Jones v Murrumbidgee Irrigation Limited - [2020] NSWSC 613 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Jones v Murrumbidgee Irrigation Limited

[2020] NSWSC 613

Supreme Court of NSW|2019-09-27|Before: Wright J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-09-27

Before

Wright J

Catchwords

AGRICULTURE - Rice growing - Landforming by cutting and filling - Water management - Irrigation bay layout - Urea and nitrogen - Bloodworms dead or alive - Turbidity - Remediation and flocculation

Source

Original judgment source is linked above.

Catchwords

AGRICULTURE - Rice growing - Landforming by cutting and filling - Water management - Irrigation bay layout - Urea and nitrogen - Bloodworms dead or alive - Turbidity - Remediation and flocculation

Judgment (157 paragraphs)

[1]

Background to Ms Jones's 2009/10 rice crops

On 21 July 2009, Mr Cave attended North Corynnia and made recommendations to address a general nutrient deficiency by way of a nitrogen, zinc and phosphorus mix, the nitrogen to be supplied in the form of "2kg/ha Lo Bi Urea". Mr Cave's crop inspection form did not identify the blocks or paddocks that were nutrient deficient. The form does not establish whether any urea was actually applied to any blocks at about this time. Ms Jones did not give evidence as to whether or where it was applied.
Except for the possibility that this urea was applied to P14 and P15, there were no ameliorative steps taken to compensate for the cutting and filling in those paddocks to form the irrigation bays. Part of Q13 had, however, been treated with lime in 2005/6 and 60 kg/ha of urea was applied to Q13 in 2008/9, when it was sown to millet and grazed.
On 10 August 2009, Mr Cave recommended to Ms Jones the use of the herbicides, Roundup and Metsulfuron methyl, on roads only and fence lines. On his crop inspection form, he noted that "this is a residual chemical avoid areas where you want beneficial species". It is not clear on the evidence precisely where and when these herbicides were applied, if at all. Some of the roads and fence lines on North Corynnia run near or beside water supply channels and paddocks.
From October 2009, Ricegrowers Limited, trading as SunRice, sought applications from irrigators, such as Ms Jones, to grow rice. SunRice had secured from MI an advance allocation of water for use by irrigators for that purpose.

[4]

Sowing the first 50 ha of Reiziq

On 28 October 2009, 180 kg/ha of Reiziq seed was sown in P15 and in part of P14 to fulfil her obligation to grow 50 ha of rice. It was sown by broadcast, using a spreader truck, together with 150 kg/ha of Maximiser fertiliser, containing 8.6% nitrogen. A rice roller was used to form grooves and ridges in the soil. When water came across the field, the seed was secured in the hollows and buried to a depth of approximately 20 to 25 mm. Mr Cave said that this method could be described as a type of "sod sowing" and the other experts did not dissent from this view.
Part only of P14 was sown on 28 October 2009 because only 50 ha of rice was contracted to be grown under the initial agreement. P14 and P15 each comprise about 35 ha, making a total of 70 ha. It is not possible on the evidence to say precisely which bays of P14 were sown at this stage but the Water Supply Details suggest that it was the "Bottom 15 ha" but the evidence did not clearly establish where the bottom and the top of P14 were.
According to the Rice Cropping Program, in addition to the seed and Maximiser, 0.1 L/ha of Dominex Duo were applied to P15 and part of P14 on 28 October 2009 and I accept that this is what occurred. Dominex Duo is a treatment for bloodworm.
I pause here to note that what is recorded in the Rice Cropping Program, the Water Supply Details and the Skycroppers invoices concerning treatments for bloodworm have caused me to have serious doubts as to the reliability of Ms Jones's evidence as to bloodworm in the Reiziq crop for a number of reasons: 1. In the First Jones Affidavit, there was no mention of Dominex Duo, or any other treatment for bloodworms, being applied to P15 or the bays of P14 which had been sown on 28 October 2009. This suggests that the affidavit was not comprehensive or reliable, possibly because it was prepared from memory rather than from contemporaneous records, such as the Rice Cropping Program; 2. In the Second Jones Affidavit, under the heading "Ducks and Bloodworms" Ms Jones recounted a conversation with Mr Cave prior to sowing in which he said that with the method of sod sowing used there was little risk of bloodworm attack at that stage before the application of permanent water. It appeared that the implication was that Ms Jones could not be criticised for not applying a treatment for bloodworm at the time of sowing. This suggested an awareness on Ms Jones's part that her management of bloodworm in the Reiziq crop could be criticised and she was trying to deflect such criticism. However, in seeking to deflect criticism, she apparently did not have regard to what treatment had actually been applied, as recorded in the Rice Cropping Program; 3. Ms Jones went on to recount in the Second Jones Affidavit (at par 84ff) that in "late 2009" she had found adult bloodworm in a pipe between bays in P14 after flushing. She said that she discussed it with Mr Cave who expressed surprise but recommended applying Dominex Duo using the "water running" method. When this was done, it was said that there were often masses of dead bloodworms in the water. This is not consistent with the Rice Cropping Program and the Water Supply Details. No Dominex Duo was applied to the earlier sown part of P14 or P15 after 28 October 2009 (or the later sown part of P14 after 4 November 2009). After the initial sowing and flushing, the only reflushing of P14 and P15 occurred in mid and late November 2009. The Skycroppers invoices indicate that Lorsban, another pesticide used to treat bloodworm, was applied to P14 and P15 on 13 January 2010 by aerial spraying. This had been recommended by Mr Cave in a crop inspection form on 11 January 2010. In my view, the evidence in the Rice Cropping Program, the Water Supply Details, Mr Cave's crop inspection forms and the Skycroppers' invoices is to be preferred to Ms Jones's recollections. It appears more likely that Ms Jones observed bloodworms at about the time of sowing the crops and, for this reason, she was advised to drip Dominex Duo into the water applied at about this time, not at some later time; and 4. In these circumstances, I do not accept Ms Jones's evidence as to how and when the Reiziq crop was treated for bloodworm, except where it is consistent with the documentary record. Nor do I accept her evidence of seeing dead bloodworms in the water in late 2009 as a result of P14 and P15 being treated with Dominex Duo at about that time (including at pars 63 and 86 of the Second Jones Affidavit). The photographs Ms Jones says she took on 20 and 21 December 2009 of masses of dead bloodworms on the surface of water near P15, [20] do not clearly or unequivocally depict such an occurrence. I shall deal with other aspects of Ms Jones's evidence concerning bloodworms later in these reasons.

