Moore v Landsdale Pty Ltd as Trustee for the Mount Barker Trust [No 2]
[2013] WASC 118
•10 APRIL 2013
MOORE -v- LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST [No 2] [2013] WASC 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 118 | |
| Case No: | CIV:2588/2008 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 10/04/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce non-expert evidence refused Plaintiff witness statement disallowed | ||
| B | |||
| PDF Version |
| Parties: | NEIL WILLIAM MOORE WARREN ROBERT MOORE LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST (ACN 009 382 969) IAN PAUL CROCKETT as Trustee for the IPC TRUST ROBERT GRAHAM QUENBY and ADRIENNE QUENBY as Trustees for the QUENBY TRUST BRIAN STEPHEN BOWLEY as Trustee for the BOWLEY FAMILY TRUST ROBERT GRAHAM QUENBY QUENBY VITICULTURAL SERVICES PTY LTD (ACN 009 283 943) |
Catchwords: | Characterisation of evidence Former expert evidence submitted as non-expert evidence Objection by defendant Evaluation of materials |
Legislation: | Nil |
Case References: | ASIC v Rich [2005] NSWSC 149 Moore v Landsdale Pty Ltd [2012] WASC 452 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- WARREN ROBERT MOORE
Plaintiffs
AND
LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST (ACN 009 382 969)
First Defendant
IAN PAUL CROCKETT as Trustee for the IPC TRUST
Second Defendant
ROBERT GRAHAM QUENBY and ADRIENNE QUENBY as Trustees for the QUENBY TRUST
Third Defendants
BRIAN STEPHEN BOWLEY as Trustee for the BOWLEY FAMILY TRUST
Fourth Defendant
ROBERT GRAHAM QUENBY
Fifth Defendant
- QUENBY VITICULTURAL SERVICES PTY LTD (ACN 009 283 943)
Sixth Defendant
Catchwords:
Characterisation of evidence - Former expert evidence submitted as non-expert evidence - Objection by defendant - Evaluation of materials
Legislation:
Nil
Result:
Application to adduce non-expert evidence refused
Plaintiff witness statement disallowed
Category: B
Representation:
Counsel:
Plaintiffs : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Solicitors:
Plaintiffs : Metaxas & Hager
First Defendant : Norton Rose Australia
Second Defendant : Norton Rose Australia
Third Defendants : Norton Rose Australia
Fourth Defendant : Norton Rose Australia
- Fifth Defendant : Norton Rose Australia
Sixth Defendant : Norton Rose Australia
Case(s) referred to in judgment(s):
ASIC v Rich [2005] NSWSC 149
Moore v Landsdale Pty Ltd [2012] WASC 452
(Page 4)
1 KENNETH MARTIN J: In my reasons of 28 November 2012 (see Moore v Landsdale Pty Ltd [2012] WASC 452) I refused leave to the plaintiffs to lead evidence at trial of a number of further expert reports. These reports were exchanged late and had been objected to by the defendants. One of those expert reports was prepared by Mr Daniel Machin of Azure Consulting Group on 25 September 2012. I refer to paragraphs 26(c), 43, 44 and 60 of my reasons in Moore v Landsdale Pty Ltd dealing with the content of the Machin expert report.
2 In short, there were two aspects to the Machin expert material. First, Mr Machin's plotting of certain wind directions (referred to as 'wind roses') on satellite photographs. Second, there was some future sales modelling work by Mr Machin. Mr Machin argued that there was some relevance to the plaintiffs' economic loss claim for damages, in circumstances where the plaintiffs' plans to develop a profitable export business for the sale of ornamental blue marron are contended to have been ruined by the defendants spraying chemicals on their vineyard.
3 Following my reasons in Moore v Landsdale Pty Ltd refusing leave for this statement to be used, the plaintiffs filed further evidence of Mr Machin. This is, in my view, substantially the same as the expert report filed on 25 September 2012. The evidence was filed in December 2012 on the basis that Mr Machin could give this same evidence as a non-expert witness. The defendants immediately objected to this. I made directions for the matter to be determined after an exchange of written submissions by the parties. The parties agreed that the issue could be resolved on the papers.
