Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 3)

[2012] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation:

Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor (No. 3) [2012] NSWSC 1661

Hearing dates:

7 May 2012, 8 May 2012, 9 May 2012, 11 May 2012, 14 May 2012, 15 May 2012, 17 May 2012

Decision date:

17 May 2012

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

Concurrent oral evidence of aviation experts allowed

Catchwords:

EVIDENCE - claim for damages, indemnity and contribution arising from helicopter accident - joint report of aviation experts - objection by one party to tender of earlier reports of aviation experts - objection by same party to aviation experts giving oral evidence - concurrent evidence from aviation experts to assist Court in resolution of issues in proceedings - concurrent oral evidence allowed

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 1) [2012] NSWSC 1659

Texts Cited:

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Category:

Interlocutory applications

Parties:

In Matter 2008/289264

Plaintiffs:
Julie Patricia Edwards
Connor James Edwards
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards)

Defendants:
Endeavour Energy
Precision Helicopters Pty Limited
Telstra Corporation Limited
Sydney West Local Health Network trading as Westmead Hospital

In Matter 2009/297468

Plaintiff:
Precision Helicopters Pty Limited

Defendants:
Endeavour Energy
Telstra Corporation Limited
Sydney West Local Health Network trading as Westmead Hospital

In Matter 2010/147165

Plaintiff:
Endeavour Energy

Defendants:
Precision Helicopters Pty Limited
Telstra Corporation Limited

Representation:

Counsel:
Mr KW Andrews (Julie Patricia Edwards,
Connor James Edwards,
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards))

Mr RS McIlwaine SC; Mr BAP Kelleher (Endeavour Energy)

Mr RS Ashton; Mr DA Lloyd (Precision Helicopters Pty Limited)

Mr DJ Fagan SC; Mr J Downing (Telstra Corporation Limited)

Mr SA Woods (Sydney West Local Health Network trading as Westmead Hospital)
Solicitors:
WH Parsons & Associates (Julie Patricia Edwards, Connor James Edwards,
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards))

Moray & Agnew (Endeavour Energy)

Riley Gray-Spencer Lawyers (Precision Helicopters Pty Limited)

HWL Ebsworth (Telstra Corporation Limited)

Gild Insurance Litigation Pty Limited (Sydney West Local Health Network trading as Westmead Hospital)

File Number(s):

Publication restriction:

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Judgment

1. JOHNSON J: On Tuesday 8 May 2012, I gave judgment with respect to issues arising from the joint report of aviation experts who had been retained by parties to this litigation: Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 1) [2012] NSWSC 1659.

1. Precision Helicopters Pty Ltd ("Precision") has retained Mr Lachlan Macarthur-Onslow. Endeavour Energy ("Endeavour") has retained Mr Mark Ogden.

1. Mr Ogden has provided no fewer than five individual reports which have been served on other parties to the litigation, and which (at present at least) form part of Exhibit EE2 in these proceedings. They are reports dated 10 June 2008, 13 November 2008, 31 March 2010, 22 March 2012 and 20 April 2012.

1. Mr Macarthur-Onslow has provided one report dated 22 March 2012 (MFI13).

1. In accordance with usual practice, the two experts met in conclave for the purpose of preparing a joint report. A report dated 23 April 2012 was the result (Exhibit EE2, page 74ff). It was this report which triggered submissions, culminating in the judgment of 8 May 2012, whereby I determined that the aviation experts ought be approached with additional material for the purpose of the provision of a further joint report. Those steps have now been taken and the further joint report dated 16 May 2012 was provided yesterday (Exhibit EE11).

1. Mr Fagan SC, for Telstra Corporation Limited ("Telstra"), has indicated that he wishes to tender at least parts of three reports of Mr Ogden, being those dated 10 June 2008, 13 November 2008 and 31 March 2010.

1. Mr Andrews, for the Edwards children, has indicated a desire to rely upon parts of Mr Ogden's report dated 13 November 2008.

1. Mr McIlwaine SC, for Endeavour, has submitted that the only reports which ought be received in evidence are the two joint reports of 23 April 2012 and 16 May 2012. He submits that no other report of Mr Ogden ought be received, nor should the report of Mr Macarthur-Onslow. He submits that there ought be no oral evidence or cross-examination of Mr Ogden and Mr Macarthur-Onslow because, in effect, in the end they do not disagree on anything.

1. Mr Ashton, for Precision, has submitted that there could be no objection to cross-examination which at least seeks to clarify or supplement areas touched upon by the two experts. He indicated that there are matters he would wish to ask the experts arising from the view of the scene of the accident undertaken last Monday.

