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Murphy Operator v Gladstone Ports Corporation (No 7)[2021] QSC 18

Murphy Operator v Gladstone Ports Corporation (No 7)[2021] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy Operator & Ors v Gladstone Ports Corporation (No 7) [2021] QSC 18

PARTIES:

MURPHY OPERATOR PTY LTD

ACN 088 269 596

(first applicant)

TOBARI PTY LTD

ACN 010 172 237

(second applicant)

SPW VENTURES PTY LTD

ACN 135 830 036

(third applicant)

v

GLADSTONE PORTS CORPORATION LIMITED

ACN 131 965 896

(respondent)

FILE NO/S:

BS No 7495 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 February 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

2 February 2021

JUDGE:

Crow J

ORDER:

  1. The application filed 11 December 2020 is dismissed.
  2. If the parties cannot agree as to the appropriate cost order, then they are to file and serve written submissions on costs as follows:
    1. The applicants within 7 days herein; and
    2. The respondent within 14 days herein.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – DISCLOSURE OF REPORTS – where the proceeding is a group proceeding – where group-wide expert reports regarding quantum are required for court ordered mediation – where plaintiff-specific expert reports regarding liability and quantum  for the lead plaintiffs are required for the initial trial – where, necessarily, the group-wide expert reports and the plaintiff-specific expert reports will differ in regards to analyses and modelling – where the expert reports prepared for mediation must be disclosed under r 212 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant applies, pursuant to r 367 of the Uniform Civil Procedure Rules 1999 (Qld) or, in the alternative, s 103ZA of Civil Proceedings Act 2011 (Qld), to have the requirement to disclose mediation reports dispensed with on the basis that the differences between group-wide and plaintiff-specific expert reports would expose the expert or experts to much more extensive cross-examination than usual – whether it is in the interests of justice to dispense with the requirement for the group-wide mediation reports to be disclosed

Civil Proceedings Act 2011 (Qld), s 53, s 103ZA

Uniform Civil Procedure Rules 1999 (Qld), r 212, r 367, r 428

Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429; [2017] QCA 127, followed

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, followed

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Green & Ors v Pearson [2014] QCA 110, cited

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141; [1997] QCA 450, followed

Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373; [2004] QSC 329, followed

Murphy Operator Pty Ltd v Gladstone Ports Corporation [2019] 3 Qd R 225; [2019] QSC 12, followed

Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196; [2000] QCA 429, followed

COUNSEL:

L W L Armstrong QC, with M J May, for the applicants

D G Clothier QC, with E L Hoiberg, for the respondent

SOLICITORS:

Clyde & Co for the applicants

King Wood Mallesons for the respondent

  1. [1]
    The complexity of class litigation is managed, ordinarily, by a series of directions orders. Relevantly, the order of 9 December 2020 provides:[1]

“3.  By 19 February 2021 the plaintiffs serve the balance of their expert evidence.

…

  1. By 4pm 16 July 2021, GPC serve any expert report on which it intends to rely at the initial trial.

…

  1. By 4pm 24 September 2021 all conclave joint reports be completed and provided to the parties
  1. The parties are to attend, participate in, and act reasonably and genuinely in, a mediation to be conducted in Brisbane on a date convenient to the parties and the mediator prior to 29 October 2021.”
  1. [2]
    By application filed 11 December 2020, the plaintiffs seek, pursuant to r 367(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) or in the alternative,  s 103ZA of the Civil Proceedings Act 2011 (Qld), orders that the parties have leave to engage mediation loss experts (to estimate the likely value of the compensable losses claimed by the group members as a whole) and for the parties to be excused from compliance with r 212(1) in respect of reports produced by such mediation loss experts.
  2. [3]
    There is no contest that the court has the power to make such an order;[2] the issue is whether such order ought to be made.
  3. [4]
    The concern raised on behalf of the applicant is succinctly set out in their outline as follows:[3]

“…the group loss report will or may involve analyses and modelling related to but different from the analyses applied to the more specific assessment of the plaintiffs’ individual losses that are prepared for trial (and indeed analyses that are potentially different from those that would be done if a subsequent trial of all group members’ losses were required). Whether by the same expert or by different experts, the group-wide report for mediation might, if not covered by mediation privilege, provide fodder for cross-examination of the plaintiff-specific loss expert at trial. But UCPR r.212(2) would ordinarily operate such that no mediation privilege does apply.”