4 By written submissions of 15 March 2013 the plaintiffs submit that Mr Machin's evidence had been prepared as an expert report 'out of caution' because it had contained 'an implied opinion in the report as to the accuracy, reliability and efficacy of the production and sales model' (see par 9 of the plaintiffs' written submissions).
5 The plaintiffs also say that the other aspect of Mr Machin's proposed evidence concerning his plotting of 'wind roses' or 'reverse wind roses' (see pars 6 - 21 of Mr Machin's witness statement) is factual, scientific material, rather than expert opinion. As to the correct characterisation of this material, the plaintiffs refer me to passages in Lexis Nexis, Cross On Evidence (at 15 March 2013) [29,010] and [20,025]. The plaintiffs also refer to observations by Austin J in ASIC v Rich [2005] NSWSC 149 [272], (2005) 53 ACSR 110, 171. In that decision, Austin J explained the character of evidence as mathematical or analytical, rather than scientific
(Page 5)
- opinion. If material expresses a factual conclusion it will be admissible as evidence of fact, albeit a fact has been derived from the application of scientific knowledge. By way of illustration, Austin J made reference to the work of a forensic accountant.
6 The defendants oppose the receipt of the witness statement of Mr Machin. They reject the premise that it is now to be characterised as non-expert evidence. First, the defendants say that the plaintiffs should not be allowed to 'blow hot and cold' as to the character of such evidence. They say that earlier submission of Mr Machin's report as expert evidence is essentially conclusive and, thus, fatal to any subsequent attempted recharacterisation. I agree with the defendants. There are some particularly unsatisfactory non-compliance circumstances which underlie the progression of this matter to trial, as I explained in the earlier reasons (Moore v Landsdale Pty Ltd). In my assessment, it would bring the administration of justice into disrepute to countenance these plaintiffs to dramatically change position as to the true characterisation of this evidence, particularly where the plaintiff is now debarred from eliciting it as an expert report, in the circumstances I explained in the earlier reasons.
7 Second, the defendants contend that, properly scrutinised, Mr Machin's evidence always was and remains in the character of expert evidence. For the purpose of this exercise, I have reassessed the formerly submitted Machin expert report of 25 September 2012 and contrasted it with the non-expert witness statement of Mr Machin of 12 December 2012. In the latter witness statement Mr Machin describes himself as an 'aquaculturist' and a 'primary industry lobbyist' (see par 3). He is managing director of the Azure Consulting Group which, Mr Machin says, provides a range of services to aquaculture and primary industries.
8 Mr Machin's submitted non-expert witness statement is in two sections. Paragraphs 6 to 21 concern his wind rose imaging work. Mr Machin says at par 6 and then at pars 8 to 13:
6. In August 2010, Azure Consulting Group was commissioned by Denmoore Marron Farms to place wind rose images on to separate pages, which contain an aerial photograph. The wind roses were embedded objects within Microsoft Word documents titled 'Critical Days Wind Data Revised Wind Roses, Fixed Scale' which Andrew D Moore had created. Later I received identical copies from Andrew D Moore.
…
(Page 6)
- 8. The aim of the exercise was to create a reverse wind rose as a visual representation of the specific spraying events that had impacted on Denmoore Marron Farms.
Method
9. I carried out the task, and achieved the aim, as follows.
10. Each of the wind roses was in the 'Critical Days Wind Data Revised Wind Roses, Fixed Scale' document I received.
11. Each segment of the wind roses was coloured by me in accordance of the following key.
11.1 Green = wind direction away from the marron ponds and/or Denmoore Marron Farms
11.2 Red = wind direction towards the marron ponds and/or Denmoore Marron Farms.
12. The wind roses I received were all of the same scale to ensure that there was no bias. I had to reduce the size, but maintain the relative scale, so they fit on the aerial image.
13. I placed each coloured and scaled wind rose within the boundaries of the Landsdale's vineyard specific blocks/patch in which that spraying of the grape vines had occurred.