[5]

Application of water to the first 50 ha of Reiziq

Water was applied to the area which had been sown on 28 October 2009. The First Jones Affidavit contained evidence that this water came from the "P1, P2 and Q1 outlets at a rate of approximately 26 ML per day, a high flow rate designed to get the water on and off the bays quickly and prevent waterlogging in line with best management practice". The Water Supply Details indicate, and I accept, that what actually occurred was that: 1. on 29 October 2009, the P15 filling channel and bankless channels were filled using 20 ML from outlets P1 and P2; 2. on 30 October 2009 first bay of P15 was flushed using 14 ML from outlets P1 and P2; 3. on 31 October 2009, the rest of P15 was flushed and the filling channel and bankless channels of P14 were filled using 26 ML from outlets P1, P2 and Q1; and 4. on 1 and 2 November 2009, the "Bottom 15 ha" of P14 were flushed using 26 ML per day from outlets P1, P2 and Q1.
It is not clear from the Water Supply Details whether, after flushing, any, and if so how much, water was deliberately left in the bays. In any event, Mr Hutchins's evidence [21] of what he observed on 23 December 2009 and the photographs he took indicated that the landforming and layout, in some areas of P14, was poor, with the result that water did not drain off when the rest of the bay was drained. Water in these areas was left eventually to evaporate. In addition, it is unclear on the evidence how long water stayed on areas where the water ran into the bay. If these were the first to be covered and some of the last to drain, water may have stayed on the areas where the water entered the bays for longer than the water on other parts of the bays. Therefore, even if the water generally was drained from the bays after 12 hours, in the areas that were near the entries or did not drain, the soil could become waterlogged, until the water eventually drained or evaporated and the soil dried out. In these conditions, the rice might well fail to germinate or the plants might not thrive and might die in those areas.

