Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 11)

[2018] NSWSC 368

Supreme Court

New South Wales

Medium Neutral Citation:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 11) [2018] NSWSC 368
Hearing dates:	22 March 2018
Date of orders:	22 March 2018
Decision date:	22 March 2018
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Report admitted
Catchwords:	EXPERT EVIDENCE – no question of principle
Legislation Cited:	Evidence Act 1995 (NSW), s 79(1)
Category:	Procedural and other rulings
Parties:	Rodriguez & Sons Pty Limited (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Limited (Second Defendant) State of Queensland (Third Defendant)
Representation:	Counsel: J Sexton SC; N Owens SC; R Yezerski; J Taylor (Plaintiff) B O’Donnell QC; A Pomerenke QC; D Piggott; D Klineberg (First Defendant) D Williams SC; HJA Neal; N Simpson (Second Defendant) GA Thompson QC; JM Horton QC; E Morzone (Third Defendant)   Solicitors: Maurice Blackburn Pty Ltd (Plaintiff) King & Wood Mallesons (First Defendant) Norton Rose Fulbright (Second Defendant) Crown Solicitor for the State of Queensland (Third Defendant)
File Number(s):	2014/200854

Judgment

1. Objection is taken to the reading of an affidavit of Professor Anton J Schleiss, sworn 22 May 2017. One of the exhibits to the affidavit is a report prepared by him with the assistance of a professional colleague in January 2017.

2. The main basis of objection to the report is that it has not been demonstrated that the opinions expressed in the report are “wholly or substantially based” on Professor Schleiss' specialised knowledge, which is in turn based on his training, study or experience (Evidence Act 1995 (NSW), s 79(1)).

3. To address the objection, it is necessary to say something about Professor Schleiss' stated qualifications and the opinions he expresses in his report.

4. Paragraphs 3 to 10 of Professor Schleiss' report set out a summary of his experience. This is expanded upon in a curriculum vitae, which is an annexure to his affidavit. The summary reveals that he has extensive qualifications in the area of hydrology especially the management and design of dams. In 1997 Professor Schleiss became a full professor at a tertiary institution. He states that he assumed responsibility for educating tertiary students in the fields of “applied hydraulics, design of hydraulic structures and schemes, dams and flood protection.”

5. Professor Schleiss also states that between 2006 and 2012 he was a member of a number of Swiss and international association committees “relating to dams, hydropower projects and water and flood management.” These included the Swiss Committee on Large Dams, the Swiss Committee of Flood Protections and the International Association for Hydro‑Environment Engineering and Research. He refers to a number of scientific articles that he has published.

6. In paragraph 14 of his report, in addressing the first question that was asked of him, Professor Schleiss states as follows:

“In my more than 30 years of experience in hydrology, hydraulics, water resource engineering and reservoir operations and through my work with the International Commission on Large Dams (ICOLD), I have familiarity with common practices which apply in relation to the operation of large dams with flood mitigation functions. In my view, a fundamental principle that applies in operating a dam with flood mitigation functions is to do so in accordance with the requirements of the dam’s operating manual or guidelines. The operational requirements for dams differ from dam to dam depending on a range of factors including the dam’s objectives and characteristics, the basin, available meteorological information including observations and forecasts and downstream conditions. These different operational requirements require a manual tailored to the specific reservoir, or system of reservoirs.”

7. Later, in paragraph 17, he states:

“As the supervisor of the MINERVE development team and through my work with ICOLD [the International Committee on Large Dams] I have operational knowledge of the Upper Rhone River system and I have developed a professional interest and awareness of other dams that operate on hydrological forecasts based on weather forecasts.”

8. He also states that he and his colleague have researched dams which operate on this basis for the purposes of the preparation of his report.

9. Professor Schleiss was asked, and addressed, three questions. It is appropriate to deal with the objection in relation to each question.

10. The first question that he was asked sought his response to what was said to be the defendants' experts contention that it is not widely accepted practice, and was not during December 2010 and January 2011, to use precipitation forecasts to set operational or release strategies during flood operations at multipurpose dams with flood mitigation functions.

11. In addressing that question, Professor Schleiss made the statements in paragraphs 14 and 17 that I have referred to above. The reference to the “MINERVE development team” is to a flood forecast system that he states that he assisted in developing and which, on at least my reading of his report, is utilised in the Upper Rhone River basin dam system. He states that the system allows “real‑time decision making to propose the best release strategy during a flood event based upon hydrological forecasts.”

12. After discussing the MINERVE system in the context of the Upper Rhone River system, Professor Schleiss refers to a dam system in Japan, a dam system in Mexico and a dam system in the Loire River, as using rainfall forecasts as part of flood management during events in 2009, 2015 and 2016 respectively.

13. Professor Schleiss ultimately concludes (at [38]):

“In summary, I do not consider that there is a ‘widely accepted practice’ relating to the use of precipitation forecasts to set operational or release strategies. Whether or not precipitation forecasts should be used to manage dam release strategies depends on the dam's operational requirements.”

