Rainbow Shores Pty Ltd v Gympie Regional Council
[2012] QPEC 6
•09/02/2012
[2012] QPEC 6
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E Appeal No 2768 of 2009
| RAINBOW SHORES PTY LTD | Appellant |
| and | |
| GYMPIE REGIONAL COUNCIL | Respondent |
| and | |
| CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT and J LAWLER and M LAWLER and R RUESCHER and S RUESCHER and E DEVEREUX and CITIZENS HELPING INSKIP PENINSULA and REGINALD ROSS LAWLER and RAINBOW BEACH COMMERCE AND TOURISM ASSOCIATION INC and GREGORY DAVID WOOD and FIONA HAWTHORNE and VIVIEN GRIFFIN and NATIONAL PARKS ASSOCIATION OF QLD and COOLOOLA COASTCARE ASSOC INC and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS | Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent Co-Respondent |
BRISBANE
..DATE 09/02/2012
..DAY 1
HIS HONOUR: This is an application by which the co-respondent seeks leave for its waste water disposal expert to provide additional statements of evidence, which contain opinions which depart from opinions expressed in earlier joint reports.
Rule 30, sub-rule 3, provides that a further statement of evidence, in addition to a joint report, must not, without the Court's leave, contradict, depart from or qualify an opinion in relation to an issue the subject of an agreement in the joint report or raise a new matter, not already mentioned in the joint report.
In this case, the evidence sought to be adduced is from a Mr Gardner. Mr Gardner is an expert who was belated notified by the co-respondent, late last year, in circumstances where I was prepared to make orders allowing the co-respondent to do so. There are some matters of reserved costs from those applications.
At the time that leave was sought to notify Mr Gardner as an expert in the matter, and have him give evidence, reference was made to concerns which he then held in relation to the work which had been done by Mr Bristow, the appellant's waste water engineer. Those concerns included concerns about the model which Mr Bristow was using, namely, the Medlii model.
Having notified Mr Gardner as an expert, joint meetings were held in the usual way, and a joint report was delivered in which the experts had reached agreement about the suitability of the proposed effluent disposal, and indeed about its potential to deal not only with effluent from the subject site, but to deal with effluent from the entire locality - A matter which would be, on the face of it, a significant community benefit, because of constraints with the council's existing methods of disposal of effluent.
When Mr Bristow was giving evidence, a question was raised about different areas of land for irrigation that were referred to in the joint report. I asked that the experts again speak, simply to clarify which of the areas mentioned they were intending to refer to. This provoked a further report, which was entitled Joint Report 7, which has been admitted as Exhibit 56 in the case.
In that report the experts answered the question which had been raised, but then the co-respondent's expert went on to foreshadow that he now wanted to walk away from opinions that he expressed in the earlier joint report, and to raise again concerns similar to those which he had raised at the outset, but in respect of which he had been satisfied at the time of the joint report.
In order to analyse his concerns in that regard, he undertook some further Medlii modelling, and more recently has had some Hydrus modelling done. The further Medlii modelling does not particularly trouble the appellant since its expert, Mr Bristow, says that effectively it shows nothing more than that which was considered previously. But the Hydrus modelling is a different kettle of fish. In short, it is put forward as a superior type of modelling in the circumstances. Mr Gardner wishes to say that it shows that there are difficulties with the proposal, in particular, in relation to leaching. This also has the potential to impact upon ground water evidence.
Accordingly, when this matter was raised, there was some interruption to the trial, and in fact a couple a days where no evidence could be taken at all. Mr Bristow's cross-examination and the calling of the other effluent disposal ground works experts has been deferred until the hearing of the matter resumes in a few weeks time.
The appellant is understandably nonplussed at these developments. It points to the serious contradictions between what Mr Gardner now wishes to say, and what he agreed to in the joint report. It views that with some concern, set against the circumstances in which concerns of a similar kind were initially raised, discussed in full, and resolved to Mr Gardner's satisfaction, at least at that stage and for the joint report.
It points to the enormous costs to which it has been put, since the co-respondent was allowed belatedly to identify Mr Gardner as an expert, and the costs that will inevitably had been incurred by the interruption of the trial process, and by having to deal with this seemingly never ending change of position on the part of the co-respondent.
They view with concern the fact that the explanation given by Mr Gardner for his change of position appears somewhat thin, in relation to his affidavit material. In that regard, he speaks of conversations with a Ms Allison Bieritz, an employee of the co-respondent. Those discussions, however, are not particularised in his affidavit.