[11]

Spraying and fertilising the Reiziq crops and the application of permanent water

On 1 December 2009, Skycroppers sprayed fertilisers and broadleaf herbicides over P14 and P15 and resowed certain areas in those paddocks. In particular, the Rice Cropping Program and Skycroppers' invoices record, and I accept, that on that day Skycroppers: 1. resowed 7 ha of P14 and 7 ha of P15 with rice seed at the rate of 200 kg/ha; 2. topdressed 17.5 ha in P14 and 31.5 ha in P15 (but not all 70 ha of P14 and P15) with urea at the rate of 123 kg/ha; [23] and 3. sprayed 70 ha of P14 and P15 with broadleaf herbicides, Basagran at the rate of 0.85 L/ha and MCPA at the rate of 1.7 L/ha.
On the invoice relating to spraying Basagran and MCPA, the fields treated were described as including "- adj", for example "PS14 (35Ha) - adj, PS15 (35Ha) - adj" . It is not clear whether this means that areas adjacent to P14 and P15 were sprayed as part of the total of 70 ha sprayed or something else.
There was no explanation in the evidence as to: 1. why these broadleaf herbicides were sprayed on P14 and P15 at this time or on whose advice, if anyone's. It can be noted that Mr Cave's recommendation, made two days prior, was to use MCPA for the thistles on P16, not on P14 and P15; 2. why P14 and P15 were not sprayed at about this time with Barnstorm and Aura, as Mr Cave had recommended on 27 November 2009; and 3. why only 49 ha out of the 70 ha sown with Reiziq were top dressed with 123 kg/ha of urea.
Furthermore, in relation to the application of urea, even the 49 ha that were treated with urea only received 123 kg/ha. Taking into account the Maximiser that went on at the time of sowing, which Mr Lacy said was the equivalent of about 30 kg/ha of urea, these 49 ha only received a total of about 150 to 155 kg/ha of urea before permanent water was to be applied. The expert evidence established that this crop needed in the order of 375 to 390 kg/ha of urea in total and two thirds of that should have been applied just prior to the application of permanent water. Accordingly, proper management required the whole 70 ha to be top dressed with between about 220 to 250 kg/ha before the application of permanent water which started on 2 December 2009. Ms Jones did not explain why she did not do this on 1 December 2009 or at any other time.
In light of what occurred, it could be anticipated that the parts of the crop that were not top dressed at all would become very nitrogen deficient and the parts that had been top dressed would become nitrogen deficient but to a lesser extent. The signs of nitrogen deficiency include plants becoming chlorotic, that is yellowing and spindly.
From 2 December 2009, permanent water was applied to the Reiziq crops in that on 2, 3, 4, 5 and 6 December 2009, 30 ML of water was drawn from outlets P1, P2 and Q1 daily and used for "[f]illing up following top dressing and resowing, and spraying with herbicide" on P14 and P15. On 7, 8 and 9 December 2009, part of the 20 ML per day drawn from outlets Q1 and Q2 was used for "[m]aintaining water levels" on P14 and P15.
On 9 December 2009, Skycroppers sprayed parts of P14 and P15 with the grass herbicides recommended by Mr Cave on 27 November 2009. In particular, Skycroppers sprayed 31 ha of P14 ("leave out west bay") and 31 ha of P15 ("leave out west bay") with: 1. Aura at a rate of 0.2 L/ha; 2. Barnstorm at a rate of 0.5 L/ha; and 3. the wetting agent, Uptake, at the rate of 0.457 L/ha.
There was no explanation in the evidence why the west bays in each of P14 and P15 were left out.
Between 10 and 20 December 2009, 4, 5 or 6 ML per day was drawn from outlet Q1 for "[m]aintaining water levels" on P14 and P15.

[12]

