Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 20)

[2019] NSWSC 287

Supreme Court

New South Wales

Medium Neutral Citation:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 20) [2019] NSWSC 287
Hearing dates:	18 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Paragraphs 1 to 15 and 18 of Dr Altinakar’s report dated 14 March 2019 are admitted. Paragraphs 16 and 17, including Appendix A, are rejected.
Catchwords:	CIVIL PROCEDURE – no question of principle
Cases Cited:	Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 19) [2019] NSWSC 262
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: N Owens SC; R Yezerski (Plaintiff) D Klineberg (First Defendant) D Williams SC; HJA Neal; N Simpson (Second Defendant) 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

ex tempore Judgment

1. In Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 19) [2019] NSWSC 262 at [15], (“Rodriguez (No 19)”), I noted that, during the oral submissions that led to that judgment, Senior Counsel for the plaintiff stated that it had just been discovered that there was a discrepancy between the timing of the flows depicted in the hydrograph for Lockyer Creek at Rifle Range Road set out in the fourth affidavit of Terrence Malone sworn 9 April 2018, at paragraph 11, and the equivalent hydrograph set out in a report of an expert obtained by Seqwater which was unsuccessfully sought to be tendered.

2. The day after that submission was made the plaintiff obtained from Queensland Bulk Water Supply Authority trading as Seqwater (“Seqwater”) the data underlying Mr Malone's hydrograph. That data revealed that, contrary to what a lay observer might conclude from Mr Malone's hydrograph, the relevant dates at the bottom of the hydrograph refer to 9.00am and not midnight. This meant that, to that time, Dr Altinakar has been proceeding upon a mistake as to the timings of flows depicted in that hydrograph.

3. As a consequence, last Friday, a further report of Dr Altinakar with an accompanying annexure was served and is now sought to be tendered. It can be conveniently separated into two parts. The first part, comprising paragraphs 3 to 15, sets out Dr Altinakar's opinion on the respective merits of the flows at Rifle Range Road as set out in Mr Malone's affidavit, with the timing corrected compared to the rated flows that he used. Dr Altinakar then takes those revised figures and reaffirms the opinions expressed in his report of 22 October 2017, the reasoning of which is summarised in Rodriguez (No 19) at [15] to [18].

4. The second part of Dr Altinakar's report involves a re-run of the 2017 Set-up (see Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828 at [33]; (“Rodriguez (No 18)”) using the correct timing for the hydrograph set out in Mr Malone's affidavit. Dr Altinakar then sets out what he says are the modelled heights of flooding using that hydrograph for inflows on the 2017 Set-up, including all the various simulations prepared by Dr Christensen as well as for the “Ickert variations” (see Rodriguez (No 18) at [9]).

5. Objection is taken to paragraphs 1 to 15 by both Seqwater and the second defendant, SunWater Ltd (“SunWater”). One matter that was debated concerned whether Dr Altinakar should have known that that the ‘X’ axis of Mr Malone's hydrograph was referring to a date commencing at 9.00am. Mr Malone's affidavit stated that the source of the data was the Aurecon/URBS hydrological model. It was known to Dr Altinakar that that model used flows that commenced at 9.00am on each relevant day. However, as I have stated, at least to the lay observer reading Mr Malone's affidavit, it reads as though it is a reference to midnight. Moreover, when this issue commenced to be re‑agitated in August 2018, the plaintiff wrote to Seqwater seeking the underlying data figures for Mr Malone's hydrograph but they were not provided. In Rodriguez (No 18) at [30], I described that failure as unfortunate. I reiterate that statement. In those circumstances, I do not think much can be gained by asserting that Dr Altinakar should have guessed Mr Malone's figures were referable to dates starting at 9.00am.

6. It was submitted by SunWater and Seqwater that there is some attempt by Dr Altinakar to confirm or expand his opinions in paragraphs 1 to 15. However, on my reading, all that Dr Altinakar is doing is stating what his opinions are in light of what he understands are now the correct figures and timing of flows for the hydrograph included in Mr Malone's affidavit. In those circumstances, I see no basis upon which an expert should not be allowed to address the correct figures when the error has been brought to their attention.

7. The resolution of the debate of the tender of the second part of Dr Altinakar's report of 14 March 2019 is more difficult. The form of analysis that has been undertaken is more straightforward than that which produced the 2018 Set-up described in Rodriguez (No 18) at [33]. In taking the corrected inflows and timing of inflows from Mr Malone's hydrograph, it seems that all that Dr Altinakar has done is re‑run his 2017 Set-up and used those figures. He has not, as he did previously, sought to recalibrate the entire model.

8. SunWater and Seqwater objected to the tender of the material on the basis that, even allowing for the more limited form of analysis that was undertaken, to allow the tender of this part of Dr Altinakar’s report would necessitate an adjournment of the hearing this week while the data produced was analysed, and that would take some weeks. Most significantly, they contended that to allow its tender would be inconsistent with Rodriguez (No 18) at [65] and Rodriguez (No 19), in that it would, in effect, involve the plaintiff being granted leave to revisit its forensic decision not to seek to further prove the immateriality of the suggested difference between the flows used by Dr Altinakar at Rifle Range Road and the flows depicted in Mr Malone's hydrograph taken as it was from the Aurecon/URBS model.

9. Senior Counsel for the plaintiff, Mr Owens SC, submitted that the evidence should be allowed, involving, as it does, limited prejudice to the defendants in circumstances where the necessity to undertake this arose from the unfairness that I have identified was occasioned to his client by the late service of material by Seqwater. He submited that, consistent with the decision to allow Dr Altinakar to produce the results of the Ickert variations on Dr Christensen's simulations (Rodriguez (No 18) at [75] to [77], all that is being done is the tender of material that involves the running of the 2017 Set-up with a slightly altered inflow figure.

10. There is some force in that but nevertheless I think it is necessary to apply the essence of the reasoning in Rodriguez (No 18) and Rodriguez (No 19). In particular, in Rodriguez (No 18) at [65], I found that between the period of Dr Altinakar giving evidence in April 2018 and August 2018, a forensic decision was made by the plaintiff that it would not seek to further prove the immateriality of the difference between the rated flows and the flows that had been suggested to Dr Altinakar in cross‑examination based on Mr Malone's hydrograph.

11. It is true that if the unfortunate response from Seqwater that I referred to in Rodriguez (No 18) had not occurred and, instead, the correct hydrograph figures had been provided, this material that is now sought to be tendered could have been brought forward in a relatively short period in 2018. However, given the finding I have made as to the decision made by the plaintiff, I do not think that is the correct inquiry. Instead, given the late stage of the proceedings and in the interests of finality, the matter must now be left to rest with the parties already having made the decisions which I have identified, allowing for the fact that the unfairness that I found had occurred is being addressed.

12. Accordingly, I will admit paragraphs 1 to 15 and 18 of Dr Altinakar’s report dated 14 March 2019, but will reject paragraphs 16 and 17, and the attachment, Appendix A.

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Decision last updated: 20 March 2019