Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 2)
[2017] NSWLEC 175
•12 December 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 2) [2017] NSWLEC 175 Hearing dates: 11 December 2017 Decision date: 12 December 2017 Jurisdiction: Class 3 Before: Sheahan J
Maston ACDecision: Tender allowed
Catchwords: EVIDENCE: Acceptance of late expert report Category: Procedural and other rulings Parties: Alexandria Landfill Pty Ltd (Applicant)
Boiling Pty Ltd (Applicant)
Roads and Maritime Services (Respondent)Representation: Counsel:
Solicitors:
Mr I Hemmings, SC with Mr M Seymour, barrister and Ms K Lindeman, barrister (Applicants)
Mr R Lancaster, SC with Mr N Eastman, barrister and Mr M Astill, barrister (Respondent)
Dibbs Barker (Applicants)
Henry Davis York (Respondents)
File Number(s): 2016/155678 2016/155930
Judgment
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Senior Counsel for the applicants in these proceedings, Mr Ian Hemmings SC, has asked me to publish my reasons for admitting into evidence one, if not both, of two additional reports provided by the respondent’s contamination expert, Mr Jason Clay.
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Early in his oral evidence, Mr Clay sought to change some of the evidence he provided in his written reports, and in his contribution to his joint reporting with the applicants’ expert, Dr Ryall.
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At that time I indicated the Court’s preference for his amended evidence to be provided to the applicants and to the Court in writing, and, when the hearing recommenced at 2pm yesterday, Senior Counsel for the respondent, Mr Richard Lancaster SC, sought to tender:
an amended version, dated 11 December 2017, of Mr Clay’s Statement of Evidence dated 20 February 2017; and
a Supplementary Statement of Evidence addressing Table 7 of the original 20 February 2017 statement.
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Mr Hemmings did not object to the tender of item (a) – which became Exhibit R7 – provided the following paragraph on p30 of it, qualifying Table 7 as amended, was withdrawn from it:
After further consideration of this advice, I realised that I had not taken into account relevant resource recovery orders (orders) and resource recovery exemptions (exemptions), specifically the recovered aggregate order 2014 (RAO) and the “batch process” recovered fines order 2014 (RFO), which are relevant to the recycling of the material and Boiling’s EPL. I therefore have to revise my approach to consideration of potential costs to dealing with non-compliant stockpiles. I have prepared a brief supplementary document to outline my revised approach (Reference: S11497_LET07_11December2017).
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After argument, I allowed both the tender of Item (b) – which became Exhibit R8, and included a new Table (7a) – and the reinstatement to Exhibit R7 of the paragraph quoted above, which was amplified by Mr Clay in pars 1 to 3 of Exhibit R8. In par 5 he added:
... My advice to a hypothetical purchaser would therefore have to change such that, if stockpiled material cannot meet the recycling standards then it can only be waste, and the liabilities associated with that apply.
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Mr Clay adjusted his estimate of the “potential cost of managing non-compliant stockpiles” from $49,649,520 to $58,689,032, explained his assumptions, and prepared Table 7a to explain his amended position in “more detail”.
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I preferred and accepted the submissions Mr Lancaster made regarding these tenders. He submitted, most significantly (Tp738, LL42 – 47, and p741, LL25 – 36):
[Mr Clay] thought it was likely for the most part that the soils containing those wastes would be recyclable to a large percentage, being 50 per cent or 90 per cent, but hadn't remembered to apply the terms of the resource recovery orders which impose more stringent standards, and that's the change that has occurred.
...
The position is that the supplementary statement, in my respectful submission, just does what the expert code requires of an expert - namely, to bring forward a correction to his or her expert opinion when it is regarded by the expert as necessary.
It is limited to a particular issue of the application of resource recovery orders that will operate in any event, because we will, in any event, be able to make the submission that a hypothetical purchaser would have had the obligations imposed by a resource recovery order in mind when assessing the matter.
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I accept that this new evidence comes very late indeed, and that Mr Hemmings may be able to satisfy the Court that, armed with only their present expert, Dr Ryall (Tp737, LL3 – 20), the applicants facing a $20M impact on their claim, are prejudiced and may need to bring to Court an expert in resource recovery orders.
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On this aspect of the matter, Mr Lancaster quite fairly said (Tp741, L38 – p712, L9):
Your Honour, in respect of the asserted prejudice in the context of Dr Ryall's professed lack of expertise to deal with it, in my submission that can be dealt with by allowing the applicant an opportunity to consider what, if any, response other than from Dr Ryall it would wish to make to the material if it were admitted. In the context of the hearing which, as your Honour knows, has been set down for some additional five weeks next year, there is time enough for the applicant to consider whether there is anything else they can or would wish to bring forward. If that's possible, that can be done in relatively short compass, because it is a confined issue.
So, in my submission, the immediate prejudice that arises from Dr Ryall's professed absence of expertise to deal with it shouldn't rule the day, because there is time enough between now and other days set down for the reception of evidence for this issue to be addressed by the applicant.
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Although Dr Ryall and Mr Clay remain before the Court on the specific stockpile/contamination evidence, the Court will now move on to the other environmental expert evidence in which those gentlemen are also involved, and return to the remaining issues in the stockpile/contamination field later in the hearing (Tp745, L40 – p747, L41).
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Decision last updated: 12 December 2017
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