State of the Reiziq crops on 20 December 2009

Prior to 20 December 2009, there was initially good and even germination of seed in both P14 and P15, except for the last bay in P15. On 20 December 2009, however, Ms Jones said that she observed many of the rice plants that had initially germinated well in P15 and grown thickly were then deteriorating. She did not explain the precise location, nature or extent of this deterioration. Nor did she describe any observations of the crop on P14 at this time.
Determining the specific location, nature and extent of deterioration, if any, observable on 20 December 2009 is not possible on the evidence. In the First Jones Affidavit, Ms Jones said (at par 142) that she took a series of photographs of the rice crop in block P15 on 20 December 2009 and copies were included in exhibit SPJ1:66 to that affidavit. There was, however, only one photograph in that exhibit (CB3/1112) and that is reproduced below.
The evidence was that the photograph reproduced above depicted the Reiziq crop on P15 on 20 December 2009. Ms Jones's evidence did not state that this photograph depicted any deterioration in that part of the crop shown in this photograph and, given what is depicted, it was not possible to conclude that it did. Nonetheless, the photograph clearly did not show the entirety of the Reiziq crop on P15. It was not suggested it depicted any part of the crop on P14.
In the Second Jones Affidavit, Ms Jones said (at par 95) that she inspected P15 on 20 December 2009 but on that occasion she "observed vast damage to the rice crop with very sparse growth of rice plants except for the rice plants growing within [a weed called] roly poly, which appeared thicker and healthier than the plants growing outside the roly poly". This is inconsistent with her evidence in the First Jones Affidavit that there was good and even germination of seed in P14 and P15, except for the last bay in P15, and that many of the rice plants in P15 had initially germinated well in that block and grown thickly. It is also inconsistent with the photograph of P15 above. Furthermore, the nature and location of the "vast damage" were not identified.
In par 95 of the Second Jones Affidavit, Ms Jones stated that "a copy of a photograph [she] took on 20 December 2009 of the rice growing in roly poly in P15" was at page 107 of SPJ-2. That photograph at p 107 (CB5/2048) is reproduced below.
There are at least three problems with this photograph and the evidence in par 95 of the Second Jones Affidavit. First, there was no identification of which bay or area was depicted in the photograph. It may be the last bay of P15. Secondly, if it was not the last bay of P15, it appeared inconsistent with the evidence in the First Jones Affidavit and the first photograph reproduced above. Thirdly and most surprisingly, this same photograph (p 107 of SPJ-2, CB5/2048) was also exhibited to the First Jones Affidavit at SPJ-1:68 (CB3/1116) and described, at par 153 of that affidavit, as a "copy of the photograph taken by me of the rice crop on 13 January 2010", but the paddock was not identified. Thus, the very same photograph was said to have been taken on both 20 December 2009 and 13 January 2010. [24]
Another unsatisfactory aspect of the evidence concerning this photograph said to have been taken on both 20 December 2009 and 13 January 2010 is that: 1. when reproduced at CB3/1116 and described in the First Jones Affidavit as having been taken on 13 January 2010, it is labelled "P15 20 Dec 2009.JPG / Modified on December 14, 2016"; but 2. when reproduced at CB5/2048 and described in the Second Jones Affidavit as having been taken on 20 December 2009, it is labelled "65-PC201338.JPG"; and 3. it is unclear whether and how the photograph or label or both might have been modified on 14 December 2016.
There was one other photograph (SPJ-2:105, CB5/2046) also said by Ms Jones in the Second Jones Affidavit to have been taken on 20 December 2009 and to relate to P15. That photograph is reproduced below.
Once again, there was no information given as to what specific bay or area is depicted in the photograph. It may be the last bay of P15. Nor was there any indication of whether it was representative of the crop on P15, as a whole.
There was no other specific or comprehensive evidence, either by way of description or photographs, as to the state of the Reiziq crop on P15 on 20 December 2009. There was also no specific or comprehensive evidence at all concerning the state of either part of the Reiziq crop on P14 at this time.
A further unsatisfactory aspect of the evidence concerning the state of the Reiziq crop on 20 December 2009 is that, although: (a) 20 ha of the crop on P14 was sown at a later time; (b) the last bay of P15 had not experienced good and even germination like the rest of the crop; and (c) various bays in P14 and P15 were treated differently from the others (for example, 21 ha out of 70 ha were not top dressed on 1 December 2009 and the "west bays" were not sprayed with herbicide on 9 December 2009), Ms Jones's evidence did not specifically address whether the "vast damage" or differences in the state of the crop were observed in those areas or bays, or more generally. Nor did Ms Jones's evidence address whether, if any differences were observed, they corresponded with: 1. the areas sown at different times; 2. the different treatment of the relevant bays or areas; 3. the areas that had been cut or filled when the landforming was carried out; or 4. particular conditions in the last bay of P15.
In the circumstances and unsatisfactory as the evidence was, I find that, as at 20 December 2009, the Reiziq crop on P15 had for the most part experienced good and even germination but the last bay of P15 experienced limited germination and less vigorous growth. The state of the rice crops on P14 was probably similar, with generally good germination and growth but there were areas where germination or growth was poor.