9 The non-expert statement does not say how it is that Mr Machin is qualified to carry out the wind rose plotting task asked of him and which he carried out. Indeed, a wind rose is not even explained in his statement. In broad terms, a wind rose is a graphic tool used by meteorologists to give a succinct view of how wind speed and direction are typically distributed at a particular location. According to the Macquarie Dictionary, a wind rose is:
A diagram which shows for a given locality or area the frequency and strength of the wind from various directions.
10 It is not entirely clear from the proposed non-expert witness statement, but it would seem that Mr Machin has plotted information on satellite photographs but did not gather the evidence or speak as to the reliability of the underlying information. This information looks to be supplied to Mr Machin from other sources. Mr Machin's expertise is in the area of aquaculture. How it is that he acquired a plotting or graphing expertise concerning aerial photographs or wind rose information is left completely unstated.
(Page 7)
11 My view is that Mr Machin's wind rose imaging work is an attempted expert exercise requiring the application of specialist knowledge.
12 The second area of Mr Machin's statement (from par 22 onwards) concerns what he refers to as his 'preparation of an ornamental marron production and sales model for Denmoore Marron Farms'. As I observed in the earlier reasons, this work appears to have been done as long ago as 2010. It appears to have an interrelationship with a first expert report of Mr Tony Douglas-Brown, then of Grant Thornton, dated 30 August 2010. There was no explanation as to why this underlying information was not provided to the defendants earlier than late 2012.
13 I have reviewed pars 22 to 55 of Mr Machin's statement concerning this model. His evidence culminates at pars 46 to 49 concerning his so-called 'verification of the model'. The evidence is now called a non-expert witness statement. But on my assessment, the deviations from the formerly submitted expert report are almost negligible.
14 In written submissions dated 8 March 2012 the defendant (correctly, on my assessment) submits in objecting to receipt of the statement:
12. Part 2 of the expert report, titled 'Preparation of an ornamental marron production of the sales model for Denmoore marron farms', at pages 3 - 9 of the expert report, is largely replicated at pages 5 - 18 of the non-expert statement with some additional information. This part of each document sets out how Mr Machin prepared and tested the accuracy of the sales and production model regarding ornamental blue marron.
13. The paragraph stating 'the validity of the model was check [sic] against Denmoore Marron Farm's production records', has been removed from page 3 of the expert report. However, pars 46 - 49 on page 18 of the non-expert statement, titled 'Verification of the model' still attests to the fact that Mr Machin tested the model but 'the model's results were +/- 15% range of the actual production rates achieved'.
15 The so-called non-expert witness statement of Mr Machin also provides no basis for his or Azure Consulting Group's specialist competence or expertise to prepare a reliable production model. The proposed statement ends at par 45 under a heading 'Formulae', stating:
45. The model was the following formulae.
(Page 8)
16 There follow ensuing pages of column information titled 'formula', with other columns titled 'notes' and 'reference'. The somewhat obscurely presented nature of this intended material nevertheless strongly suggests that, at root, it must be grounded upon Mr Machin's underlying (expert) opinions as to the veracity of his production model, including multiple assumptions upon which it has been created. If not, it would be wholly irrelevant evidence.
17 The non-expert proposed witness statement by Mr Machin simply does not deal with that issue or, at least, if it does, this is not at all clear how. Ignoring the issue as the statement does, will not successfully circumvent the need for proper enquiry as to the character of this evidence.
18 Again, in my view, this information must be properly characterised as expert opinion concerning the preparation of a reliable future production model relevant to a calculation of damages. On my assessment, it cannot be credibly repackaged or reclassified as something less.
19 For these two essential reasons then, this so called non-expert witness statement must be disallowed. First, it is inimical to the interests of justice to allow a party to 'blow hot and cold' about the character of its evidence to avoid an inconvenient ruling against it. Second, and more importantly, my own analysis of the intended materials indicates that, notwithstanding the somewhat obscure fashion in which it has been prepared and presented, it is in the nature of expert opinion.
20 For those reasons, opposition to the receipt of this material by the defendant is upheld and I decline to allow its receipt at the trial.
21 The defendants should have their taxed costs of this application.
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