Greater Geelong City Council v Clariant (Australia) Pty Ltd (Ruling)
[2017] VCC 147
•2 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-15-04490
| GREATER GEELONG CITY COUNCIL | Plaintiff |
| v | |
| CLARIANT (AUSTRALIA) PTY LTD (ACN 069 435 552) | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2017 | |
DATE OF RULING: | 2 March 2017 | |
CASE MAY BE CITED AS: | Greater Geelong City Council v Clariant (Australia) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 147 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to limit the scope of expert evidence – scientific analysis – earthen stormwater drain – drainage system – source of contamination – chemical business – production, laboratory and warehousing facility
Legislation Cited: Civil Procedure Act 2010 (Vic); Local Government Act 1989 (Vic)
Cases Cited:Thomas v Powercor Australia Limited (Ruling No 7) VSC 502; Naxakis v Western General Hospital & Anor (1999) 197 CLR 269
Ruling: Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Northrop | Harwood Andrews |
| For the Defendant | Mr N McAteer | McNab Lawyers |
JUDICIAL REGISTRAR:
1 This application was commenced by correspondence from the defendant solicitor to the Directions Group dated 23 January 2017 for orders seeking to limit the scope of expert evidence.
2 The defendant sought the following orders in the application:
(i) Pursuant to s65H(2)(c) of the Civil Procedure Act 2010 (“CPA”):
(a)Expert evidence to be given at trial is limited to the scientific analysis of samples and whether such analysis indicates a common source for the samples;
(b)The relevant samples are those collected from the earthen stormwater drain referred to at paragraphs 8.1 and 8.2 of the Statement of Claim from the defendant’s premises, and from the stormwater drainage system referred to in the Particulars of paragraph 7 of the Statement of Claim;
(c)Such scientific analysis may include chromatography, metals analysis, infra-red spectrophotometry, chemical analysis and soot analysis, or other similar forms of scientific analysis.
(ii) Pursuant to s65H(2)(d) of the CPA:
(a)Expert evidence may not be adduced at trial going to the ultimate issue in proceedings, being the source of the contamination found in the earthenware stormwater drain referred to paragraphs 8.1 and 8.2 of the Statement of Claim.
3 As a preliminary point, counsel for the plaintiff argued that the application should have been brought on by way of summons and not by email communication to the Directions Group. I made an order that the application could proceed without a summons based on an Order made by of Judge Morrish of 15 December 2016:
“2. By 30 January 2017, the Defendant have leave to apply for directions limiting the scope of experts’ reports.”
4 As leave was granted to apply by that Order, I ruled it was not necessary for a summons to be issued.
5 The proceedings were issued on 18 September 2015. In the Statement of Claim, the plaintiff pleads:
(a) In paragraph 2, that at all material times it was responsible for the management of land located at premises at 137 to 207 McManus Road, Lara, in the State of Victoria, by reason of s198 of the Local Government Act 1989 (Vic);
(b) In paragraph 5 and 6, the defendant was the occupier of land at 100 Heales Road, Lara, in the State of Victoria, and operated a chemical business on the land; and
(c) In paragraph 7, that on or before 20 March 2014, the defendant wrongfully discharged contamination into a stormwater drainage pit on its land which passed onto the plaintiff’s land, thereby polluting the water and soil on the plaintiff’s land and causing a nuisance.
6 In the Defence dated 2 November 2015, the defendant denied:
(a) In paragraph 2, that it operated a chemical business on its land, but pleaded that it operated a production, laboratory and warehousing facility on the premises, producing primarily high quality PIBSA-based emulsifiers; and
(b) In paragraph 3 and 4, that it had wrongfully discharged contamination into the stormwater drainage pit on its land which had passed onto the plaintiff’s land.
7 It is appropriate to note that whilst the defendant’s application sought orders as set out in paragraph 2 of this Ruling, in the defendant solicitor’s correspondence to the Court on 23 January 2017, reference to an expert report served by the plaintiff from Dr Harry Grynberg on 24 March 2016 was made. Paragraph 5 of that correspondence said:
“In regard to expert reports already filed, the defendant says that the plaintiff ought not be permitted to adduce evidence and rely upon the expert report filed by the plaintiff dated 24 March 2016 from Dr Harry Grynberg. Dr Grynberg identifies that the opinion he is giving is ‘as to the likely source of the pollution’. This is the ultimate issue for the court to determine and as such the report should not be admitted into evidence (refer Naxakis v West[ern] Gen[eral] Hospital [& Anor] (1999) 162 ALR 540 at (110)).”
8 In argument before me, much reliance was placed by the counsel for the defendant on the admissibility, or otherwise, of the report of Dr Grynberg. However, despite this, counsel for the defendant confirmed that he was not seeking an order from me that the plaintiff was not to adduce evidence and rely upon the report of Dr Grynberg at trial.
9 This matter is listed for trial at the Geelong circuit commencing 28 August 2017.
10 Sections 65H(2)(c) and 65H(2)(d) of the CPA are contained in Part 4.6 of the Act, headed “EXPERT WITNESSES AND EXPERT EVIDENCE”, and this part of the Act was introduced by the Civil Procedure Act 2010 (as amended).