[13]

Watering and dewatering of the Reiziq crops

On 21 December 2009, 10 ML of water was drawn from outlets P1 and P2 for "[m]aintaining water levels" on P14 and P15. From about 22 December 2009, it appears that P14 and P15 were dewatered. Nonetheless between 22 and 29 December 2009, 1 ML of water was drawn daily from outlet P1. What this was used for was not explained.
In summary, the first permanent water was applied to the Reiziq crop on P14 and P15 from 2 December 2009 and maintained until 22 December 2009. Some water may have been kept on parts of P14 and P15 until about 29 December 2009.
In his oral evidence, Mr Cave described providing the advice to dewater as follows [25] : "… Some of the P blocks were on - had permanent water but very quickly you realised there was a problem and we dewatered some of those crops. The rule, if I put a crop on and it has permanent water and I put it on then I tend to drag the water off fairly quickly if something goes on, it's because you just - you can just reaerate it and it gives the crop a chance to get away. The crop won't live without permanent water, at some stage it needs permanent water but you can be a bit variable at the early start. Q. So your recollection is it was some of the crops, the P crops, you did put permanent water on? Advised to put permanent water on? A. Yeah, I reckon - yeah. Q. But you told his Honour something about taking that water off? A. Yeah, that's right, yeah and I think we dewatered, dewatered some fairly quickly. Q. That was advice you gave Ms Jones, was it, that you-- A. Yes. Q. --wished to - that she should dewater? A. Yes."
Given this evidence and that of the rice growing experts, which was consistent with this, I accepted that it was not unusual to put permanent water on a rice crop and find that the crop did not progress as well as anticipated and then dewater for a time to assist re-oxygenation of the soil and then put permanent water on again.
Finally, it can be noted that permanent water was apparently applied to P14 and P15 as a whole from 2 December, notwithstanding that parts of that paddock had been sown at different times and there had been subsequent partial resowing of the paddocks. It was not explained whether this resulted in permanent water being applied to the crops at different stages of development and whether this was a potential cause for the differences in the development of the Reiziq crops in the areas adversely affected.

[15]

