BADAT -v- BP AUSTRALIA PTY LTD [2026] WASC 48 (23 February 2026)

1. The action was commenced by an indorsed writ filed on 29 March 2021.
2. On 6 July 2023, the parties agreed, by a letter to the Court, that the matter ought be admitted to the CMC list.[10] I admitted the matter to my CMC list on 18 July 2023.[11]
3. Since the commencement of the action, the plaintiff has been represented by seven firms of solicitors, including his present solicitors, and for a period of time acted in person. His current solicitors commenced acting i on 12 June 2025.[12]
4. There have been seven substantial iterations of the statement of claim; namely the:
   1. statement of claim filed on 2 July 2021;[13]
   2. amended statement of claim filed on 13 August 2021;[14]
   3. further amended statement of claim filed on 23 March 2022:[15]
   4. further re-amended statement of claim filed on 12 July 2023;[16]
   5. revised further re-amended statement of claim filed on 3 August 2023;[17]
   6. substituted statement of claim filed on 9 June 2025;[18] and
   7. further substituted statement of claim filed on 18 September 2025.[19]
5. Since being admitted to the CMC list there have been 14 hearings (including the hearing on 18 February 2026) before me going across more than 300 pages of transcript.
6. Further, at the time of writing the Court file has 274 folio documents on it (including orders of the Court). Since its admission to the CMC list, more than 180 folio documents have been added to the Court file. And, in addition, there have been other matters raised with the Court by emails sent to my chambers.
7. The purpose of setting out the above is to attempt to capture by numbers the very considerable time and resources which the Court has already devoted to this matter.
8. Recently[20] I cited observations made by Steytler P and Owen JA in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 as to the allocation to the parties of the public, but scarce and ever shrinking, resource of court determination.[21] Those observations are, in my view, apposite to, and relevant in, the Court's determination of the applications of 4 February 2026 and form the backdrop to the defendant's costs application.
9. Again, as with all cases, the considerations required to be taken into account by O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) (Rules) loom large, particularly the questions of proportionality and of matters being progressed expeditiously to trial.

1. The trial in this matter is listed to commence on 23 March 2026 for a duration of 15 days.[22] Those trial dates were listed on 25 July 2025.[23]
2. The orders of 25 July 2025 also ordered that the plaintiff enter the action for trial by 15 December 2025. That was done on 16 December 2025.
3. That order was made after the parties submitted a trial timetable on 19 June 2025, which had been agreed by then trial counsel.
4. On that trial timetable, the plaintiff proposed to call four lay witnesses, including Mr Badat himself.
5. The trial was set down following trial directions being made on 20 May 2025.[24] Those trial directions of 20 May 2025 were made largely in accordance with a memorandum of consent orders filed on 19 May 2025.[25]
6. Between the making of the trial directions on 20 May 2025 and the preparation of the agreed trial timetable (and then the matter being listed for trial), the plaintiff changed his solicitors to his current solicitors on 12 June 2025.
7. Notwithstanding the change of solicitors, the plaintiff continued to brief the same counsel, at least until 20 October 2025.
8. The trial directions of 20 May 2025 ordered the plaintiff to file and serve his witness statement(s) by 8 August 2025: Order 1.
9. The trial directions provided for objections to witness statements to be advised and conferred upon: Order 5.
10. The trial directions ordered in common form that, effectively, except with leave of the Court, no party could adduce evidence from any witness whose statement had not been served in accordance with those orders made: Order 10.
11. The trial directions ordered that, by 19 September 2025, each party would notify the other in writing of the documents they intended to tender at the trial: Order 12.
12. By an email dated 13 October 2025, the defendant had requested the directions hearing which occurred on 20 October 2025. The defendant filed a minute of proposed orders on 13 October 2025[26] in which the proposed date for the plaintiff to file his lay witness statements would be extended to 17 October 2025. The defendant's minute followed conferral on, amongst other things, the date by which the plaintiff would file his lay evidence.[27]
13. Of course, by the time the defendant requested the directions hearing, the plaintiff was some five weeks late in filing his witness statements.
14. On 20 October 2025 (about two and a half hours before the directions hearing on that date), the plaintiff filed a minute of proposed orders in which he sought an extension of time to 18 November 2025 to file his witness statements.[28] There was no affidavit filed by the plaintiff in support of his proposed orders.
15. At the directions hearing on 20 October 2025, counsel for the plaintiff:
    1. accepted that the plaintiff, having missed the deadline of 8 August 2025, required leave to put on lay evidence;[29]
    2. stated the plaintiff was 'almost at a position' where Mr Badat's witness statement could be filed,[30] and was 'almost near completion';[31]
    3. accepted that there was no affidavit or evidence in support of the plaintiff having an extension of time granted;[32]
    4. agreed there was no explanation as to why there was no affidavit in support;[33] and
    5. accepted that from the issues in the case that there was not 'a whole lot new that has arisen in respect of Mr Badat's' evidence.[34]
16. For the avoidance of doubt, I consider that the above concessions were entirely correct and properly made by counsel who appeared for the plaintiff.
17. By Order 1 of the orders made on 21 October 2025,[35] the time for the plaintiff's witness statements to be filed was extended to 31 October 2025.
18. Those orders also extended the time for objections to evidence sought to be led and conferral on those objections: Orders 8 - 11. Further, the hearing to determine objections to the evidence was re‑listed from 12 November 2025 to 15 December 2025: Order 12.
19. I note for the assistance of the chronology that as at 20 October 2025 the plaintiff's further substituted statement of claim had been filed on 18 September 2025 and signed by his then junior counsel and his now senior counsel.
20. The defendant's substituted defence to that pleading had been filed on 2 October 2025.[36]
21. On 31 October 2025, the plaintiff filed his witness statement (October 2025 statement).[37] The witness statement ran to about 130 substantive paragraphs (across 46 pages) and, with the annexing of 100 documents, ran to 2,234 pages.
22. On 12 December 2025, the defendant filed a schedule of its objections to, amongst other things, Mr Badat's October 2025 statement.[38]
23. The plaintiff then provided a response to the objections by a document filed on 15 December 2025,[39] just before the hearing of the objections on that day.
24. During that hearing on 15 December 2025, I ruled on the objections. Counsel suggested at the conclusion of that hearing that there be a marked‑up version of Mr Badat's statement that reflected the rulings made, including indicating where evidence had been admitted for a particular or limited purpose.[40]
25. The parties have done so and the agreed document was in evidence before me.[41] That document has not, however, been filed of itself.
26. After the rulings had been made on 15 December 2025, counsel for the plaintiff noted that there had been some 'form' objections[42] and said:

... I will confer with the defendant in relation to whether any additional evidence can be led in an admissible form about those issues, bearing in mind your Honour's other rulings in relation to the relevance that are made. I just wish to record that, that those objections have come out because of the matter of form, but to the extent they're relevant, I think they could be.

HOWARD J: Well, as I said, I'm not sure that they are matters of form, but I understand what you will do is, you will confer, and if there's an application for leave, then - and it needs to be heard and determined, then you will do that.[43]

1. On 21 January 2026, the parties filed a memorandum of proposed consent orders.[44] That memorandum was not discussed substantively at the directions hearing on 22 January 2026; rather, the 22 January 2026 hearing dealt with the plaintiff's minute of proposed orders dated 21 January 2026[45] (which concerned whether subpoenas the plaintiff had issued - again late - were to be set aside).
2. Following that hearing, I made Orders 3 and 4 on 22 January 2026 which were materially in the same form as the memorandum of consent orders, namely:

1. By no later than 23 January 2026, the Plaintiff file and serve any proposed further witness statement, including any further proposed witness statement of Mr Mahomed Badat (Further Badat Statement), together with any application for leave to adduce any such proposed evidence, supporting affidavit and written submissions. 2. If a Further Proposed Statement and leave application is filed and served:

(a) by no later than 28 January 2026, the Defendant notify the Plaintiff of any objections (and grounds) to the admissibility of the Further Badat Statement;
>
> (b) file and serve written submissions and any affidavit evidence in opposition to any leave application; and
>
> (c) by no later than 30 January 2026, the Plaintiff notify the Defendant whether any of the Defendant's objections to the Further Badat Statement are conceded.

