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Jounquay v Australia Pacific LNG Pty Ltd[2021] QLC 30

Jounquay v Australia Pacific LNG Pty Ltd[2021] QLC 30

LAND COURT OF QUEENSLAND

CITATION:

Jounquay & Anor v Australia Pacific LNG Pty Ltd [2021] QLC 30

PARTIES:

Russell Lewis Jounquay

(applicant)

Allan Frederick Jounquay

(applicant)

v

Australia Pacific LNG Pty Ltd ACN 68 001 646 331

(respondent)

FILE NO:

MER138-19

DIVISION:

General Division

PROCEEDING:

General proceeding

DELIVERED ON:

9 September 2021

DELIVERED AT:

Brisbane

HEARD ON:

1 September 2021

HEARD AT:

Brisbane

MEMBER:

JR McNamara

ORDER:

With respect to the Joint Brief to Weed Biology Experts the brief will not include the questions in Part 4.2, paragraphs (h) and (i).

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – where parties are participating in the CMEE process – whether certain questions in Joint Expert Report Brief should be excluded – whether the questions contained in the brief offends the common law exclusionary rule – where the questions in the Brief should be excluded

Land Court Act 2000 (Qld) s 7

Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; (1990) 97 ALR 555, considered

Murphy v R (1989) 167 CLR 94; (1989) 86 ALR 35, considered

APPEARANCES:

E Morzone QC, with A Hellewell (instructed by Creevey Russell Lawyers) for the applicants

D Quayle (instructed by King & Wood Mallesons) for the respondent

  1. [1]
    The originating application in this matter was filed 10 July 2019 seeking certain outcomes regarding a conduct and compensation agreement under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCPA)[1] arising from the presence of lovegrass on the applicants’ property, Kildare.
  1. [2]
    As is the usual practice of the Court, Orders were made,[2] inter alia, for parties to file and serve written notice of the expert witnesses they intended to engage for the hearing. Following a review on 11 June 2021, Orders were made, directing the matter to Court Managed Expert Evidence (CMEE). CMEE allows the Court to supervise the briefing and meeting of expert witnesses and production of their joint expert reports. The Court’s objective in directing a case to CMEE is to promote an effective, efficient, and fair process for expert evidence.[3]
  1. [3]
    Through the CMEE process, Orders were made by consent setting timeframes for the preparation and delivery of briefs of instruction for the counterpart experts nominated in three areas of expertise, and for the production of Joint Expert Reports (JERs).[4] The three areas of expertise, which form the subject headings in the various Orders, are Veterinarian/Fodder, Scientific (Weed Biology), and Agronomy.
  1. [4]
    Subsequently, Orders concerning the briefs of instruction and production of the JERs for Scientific and Agronomy were vacated,[5] and the date for production of Veterinarian/Fodder JER was amended. The matter was brought back before me for review on 1 September 2021.
  1. [5]
    On the morning of the review both the applicants and the respondent provided written outlines of submissions to the Court. The submissions concern a dispute over certain questions in the Scientific (Weed Biology) Joint Brief. The applicants also provided a “clean” version of the “Joint Brief to Weed Biology experts” and another version headed “TRACK CHANGES SHOWING RESPONDENT’S REQUESTED AMENDMENTS”.
  1. [6]
    At the review it was agreed that the dispute concerned only the inclusion of Part 4.2 paragraphs (h) and (i), and the wording of paragraph (j), in the “clean version” of the Joint Brief. The respondent says that the questions contained in (h) and (i) are inadmissible, and that the Court should direct they not be asked.
  1. [7]
    At the conclusion of the review, alternative wording of paragraph (j) was accepted. The wording of paragraph (c) as amended by the respondent was agreed ahead of the Review. The amended version of paragraph (c) is relevant to my consideration of (h) and (i).
  1. [8]
    It is useful to set out the agreed paragraph 4.2 (c), the disputed paragraphs (h) and (i), and paragraph (j) as agreed at the review:
  1. “(c)
    The possible means by which ALG and HFLG, and each of them, might have been introduced to Kildare at any relevant time. If there is more than one possible means, whether the distribution and density identified in answer to question (b) is more consistent with one or more of the means than the other and if so why.