  1. [5]
    It is further argued by the applicant, that if the group-wide report was disclosed “[t]here is a risk that the parties would be more guarded in their exchange of group-wide loss estimation work for the purposes of mediation...”[4]
  2. [6]
    Mr Armstrong QC, for the applicant, argues that class actions differ from ordinary civil litigation in that class actions have an initial trial whereby common questions of fact are put to trial, with the lead plaintiffs presenting their case on both liability and, with the assistance of expert reports, quantum issues.  The Court’s subsequent determination on the lead plaintiffs’ case, then allows for guidance for the parties to settle rather than litigate the queued-up group members.  
  3. [7]
    However, when a class action is mediated prior to an initial trial, a quantum report for the group-wide losses is necessarily prepared and this report is prepared on a less precise basis than the plaintiff-specific reports required for the initial trial. 
  4. [8]
    The applicant argues that this peculiar feature of class action litigation causes a tension between the policy of transparency in the use of expert reports promoted by r 212 of the UCPR, and the promotion of alternative dispute resolution processes by Part 6 of the Civil Proceedings Act 2011 (Qld) and Chapter 9 Part 4 of the UCPR.
  5. [9]
    In particular, the applicant relies upon s 37(a)(c)(d)(ii) and s 53 of the Civil Proceedings Act 2011 (Qld). Section 53(1) of the Act provides:[5]

“53 Evidence from ADR process

  1. (1)
    Evidence of anything done or said, or an admission made, at an ADR process about the dispute is admissible at the trial of the dispute or in another civil proceeding before the court or elsewhere only if all parties to the dispute agree.”
  1. [10]
    Alternatively, the respondent argues that the Queensland regime for the disclosure of expert reports as currently set out in r 212 of the UCPR is deliberate in its choice in promoting transparency in expert reports and is intended to discourage partisanship in expert reports. The issue of partisanship in expert reports has been a longstanding concern of the courts.[6] In Parr v Bavarian Steakhouse Pty Ltd,[7] Thomas JA observed:[8]

“[22] If the court is to restrict the meaning of these rules, there is a difficulty in drawing the line. The rules have in recent years made considerable inroads into the area of legal professional privilege. In 1994 order 35 rule 5(2) provided that a document consisting of a statement or report of an expert is not privileged from disclosure. The validity of that rule was upheld in Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1). It has now re-appeared as r. 212 (UCPR) and the consequences of non-disclosure of such statements or reports are stated in r. 423 (UCPR). It is unsurprising that in relation to personal injury and fatal accident claims a more specific and far-reaching system has been devised requiring early exposure of the claimant’s case than in other cases.”

 (Footnotes omitted.)