11 At the Second Reading Speech on 21 June 2012, it was said:
“The new provisions gives the court ‘clearly defined powers’ in relation to expert witnesses and their evidence ‘which aim to improve the quality and integrity of expert evidence and enhance its usefulness for judges and magistrates’.”[1]
[1]Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2012, 2947, Mr Clark (Attorney-General)
12 Section 65H is headed “Court may give directions in relation to expert evidence”. It reads:
“(1)A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.
(2)A direction under subsection (1) may include, but is not limited to—
(a)the preparation of an expert's report;
(b)the time for service of an expert's report;
(c)limiting expert evidence to specified issues;
(d)providing that expert evidence may not be adduced on specified issues;
(e)limiting the number of expert witnesses who may be called to give evidence on a specified issue;
(f)providing for the appointment of—
(i)single joint experts; or
(ii)court appointed experts;
(g)any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding.
(3)A direction under subsection (1) may be given at any time in a proceeding.”
13 This section needs to be considered together with s49 of the CPA contained in Part 4.2, headed “Case Management”, in particular s49(1) and (2) which reads:
“(1) In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2) A direction or an order under subsection (1) may be given or made by the court at any time—
(a) before a hearing commences; or
(b) during a hearing.”
14 These sections would appear to be intended for orders or directions given by the trial judge before the hearing commences or during the hearing[2] whereas s65H(3) makes it quite clear that a direction order made under ss(1) may be given at any time in a proceeding by a court.
[2]Civil Procedure Act 2010 (Vic), s49(2)
15 The defendant seeks, pursuant to s65H(2)(c), to limit the expert evidence on specific issues, how evidence is to be obtained and what evidence is given by the experts.
16 No authorities on s65H(2) were provided to me; however, some guidance can be gained from the decision of J Forrest J in Thomas v Powercor Australia Limited (Ruling No 7),[3] where his Honour considered s49 of the CPA. This decision related to concurrent expert evidence and the factual evidence a witness should give relative to the expert reports. His Honour said:
“It follows from both the Rules and the Civil Procedure Act that where a court determines to receive expert evidence in a concurrent session, the court is entitled to fashion the process as it thinks fit. However, it must ensure that the parties are afforded procedural fairness. In this context, each of the parties must be given the opportunity to adduce evidence from a relevant expert and to cross-examine an expert giving evidence contrary to that party's interest.”[4]
[3][2011] VSC 502
[4]Thomas v Powercor Australia Limited (Ruling No 7) (supra) at paragraph [6]
17 His Honour went on to state how evidence should be adduced:
“As with the concurrent evidence session on quantum, consideration of a particular issue will be initiated by me, taking the experts through parts of their reports so that I may ascertain the exact nature of the dispute on a particular issue, or for that matter, agreement between the experts. Once that exercise is concluded, the issue is what order should be adopted in terms of adducing evidence and cross-examining witnesses.”[5]
[5](Supra) at paragraph [7]
18 His Honour further said:
“The first point to be made here is that each counsel seeks, in effect, to obtain a forensic advantage in the presentation of the evidence. That approach, in my view, is inconsistent with the court's task which is to reach a just result with the assistance of impartial experts. Questions of forensic advantage play no part in this exercise. Rather, as the Civil Procedure Act and O 44 demonstrate, the task should be to devise a procedure that will lead to the best way for the expert opinions to be understood by the court and provide fairness to the parties.”[6]
[6](Supra) at paragraph [9]
19 The defendant in this application does not seek to limit the plaintiff’s evidence by an order from me to preclude the plaintiff to adduce and rely upon an expert report of Dr Grynberg, but rather, seeks to limit the expert evidence that a party can obtain for the purpose of the trial. The difficulty with the defendant’s application at this time is that there are Orders made by Judge Morrish of 15 December 2016, which include:
(a) Order 6: The parties have leave to file any further subpoenas under Order 42A on or before 31 March 2017;
(b) Order 7: By 28 April 2017, the plaintiff serve any additional expert reports upon which it intends to rely at trial, including as to damages; and
(c) Order 8: By 30 June 2017, the defendant serve any expert reports in response to the additional report(s) filed by the plaintiff pursuant to the preceding order.
20 The time period for the parties to obtain further expert evidence which they may seek to rely upon and evidence to be obtained under subpoena has not expired.
21 In this instance, I am satisfied I should approach my analysis giving appropriate weight to the fact it is a scientifically complex case in respect of what the expert evidence is likely to be to form the basis upon which the outcome of the case is likely to be determined.
22 In these circumstances, it is fundamental that a decision-making process which is fair to the parties is undertaken by a decision maker who is fully apprised of all the evidence including technical issues.
23 To make orders as sought by the defendant application would prevent a party from making a case which they desire to make on the merits, particularly when the time to obtain and exchange expert evidence has not closed.
24 Further, given the nature of the issues in dispute, the Court will be reliant upon expert evidence to assist it in identifying the contaminant and where that substance may have come from. It is premature to now limit the evidence which a party can obtain and it should be the trial judge who determines the admissibility of the expert evidence and to devise, as J Forrest J said:
“… a procedure that will lead to the best way for the expert opinions to be understood by the court and provide fairness to the parties.”[7]
[7](Supra)
25 Therefore, the defendant’s application for leave for orders limiting the scope of the experts’ evidence in accordance with s65H(2)(c) and s65H(2)(d) of the CPA is refused.
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