3. Notwithstanding the proximity of the trial, the plaintiff did not comply with Order 3 made on 22 January 2026.
4. On 4 February 2026 at 5.39 pm, the plaintiff filed an affidavit of one of his solicitors, Brendan John Finn, made on that date (Finn affidavit).[46] That affidavit relevantly, for present purposes:
   1. annexed as 'BJF-1' a witness statement of Mr Badat dated 30 January 2026 (30 January 2026 statement), which ran between pages 7 - 1973 of the Finn affidavit including annexed documents;[47] and
   2. annexed as 'BJF-2' a supplementary witness statement of Mr Badat dated on its face 3 February 2026 (3 February 2026 statement), which ran between pages 1974 and 2242 of the Finn affidavit including annexed documents.[48], [49]
5. Mr Badat's 30 January 2026 statement ran to about 90 paragraphs of substantive evidence across 24 pages and annexed 67 documents.
6. On its face, it did not explain its relationship to Mr Badat's October 2025 statement nor to the December 2025 rulings. That was not done in any other material filed with the Court at that time.
7. That was problematic for a number of reasons, not least of which was that a number of the documents which had been annexed to and numbered in Mr Badat's October 2025 statement were also annexed to his 30 January 2026 statement, but with different identifying numbers.
8. The defendant submitted that Mr Badat's 30 January 2026 statement:

1. ... does not contain mark-up reflecting the Court's rulings. Instead, it is a confusing patchwork of:

(a) removed (ruled inadmissible) material (but not marked up);
>
> (b) other removed material (previous paragraph [132]);
>
> (c) additional (in BP's view, objectionable - see below) material (paragraphs [89]-[93]); and
>
> (d) no record of documents admitted for a limited purpose.

1. The agreed marked-up First Badat Statement, attached to the Dragovic Affidavit as DD-1 should be the version of that Statement that is included in the trial bundle.[50]
2. There was no challenge to those submissions at the hearing before me on 9 February 2026 and I accept them.
3. Mr Badat's 3 February 2026 statement contained 34 substantive paragraphs across six pages and annexed a further 24 documents.
4. Mr Badat's 3 February 2026 statement appears to further deal with matters which were also the subject of the new paragraphs in Mr Badat's 30 January 2026 statement ([89] - [93]), in that both were introduced by Mr Badat referencing [7(c)(iii)], [49(c)(v)] and [62] of the defendant's defence dated 2 October 2025: see, for example, [90] of Mr Badat's 30 January 2026 statement and [5] of Mr Badat's 3 February 2026 statement.

Form of Mr Badat's witness statement dated 30 January 2026

1. The first issue raised by the plaintiff's minute filed on 4 February 2026 was the form of Mr Badat's evidence which was given and ruled upon in his October 2025 statement to the extent that it is repeated or re‑packaged in his 30 January 2026 statement.
2. To the extent that Mr Badat's 30 January 2026 statement more or less covered the same evidence as that in Mr Badat's statement of October 2025 statement, the defendant did not object to it, but contended that what should be filed and served is something in the form of the marked‑up statement.
3. The marked‑up statement did two things of significance which Mr Badat's 30 January 2026 statement did not; namely:
   1. reflected the Court's rulings so that there is an easy comparison point of Mr Badat's evidence of 31 October 2025 after the rulings (including retaining the original document identifying numbers in Mr Badat's October 2025 statement; and
   2. noted, by its comments column, where the evidence or the document adduced had been allowed for a limited purpose.
4. Further, the marked-up statement is an agreed document which captures, in the comments column, an agreed position on the Court's rulings of 15 December 2025 without the Court having to trawl through the transcript should any issue arise at trial.
5. I consider it clearly preferable that Mr Badat's evidence from his October 2025 statement (as ruled upon) is presented via such a document rather than the presentation of Mr Badat's evidence by his 30 January 2026 statement.
6. Senior counsel for the plaintiff at the hearing on 9 February 2026 said that if the Court considered it would be more assisted by the marked‑up statement then, in effect, the plaintiff would not seek to persuade the Court otherwise.[51] I took that, helpfully on the part of senior counsel, to be that the plaintiff was not then pressing for leave to file paragraphs [1] ‑ [88] of Mr Badat's 30 January 2026 statement. With respect, I consider that is entirely appropriate.
7. That position was confirmed by the plaintiff's email to the Court of 17 February 2026.

The new paragraphs in Mr Badat's statement dated 30 January 2026

1. That left, at the end of 9 February 2026, the issue of whether the plaintiff should have leave to adduce the evidence which appeared in paragraphs [89] ‑ [93] of Mr Badat's 30 January 2026 statement. That evidence, or evidence to that effect, was not included in Mr Badat's October 2025 statement.
2. By the plaintiff's email to the Court of 17 February 2026, Mr Badat does not, now, seek leave to adduce his 30 January 2026 statement with one exception. He seeks leave to adduce a modified form of what was [89] of his 30 January 2026 statement. I will return to that.
3. For the reasons which follow, I consider it entirely proper and appropriate that the plaintiff no longer seeks leave to adduce the evidence in his 30 January 2026 statement, and why I consider such an application for leave would have had to be refused if pressed.
4. Paragraphs [90] - [93] of Mr Badat's 30 January 2026 statement concern his engagement of John Kaminski and Matthew Garmony.
5. The plaintiff's retaining of Messrs Kaminski and Garmony was also the subject of paragraphs [30] - [35] of Mr Badat's 3 February 2026 statement. The rulings I would have made on the admissibility of the evidence concerning Messrs Kaminski and Garmony also would have impacted some of the defendant's objections to the plaintiff's tender list.
6. Before turning to the particular evidence sought to be led in Mr Badat's 30 January and 3 February 2026 statements, I set out the paragraphs of the defence which Mr Badat said this evidence was responding to.

The defendant's pleas at [7(c)(iii)], [49(c)(v)] and [62] of the defence

1. Paragraphs 7 and 49 of the defence[52] plead to the correspondingly numbered paragraphs in the statement of claim filed on 18 September 2025.[53] Paragraph 62 of the defence pleads more generally that Mr Badat caused or contributed to, and/or failed to take any reasonable steps to mitigate the alleged loss and damage or any part of it and pleads:

[62(c)] Mr Badat has refused to accept, approve or implement the SMP and the SVGMP, which has prevented, and continues to prevent, the Site's reclassification under the CSA to 'remediated for restricted use' and its ongoing commercial use as a service station. (original emphasis)

1. The pleas in [7(c)(iii)] and [49(c)(v)] of the defence plead, as senior counsel for the defendant stated,[54] why the Site has not been re‑classified following what the defendant says is its compliance with its obligations under the Lease and the Contaminated Sites Act 2003 (WA) (CS Act).
2. Paragraph 62 is pleaded if the question of liability is decided against the defendant and the question of the plaintiff's damages falls to be determined.
3. The plaintiff approached those paragraphs, as is apparent from Mr Badat's 30 January 2026 statement [90] and Mr Badat's 3 February 2026 statement [5], on the basis that it was his conduct which was being 'impugned' to adopt the language of his senior counsel.[55]
4. It may be noted that the substance of the plea as to Mr Badat's conduct which now appears in those nominated paragraphs of the defence was introduced into the defendant's re-amended defence of 5 September 2023,[56] which pleaded:

[117] Further, or in the alternative, the plaintiff caused or contributed to, and/or failed to take any or any reasonable steps to mitigate, the loss and damage suffered by the plaintiff (if any, which is denied), and by reason of those matters the plaintiff is not entitled to recover such alleged loss or damage or any part of it.

(iv) Since 25 July 2022, the plaintiff has refused to accept, approve or implement the Site Management Plan and Soil Vapour and Groundwater Management Plan prepared by BP Australia in relation to the Premises, which would have permitted the Site to be classified as other than 'Contaminated - Remediation Required'. (original emphasis)

1. So, the issue of whether Mr Badat's conduct and whether he has suffered any loss or damage has been live since at least 27 September 2023 when Mr Badat filed his further re-amended reply[57] where he denied the defendant's plea and pleaded substantively in answer to it.
2. Of significance, neither party now considers the defendant's pleas as being of central significance.
3. It is clear that there is no factual issue between the parties that the two Plans which the defendant pleads in its defence, namely the Site Management Plan and the Soil Vapour and Groundwater Management Plan, have not been agreed to by the plaintiff.
4. Senior counsel for the defendant, on 9 February 2026, said that the plaintiff's position was that those pleas could not be sustained at trial because of the provisions of s 13 of the CS Act.[58] I took that to mean the defendant could not succeed on the plea irrespective of the resolution of any factual issues raised by the defendant.
5. For its part, the defendant made plain that whether or not there had been a failure to mitigate by Mr Badat as it had pleaded was not going to be a central issue at trial[59] because:
   1. the central question was whether the defendant had done that which it was obliged to do contractually and by the provisions of the CS Act;[60]
   2. it accepted that neither the plaintiff nor the defendant could re‑classify the Site;[61] and
   3. the question of mitigation only arose if the central questions (of liability) in the case had been determined against the defendant.[62]
6. With respect, I think the parties are correct. The determination of the factual matters pleaded in the relevant paragraphs of the defence[63] looks likely to be, at best, a matter of second or third degree importance (if that) to the determination of the matter.
7. The central issues which will fall to be determined at trial arise are captured, in my view, by the following pleas.
8. The plaintiff pleads:

[12] ... pursuant to s 25 of the CSA, BP is responsible for remediation of the whole of the BP petroleum hydrocarbon contamination of 1156 - 1158 Albany Highway, so as to enable the CEO of the DWER to classify 1156 - 1158 Albany Highway 'decontaminated' or 'not contaminated - unrestricted use', within s 58(3)(a) and Schedule 1 of the CSA.

