(viii) assume that the Expert ignored the items now alleged not to have been taken into account by the Expert and deducted from the value of work figure the figure of $2,455,292.35 which the parties had been paid to the Plaintiff up to November 1998, which figure now incorporates items now said to be excluded, such as set-up costs.
83 The clearest evidence of the Expert's work must be found in the Determination itself. The words "value of work" in the 03.05.99 Determination (5/1775) are plain and mean what they say.
84 And again many of the matters set out in paragraphs 16 and following of the defendant's written submissions seem to me to be of substance.
85 The evidence suggests that most, if not all, of the facts that the Plaintiff must assume to succeed did not occur. In relation to sub-paragraph 12.1, it is self-evident from the terms of the final spreadsheet at 5/1732, that the Plaintiff's calculation assumes that each of the items listed 1-5 were accepted in full by the Expert. It was the evidence of Barnes (during cross-examination) that many of the items remained in dispute right up until 03.05.99. From the myriad of factors and figures before the Expert, it is no doubt possible to construct a conclusion of one's choice. Attached to these submissions is a schedule prepared by the Defendant based on materials before the Expert and which assumes that the Expert accepted a combination of submissions, some from the Plaintiff and some from the Defendant, which produces a figure of $4,366,457.36, a difference of $3,869.36 or 0.089%. Doubtless other combinations can be constructed particularly in circumstances where the Expert is an Expert and he is authorised to exercise his own judgment.
86 Common sense and experience indicate that, only in the clearest cases, would any party's submission on valuation be accepted without any qualification; a furtiori in construction cases where the parties put ambit claims and where complex issues were raised over many months.
87 In the context of sub-paragraphs 12.1 and 12.2, the Plaintiff puts at naught the possibility that the Expert might have used his own judgment to find some alternative analysis. The fact that Mr. Morrisey was appointed as an Expert and not as an Arbitrator clearly indicates that it was intended that he could rely upon his own investigations, skill and judgment (Legal and General at 336). It is clear from the parties' submissions that many of the matters in dispute involved issues of judgment, discretion and the application of indeterminate criteria. Thus, in the context of the Plaintiff's claim for a mark-up of 60%, the Defendant suggested that the appropriate rate should be 25% and, in so doing, referred to a number of legal matters and factors which might influence departures from the estimates, such as bulk, quality, urgency and lapse of time (see 5/1413-14). In these circumstances, the valuation process that the Expert had to undertake involved matters of estimation and not of precise mathematical calculation: WMC Resources Limited v Leighton Contractors Pty. Limited [1999] W.A.S.C.A. 10 at paras. [23] and [25].
88 If the Plaintiff is correct, the Expert's error was unexpected, uninvited and egregious. Having accepted every submission by the Plaintiff up to that point in its various spreadsheets, the Plaintiff must prove that the Expert failed to consider claims valued by the Plaintiff at $1,148,512.96 or some 20.39% of the total amount claimed by it. It was also done in face of the parties' apparent desire to have the value of all work determined (see, for example, 5/1643, 5/1693 and 5/1732). No reason has been proffered by the Plaintiff as to why the Expert should suddenly behave in such a manner when not invited to do so by any party, and in circumstances where the items said to have been ignored had been the subject of express submissions in the preceding months; particularly when some had been agreed upon.
89 No explanation is proffered by the Plaintiff by reason of the groupings of the items that are found on its various spreadsheets. Items that are said to have been excluded incorporate matters that had been agreed by the parties, and some that had not. Similarly, whilst schedule of rate items are also said to be excluded, an item coming within the same description (namely holes in upper extrusion) does, it is accepted by the Plaintiff, form part of the Expert's Determination. There is no warrant in the contract between the parties for any such distinction in principle.
90 Although already mentioned there is one matter to be particularly emphasised. This is the fact that the parties exchanged very detailed written submissions on what was referred to during the hearing as the "below the line" section of Mach 3. During the course of the oral submissions the Court invited the parties, particularly the defendant, to identify extracts from submissions, which had been exchanged and furnished to the Expert dealing with these items, [that is to say the items described in the subject spreadsheet under the headings "Manufacture and Supply of Schedule of Rates Items" and "New Products Not Included in Tender"]. Those materials were furnished to the Court following the written submissions together with an appropriate index. The materials taken from Exhibit PX clearly make the point that very detailed submissions had been prepared. I shall take the course of marking these materials for identification as "BL1". The index to these materials is annexed to the Judgment as Appendix "F".
91 At the end of the day I have reached the conclusion that the Expert has not been shown to have committed relevant error. Had the Expert given a value of work figure at a rounded off amount such as for example $4,300,000.00 or $4,350,000.00 or even $4,340,000.00, the plaintiff it seems to me would have had an impossible task in endeavouring to persuade the Court that the Expert had committed a material error. It is certainly true that there seems to be an uncanny coincidence in the ability of the plaintiff to add together figures 1, 2 and 3 in the manner earlier referred. But when one endeavours to second-guess the Expert's thinking process one begins to realise just how many combinations and permutations there are which the Expert might have taken into account. The defendant, for example, as part of its written submissions, put forward a schedule prepared by the defendant based on material before Mr Morrisey which schedule assumes that Mr Morrisey accepted a combination of submissions, some from the plaintiff and some from the defendant and which produced a figure of $4,366,457.36, being a difference from the actual figure determined, of $3,869.36 or 0.089 percent. I accept as of substance the defendant's submission that doubtless other combinations can be constructed particularly in circumstances where Mr Morrisey is an expert who was authorised to use his own judgment.
92 When one does venture to try to second-guess what Mr Morrisey actually did and in this regard looks at the 'below the line' section of the spreadsheet Mach 3, it will be seen that there are some items to which are attributed very large sums indeed. For example - under the heading "Manufacture and Supply of Schedule of Rates Items", one finds a figure close to $440,000.00. Item 7 for "Energy Australia Panel" under the following heading, includes a claim for some $260.000.00. In short, two alone of the figures making up the sum of $1,148,512.86, contribute some $700,000.00 of the total the subject of the plaintiff's claim.