1. The starting point involves an examination of Part 31 Uniform Civil Procedure Rules 2005. Rule 31.17 makes clear that the main purposes of the Division are, amongst other things, to ensure the Court has control over the giving of expert evidence and to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings.

1. Within Part 31, there are different species of experts. There is the parties' single expert referred to in Rule 31.37 and following. I note with respect to a parties' single expert that there is provision whereby any party affected may cross-examine the expert, who must attend for that purpose on the giving of reasonable notice by the party affected (Rule 31.43).

1. A further class of expert is the Court-appointed expert referred to in Rule 31.46 and following. Again, Rule 31.51 provides that any party affected may cross-examine a Court-appointed expert, and the expert must attend if requested for that purpose, on the giving of reasonable notice.

1. Of course, Mr Ogden and Mr Macarthur-Onslow are not the parties' single experts or Court-appointed experts. They are expert witnesses retained by the two parties I have mentioned who have, in accordance with the well-recognised procedures of the Court, met in conclave and prepared joint reports.

1. It is correct, as Mr McIlwaine SC submits, that Telstra could have engaged its own aviation expert to participate in this process. It has not. It is true, as well, that Telstra may have sought to have engaged itself in the identification of particular issues or topics for the experts, for the purpose of the further joint report. I do not detect that Telstra played any active role in that respect.

1. Nevertheless, it is clear that Telstra is a party affected by the evidence of these expert witnesses.

1. The ordinary rules of procedural fairness entitle a party in civil proceedings such as this to have an opportunity to test and challenge evidence which affects its interests. The fact that Telstra did not retain its own aviation expert does not shut out Telstra from seeking to cross-examine the expert witnesses.

1. Indeed, a consequence of the submission of Mr McIlwaine SC would be that, as the tribunal of fact in this case, I would be restricted to the receipt of the two joint reports from the aviation experts, and the relatively brief statements contained in those reports on areas which had been raised with the experts.

1. I do not think that that is the way in which the resolution of this litigation should proceed.

1. Mr Ogden has written a number of detailed reports, which no doubt explain (amongst other things) his own expertise and knowledge of the aviation industry, and how he has come to reach certain conclusions. If it is said that Mr Ogden has departed from an opinion previously expressed, or has refined or varied his opinion in some way, then the Court, as the tribunal of fact, is entitled to know what it is that has led to any change of view, so that the Court (as the decision maker) can understand and evaluate the evidence of Mr Ogden. Likewise, if Mr Macarthur-Onslow has changed his view in any respect.

1. This approach does not operate to remove the conclave process from the proceedings, or to dilute its utility.

1. Mr Fagan SC submits that, in a number of respects, Mr Ogden has changed his position. Mr McIlwaine SC does not wholeheartedly accept that statement. However, he does not seek to contend that a fair reading of the reports of Mr Ogden does not support that view.

1. It seems to me that the appropriate and fair way in which this phase of evidence ought proceed is for the two experts to enter the witness box and give evidence concurrently in the ordinary way. Telstra is a party affected by their opinions, as indeed are the Edwards children. The Court should not shut these parties out from seeking to cross-examine the witnesses.

1. If there are differences between what Mr Ogden (in particular) has said before, and what he appears to be saying in either of the joint reports, then those matters may be identified, with the Court having an understanding of why his position has changed.

1. Whether this leads to the tender of all of Mr Ogden's reports (or, to be more accurate, all of Mr Ogden's reports remaining in evidence in Exhibit EE2) will be a matter to be determined in light of the evidence given. There will, in addition, be an opportunity for counsel, including Mr Ashton, to ask questions of the witnesses by reference to factual matters arising from the view. This process will assist the Court.

1. I make it entirely clear that there is no unfairness whatsoever in this process. Endeavour tendered all of Mr Ogden's reports at the commencement of the case. Until I asked the question of Mr McIlwaine SC this morning, it had not been indicated to me that it was not intended to rely upon any of Mr Ogden's reports. This is not a situation where Telstra is, in some way, springing something on the other parties to the litigation.

1. Bearing in mind the last joint report was served only yesterday, there could be no complaint about Telstra indicating its position today with respect to the matters which have been the subject of debate and this ruling.

1. I propose to allow the two aviation experts to give evidence concurrently. That process will permit cross-examination by Mr Fagan SC and Mr Andrews, and cross-examination and examination by Mr McIlwaine SC and Mr Ashton on any matters that arise in the process. At the end of the concurrent evidence of the two witnesses, the Court should have a complete understanding of the position of the witnesses on the real issues in dispute in these proceedings.

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Decision last updated: 18 February 2014