...

[21] Contrary to ss 24 and 25 of the CSA, BP as at 22 May 2023 and as at September 2025, had failed and refused to remediate and continues to fail and refuse to remediate 1156 ‑ 1158 Albany Highway, so as to remove therefrom the BP petroleum hydrocarbon contamination to the extent necessary to reduce the unacceptable risks to human health, the environment or any environmental value to acceptable levels caused by the BP petroleum hydrocarbon contamination.

...

[Prayer for relief]

[A] A declaration that pursuant to the provisions of the CSA, BP is required to and must remediate 1156 ‑ 1158 Albany Highway to forthwith achieve the classification 'decontaminated' or 'not contaminated - unrestricted use', within s 58(3)(a) of the CSA.[64]

1. At the risk of oversimplification, the defendant's position is that it has complied with its obligations under the Lease and the CS Act and so it pleads:

(c) [BP] says that:

(i) in discharge of its obligations under the Lease, and its responsibility under the CSA, BP has taken all necessary and reasonable steps to remediate the contamination at the Site, including to the extent required to allow its reclassification under the CSA to 'remediated for restricted use' and ongoing commercial use as a service station;

(c) [BP] says that:

(i) BP is not responsible under the CSA, and has no obligation under the Lease, to remediate the Site to the extent necessary to allow reclassification to 'decontaminated' or 'not contaminated - unrestricted use';

(iii) reclassification of the Site to 'remediated for restricted use' would allow Mr Badat [to] use, and/or lease, the Premises as a service station;

(iv) under s 26 of the CSA, to the extent that further remediation is required because Mr Badat has changed, or proposes to change, the use to which the land at the Site is put (other than use as a service station), then:

(A) by reason of s 26(2)(a) of the CSA, BP is not responsible for remediation of the Site under s 25 to allow that change, or proposed change, of use;

(B) BP has no obligation under the Lease to undertake remediation of the Site to allow that change, or proposed change, of use; and

(C) by reason of s 26(1) of the CSA, Mr Badat is responsible for remediation of the Site to the extent that remediation is required because of that change, or proposed change, of use.[65]

1. That is, principally the plaintiff says that the defendant is obliged to remediate the Site so as to enable it to be reclassified 'decontaminated' or 'not contaminated - unrestricted use'. The defendant says that, rather, its obligations were to remediate the Site to allow its reclassification to 'remediated for restricted use'.
2. The resolution of that central issue will turn on the construction of the CS Act and the state of the Site at the end of the defendant's remediation efforts.
3. Senior counsel for the defendant said on 15 December 2025:

... we accept the land is contaminated. We accept we're responsible for it, and that's already admitted on the pleadings, and we've carried out remediation. The issue is whether we've discharged our contractual and statutory obligations, and that's the issue.[66]

1. As will be seen, the issues concerning Mr Badat's application relating to evidence to do with Messrs Kaminski and Garmony would also have been informed by the course of the expert evidence for which the Court has given leave. I deal with that below.

1. As noted, by his 30 January 2026 and 3 February 2026 statements, Mr Badat sought[67] to lead evidence of his engagement of John Kaminski from 23 March 2021 as a consultant to provide options to remove contamination from the site and to have the site potentially reclassified 'decontaminated'.
2. Mr Kaminski is not a complete stranger to the Court's file having been mentioned in the letter seeking that the matter be admitted to the CMC list on 6 July 2023.[68] All I take from that is that Mr Kaminski's potential relevance to these proceedings was in the mind of the plaintiff from no later than 6 July 2023.
3. Mr Badat sought to adduce quotations provided to him by Mr Kaminski dated:
   1. 18 May 2023: Mr Badat's 3 February 2026 statement at [31] -being 'MAB‑87' which appears at page 2012 to the Finn affidavit;
   2. 31 July 2023: Mr Badat's 3 February 2026 statement at [33] ‑ being 'MAB-88' which appears at page 2015 to the Finn affidavit;
   3. 20 September 2023: Mr Badat's 3 February 2026 statement at [34] - being 'MAB-89' which appears at page 2016 to the Finn affidavit; and
   4. 16 September 2025: Mr Badat's 30 January 2026 statement at [92] - being 'MAB-67' which appears at page 1950 to the Finn affidavit.
4. I note that none of those documents, nor the evidence of Mr Badat's retaining of Mr Kaminski, appeared in Mr Badat's October 2025 statement.
5. There is nothing in the Finn affidavit which sought to explain why the documents or evidence concerning Mr Kaminski was not included in Mr Badat's October 2025 statement. Nor is there any explanation as to how, when or why it became apparent to the plaintiff that he wished to lead that evidence.
   1. There was a further difficulty in that, at this late stage, Mr Badat's 3 February 2026 statement said that his actions were informed by a number of factors, which included '[5](d) information I received from Mr John Kaminski'.[69]
   2. However, Mr Badat's evidence did not say what, if anything, he did in response to receiving any information or quotation from Mr Kaminski. At a different stage in the proceedings that might be considered to be something that could be remedied by some supplementary evidence. However, in all of the circumstances of the plaintiff's late, unexplained application for leave, the vagueness and conclusionary nature of the statement would have weighed heavily against the grant of leave.
6. Mr Badat's application to introduce the evidence of Mr Kaminski's quotations and remediation opinions would have fallen to be considered against the following:
   1. that evidence was not included in Mr Badat's October 2025 statement;
   2. it was, then, relevantly newly sought to be introduced on 4 February 2026;
   3. there was no explanation before the Court as to why it was not included in Mr Badat's October 2025 statement, nor how or why it has become apparent to the plaintiff that the evidence needs to be led against the defendant's plea made as early as September 2023;
   4. the costs of remediation are dealt with in the opinions of Mr Throssell;
   5. Mr Kaminski's quotes do not follow the expert schedule on which the Court granted the parties leave to file expert evidence;
   6. the unsatisfactory nature of the plaintiff's evidence which did not disclose clearly the facts on which the plaintiff wanted to rely; and
   7. the evidence in respect of which leave is sought did not go to a central issue in the case.
7. Mr Finn deposed to the following:
   1. The fact of advice to the plaintiff from Messrs Garmony and Kaminski is not proposed to be led as to the truth of the opinions expressed by those individuals or as expert evidence. That evidence is proposed to be adduced to explain why the plaintiff does not agree to the Site Management Plan proposed by the defendant and why he has acted reasonably in doing so.[70]
8. With respect, there was a tension inherent in that statement or submission. The evidence concerning Mr Kaminski would seem only capable of supporting the proposition that Mr Badat had acted reasonably if Mr Kaminski was a person qualified to express the opinion, give the advice or prepare the cost estimate or quotations. In my view, that necessarily would constitute opinion evidence.
9. Thus, it appeared inherent in why Mr Badat sought to lead this evidence that it represented the reasonable opinion of an appropriately qualified person, but in circumstances where no leave has been sought to introduce any expert opinion of Mr Kaminski.
10. Also, on the face of the material before the Court, I had a concern that the matters deposed to by Mr Finn as quoted at [93] above would not be the sole purpose of that evidence at trial.
11. The defendant, quite reasonably, noted that the figure which is contained in the last quotation of Mr Kaminski[71] is the exact same figure that the plaintiff has particularised as his loss and damage.[72]
12. As I understand it, there is no other evidence before the Court which would support that particularisation of the plaintiff's loss and damage and so, reasonably, the defendant (and the Court for that matter) apprehended that there is another purpose of the plaintiff seeking to adduce the last quotation of Mr Kaminski.
13. In all of the circumstances, that would have, obviously enough, prejudiced the defendant as it would be expert evidence led for which no leave had been granted and in respect of which the defendant would not have an opportunity to respond within the listed trial.
14. I note that senior counsel for the plaintiff removed that apprehension at the hearing on 18 February 2026[73] and confirmed that the plaintiff will not lead any evidence on that part of the damages claim.
15. In my view, none of the matters set out above weighed in favour of the grant of leave. I would have refused leave to the plaintiff to adduce the evidence and documents in his 30 January 2026 and 3 February 2026 statements concerning Mr Kaminski.