  1. (h)
    What is the most likely cause/s of the introduction of lovegrass on Kildare during the relevant period.
  2. (i)
    What is the most likely cause/s of the spread of lovegrass on Kildare during the relevant period.
  3. (j)
    How can lovegrass on Kildare be treated and, if possible, eradicated.”
  1. [9]
    The acronyms “ALG” and “HFLG” refer to African Lovegrass and Hairy Flower Lovegrass respectively. In these reasons the distinction is not important so I will refer simply to lovegrass.
  1. [10]
    The respondent says that the questions posed at (h) and (i) are outside the (relevant) experts’ expertise,[6] and that putting them to these experts offends the common law exclusionary rule (the ultimate issue rule)[7] that an expert may not be asked to give evidence about the central question which it is the responsibility of the judge to determine.
  1. [11]
    The respondent says the questions are not matters of opinion for these experts, rather they are questions for the Court to consider once lay witness evidence has been read and heard, witnesses cross-examined, the competing circumstantial cases assessed, and the relevant legal standard applied, to determine if the applicants have discharged the onus they bear.[8]
  1. [12]
    They say in purporting to answer these questions the experts would be required to make findings of fact upon which to base their opinion.
  1. [13]
    The applicants say the ultimate question is what compensation, if any, is payable as a result of alleged breaches of the Conduct and Compensation Agreement or an alleged material change in circumstances. They say however if the Court accepted that the ultimate issue is the question of causation, the exclusionary rule has been significantly relaxed.
  1. [14]
    In that regard the applicants cite Murphy v R[9] where at 110 Mason CJ and Toohey J expressed the view that it was doubtful that there was an absolute rule precluding an expert witness from expressing a view as to the ultimate issue; and per Deane J at [127] that an assertion that expert evidence on the question a jury is to decide is inadmissible was unacceptable as a general rule of the law of evidence.
  1. [15]
    The respondent in written submissions say that the ultimate issue rule remains intact in Australia and cites the Full Court of the Federal Court in Arnotts Ltd v Trade Practices Commission[10] for its modern context. The Court in that case quoted passages from Sir Richard Eggleston’s work, Evidence, Proof and Probability, including the following:

“…It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether that fact exists can be answered only by experts… What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. Thus an expert who says ‘In my opinion this accident was caused by…’ in a case where the facts are disputed is assuming the right to make a decision as to which of the parties is telling the truth, and is therefore usurping the function of the tribunal.”[11]

  1. [16]
    In oral submissions the applicants said that there does not seem to be a dispute between the parties that the experts should discuss the possible means by which lovegrass might have been introduced to Kildare. This is captured by the question in paragraph 4.2(c) which specifically asks them to provide an opinion as to the possible means by which lovegrass might have been introduced.
  1. [17]
    They say the Court is entitled to receive expert opinion on the most likely cause/s of introduction and spread of lovegrass on Kildare which evidence they say is relevant and within the expertise of the experts. They say that the Joint Brief Section 5 Guidelines for JER requires the experts, where they disagree, to set out in detail the basis of the disagreement, including the existence, relevance or validity of an asserted or assumed fact.
  1. [18]
    The respondent in oral submissions said that this misses the point, the questions as framed would require the experts to make findings of fact. They say the questions regarding the cause/s of introduction and spread, as opposed to the means, “is not about their expertise in weed management”.
  1. [19]
    The respondent in oral submissions referenced section 7 of the Land Court Act 2000 (Qld), that in the exercise of its jurisdiction the Land Court is not bound by the rules of evidence but say that the questions are not about expertise in weed management, they ask the experts much more than that and squarely offend the exclusionary rule. They say that “everything the applicants seek” they will get from questions (b) and (c).
  1. [20]
    I accept that the ultimate issue rule is not absolute. However, having considered the written and oral submissions of the parties I accept the objection of the respondent to the inclusions of the questions contained in Part 4.2(h) and (i).
  1. [21]
    It would seem logical that expert opinion regarding the “means” should precede an opinion or conclusion regarding the “likely cause/s”, and the order of the questions suggest that. In my view, the questions as framed would invite the experts to form a view regarding a range of facts and circumstances, many of which are contested. Those facts and circumstances include those described by the respondent in written submissions as a “matrix of fact that surrounds the central causal question”.[12] I do not consider that the use of the adjective “likely” makes a conclusion of facts less likely. 
  1. [22]
    In providing their expert opinion in response to the question in paragraph (c) as to the possible means by which lovegrass was introduced to Kildare, and having opined (in response to subparagraph (b)) on the present distribution and density of lovegrass, whether a means was more consistent than another, the Court will be well positioned to consider and assess the lay evidence in order to decide the issues in dispute.

Order

With respect to the Joint Brief to Weed Biology Experts the brief will not include the questions in Part 4.2, paragraphs (h) and (i).

Footnotes

[1]  References to any submissions in this judgment refer to those provided to the Court without filing.

[2]  Orders filed 25 March 2021.

[3]  Land Court Practice Direction 6 of 2020.

[4]  Orders filed 1 July 2021.

[5]  Orders filed 28 August 2021.

[6]  Respondent’s Submissions [14], noting that experts may not offer opinions outside their expertise, and may not offer options that are irrelevant.

[7]  Respondent’s Submissions [12]; citing Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, 351.

[8]  Respondent’s Submissions [9].

[9]  (1989) 167 CLR 94.

[10]  (1990) 24 FCR 313.

[11] Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, 350.

[12]  Respondent’s Submissions [6].

Close

Editorial Notes

  • Published Case Name:

    Jounquay & Anor v Australia Pacific LNG Pty Ltd

  • Shortened Case Name:

    Jounquay v Australia Pacific LNG Pty Ltd

  • MNC:

    [2021] QLC 30

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    09 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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