Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited (4)

[2007] WASC 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED (4) [2007] WASC 121

CORAM:   MURRAY J

HEARD:   22 MAY 2007

DELIVERED          :   22 MAY 2007

FILE NO/S:   CIV 1279 of 2001

BETWEEN:   WRIGHT PROSPECTING PTY LIMITED (ACN 69 008 676 417)

Plaintiff

AND

HANCOCK PROSPECTING PTY LIMITED (ACN 69 008 676 417)
Defendant

Catchwords:

Practice and procedure - Leave to adduce further expert evidence - Turns on own facts

Legislation:

Nil

Result:

Leave refused

Category:    B

Representation:

Counsel:

Plaintiff:     Mr R M Smith SC & Mr R J Brender

Defendant:     Mr F M Douglas QC & Mr S K Dharmananda

Solicitors:

Plaintiff:     Lavan Legal

Defendant:     Cocks Macnish

Case(s) referred to in judgment(s):

Nil

1. MURRAY J:  This application by the plaintiff is to lead expert evidence from Mr Mason, a geologist.  It is undoubtedly the case that if that is to occur, leave is required under the provisions of the Rules of the Supreme Court 1971 (WA), O 36A r 3(2). Consideration of the grant of leave occurs in the context these days and for some time now (there is nothing new about this) of the application by the Court of case management principles which are designed to ensure that in relation to expert evidence the Court is in a position to hear evidence which, to the extent possible, results from an exchange of statements and a process of consultation between experts and the parties designed to reduce the areas of dispute and make more efficient and cost effective the trial process. The aim is to assist the Court in its capacity to deal with evidence of this character.

2. Orders of that kind were made in this case.  I refer without detailing them to par 7 and following of orders made by the Court on 27 September 2006.  Of course it is perfectly apparent that as a consequence of various factors which for present purposes need not be discussed at any length, the process has fallen down entirely.  But it is also evident that in addition to the process of engaging and advising about Mr Cole, the plaintiff also at one time had in mind that it might call an expert geologist, as I understand it a Mr Schrader, but the Court was advised that the decision had been taken not to take that course.

3. What is said to change the picture now is the nature of the cross‑examination of Mr Cole which put a number of propositions relating to the expertise of a geologist, taken from various reports and discussed with Mr Cole the impact which such matters may have upon his opinion and the method by which that opinion has been formulated.  Much of that material, overwhelmingly the material put, has been derived from documents and reports of which Mr Cole has been previously aware and which he has previously considered, and his responses to the propositions put to him in cross‑examination are there in evidence.  The plaintiff continues, as I am informed, to rely upon that evidence. 

4. I have examined the evidence which is proposed to be led from Mr Mason.  It does not, in my opinion, go beyond the parameters of the materials which have been discussed by Mr Cole and about which he has given evidence in the context of cross‑examination of the kind that I have described.  Therefore, if Mr Mason is not to be permitted to be called and give the evidence, it will not be the case that so far as the proceedings have been conducted to date the plaintiff will be deprived of evidence in relation to particular matters.

5. I do not wish, for the purpose of these reasons, to engage in debate or observations about the history of the matter except to say this:  if the evidence of Mr Mason was now to be permitted to be led, it would be a substantial departure from the process of the orderly preparation and presentation of material for trial to the extent that it has been possible to preserve that.  It seems to me that nothing has been put which justifies the late presentation of this material, or the late desire to rely upon it and I note that the witness statement itself has the date 21 May 2007 on which it was finally completed.  In the final analysis it seems to me that there are not grounds upon which, having regard to the matters I have referred to, the Court might now exercise its discretion to permit the material to be led as part of the plaintiff's case.

6. It is not the case that the plaintiff is thereby being deprived of the capacity to present evidence in an important matter.  It is not the case that there is any reasonable explanation available in relation to the question why this material was not available and led as part of the case in accordance with the ordinary processes of management to which I have referred.  On the other hand the capacity of the introduction of the material at this stage to impact adversely upon the trial process seems to me to be clear.  Leave is refused.