1. In his 30 January 2026 statement, Mr Badat sought to give evidence that he engaged Garmony Property Consultants in about July 2022 to assist him in understanding the effect of the Memorial on the Title and to inform his own decision making.[74] In his 3 February 2026 statement, that was repeated.[75]
2. By the plaintiff's email to the Court of 17 February 2026, that application is no longer persisted with.
3. It may be noted that Mr Badat did not 'by his witness statements dated 30 January 2026 or 3 February 2026' purport to adduce any expert report prepared by Mr Garmony. However, as I understand it, he did propose to tender those reports via his proposed tender list.
4. Mr Badat, in [111] of his October 2025 statement, had previously sought to adduce a report prepared by Mr Garmony of Garmony Property Consultants.
5. On 15 December 2025, I upheld the objection to [111] of Mr Badat's October 2025 statement and to that report.[76]
6. His October 2025 statement was not the first time that the plaintiff has (unsuccessfully) sought to adduce reports from Mr Garmony.
7. Mr Badat applied, by a minute dated 26 February 2025[77], for leave to adduce four reports from Mr Garmony dated respectively 4 July 2022, 20 September 2023, 4 December 2023 and 23 January 2025 as expert evidence. As will be set out below, the application in respect of Mr Garmony's reports was part of a larger application made by the plaintiff on 26 February 2025.
8. That application was dismissed on 20 May 2025.[78] That dismissal followed my discussion with counsel for the plaintiff to the effect that the plaintiff did not wish to persist with his application in its present form as Mr Garmony had not complied with the expert schedule on which the Court had given leave.[79]
9. To be clear, I considered that it was entirely proper for counsel then for the plaintiff not to persist with that application. I consider that it could not have been granted in any event.
10. The observations I made above as to Mr Kaminski's evidence having the quality of opinion evidence (see [94] - [95] above) applies equally to the evidence concerning Mr Garmony.
11. It was and is, with respect, very difficult to see the inclusion of the paragraphs concerning Mr Garmony in Mr Badat's 30 January 2026 and 3 February 2026 statements (and the four reports of Mr Garmony sought to be tendered) as anything other than a backdoor attempt to introduce expert evidence on which not only did Mr Badat not have leave, but in respect of which leave was refused some nine months ago and on the eve of trial.
12. Further, the observations I made about the unsatisfactory form of the evidence as to what, if anything, Mr Badat did in response to any quotation of Mr Kaminski applied equally to the reports he received from Mr Garmony. That is, Mr Badat's evidence in his 3 February 2026 statement (at [5(e)]) concerning Mr Garmony suffered from the same material defects (arising from the same language used).
13. Mr Badat's application to introduce the evidence of Mr Garmony's valuations would have fallen to be considered then against the following:
    1. some of that evidence was included in Mr Badat's October 2025 statement and was ruled inadmissible on 15 December 2025;
    2. valuation evidence has been prepared pursuant to the leave the Court gave to the parties to adduce expert evidence;
    3. Mr Garmony's reports do not follow the expert schedule on which the Court granted the parties leave to file expert evidence;
    4. in the first half of 2025 Mr Badat applied for leave to adduce the reports of Mr Garmony as expert evidence but subsequently accepted that the leave could not be granted for the reports in the form they were in, and that application was dismissed; and
    5. the unsatisfactory nature of the evidence which did not disclose clearly the facts on which the plaintiff wants to rely (i.e. what he did in response to the reports).
14. Further, (until receipt of the plaintiff's email of 17 February 2026) I retained a concern that Mr Garmony's reports may have sought to be led as part of the plaintiff's damages claim against the defendant: see Prayers for Relief F, G, L, M.
15. In all of the circumstances, that would, obviously enough, have prejudiced the defendant as expert evidence led and for which no leave had been granted, and in respect of which the defendant would not have an opportunity to respond within the listed trial.
16. It is somewhat remarkable that the plaintiff's material in support of his application as it concerned Mr Garmony did not square up to the previous dismissal of his application to adduce the reports, nor the ruling inadmissible of a report via [111] of his October 2025 statement.
17. In my view, none of the matters set out above would have weighed in favour of the grant of leave. I would have refused leave to the plaintiff to adduce the evidence going to Mr Garmony or to adduce the valuations he prepared.
18. In those circumstances, I consider that the plaintiff's position communicated to the Court by email on 17 February 2026 is entirely proper and appropriate, which may be contrasted to the seeking of leave on 4 February 2026 with the materials the plaintiff chose to place before the Court.
19. That leaves what was paragraph [89] of Mr Badat's 30 January 2026 statement as re-formulated by the plaintiff's email of 17 February 2026.
20. Following conferral by counsel on 18 February 2026, an agreement was reached for the plaintiff to have leave to adduce a further form of that paragraph. It was agreed that would be incorporated, by order, into Mr Badat's October 2025 statement after the rulings which are contained within the marked‑up statement.

1. In the 3 February 2026 statement from [9] - [27], Mr Badat sought to adduce documents (including emails) (these were identified in that statement as 'MAB 68' and 'MAB 86'[80]) passing between:
   1. him and the Department of Water and Environmental Regulation (DWER);
   2. DWER and the defendant.
2. He then, at [28] - [29] in his 3 February 2026 statement, said that:
   1. I read the above emails at the time they were sent and accessed the DWER fact sheets and guidelines at the time they were received.
   2. The matters described in the above emails remains my understanding.
3. It may be noted that I ruled out some documents (including emails) of a similar kind by my rulings on 15 December 2025: see, for example, [36], [49], [98], [108], [109], [110] and [114] of Mr Badat's October 2025 statement.[81]
4. Two things may be noted immediately about the documents which Mr Badat had sought to adduce by his 3 February 2026 statement. The first is that on review (albeit without argument directed specifically to those documents), they did not appear to be relevant to any matter in dispute. Secondly, and perhaps even more significantly, the form of Mr Badat's evidence that 'followed' the adducing of those documents as quoted above was in a completely inadmissible form.
5. By 'form' I am not identifying the difficulty as a mere technicality. Rather, there is no disclosure by those paragraphs of what, if anything, the plaintiff did as a result of receiving any of the communications. Nor was there any admissible evidence as to why he had communicated with DWER.
6. In short, leave could not have been granted in respect of those paragraphs or documents sought to be adduced in Mr Badat's 3 February 2026 statement.

Explanations for delay and non-compliance with orders

1. As will be apparent from the chronology I set out above about the orders for the filing of the plaintiff's lay witness statements, the applications the plaintiff made on 4 February 2026 were made extremely late and quite close to the commencement of trial.
2. In those circumstances, one would expect that the plaintiff would have produced full, cogent and compelling evidence to support his applications. That was not the case.
3. The only evidence going to the plaintiff's delay and non‑compliance with the Court's orders relied upon by the plaintiff was the Finn affidavit.
4. At the outset, I wish to make plain that nothing that follows is in any way intended to be a reflection on Mr Finn or a criticism of him. He is a comparatively recently admitted solicitor who is an employed practitioner. The responsibility for the matter and, indeed, for the Finn affidavit, is with Mr Skinner who is a principal of the firm and who has the day‑to‑day conduct of the proceedings on behalf of the plaintiff.
5. The Finn affidavit significantly proceeded on the basis that:
   1. the first relevant orders of the Court were made on 22 January 2026;[82] and
   2. the relevant pleadings are the defendant's defence filed on 25 October 2025 and the plaintiff's reply filed on 25 November 2025.[83]
6. Starting with that set of orders on 22 January 2026 and with those pleadings filed in October and November 2025 respectively, ignored the history of the matter. It also ignored the history of the matter since the plaintiff's solicitors came on to the record for him in June of 2025.
7. The Court was left without any explanation of the plaintiff's position leading up to the filing of his October 2025 statement (which, as noted, had been the subject of Court orders since 20 May 2025). Further, the substance of what is pleaded in paragraphs of the defence nominated by Mr Finn[84] had been present in the defendant's pleadings since, at least, its re‑amended defence dated 5 September 2023.[85]
8. That lack of an explanation also applies to the raising of objections to jointly appointed experts whose reports (with the exception of Mr Throssell's third report dated 16 December 2025) had been filed for at least seven months.
9. Further, with great respect, the explanation sought to be advanced by Mr Finn (even from the misconceived start dates of those pleadings and Court orders on 22 January 2026) was, at its highest, thin as it applied to the witness statements. There was no explanation, at all, for the timing of the Expert Evidence Objections.
10. Following the explanation such as it was, Mr Finn was left to apologise to the Court[86] and to advance an explanation that: 'Hale Legal is a small law firm, with a limited number of solicitors available to assist me in the conduct of this matter'.[87]
11. Of course, the resourcing of the plaintiff's case is not a matter for an employed solicitor. It is a matter for the principal or principals of the firm.
12. I do not in any way doubt the sincerity of Mr Finn's apology. However, whatever difficulties the plaintiff and the plaintiff's solicitors may have had in appropriately preparing the matter for trial, they are not to be laid at the feet of Mr Finn.
13. Any idea that it is appropriate for a more junior practitioner to be taking responsibility on oath for the failings of more senior practitioners is to be rejected outright. Responsibility is not to be moved downwards.
14. It may be considered somewhat harsh to be critical of the plaintiff's current solicitors given that they only came on the record in June 2025. However, they were assisted by counsel who had been briefed in the matter for some time (whose services have since 20 October 2025, apparently, been dispensed with) and they were involved in the formulation both of the agreed trial timetable and the listing of the matter in July 2025 for a trial commencing in March 2026.
15. Further, Hale Legal had acted for the plaintiff in this Court in answer to the defendant's application in March 2025[88] and the defendant's minute of proposed orders filed on 20 March 2025.[89]
16. Hale Legal had been so retained, at least by 16 March 2025,[90] and Mr Finn appeared for the plaintiff in this Court on 28 March 2025.[91] So, it could not be said that Hale Legal were complete strangers to the plaintiff or these proceedings by June 2025.
17. It is regrettable, to say the least, that on such an important application so close to trial, the senior practitioner who is a principal of the firm with the day‑to‑day conduct of the proceedings did not make an affidavit nor seek to explain adequately the plaintiff's delays and non‑compliance with the Court's orders.
18. In my view, it should not have been left to Mr Finn to make such an affidavit. The demands of this case must have been apparent well before the beginning of this year given that the firm has been on the record since 12 June 2025, and had already represented Mr Badat.[92]
19. In the result, as senior counsel for the plaintiff properly conceded on 9 February 2026, the plaintiff's applications would have fallen to be considered without there being any proper explanation of the delay.[93]