  1. [11]
    In Murphy Operator Pty Ltd v Gladstone Ports Corporation,[9] I discussed the importance of cases such as Interchase[10] and Mitchell Contractors[11] in explaining the Queensland position on draft expert reports. It may well have, as Mr Armstrong QC for the applicant put it, a “chilling effect” upon an expert to be told that any draft reports and indeed any documents generated by the expert and information recorded in one form or another by an expert must be disclosed.
  2. [12]
    However, an expert who is non-partisan ought to have nothing to fear, as that expert will be able to explain any alteration in their opinion and the reasons for it. Of course, there is a considerable forensic advantage in being able to identify changes in opinion, facts, figures, or assumptions that may arise between a draft and final copy of an expert report when cross-examining the report’s author. This is a deliberate and strong incentive to any expert to keep their reports non-partisan.
  3. [13]
    As set out in Murphy Operator,[12] an expert is entitled to change their mind and proffer a different opinion.  Indeed, as set out in r 429A of the UCPR, an expert is required to do so (and provide a further report) if they change their opinion in a material way. As r 429A provides, the expert must explain the reason for the change. Rule 428(2) sets out the information which must, as a minimum, be included in an expert report. Rule 428(2)(g) recognises that in cases where an expert may be able to reach a more reliable conclusion with additional facts which are “readily ascertainable” the expert has a duty to make a statement to this effect.
  4. [14]
    In the present case, with three lead-plaintiffs and over 150 group-plaintiffs, a report of an expert upon the likely quantum of the group-wide losses must be based on assumptions and information which is imperfect and would not be considered appropriate for a trial. However, this is necessary, as preparing plaintiff-specific reports for the over 150 group members would be costly, time consuming, and contrary to r 5 of the UCPR.  That being said, an expert confronted by the difficult task of quantifying group-wide losses with far from perfect information will, in my view, be unlikely to suffer if, at a later stage when more fulsome or precise information is available, they provide a different opinion.
  5. [15]
    As explained by Heydon J in Dasreef Pty Ltd v Hawchar,[13] the assumption identification rule is a critical rule for the reception of expert evidence at common law. Similarly, by r 428(2)(b), all material facts whether written or oral upon which the report is based need to be stated plainly in an expert report. In class action litigation, in preparing for a mediation, the quantum expert may be able to provide a more precise and reliable opinion if that expert had access to additional facts, however, r 428(2)(g) on its face draws a distinction between readily ascertainable additional facts and those additional facts which are not readily ascertainable. Plainly, the financial accounts of the more than 150 group plaintiffs may constitute additional facts which are not readily ascertainable, as they may be only ascertainable with great cost and delay.
  6. [16]
    I accept the plaintiffs’ submission that differences in approach between group-wide losses and plaintiff-specific losses ought to be expected as:[14] “the estimates of group-wide losses will necessarily be based on models and extrapolations from limited group-wide data, and not to the level of specificity that is feasible and appropriate for the reports regarding the lead plaintiffs’ individual losses.”
  7. [17]
    In Allianz Australia Insurance Ltd v Mashaghati,[15] Sofronoff P, with whom McMurdo JA and Applegarth J agreed said:[16]

“[50] There are two sets of provisions in the Uniform Civil Procedure Rules 1999 that are concerned with expert evidence given at a trial. Part 5 of Ch 11 is concerned with expert evidence generally. Rule 423 sets out the main purposes of Pt 5. According to r 423, Pt 5 is concerned with declaring the duty of an expert witness, with ensuring, as far as practicable, that expert evidence is given by a single expert, with the avoidance of unnecessary costs incurred by the retention of different experts and, otherwise, with permitting the use of more than one expert upon an issue if that is necessary to ensure a fair trial.              

[51] Accordingly, r 426 states that an expert giving evidence has a duty to assist the court and that that duty overrides any other obligations owed to others.

[52] Consistently with the objective of the rules to avoid undue delay, expense and technicality, r 429 requires expert reports to be disclosed between parties within the time limits established by that rule by one party to the others. In the case of a plaintiff, this must be done within 90 days after the close of pleadings and, in the case of a defendant, within 120 days after the close of pleadings. In the case of parties who are neither a plaintiff nor a defendant, disclosure must be made within 90 days after the close of pleadings for that party. Rule 427 provides as follows:

‘427 Expert evidence

  1. (1)
    Subject to subrule (4), an expert may give evidence-in- chief in a proceeding only by a report.
  1. (2)
    The report may be tendered as evidence only if —
  1. (a)
    the report has been disclosed as required under rule 429; or
  1. (b)
    the court gives leave.
  1. (3)
    Any party to the proceeding may tender as evidence at the trial any expert’s report disclosed by any party, subject to producing the expert for cross-examination if required.
  1. (4)
    Oral evidence-in-chief may be given by an expert only—
  1. (a)
    in response to the report of another expert; or
  1. (b)
    if directed to issues that first emerged in the course of the trial; or
  1. (c)
    if the court gives leave.’

[53] Rule 429B empowers the court to direct experts to meet in order to identify matters upon which they agree or disagree and in order to attempt to resolve any disagreement.

