Queensland Rail conceded that was an important point. The question is whether the Van der Ests have demonstrated that the proposed further work would assist the Court to resolve that issue, and this is where it is relevant to refer to the other evidence.
- Mr Somerville’s measurements of the ground floor of the shed and the flood line on the cabinet are consistent with the results reported in the hydrologists’ joint expert reports. The height of the floodmark on the storage cabinet is close to the peak produced by the LVRC model. It was not suggested that that mark could otherwise assist the Court to determine the timing of the flood peak or whether there was one or there were two peaks. The other evidence comes from Mr Giles. He raised concerns with the accuracy of the model results. Given his analysis of raw data in the case of the storm gauges and his concerns about the deficiency of the rainfall data, he considers the ARTC model would provide a better representation of what occurred. His affidavit was quite vague and ultimately unsatisfactory.
- Counsel for the Van der Ests sought to supplement that evidence by telling me what Mr Giles told him he meant by one sentence in a report attached to his affidavit. In the face of an objection to evidence in that form, I cannot act on what counsel said. I note that counsel for the Van der Ests did not request an adjournment so Mr Giles could put on further evidence to that effect. On Mr Giles’ affidavit, I am not satisfied that any of the alleged deficiencies in the LVRC model are addressed by the ARTC model or that the model would produce or has already demonstrated a different result given, it seemed to me, it would be using the same data.
- Further, although there is evidence before the Court that ARTC is willing to allow the parties to have some access to the model, there is no evidence that it consents to the parties using it to prepare expert reports for this litigation. It is perplexing that the Van der Ests’ solicitor did not make a clear request of ARTC given Queensland Rail’s solicitor raised this on more than one occasion. I am not satisfied then that ARTC would consent to its use for that purpose.
- I appreciate, as is evident from what I have already said, the importance of the apparent conflict between the modelled data and the eyewitness accounts of Mr Van der Est and his other witness – the importance of that to the case. However, the Van der Ests have not demonstrated they will be prejudiced if I do not make the orders. That is because I am not persuaded that the parties could get access to the ARTC model for use in this litigation in the way the hydrologists would need to use it, and, secondly, I am not satisfied that there is a real prospect of the hydrologists producing different results if they did.
- Further, the onus rests on the Van der Ests who seek the indulgence of the Court to demonstrate why their application should proceed. The parties were involved in the briefing of the experts. They formulated questions for them to address. The hydrologists prepared three reports, one at the request of the CMEE convenor to give more clarity about the timing over which the flood peaks occurred. The Court’s guidelines on expert evidence make clear what should be understood without explanation that the experts are expected to prepare properly for and engage fully in discussions with their counterpart. It is clear that Mr Giles was familiar with the model used by the hydrologists. It was open to both – and, indeed, the Court would expect them both – to check modelling results against any objective criteria that may demonstrate or call into question the accuracy of the modelled results.
- This case is all but ready for trial. The delay to the hearing is due to the availability of parties’ preferred counsel rather than any Court constraints. There is a public interest in efficient case-management and use of public resources. As Chief Justice French observed in Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 at : “‘case management principles’ should not supplant the objective of doing justice between the parties according to law.” However, as he also observed: “The Court must consider the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification”.
- In an application of this nature at this stage of the case and after Mr Giles has repeatedly relied on a model which he first proposed and which he certified was appropriate for the purpose and had provided accurate results, the Court would expect evidence on the following matters: why Mr Giles now wants to resile from his former position; why he did not identify concerns with the accuracy of either the data or the results the model produced before he confirmed the accuracy of his reports; how the ARTC model differs from the LVRC model such that it may produce a different result; whether he has used the ARTC model to address the same questions which the experts used the LVRC model to address; and, if so, whether the result of using the ARTC model produces a different result on the critical issue identified by counsel for Mr Van der Est, that is, whether there was a second higher flood peak after the peak following the embankment failure.
- Counsel for the Van der Ests conceded the usual order where an applicant seeks the indulgence of the Court is that the applicant bears the costs of the application. He asked the Court if I did make the orders to reserve the question of costs until the results of the further work are known. That submission reinforces the uncertainty about the likely outcome of and therefore utility of the further work requested by the Van der Ests. I dismiss the application. Mr and Mrs Van der Est must pay the costs of the application as assessed against the District Court scale, if not agreed.
- The application is dismissed.
- Mr & Mrs Van der Est must pay the costs of the application as assessed against the District Court scale, if not agreed.
PRESIDENT OF THE LAND COURT
- Published Case Name:
Gordon William Van der Est and Donella Maree Van der Est v Queensland Rail Limited (No 3)
- Shortened Case Name:
Van der Est v Queensland Rail Limited (No 3)
 QLC 38
08 Aug 2019