1. On 20 May 2025, I ordered that by 19 September 2025 each party would specify the documents they intended to tender at trial: Order 12.[94] Order 14 provided for objections to be made in writing by 26 September 2025.
2. Those orders, made 20 May 2025, were:
   1. varied on 21 October 2025[95] to extend the exchange of notifying documents to be tendered at trial to 28 November 2025[96] and to extend the time for parties to specify objections to 5 December 2025;[97]
   2. further varied on 22 January 2026[98] to extend the time for the exchange of notices specifying documents to be tendered at trial to 27 January 2026;[99] and the time for parties to notify objections to documents tendered to 30 January 2026.[100]
3. Without objection, the defendant in its submissions dated 17 February 2026,[101] provided the following chronology:
   1. on 3 February 2026, the plaintiff provided an incomplete tender list to the defendant which contained 286 documents;[102]
   2. on 11 February 2026, the plaintiff provided a revised tender list which included 174 documents;[103]
   3. following conferral on the revised tender list, most questions of duplication and mistakes were resolved;[104] and
   4. in the afternoon of 17 February 2026, the defendant sent to the plaintiff and the Court a hyperlinked spreadsheet which identified the documents to which the defendant continued to object.
4. At the time of its submissions dated 17 February 2026, there remained 78 documents which the defendant continued to object:[105]

1. As a result of the plaintiff's change of position communicated by email of 17 February 2026, as I understand it, the three documents identified by reference to Mr Kaminski and those contained in Mr Badat's 3 February 2026 statement have fallen away.
2. From what I was told at the hearing on 18 February 2026, as a result of conferral, at some time during the morning of 18 February 2026, there were only three documents objected to which the plaintiff sought to adduce. Due to further conferral between senior counsel, those three documents[106] were resolved. The plaintiff will not seek to adduce Document 21. And the documents numbered 102 and 104 can be tendered (if otherwise relevant) as evidence of the communication itself but not as to the truth of the contents.
3. So, in the result, there was no issue left for the Court to resolve on the defendant's objections to documents sought to be tendered by the plaintiff.
4. However, the material filed by the defendant demonstrates that the defendant spent a lot of effort in understanding which documents the plaintiff was seeking to adduce at different times and then to formulate its objections. That work no doubt assisted the conferral which has led to the resolution of the issues with the plaintiff's tender list.

1. As I noted above, by the Finn affidavit, the plaintiff 'filed' his Expert Evidence Objections.[107]
2. By a document dated 16 February 2026,[108] the defendant responded to the objections in tabular form over 43 pages.
3. By his email to the Court on 17 February 2026, the plaintiff stated:

The plaintiff does not intend to read the evidence of the joint experts in his case. He does not press his objections to the evidence of Messrs Fyson and Throssell, however reserves his right to cross‑examine the joint experts, and intends to address any evidence read by the defendant in closing submissions.

... [defendant intends] to address the court further tomorrow regarding the approach taken to expert evidence.

1. The course of the preparation of the expert evidence in this case has been far from routine and I consider it useful and appropriate to set out its course here.

1. On 20 December 2023 (December 2023 Orders), relevantly I ordered (without the attachments):

1. The parties have leave to adduce expert evidence at the trial in accordance with the:

(a) agreed bundle of documents for the experts;
>
> (b) agreed questions posed for the experts; and
>
> (c) agreed statement of facts for the experts,

each dated 14 December 2023 and attached to these Orders.

1. Subject to the appointment of the relevant Court-appointed expert, expert evidence will be adduced by way of Court‑appointed experts in the fields of:

(a) Environmental Contamination and Soil and Groundwater Remediation;

(b) Town Planning and Property Development; and

(c) Property Valuation.

1. By 22 December 2023, each party must provide to the other party a list of up to 3 potential candidates in each field identified in paragraph 2 (each an Expert Candidate). Each party must provide the following with respect to each Expert Candidate:

(a) the Expert Candidate's curriculum vitae, including relevant qualifications and accreditations, and experience;

(b) disclosure of any prior engagements between the Expert Candidate and either party;

(c) confirmation that the Expert Candidate is not aware of any conflict that would prevent them accepting an engagement to act as a Court-appointed expert witness; and

(d) information about the Expert Candidate's rates, other charges and availability to prepare an expert report.

1. By 8 January 2024, each party may object to one Expert Candidate nominated by the other party, in each field identified in paragraph 2 above. Any objection must be provided in writing, and no basis for the objection need be provided.
2. By 31 January 2024, the parties' legal representatives and counsel must orally confer and attempt to agree in a manner to ensure that the Court is unaware of the party that nominated each expert:

(a) on a single expert in each field identified in paragraph 2, from the remaining pool of Expert Candidates; and

(b) in the event the parties cannot agree on the matters in (a), the materials to be provided to the Court in relation to each Expert Candidate.

1. By 9 February 2024, if the parties are unable to agree on a single expert in each field or the materials to be provided to the Court in relation to each Expert Candidate, each party will separately prepare materials in relation to each Expert Candidate nominated by that party and provide those materials to the Plaintiff to lodge with the Court to ensure that the Court is unaware of the party that nominated each expert.
2. Having regard to the materials provided by the parties to the Court in accordance with paragraph 5, in the event of a successful conferral, or paragraph 6, the Court will select one Expert Candidate from the remaining pool of Expert Candidates, in relation to each field identified in paragraph 2 above.
3. From here, I have referred to the three documents attached to the December 2023 Orders as the Expert Schedule.
4. In Forge Group Ltd v Clough Ltd [No 2],[109] I set out the purposes for, and perceived advantages of, the Court becoming involved with the settling or ruling on an expert schedule: see at [5] - [16].
5. Obviously enough, the reasons in Forge Group Ltd v Clough Ltd [No 2] post‑dated the making of the December 2023 Orders: but the purposes and perceived advantages I set out in those reasons were not novel and informed the making of the December 2023 Orders.