Otherwise, he explains himself by saying that, during the preparation of the joint report in which he professed to be satisfied with the proposal, he was then focusing upon the opportunity to find a long term effluent disposal solution for the whole of the Inskip Peninsula community. On the face of it, it is difficult to understand how that laudable objective could have made him forget about the concerns he had previously had, or the reasons why he had been satisfied. Still Mr Gardner was not cross-examined for the purposes of this application and I am prepared to proceed, at least at this stage, on the basis that he has a genuine change of opinion.
Insofar as the additional costs are concerned, one might have expected, given the circumstances, that the Crown might have volunteered to make good the additional costs to which the appellant was being put, but that is not so.
Significantly, for the present purposes, however, Mr Gore QC conceded that it at least lies within the jurisdiction of the Court to compensate the appellant in terms of costs, given that his client is seeking to introduce new material.
Another concern of the appellant was that the supporting material to the modelling was not handed over at the same time as the results of the modelling, although Mr Gore QC assures me that that material will be forthcoming promptly, subject to resolution of a intellectual property issue with respect to part of it.
Mr Gore QC made a primary submission that he doesn't need leave because the additional evidence now sought to be called does not differ from that in the joint report, in the sense that, these concerns were foreshadowed by Mr Gardner in what was called Joint Report 7.
As Mr Gibson pointed out, however, that joint report was only to address a particular issue, which was addressed in the first part of the report. What follows from Mr Gardner is really just a foreshadowing of his change of position. Further, the material now sought to be used, is material which raises a new matter about the particular model and the reasons why it is to be preferred.
In my view, leave does need to be obtained. In support of the grant of leave, Mr Gore QC pointed to the fact that this is a matter of public importance, that there is little utility in refusing to hear Mr Gardner's new views, since it is common ground that, if this appeal is successful and the approval is granted, the applicant will then, in any event, need a further approval in respect of which the co-respondent will no doubt engage Mr Gardner. So it will have to confront the issues in any event and it would seem absurd not to allow Mr Gardner's concerns to be confronted at this stage.
Further, it is pointed out that, on Mr Bristow's material at least, it would seem as though, subject to giving them the information which is now requested, and which Mr Gore QC says will be forthcoming, Mr Bristow will be able to respond in a way which should not necessarily lead to any further delay to the conclusion of the hearing.
Whilst I acknowledge the force of some of the points made by Mr Gibson QC, nevertheless, on balance, I think the points made by Mr Gore QC dictate that leave should be granted.
The general prohibition on a expert departing from the position in the joint report, save by leave, serves a number of purposes. One of those purposes is to make sure that experts treat the joint report process with appropriate respect, and properly prepare, and properly participate fully rather than simply regarding it as a preliminary step in which they can easily depart from later on.
Another purpose is to guard against the prospect of experts easily departing from opinions reached in a joint report should, after they come out of the quarantine period, they be prevailed upon by their clients or others to do so.
A further objective is to ensure that preparation for trial can proceed on the basis of some certainty as to what the expressed views are, such that surprises, such as has occurred in this case, are unlikely or at least are minimised.
The requirement to obtain leave also ensures that any departure is accompanied by some explanation of the circumstances and the reasons for the departure.
In this case, there is no suggestion that the expert has been prevailed upon by the lawyers. The explanation is somewhat thin. However, as I have said, I am inclined at this stage, to accept that it is genuine. If Mr Gardner is to give evidence in this case, he should be able to give evidence of what his current views are, having regard to the circumstances, and the factors, and the considerations to which I have already referred.
Accordingly, I grant leave.
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HIS HONOUR: As Mr Gore QC conceded, it's both within the jurisdiction of the Court, and appropriate for there to be an order today in relation to costs of this application. Accordingly I order that the co-respondent pay the appellant's costs of and incidental to the application for leave. Those costs should be on a standard basis, but I will certify for senior counsel albeit I will only certify for one counsel.
In terms of the costs thrown away by the grant of leave, my view is that such an order should be made, but there is no purpose in making it now because I cannot decide on the basis of it. That is, I would otherwise have been prepared to make an order on the standard basis, but the appellant wishes to push for indemnity costs, and I am not minded to make that decision until and unless I hear the evidence.
So, I'll simply at this stage, in a formal sense, reserve those costs.
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