Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd

[2018] QLC 36

LAND COURT OF QUEENSLAND

CITATION:

Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd
[2018] QLC 36

PARTIES:

Byerwen Coal Pty Ltd
(applicant)

v

Colinta Holdings Pty Ltd
(respondent)

FILE NOs:

MRA117-16
MRA118-16
MRA119-16

DIVISION:

General Division

PROCEEDING:

General application

DELIVERED ON:

16 October 2018

DELIVERED AT:

Brisbane

HEARD ON:

12 October 2018

HEARD AT:

Brisbane

MEMBER:

PG Stilgoe OAM

ORDERS:

1.     The valuers must, in preparing their further joint expert report in accordance with Order 6 of 18 May 2018 (as amended by Order 3 of 28 September 2018):

a.   consider only the impact of the taking of the Resumed Land on the assessment of compensation, as set out in their earlier reports; and

b.   refrain from re-considering all other matters the subject of an earlier report in the proceedings.

2.   The valuers must disregard the instructions issued by the applicant’s solicitor on 8 October 2018.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where land subject to grant of mining leases – where a hearing regarding compensation payable for that land had taken place – where following that hearing, a portion of the land was resumed – where the Court gave leave for parties to reopen their cases for the purpose of leading evidence in relation to that resumption – where expert valuers prepared supplementary joint expert reports as a result of the resumption – where the owner of the resumed land changed its mind as to how it would use resumed land – where an expert had asked the parties as to how to consider matters outside the leave to reopen – whether an expert can reconsider matters outside the scope for which leave to reopen was granted – whether a party may ask an expert for clarification as to the relevance of that expert’s inquiries

Land Court Rules 2000, r 24A

APPEARANCES:

SM McNee, In-house legal, Byerwen Coal Pty Ltd, for the applicant
N Andreatidis (instructed by Allens) for the respondent

1. In late 2017, Adani announced the location of a future standard gauge railway line from its mine which resulted in the resumption of part of the land which is the subject of this compensation hearing. In September 2018, Adani announced that it no longer intended to build the standard gauge line, but instead would connect to Aurizon’s existing narrow gauge line. I have, therefore, twice given the parties leave to file further evidence about the impact of the resumption and the railway line on this land.

1. The valuers have filed two joint expert reports; one before the resumption and one since. Ten days before the third iteration of the valuers’ joint expert report was due to be filed, the valuers asked the lawyers to answer five questions. Those questions related to the status of the Moonlight Yards, yards that are located on the eastern side of the resumed area and outside the mining lease. Colinta Holdings Pty Ltd objected to the questions, submitting that they were outside the scope of the leave to file further evidence. Byerwen Coal Pty Ltd submits that I should not interfere with the joint expert process by acceding to Colinta’s application.

1. This is my decision about the objection to the valuers’ questions.

1. Rule 24A(2) of the Land Court Rules 2000 allows experts who are in the joint meeting process to ask all parties to respond to an inquiry that the experts make jointly. The purpose of this rule is self-evident. The experts’ first duty is to the Court and if they cannot fulfil that duty on the information that is available there must be a mechanism to break the confidentiality imposed on them by the joint meeting process to obtain that information.

1. In practice, as I note later in these reasons, there are difficulties with the ‘cone of silence’ of the joint meeting. The Court’s Court Managed Expert Evidence procedure (CMEE) is designed to avoid these problems. Sadly, this dispute pre-dated the implementation of the CMEE procedure and, given the impending trial date and the limited scope of the experts’ dispute, it is too late to take advantage of the CMEE procedure.

1. It is true that there is a danger in deciding whether an expert’s question is relevant in the absence of information from the experts themselves. A sensible way to avoid that problem would have been for the question to be accompanied by an explanation from the valuers themselves. This did not, however, occur.

1. I do not accept that merely posing a question automatically makes it relevant. Experts may embark on investigations of their own of which the parties are not aware until the joint expert report has been filed. The experts may have misunderstood the question that they have been asked to consider, or decided, of their own volition, to answer a different question, which they think is more relevant to their area of expertise. Or they may have decided to chase every rabbit down every burrow so that their integrity and professionalism cannot be challenged.

1. The supplementary joint expert report contains discussion about the Moonlight Yards and access to them. It is from the report that there is little dispute about this issue. Both valuers have assumed that the yards will still be used. Both valuers refer to the uncertainty surrounding access to and from the yards across the railway line.

1. The desire for the answers is, apparently,  contained in paragraph 15 of the joint expert report filed 5 February 2018: in their first joint report, the experts assumed the existence of a particular access point and the stock movements through that access point which, in hindsight, may have been wrong. However, as the supplementary report further notes, the Adani railway resumption removes the assumed access entirely and, therefore, corrects the error.

1. The questions that are now asked were as relevant to the first joint expert report as they are to the anticipated joint expert report. The Adani rail line, which is the only topic for the supplementary joint expert reports, does not make answers to the questions more important, it makes the answers irrelevant.

1. Colinta’s lawyers’ letter to the experts asking how the questions were relevant to the issue was not an impermissible interference with the joint meeting process. It was copied to both experts and Byerwen. It legitimately challenged the need for answers to those questions. An intelligent discussion between lawyers about relevance would have been more profitable than a series of emails about process but there was no error in one party asking the experts to clarify the reason for their request.

1. Finally, it is wrong to say that this application is brought ten months too late. The questions were first asked in an email of 1 October 2018. There was no clue in the supplementary joint report that these questions needed to be asked and the experts’ delay of eight months in asking them underscores that their relevance is marginal.

Orders:

1. The valuers must, in preparing their further joint expert report in accordance with Order 6 of 18 May 2018 (as amended by Order 3 of 28 September 2018):

a.   consider only the impact of the taking of the Resumed Land on the assessment of compensation, as set out in their earlier reports; and

b.   refrain from re-considering all other matters the subject of an earlier report in the proceedings.

1. The valuers must disregard the instructions issued by the applicant’s solicitor on 8 October 2018.

PG STILGOE OAM
MEMBER OF THE LAND COURT