1. I will now trace the lead up to the making of the December 2023 Orders.
2. As early as 13 May 2022, orders were made by the Principal Registrar for a process to lead to an 'Agreed Expert Evidence Schedule'.[110]
3. No such schedule had been prepared between the parties by the time the matter was admitted into the CMC list on 18 July 2023.
4. The question of expert evidence was discussed at hearing on 13 September 2023 before me.
5. On 14 September 2023 I made the following orders:

1. By 13 October 2023, the plaintiff provide to the defendant any further amendments to the Expert Evidence Schedule containing:

(a) a list of the documents to be provided to the Experts;
>
> (b) an amended schedule of Questions posed of the Experts; and
>
> (c) a Statement of Agreed Facts to be provided to the Experts,

1. By 27 October 2023, the parties are to file an agreed amended Expert Evidence Schedule.
2. By 3 November 2023, the parties are to file short submissions in relation to the Expert Evidence Schedule and the question as to whether expert evidence be adduced by way of a single, jointly appointed expert, or by separate experts appointed by each party.
3. On 27 October 2023 the plaintiff filed:
   1. a proposed list of documents;[111]
   2. proposed questions;[112] and
   3. a proposed statement of facts[113]

1. On 7 November 2023, the defendant filed:
   1. a proposed list of documents;[114]
   2. proposed questions;[115]
   3. proposed statement of agreed facts;[116] and
   4. a 'compare' version of each of the above three documents which showed the differences between what was proposed by each of the parties.
2. Prior to the hearing on 14 November 2023, the parties filed further documents, namely:
   1. the plaintiff's proposed orders[117] in which the plaintiff referred to expert evidence to 'be adduced by way of single Court‑appointed experts': see for example, proposed Order 3;
   2. The plaintiff's minute of proposed amended statement of facts;[118] and
   3. the defendant's proposed orders[119] which referred to 'jointly‑appointed expert': see for example, proposed Order 3.
3. There was a hearing on 14 November 2023 where the competing documents were addressed in detail.
4. The parties subsequently, on 5 December 2023, filed further iterations of their proposed orders and the documents to go to the experts.[120] Again, the defendant referred to 'jointly-appointed experts'[121] and the plaintiff referred to 'Court-appointed experts'.[122]
5. There was a further hearing on 6 December 2023 where the competing documents to go to the experts were debated and largely ruled on or settled by the Court. The parties were then left to prepare the relevant documents so as to reflect the debate and rulings from that hearing.
6. On 14 December 2023, the parties filed agreed documents to go to the experts, being the:
   1. questions;[123]
   2. statement of facts;[124] and
   3. list of documents.[125]
7. I then made the December 2023 Orders. As is apparent, those Orders used the language which had been proposed by the plaintiff, namely 'Court‑appointed expert'.
8. By orders made on 8 April 2024[126], the parties were ordered to file each expert witness report by 12 June 2024.

1. By an application made on 2 May 2024,[127] the defendant sought leave for the parties to provide further documents and information to Mr Throssell in response to email queries he had made on 4 April 2024. Following argument on 21 May 2024, I made orders dated 22 May 2024 for that to occur.[128]
2. Through May 2024, the plaintiff, both through his solicitors and directly, agitated his concerns as to Mr Throssell's qualifications to be an expert. That led to the defendant proposing[129] that the plaintiff file any application to disqualify Mr Throssell as an expert. By orders made on 22 May 2024,[130] I programmed the making of such an application.
3. By separate orders made on 22 May 2024,[131] I also restrained the plaintiff from communicating with Mr Throssell other than through his solicitors and I restrained the plaintiff from taking any further step in the restraining order application he had made against Mr Throssell in the Magistrates Court (RO 2819 of 2024).[132]
4. By a minute of consent orders filed on 12 June 2024,[133] the parties consented to the vacating of the orders I had made on 22 May 2024 programming the plaintiff's application to disqualify Mr Throssell.
5. I made orders accordingly on 14 June 2024.[134] Such an application was not reagitated for the balance of 2024 or 2025.
6. Unfortunately, on 11 July 2024 it was necessary to make further orders to prevent the plaintiff, or those on his behalf, communicating directly with the jointly appointed experts rather than through his solicitors.[135]
7. George Hajigabriel and Claire Richards (of Rowe Group) provided an expert report filed on 16 July 2024 as anticipated by Order 2(b) of the December 2023 Orders (and the 8 April 2024 orders).
8. On 9 September 2024, the defendant sought orders to provide further documents to Mr Throssell.[136] That application, by consent, was adjourned sine die.[137]
9. On 7 October 2024, the first report of Mr Throssell was filed.[138]
10. On 3 December 2024, an expert report of Mr Fyson was filed (the report being dated 26 November 2024).[139]
11. Notwithstanding October and December 2024 filing dates, these reports were the subject of the Expert Evidence Objections provided on 4 February 2026.

1. By an application brought on 26 February 2025,[140] the plaintiff sought leave to adduce five reports, namely:

1. The plaintiff has leave to adduce, as expert evidence at trial, the following documents, subject to the relevant expert complying with the Court's formal requirements as to expert evidence as set out in the Court's practice direction 4.5.2.1 (Harmonised Expert Witness Code of Conduct):

(a) Report prepared by Mr Brad Dermody dated 2 May 2024.
>
> (b) Report prepared by Mr Matthew Garmony dated 4 July 2022.
>
> (c) Report prepared by Mr Matthew Garmony dated 20 September 2023.
>
> (d) Report prepared by Mr Matthew Garmony dated 4 December 2023.
>
> (e) Report prepared by Mr Matthew Garmony dated 23 January 2025.

1. Each of the parties have leave to adduce expert evidence at trial as to the value of the works required to remediate the property known as 1156 Albany Highway, Bently [sic] in the State of Western Australia to each of 'Remediated for Restricted Use', 'Contaminated - Restricted Use' and 'Decontaminated' as defined by the Contaminated Sites Act 2003 (WA) and the cost of those works.[141]
2. By the application, the plaintiff sought leave to 'adduce his own expert evidence' to borrow from the heading of the submissions he filed on 18 March 2025.[142]
3. Mr Dermody was put forward by Mr Badat as an environmental expert who, it was said, could give evidence in the field of environmental contamination and soil and groundwater remediation.[143] Mr Garmony was put forward by Mr Badat as an expert property valuer.[144]
4. None of the five Reports have been prepared after the respective experts have been briefed with the Expert Schedule that were annexed to the orders made on 20 December 2023.
5. The plaintiff's application was supported by two affidavits of one of his then solicitors, Stephen James Kikiros made and filed on 26 February 2025[145] and filed on 30 April 2025.[146]
6. The primary basis for the plaintiff's application of 26 February 2025 was that the December 2023 Orders were made pursuant to O 40 of the Rules.[147] To explain that that was misconceived, it is necessary to consider the appointment of the experts a little further.

1. By submissions dated 18 March 2025,[148] the plaintiff submitted that:
   1. although not expressly stated it appears that the 20 December 2023 orders were made pursuant to O 40 r 2 of the Rules;[149] and
   2. the Throssell and Fyson Reports are to be regarded as Court‑appointed expert reports for the purposes of O 40 and that is made plain by the 20 December 2023 orders read with the court orders made on 8 April 2024.[150]
2. As things developed, I did not need to rule on those submissions in 2025 (or since).
3. I would not have accepted them if I had had to decide the matter. In my view, the December 2023 Orders were not made pursuant to O 40 and neither Mr Throssell nor Mr Fyson are 'Court experts' within the meaning of O 40 r 1.
4. The Court did not appoint Mr Throssell or Mr Fyson: they were jointly retained by the parties. The reports were not supplied to the parties by the Court.[151] And, their remuneration has not been 'fixed by the Court'.[152]
5. Nor were Mr Throssell, nor Mr Fyson selected by the Court as was envisaged may occur by Order 7 of the December 2023 Orders. Rather, the parties selected Mr Throssell and Mr Fyson by a process or an agreement which was not disclosed to the Court and in which the Court was not involved.
6. Even if the Court had, after the process identified in the other Orders made on 20 December 2023, 'selected' the experts pursuant to that Order 7, I do not consider that they would have been the experts appointed by the Court in circumstances where the December 2023 Orders envisaged only that the Court would select from 'candidates' selected by the parties themselves.
7. The Court was not involved in the retaining or briefing of the experts except for the settling of the three documents which were annexed to the December 2023 Orders and which became the Expert Schedule.[153]
8. Mr Throssell's report filed on 7 October 2024 states in its introduction:
   1. I have been retained to act as a jointly appointed independent contamination expert in relation to the abovementioned proceeding, including the preparation of this expert report. The terms of my engagement and my brief are contained in the Letter of retainer to John Throssell dated 5 March 2024 and included in this report as Annexure A.
   2. I have been instructed by Dan Dragovic of Herbert Smith Freehills and Michael Mistilis of Hotchkin Hanly Lawyers.
9. Similar statements are to be found in Mr Fyson's report.
10. The above considerations, in my view, are sufficient to demonstrate that the process of appointing Mr Throssell and Mr Fyson were not made pursuant to O 40 and, as a matter of substance, their appointment was not in accordance with the provisions of that order.
11. I can say that it certainly was not my intention to appoint the experts pursuant to O 40. And, for the reasons set out above, I do not consider that objectively it could be inferred that they had been so appointed.

