Budvalt Pty Ltd v The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 (NSW)

Decision: The tender of the questions and the annexed supplementary report dated 29 May 2025 are refused.

Catchwords: CIVIL PROCEDURE – judicial review procedure – Uniform Civil Procedure Rule 59.7 – application to tender further evidence from defendant's expert – experts had produced joint and agreed reports – defendant granted time to ask both experts certain questions directly, overnight – plaintiff's expert unavailable; defendant's expert available, and produced answers not seen by plaintiff’s expert – leave refused

Legislation Cited: Water Management Act 2000 (NSW)
Uniform Civil Procedure Rules (2005) NSW, rr 31.19, 59.7

Category: Procedural rulings

Parties: Budvalt Pty Ltd (Plaintiff)
The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 (NSW)(Defendant)

Representation: Counsel:
Mr C Ireland (Plaintiff)
Mr C Lenehan SC (Defendant)
Ms C Nguyen (Defendant)
Solicitors:
Horton Rhodes (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2023/461010

Publication restriction: No

EX–Tempore JUDGMENT - revised

1. The proceedings before me are for the judicial review of a decision of the Minister administering the Water Management Act 2000 (NSW).

2. The parties in their preparation of the matter engaged hydrology experts to provide a joint report. The experts, Dr Barma, and Dr Martens prepared two reports dated 25 March 2025 and 13 May 2025 respectively.

3. During the course of the hearing yesterday, the first day of the hearing, the defendant made an application to cross‑examine the experts, or at least the expert that had been retained by the plaintiff.

4. Notice had been given to the Court that the application would be made by the provision of proposed short minutes of order. This occurred on the day before the hearing began.

5. The plaintiff had been given notice by telephone on 21 May and then more formally on the day before the hearing. The plaintiff opposed the defendant's application. In order to succeed on that application, the defendant needed leave of the Court. This is stipulated by the Court Rules. Uniform Civil Procedure Rule 31.19 states that any party intending to adduce expert evidence:

"must promptly seek directions from the Court in that regard."

6. More importantly, r 59.7 says that evidence in judicial review proceedings is to be given by way of affidavit:

"unless the Court otherwise directs."

7. The rule goes on to say that:

"Cross‑examination is permitted only by leave of the Court. Leave should, if practicable, be sought prior to the hearing."

8. Bearing in mind the extra time and expense that would no doubt have been associated with the cross‑examination of the experts, I proposed a course in which the experts could consider overnight some further questions to be drafted by the defendant but with notice of the questions first given to the plaintiff.

9. This morning, I was informed that the defendant's expert had been in a position to examine the questions and had formulated some answers. The questions and answers were tendered with the proviso that, if necessary, the defendant's expert would be made available for cross‑examination.

10. The plaintiff opposed the tender. Its expert, Dr Martens, had not been able to examine the questions overnight. I allowed a short adjournment this morning to confirm his inability to deal with the new material. I was informed he was not available, but that information obtained yesterday was to the effect that he would not be available.

11. The fundamental point behind the defendant's desire to tender the documents and have the further evidence arises, as I understand the submissions, from the plaintiff's reliance on the first joint expert report where it is stated, at [27], that the model used to produce the amount of water sanctioned by the licence did not:

"allow consideration for water to be pumped directly from the flood runner to crops to enable direct irrigation."

12. The plaintiff's reliance on this point was apparently communicated to the defendant on 8 May 2025, although its significance to the plaintiff's case was perhaps not appreciated until receipt of the plaintiff's written submissions. I do not say that by way of criticism.

13. Following receipt of the submissions, the defendant took the view that further expert evidence was necessary. There are some terms in [27], and elsewhere, such as "flood runner", which could benefit from further explanation. The questions asked of Dr Barma, however, go much wider than simple interpretation. For example, the expert is asked what is meant by particular paragraphs in the joint report.

14. In my view, the further report from Dr Barma is effectively a reopening of a joint opinion of both experts at the very last moment. Had Dr Martens been able to deal with the new report or had it simply provided some definitions, I think the position would have been different.

15. Remembering that cross‑examination is not permitted without leave in judicial review proceedings and considering that the joint reports are the joint opinions of both experts, I think a divergence, or an unanswered opinion is simply too late.

16. This is not a case where the experts differ in their opinion so that cross‑examination might be utilised to bring an expert into line with the other expert's opinion. To repeat, they are both of the same opinion, and allowing the further report places the Court in a position where the joint opinion may not be relied upon in whole or in part.

17. Further, cross-examination of Mr Barma would not have helped in the absence of Dr Martens to assist the plaintiff.

18. Accordingly, I refuse the tender of the questions, and the annexed supplementary report dated 29 May 2025.

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Amendments

06 August 2025

missing number in year of order