14. Senior Counsel for SunWater contends that there is not sufficient material disclosed in the reports to demonstrate that this opinion of Professor Schleiss is wholly or substantially based upon the expertise that he describes himself as having.

15. Amongst other matters, Senior Counsel referred to the absence of any suggestion that Professor Schleiss had any particular knowledge of dam operations during flood conditions or any suggestion that he was qualified to be a flood engineer. He submitted that overall there was insufficient material in Professor Schleiss’ report to indicate that he had any working knowledge of dam operations in either the Upper Rhone or certainly in the other dams that he nominated.

16. It can be accepted that Professor Schleiss has never acted as a flood operations engineer and he does not purport to have expert knowledge of what a flood operations engineer would have to do on an hour‑to‑hour or day‑by‑day basis in operating a dam during a flood event. That said, there is no doubt that there is a close degree of proximity between persons such as Professor Schleiss, who have knowledge of design principles relating to the structural, geotechnical and hydraulic design of large dams as well as significant expertise in hydrology, and the qualifications of a flood engineer (see Clause 2.5 of the Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam; the “Manual”).

17. One does not need to be a flood operations engineer to provide the fairly limited opinion that Professor Schleiss does in paragraph 38 of his report. Flood operations engineers are not the only category of expert who can be expected to be sufficiently familiar with the operation of dams in order to opine upon the topic of the widely accepted practice in dam operations particularly with regard to precipitation forecasts.

18. If paragraphs 14 and 17 of Professor Schleiss' reports are accepted on their face value, which I must on an argument about admissibility, then in my view they clearly demonstrate that he has sufficient expert knowledge in respect of the operations of dams to be able to give the opinion that he does in paragraph 38.

19. Two subsidiary issues arise about this part of his report concern so much of it as concerns the dam systems in Japan, Mexico and the Loire River. The first is that it seems clear that his knowledge of those systems has only been derived from research that he has undertaken, and at least in the case of the Loire River, from research undertaken for the purpose of these proceedings. Nevertheless, experts can give evidence of that kind in order to substantiate the opinions that they express.

20. The second is the more difficult one concerning the fact that at least the flood events in Mexico and the Loire River occurred in 2015 and 2016, which were some years after the flood event the subject of these proceedings. Although it is not free from doubt, I think there is some utility in hearing about flood operations practices in those years in circumstances where there is some reason to believe that there has not been a dramatic change in the approach to forecasts since 2011.

21. Accordingly, I reject the challenge to this aspect of Professor Schleiss' report.

22. The next part of Professor Schleiss' report addresses the following question, namely, what is his response to so much of the defendants' expert evidence which is to the effect that a reasonably competent flood engineer would not interpret the Manual as requiring the use of rainfall forecasts to determine operational and/or release strategy.

23. The context in which that question is asked appears to be that the plaintiff contends that a plain reading of the Manual requires that rainfall forecasts be used to determine operational decisions and/or the release strategy.

24. The defendants deny that that is the plain reading. They also deny that the Manual should be read literally.

25. In addressing the second question, Professor Schleiss appears implicitly to be stating that, at least in his view, the Manual is to be read according to what he understands is its plain meaning. In discussing this topic, he at various points responds to the reasoning given by a number of the defendants' experts and witnesses as to why forecasts should not be used in determining operational or release strategy for a dam.

26. As I have stated, there is no doubt that Professor Schleiss is not a person who is, or even claims to be, a reasonably competent flood engineer. However, as I have stated, in paragraph 14 of his report Professor Schleiss firmly asserts that he is familiar with the practices in relation to the operation of dams and asserts that it is a fundamental principle that they be operated in a manner consistent with their operating manual or guidelines.

27. Given his stated expertise and experience, in my view he is qualified to respond to a suggestion that, for some reason or another, the Manual should not be applied according to its clear terms, as the plaintiff contends it was not.

28. At the risk of being overcautious, I would state that nothing in this judgment is meant to express any view whatsoever on what the Manual either says or requires.

29. Otherwise, on my reading of this section of the report, Professor Schleiss' stated knowledge and expertise with dams and their operation enables him to give the opinions that he does, and it is otherwise clear that the opinions are based on that specialised knowledge.

30. The last question that Professor Schleiss addresses is a request that he comment on a contention made by the defendants' witnesses that Wivenhoe or Somerset Dams could not be operated below their full supply levels under any circumstances.

31. In this brief section of his report, Professor Schleiss responds to a suggestion from one of the defendants' witnesses that, leaving aside whether there is some regulatory prohibition on taking Wivenhoe Dam below full supply level based on rainfall forecasts, that should not be done because of a risk that the dam would not refill if the forecast was incorrect.

32. Professor Schleiss responds to that by addressing the various risks from not taking that course compared to taking that course. When regard is had to his stated expertise and qualifications, in my view a sufficient basis for the admissibility of this part of the report is made out.

33. Accordingly, the reading of Professor Schleiss’ affidavit and the tender of his report is allowed.

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Decision last updated: 06 April 2018