The alternative basis for Mr Badat's application of 26 February 2025

1. In the alternative to his submission that he was, effectively, entitled to adduce the five Reports pursuant to O 40 r 6, the plaintiff sought leave to adduce the five Reports pursuant to O 36A.[154]
2. The plaintiff contended that the Throssell and Fyson Reports were 'in part incomplete, unclear, insufficient and unreliable to resolve key issues'.[155]
3. The plaintiff then contended that the expert evidence of Messrs Dermody and Garmony 'offer a more comprehensive and accurate assessment of pertinent issues'.[156]
4. The plaintiff then in his submissions set out 'deficiencies' in the Throssell report which he said rendered aspects of it 'erroneous, unclear, insufficient and unreliable for trial purposes'.[157]
5. It was common ground that the plaintiff had not sought (at February 2025) to have those asserted deficiencies in the reports addressed by Mr Throssell or Mr Fyson and by the amending, if necessary, of any aspect of the Expert Schedule.
6. The plaintiff contended that it appears Mr Throssell 'is not qualified to opine on remediation works costs to be undertaken'.[158]
7. The plaintiff's contentions raised two issues.
8. Firstly, whether Mr Throssell has the requisite expertise to opine on remediation costs.
9. Secondly, and, as I read it, in part to support the first 'concern', the plaintiff submitted that Mr Throssell's estimate/s 'differs substantially from estimates obtained by Mr Badat'.[159] As I understand it, it was submitted that Mr Dermody's report provided a very significantly higher cost than Mr Throssell's estimate/s.[160]
10. Those contentions have not been re-agitated by the plaintiff since then.
11. The plaintiff also submitted that there were deficiencies in the Fyson Report.[161]
12. Although I recounted in short form above the disposition of the plaintiff's application in 2025 in respect of Mr Garmony's reports, it is appropriate that I note the following.
13. Before a hearing on 1 May 2025, by email sent after hours, the plaintiff indicated that he would not press for an order in terms of Order 1(a) from his minute of 26 February 2025.[162] That was for leave to adduce Mr Dermody's report.
14. As I noted above, the plaintiff's application of 26 February 2025 that produced the four reports of Mr Garmony was dismissed on 20 May 2025.
15. As to the proposed Order 2 in the plaintiff's minute dated 26 February 2025,[163] it was agreed that it should be adjourned to allow the parties to see what further expert opinion evidence may be given following additional questions being sent to Mr Throssell.[164]
16. What may be noted about the matters agitated in the first part of 2025 by the plaintiff about the reports of both Mr Throssell and Mr Fyson is that it still took until 4 February 2026 for the plaintiff to agitate objections to those reports.
17. By orders made on 14 March 2025,[165] the Expert Schedule was amended to ask further questions of Mr Throssell. Those Orders were made in terms of the parties' minute of proposed consent orders filed on 14 March 2025.[166]
18. By orders made on 20 May 2025,[167] I programmed the parties to propose and confer on further questions, assumptions and documents which ought to go to Mr Throssell and Mr Fyson.
19. The parties had agreed on the additional matters to go to Mr Throssell and had largely agreed the additional matters to go to Mr Fyson[168] save for one matter. On 2 July 2025, I programmed a hearing on the disputed question.[169]
20. There was a short hearing on 25 July 2025.
21. I ruled on the disputed question and gave the parties leave to put an additional 20 questions to Mr Throssell and an additional 11 questions to Mr Fyson.[170]
22. As I understand it, those additional questions have been answered by Mr Throssell in his report dated 16 December 2025. I am told that Mr Fyson has prepared a further report which answers the additional questions put, but it appears that the plaintiff had not paid his part of Mr Fyson's invoice as at the end of 17 February 2026.[171]
23. The parties, and the Court, have not received Mr Fyson's further report. I was told by senior counsel for the plaintiff at the hearing on 18 February 2026 that the plaintiff had now paid Mr Fyson and the parties had jointly communicated with Mr Fyson to that effect.
24. By consent, further orders were made so as to amend the Expert Schedule so that further documents were sent to Mr Throssell by orders made on:
    1. 7 August 2025;[172] and
    2. 19 September 2025.[173]

1. Towards the conclusion of the hearing of the defendant's objections to the plaintiff's lay evidence on 15 December 2025, plaintiff's counsel flagged that there may be objections to the expert evidence.[174] I made the observation that, as both parties had instructed the experts, there may be something of a conceptual difficulty with a party objecting to its own evidence.[175]
2. From the foregoing review, I can say that this was the first time that the plaintiff indicated he may wish to object to parts of the evidence given by the jointly appointed experts.
3. As far as the Court is aware, the first steps the plaintiff took in respect of these 'objections' to the expert evidence was to join in a minute of consent orders filed on 21 January 2026[176] which sought to program the plaintiff advising of any such objections by 27 January 2026.
4. I made orders on 22 January 2026[177] in accordance with the objections. As noted above, those objections were then 'filed' as 'BJF-3' to the Finn affidavit.
5. As noted, the plaintiff does not now press any objections to the expert reports by his email of 17 February 2026.
6. Prior to receiving that email, I spent some time considering the plaintiff's objections and the defendant's response to them.[178]
7. The following may be immediately observed from that review:
   1. the plaintiff made objections to all three of Mr Throssell's reports, notwithstanding that no objections had been previously identified and the first two reports were from October 2024 and May 2025;
   2. no objections had previously been made to Mr Fyson's report, notwithstanding that the parties had it from November 2024; and
   3. the plaintiff in his objections to Mr Fyson's report did not grapple with the fact that some of them appeared to overlap with the additional questions which the Court had given leave to be asked of Mr Fyson by the orders made on 25 July 2025.[179]
8. In light of the plaintiff not pressing any of the Expert Evidence Objections, I, obviously enough, have not heard argument on them. However, having spent some time seeking to understand the objections and the defendant's response to them, I can say that none of them appeared to me to be obvious nor compelling.
9. Further, the very late raising of objections by the plaintiff would have had the consequence that if any of the objections had been upheld then it could well have had significant impact on the listing and hearing of the trial. And, as said, not only had there been no indication that the plaintiff would seek to make objections to the evidence, but there was no explanation as to why they were only being made on 4 February 2026 after the prospect had been somewhat mused upon by the plaintiff's counsel on 15 December 2025.
10. With ingenuity and not a little chutzpah, senior counsel for the plaintiff said that the plaintiff was not, now, pressing his objections to the expert reports of Mr Fyson and Mr Throssell because there had been a 'concession' on the part of the defendant: i.e. that submissions could be addressed at trial as to the weight that the expert evidence should be given.[180]
11. I do not understand that the defendant, by its response to the Expert Evidence Objections,[181] did make any such concession.
12. Rather, the defendant's responses take issue with the objections made and, then, in some cases to say that the objection and/or assertion raised by the plaintiff 'even if correct, can only affect the weight' to be given to the evidence.
13. So I would not accept that anything that the defendant has said in its response to the Expert Evidence Objections rendered the objections inutile.
14. That is not to say that the plaintiff now not pressing those objections to the expert reports is not entirely appropriate or proper. I consider, rather, it is both proper and appropriate. However, I do not accept that there has been anything other than a completely appropriate, but significant, change in the plaintiff's position between the publication of the Expert Evidence Objections and his email of 17 February 2026.

1. By a minute filed on 18 February 2026,[182] the defendant sought the following orders:

1. The Plaintiff pay the Defendant's costs of and associated with:

(a) the Plaintiff's application dated 4 February 2026 for leave to adduce further in terms of witness statements of Mahomed Badat dated 30 January 2026 and 3 February 2026 (proposed order 1), including preparing objections, evidence and written submissions;
>
> (b) preparing objections, evidence and written submissions in relation to the Plaintiff's tender list provided to the Defendant on 3 February 2026 and revised tender list provided to the Defendant on 9 February 2026;
>
> (c) responding to the Plaintiff's schedule of expert evidence objections attached as BJF-3 to the Affidavit of Brendan John Finn sworn 4 February 2026, including the preparing evidence and written submissions; and
>
> (d) the hearings held on 9 February and 18 February 2026.