[54] It can be seen that these rules, in combination, are directed towards early and full disclosure of expert evidence in order to assist in achieving either an early settlement of the claim that is the subject of the proceedings or, if that cannot be done, then an efficient trial in which the parties and the Court can concentrate upon the essential issues only.

[55] Tactical surprise is thus avoided. On the other hand, relevant expert evidence which has not been dealt with in accordance with the rules may still be admitted in evidence if the interests of justice in ensuring a fair trial require it. The power of the Court to grant leave to a party to tender a non-compliant report or to permit oral evidence to be given by an expert is unfettered by any express provision of the rules. However, the discretion is informed by the purpose of the rules set out in r 5, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The discretion is also informed by r 5(2) which obliges the Court to apply the rules with the objective of avoiding undue delay, expense and technicality.

[56] Of course, these express provisions which guide the Court in the exercise of discretion are subject to the overarching obligation of the Court to ensure that a trial is fair.”

 (Emphasis added.)

  1. [18]
    Sofronoff P went on to say:[17]

“[89] Rule 426 provides as follows:

‘426 Duty of expert

  1. (1)
    A witness giving evidence in a proceeding as an expert has a duty to assist the court.
  1. (2)
    The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.’

  [90] 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.”

 (Emphasis added.)

  1. [19]
    Rule 428 of the UCPR sets out the requirements for an expert report, relevantly r 428(1) and (3) provide:

“(1)  An expert’s report must be addressed to the court and signed by the expert.

…

(3)  The expert must confirm, at the end of the report—

  1. (a)
    the factual matters stated in the report are, as far as the expert knows, true; and
  1. (b)
    the expert has made all enquiries considered appropriate; and
  1. (c)
    the opinions stated in the report are genuinely held by the expert; and
  1. (d)
    the report contains reference to all matters the expert considers significant; and
  1. (e)
    the expert understands the expert’s duty to the court and has complied with the duty.”
  1. [20]
    The requirement under r 428(1) that an expert report must be addressed to the court and each of the matters in r 428(3) are deliberately designed to ensure that those, perhaps very few, experts who are prone to be partisan, are reminded directly and on every occasion that their primary duty is to provide a fair and honest report of their genuinely-held opinions to the court (uninfluenced by the fact that one party is paying their fees).
  2. [21]
    Any expert who complies with their obligation to proffer only their genuinely held opinion ought not be concerned with the disclosure of an earlier report which reaches a different conclusion or employs a different method of reasoning. As Heydon J emphasised in Dasreef Pty Ltd v Hawchar,[18] strict adherence to the common law reasoning rule is important as it allows a non-expert court to test the logic of an expert; this approach protects the court and the parties and ensures a fair trial. Even if a group-wide loss report involves analysis and modelling related to but different from the analysis applied to a more specific assessment of plaintiff-specific loss, that, if well-reasoned and well-explained, may enhance a court’s appreciation of the expert’s evidence.
  3. [22]
    The assumption identification rule at common law requires all relevant fact assumed by an expert to be stated. [19] Plainly, if there is a material alteration of fact that may cause an expert to alter that expert’s opinion, r 429A requires the expert to provide a supplementary report. When viewed in this regard, if further work is undertaken in respect of any of the numerous plaintiffs in the group (and not the lead plaintiffs) that work may alter the facts upon which an expert relies, therefore potentially causing an expert to alter their opinion in respect to the loss of that particular plaintiff.
  4. [23]
    Such alteration would be neither surprising nor damaging to the expert nor to their credit, but in fact required by r 429A of the UCPR. As observed by Sofronoff P in Mashaghati, expert evidence rules in the UCPR “are directed towards early and full disclosure of expert evidence in order to assist in achieving either an early settlement of the claim that is the subject of the proceeding, or if that cannot be done, then an efficient trial...”[20]
  5. [24]
    I conclude that dispensing with the requirement for mediation reports to be disclosed is not in keeping with the broader policy considerations for disclosure contained in the UCPR, nor is it necessary in the circumstances, as a non-partisan expert can easily explain differences or discrepancies between group-wide and plaintiff-specific reports.
  6. [25]
    On the premise of the above, I order that:
  1. The application filed 11 December 2020 is dismissed.
  2. If the parties cannot agree as to the appropriate costs order, they are to file and serve submissions on costs as follows:
    1. The applicant within 7 days herein; and
    2. The respondent within 14 days herein. 