1. The Defendant has liberty to apply for special or indemnity costs orders in relation to its costs associated with the matters referred to in 1 above.
2. The plaintiff opposed the making of the costs orders sought. Rather, the plaintiff submitted that an appropriate order would be that the costs should be costs in the cause or, at the very least, that the costs be the defendant's costs in the cause.[183]
3. The plaintiff submitted that the defendant: 'ought not be seeking to take advantage of a sensible response which seeks to accord with the overarching obligation and to not take up the Court's time with our disputation'.[184] That submission, of course, rather overlooks that it was the plaintiff who made the application on 4 February 2026, and that the defendant had to respond quickly in light of the proximate trial dates.
4. In my judgement, the defendant should have orders in terms of its proposed Order 1(a) - (d).
5. For reasons I have set out above, the plaintiff's application for leave to adduce the evidence of Mr Badat in his statements dated 30 January 2026 and 3 February 2026 was, for multiple reasons, doomed to fail. I consider that quite properly and entirely appropriately the plaintiff did not press that leave application.
6. Secondly, the plaintiff did not comply with orders as to his tender list and there were significant problems with the tender lists which were produced. Those issues have now been resolved by conferral with the plaintiff not now seeking to adduce a number of documents. However, that necessitated in a short period of time a considerable amount of work on the part of the defendant; which work appears to have greatly assisted the conferral between the parties and the resolution of the issues of the tender list.
7. The plaintiff, in my view, has for very many months had the opportunity to articulate objections to the expert evidence. It first raised the issue with the Court in passing on 15 December 2025 but did not articulate objections until the Expert Evidence Objections were provided on 4 February 2026.
8. Again, the defendant has sought to deal with those objections substantively in a short period of time only for the plaintiff to not press those objections by his email of 17 February 2026 - after a principal reason for adjourning the hearing on 9 February 2026 was to enable a proper argument as to the objections.
9. My assessment is that as the objections did not appear to be obvious or compelling, it is entirely proper that they are not being pressed.
10. In all of those circumstances, I consider that it is appropriate that the defendant have the costs orders it seeks with the amendment that in the chapeau I would add after the word 'costs' the words 'in any event' and add after Order 1(d) the words 'to be taxed if not agreed'.
11. I do not consider it appropriate to make proposed Order 2 sought by the defendant's minute of 18 February 2026.[185] It seeks leave on a somewhat open‑ended basis. I was told by senior counsel for the defendant that it wishes to revisit the question of indemnity costs, perhaps, after the trial and judgment. I am not minded to give leave on such terms if, indeed, leave is required. That is not a question I consider I need to resolve now.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Folio 259. I have referred to the Court-allocated Folio number, where possible, for each document referenced throughout this decision.

[2] Affidavit of Brendan John Finn filed on 4 February 2026: Folio 258 (Finn affidavit) [34] and Attachment 'BJF-3' at pages 2243 - 2257 (Expert Evidence Objections).

[3] Joint expert report authored by Jonathan Fyson dated 26 November 2024 and filed on 3 December 2024: Folio 164.

[4] Joint expert report authored by John Throssell dated 7 October 2024 and filed on 7 October 2024: Folio 163.

[5] Joint expert report authored by John Throssell dated 23 May 2025 and filed on 15 January 2026: Folio 250.

[6] Joint expert report authored by authored by John Throssell dated 16 December 2025 and filed on 15 January 2026: Folio 249.

[7] Defendant's 'Expert Evidence Objections' filed on 16 February 2026: Folio 268.

[8] Defendant's schedule of objections to Amended Badat Statements filed on 6 February 2026: Folio 262.

[10] Defendant's letter dated 6 July 2023: Folio 82.

[11] Orders made on 18 July 2023: Folio 84.

[12] Notice of change of representation: Folio 209.

[20] Jones v Cowarna Downs Pty Ltd [2026] WASC 12 (Jones) [44].

[21] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [91] as cited in Jones [44] and [121].

[22] The dates and number of days for trial were adjusted during the course of the hearing on 18 February 2026.

Helpfully, senior counsel for the parties agreed to reconsider and provide a revised trial timetable during the course of the hearing on 18 February 2026.

[23] Orders made on 25 July 2025: Folio 216.

[24] Two sets of orders were made on 20 May 2025: the trial directions were in the orders at Folio 205 (trial directions).

[27] Affidavit of Danilo Dragovic made and filed on 13 October 2025: Folio 227 (Dragovic 2025 affidavit) [7] - [9].

[35] Folio 229. The orders were made at the directions hearing on 20 October 2025 but were not extracted until the next day and so bear the date of 21 October 2025.

[37] Witness statement of Mahomed Ahmed Badat dated 31 October 2025: Folio 230 (October 2025 statement)

[38] Schedules of BP's objections dated 12 December 2025: Folio 237.

[39] Schedule of plaintiff's response to objections dated 15 December 2025: Folio 240.

[41] Affidavit of Danilo Dragovic made and filed on 6 February 2026: Folio 264 (Dragovic 2026 affidavit) [8] and Attachment 'DD-1' at page 9 (Marked-up statement).

[47] Witness statement of Mahomed Ahmed Badat dated 30 January 2026: Finn affidavit [16] and Attachment 'BJF-1' at pages 7 - 1973 (30 January 2026 statement).

[48] Supplementary witness statement of Mahomed Ahmed Badat dated 3 February 2026: Finn affidavit [24] and Attachment 'BJF-2' at pages 1974 - 2242 (3 February 2026 statement).

[49] As noted above, the Finn affidavit also annexed 'BJF-3' which was headed 'Schedule 1: Expert Evidence Objections'.

[50] Defendant's outline of submissions in support of its objections to Mr Badat's further proposed evidence filed 6 February 2026: Folio 263.

[52] Substituted defence filed on 2 October 2025: Folio 225.

[57] Folio 91; signed by his then senior counsel.

[63] Namely [7(c)(iii)], [49(c)(v)] and [62].

[64] Further substituted statement of claim filed on 18 September 2025: Folio 223.

[65] Substituted defence filed on 2 October 2025: Folio 225.

[67] Until the plaintiff's email to the Court of 17 February 2026.

[69] See 3 February 2026 statement [5] at page 1976 of the Finn affidavit.

[71] The quotation is dated 16 September 2025 and is sought to be adduced by the 30 January 2026 statement [92] and Attachment 'MAB-67' at page 1950 of the Finn affidavit.

[72] See the plaintiff's solicitors' letter dated 23 January 2026 to the defendant's solicitors: Dragovic 2026 affidavit [22] and Attachment 'DD-2' at page 47.

[79] ts 285 - 287; and see the earlier discussion on 1 May 2025: ts 235 - 236 and 238.

[80] Noting the difficulties with the inconsistent way the plaintiff has identified the documents he is seeking to adduce across his October 2025, 30 January 2026 and 3 February 2026 statements.

[90] Affidavit of Mr Badat made on 25 March 2025 [16]. That affidavit has not been filed, but was provided to my chambers via email on 26 March 2025.

[100] Order 6 made on 22 January 2026.

[102] Defendant's submissions filed on 17 February 2026 [22].

[103] Defendant's submissions filed on 17 February 2026 [23].

[104] Defendant's submissions filed on 17 February 2026 [23].

[105] Defendant's submissions filed on 17 February 2026 [28].

[106] Numbered 21, 102 and 104 to the hyperlinked spreadsheet prepared by the defendant.

[107] Finn affidavit, Attachment 'BJF-3'.

[109] Forge Group Ltd v Clough Ltd [No 2] [2024] WASC 192.

[110] Orders 2 - 4 made on 13 May 2022.

[120] Folios 116 - 118 (defendant's documents) and Folios 120 - 122 (plaintiff's documents).

[128] Folio 147. The orders were made at the hearing on 21 May 2024, following argument, but were not extracted until the following day and so bear the date of 22 May 2024.

[129] By minute of proposed orders filed on 21 May 2024: folio 146. See also Mr Badat's affidavit made and filed on 17 May 2024: Folio 143.

[130] Folio 147. The orders were made on 21 May 2024, following argument, but were not extracted until the following day and so bear the date of 22 May 2024.

[131] Folio 148. The orders were made on 21 May 2024, following argument, but were not extracted until the following day and so bear the date of 22 May 2024.

[141] Plaintiff's minute of proposed orders attached to a letter of his solicitors dated 26 February 2025.

[143] Plaintiff's submissions filed on 18 March 2025 [1(a)(i)].

[144] Plaintiff's submissions filed on 18 March 2025 [1(a)(ii)].

[147] This is not the only basis for the plaintiff's first application, and I deal with his alternate basis below.

[149] Plaintiff's submissions filed on 18 March 2025 [6].

[150] Plaintiff's submissions filed on 18 March 2025 [7].

[154] Plaintiff's submissions filed on 18 March 2024 [8].

[155] Plaintiff's submissions filed on 18 March 2024 [24].

[156] Plaintiff's submissions filed on 18 March 2024 [25].

[157] Plaintiff's submissions filed on 18 March 2024 [40].

[158] Plaintiff's submissions filed on 18 March 2024 [67].

[159] Plaintiff's submissions filed on 18 March 2024 [72] and [73].

[160] Plaintiff's submissions filed on 18 March 2024 [73(a)].

[161] Plaintiff's submissions filed on 18 March 2024 [54].

[164] See the defendant's minute of 19 May 2025: Folio 201; the discussion at ts 282; and the orders made by the Court on 20 May 2025: Folio 206.

[168] Plaintiff's submissions filed on 17 July 2025 [2] and [3].

[171] Defendant's submissions filed on 17 February 2026 [11] - [12].

[181] Filed on 16 February 2026: Folio 268.