Footnotes

[1]CFI 189, filed 11 December 2020. 

[2]See Green & Ors v Pearson [2014] QCA 110 at [59].

[3]Paragraph 4, applicant’s written submissions filed 2 February 2021.

[4]Paragraph 5, applicant’s written submissions filed 2 February 2021.

[5] Civil Proceedings Act 2011 (Qld) s 53.

[6] Fox v Percy (2003) 214 CLR 118 at 167 per Callinan J.

[7][2001] 2 Qd R 196.

[8] Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196 at 201.

[9] Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [2019] 3 Qd R 225.

[10] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141.

[11] Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373.

[12] Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [2019] 3 Qd R 225 at 284.

[13] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 612-613.

[14]Paragraph 5, applicant’s written submissions filed 2 February 2021.

[15][2018] 1 Qd R 429.

[16] Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429 at 441-442.

[17] Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429 at 448.

[18](2011) 243 CLR 588 at 624.

[19] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 612-613.

[20] Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429 at 442.

Close

Editorial Notes

  • Published Case Name:

    Murphy Operator & Ors v Gladstone Ports Corporation (No 7)

  • Shortened Case Name:

    Murphy Operator v Gladstone Ports Corporation (No 7)

  • MNC:

    [2021] QSC 18

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    12 Feb 2021

  • White Star Case:

    Yes

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allianz Australia Insurance Ltd v Mashaghati[2018] 1 Qd R 429; [2017] QCA 127
6 citations
Jump To
Cite 1 - [2017] QCA 127
Cite 2 - [2018] 1 Qd R 429
Cite 3 - [2018] 1 Qd R 429
Cite 4 - [2018] 1 Qd R 429
Cite 5 - [2018] 1 Qd R 429
Cite 6 - [2018] 1 Qd R 429
Dasreef Pty Ltd v Hawchar [2011] HCA 21
1 citation
Jump To
Cite 1 - [2011] HCA 21
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
4 citations
Jump To
Cite 1 - (2011) 243 CLR 588
Cite 2 - (2011) 243 CLR 588
Cite 3 - (2011) 243 CLR 588
Cite 4 - (2011) 243 CLR 588
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
1 citation
Jump To
Cite 1 - (2003) HCA 22
Green v Pearson [2014] QCA 110
2 citations
Jump To
Cite 1 - [2014] QCA 110
Cite 2 - [2014] QCA 110
Grosvenor Hill (Queensland) Pty Limited v Interchase Corporation Limited (in liquidation) [1997] QCA 450
1 citation
Jump To
Cite 1 - [1997] QCA 450
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141
2 citations
Jump To
Cite 1 - [1999] 1 Qd R 141
Cite 2 - [1999] 1 Qd R 141
Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board[2005] 1 Qd R 373; [2004] QSC 329
3 citations
Jump To
Cite 1 - [2004] QSC 329
Cite 2 - [2005] 1 Qd R 373
Cite 3 - [2005] 1 Qd R 373
Murphy Operator Pty Ltd v Gladstone Ports Corporation [2019] 3 Qd R 225
3 citations
Jump To
Cite 1 - [2019] 3 Qd R 225
Cite 2 - [2019] 3 Qd R 225
Cite 3 - [2019] 3 Qd R 225
Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd[2019] 3 Qd R 255; [2019] QSC 12
1 citation
Jump To
Cite 1 - [2019] QSC 12
Parr v Bavarian Steak House P/L[2001] 2 Qd R 196; [2000] QCA 429
4 citations
Jump To
Cite 1 - [2000] QCA 429
Cite 2 - [2001] 2 Qd R 196
Cite 3 - [2001] 2 Qd R 196
Cite 4 - [2001] 2 Qd R 196

Cases Citing

Case NameFull CitationFrequency
Murphy Operators v Gladstone Ports Corporation (No 8) [2021] QSC 572 citations
1

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