Mr Hutchins's inspection of the Reiziq crops on 23 December 2009

On 23 December 2009, Mr Hutchins attended North Corynnia to inspect the rice crops at the request of Ms Jones. At this time, the Reiziq crops should not have had water on them if they were dewatered on 22 December 2009.
Mr Hutchins recorded his observations from that occasion in his report of June 2010. He specifically stated in that report that "[o]n this initial visit, my purpose was to inspect the damage with an open mind".
In his June 2010 report, Mr Hutchins's observations of the Reiziq crop on P14 and P15 were surprisingly uninformative as to the general state of the Reiziq crops. He did not attempt to provide a comprehensive assessment of the Reiziq crops at that time. Mr Hutchins did not mention the state of the crop on P15 on that date at all in section 7.2 of his June 2010 report, which is the section that dealt with his inspection on 23 December 2009. His observations of the Reiziq crops concerned areas of P14 which he identified as having "noticeable damage". Consequently, his observations are of limited assistance in providing a comprehensive assessment of the Reiziq crops on that date.
Mr Hutchins's observations of P14 were as follows: "Similar devastation [to that on Q13, "almost complete devastation of plants"] was evident in the Reiziq crop on P14, in areas where the water had concentrated prior to draining. In these areas, the crop had died (see Figure 7) and rice had not grown after resowing. Figure 7: P14 showing complete devastation where water had concentrated prior to draining or evaporating Where the water ran into the bays there was noticeable damage, especially in P14 which was established later with water from the Q channel (Figure 8). The rice lacked vigour and was showing signs of chlorosis. Figure 8: P14 showing damage at entry into a bay " "
Mr Hutchins's evidence in this regard may not be entirely reliable, for example, because he obviously assumed that the water used on the later sown parts of P14 came from the Q channel, fed by the Q1 and Q2 outlets, which is not borne out by the information in the Water Supply Details, which has been set out above. Nonetheless, unlike Ms Jones's evidence, Mr Hutchins did give some basis for identifying the location and nature of the "damage" on P14 on 23 December 2009. On the basis that Mr Hutchins could have observed "where water had concentrated prior to draining" or evaporating on P14 and where "water ran into the bays", I was prepared to accept this part of this evidence.
As noted above, Mr Hutchins did not state that he observed any "damage" or other problems with the Reiziq crop on P15 in section 7.2 of his report dealing with what he observed on 23 December 2009.
There was a photograph which purported to be of barnyard grass in P15 in Mr Hutchins's June 2010 report but there is no indication of when or where the photograph was taken. It is Figure 5 and was labelled "Barnyard Grass in P15 exhibiting red colouration and unusual prostrate habit with a thin plant stand of damaged rice seedlings". It will be recalled that areas of P14 and P15 had been sprayed with the herbicides Barnstorm and Aura, specifically to eradicate barnyard grass, on 9 December 2009. It was, in my view, only to be expected that barnyard grass would not be flourishing in the circumstances. Mr Hutchins did not mention in his June 2010 report the potential effect of the herbicides sprayed two weeks before his inspection on 23 December 2009.
By the time of his December 2016 report, Mr Hutchins had become aware of the two types of herbicide sprayed on parts of P14 and P15 in December 2009. He attempted to explain observations of weeds in the rice on those paddocks on 23 December 2009 as follows: "These plants [dirty dora] were not killed by the herbicide indicating that they were under stress. … Once again this application of herbicide [Barnstorm and Aura] was ineffective again indicating that the weeds were under stress. …" Mr Hutchins provided no reasoning to support these assertions. His evidence appeared to me to be inherently incredible. If plants or weeds were under stress, it was more, not less, likely that herbicides specifically targeting those plants or weeds would be effective at killing them. Mr Hutchins did not explain why this was not so and, in the absence of such an explanation, I was not prepared to accept this part of his evidence.
Given the lack of information as to the date of the photograph of the barnyard grass, the absence of identification of the location depicted, the failure by Mr Hutchins to refer to the earlier application of the herbicides in his June 2010 report, his unconvincing evidence 7 years later concerning the effect of the herbicides and the general unreliability of his evidence, I do not accept the photograph in Figure 5 provided any basis for making a finding as to the state of the Reiziq crop on P15 on 23 December 2009 or that what he observed concerning the barnyard grass was caused by the quality or contents of the irrigation water delivered by MI.
Mr Hutchins also included in his June 2010 report the observation that, on 23 December 2009, root damage on one rice plant could be seen. Mr Hutchins did not say where the one plant that was dug up from but, given the context, I infer that it probably came from P14, but it possibly came from P15. He described the damage as follows (in section 7.2 of his June 2010 report): "Root damage was extensive as shown in Figure 9 [a photograph of a rice plant]. The tips of the roots were dead and the roots had little vigour. New adventitious roots were emerging from the crown. I dug up the plant and carefully washed it, so the roots seen in Figure 9 were not damaged mechanically."
Mr Lacy and Prof Meyer, whose evidence I accept, were both of the view that this photograph showed prior bloodworm damage, together with some growth of new roots. I find that the plant had been attacked by bloodworm but was, at that time, recovering to a limited extent.
Although his June 2010 report did not contain any observations of P15 on 23 December 2009, Mr Hutchins's December 2016 report purported to include observations of the Reiziq crops in 2009 as follows: "The Reiziq crop in P14 and P15 lacked vigour and was developing chlorotic symptoms and the tillers were dropping off. Root development was severely restricted to the point of being almost non-existent, indicating some form of toxicity."
This statement in the December 2016 report was in more dramatic terms than what was stated in section 7.2 of his June 2010 report. In the earlier report, the crop on P15 was not mentioned at all in his observations on 23 December 2009 and the chlorotic condition of the P14 crop was only said to be observed in specified areas. It is generally inconsistent with Ms Jones's photographs of the crop on P15 taken 3 days earlier on 20 December 2009 reproduced above (SPJ1:66 CB3/1112 and SPJ-2:105, CB5/2046). It is also inconsistent with what was shown in the photograph of the rice plant which was Figure 9 in the June 2010 report where root development was evident but there was damage consistent with bloodworm attack although new roots were emerging from near the rice stems or tillers. No explanation was given why the December 2016 report differed from the June 2010 report. Nor did Mr Hutchins support these different observations in the December 2016 report by reference to notes made, or photographs taken, at about the time of his inspection on 23 December 2009. In these circumstances, I did not accept that Mr Hutchins's evidence given seven years after the inspection was wholly reliable or deserved significant weight.
Furthermore, his opinion that what he observed indicated "some form of toxicity" was unsupported by any reasoning. He did not consider: 1. whether root damage was caused by bloodworm attack; or 2. whether the lack of vigour, chlorotic symptoms and tillers dropping off were caused by nitrogen deficiency, given the failure to top dress some areas at all and the low rate of top dressing of the remainder; or 3. whether other problems with specific areas of P14 or the last bay of P15 were caused by: poor landforming or layout leading to the pooling of water and waterlogging of the soil; or, lack of remediation of cut areas after landforming.
Nor was Mr Hutchins's conclusion that what he observed was caused by toxicity accepted by Mr Lacy or Prof Meyer. His conclusion at that point should not be accepted.

[16]

Findings as to the state of the Reiziq crops on 23 December 2009

Based on my findings as to rice growing in the MIA and as to the sowing and treatment of the Reiziq on P14 and P15, Mr Hutchins's limited record of his observations on 23 December 2009, the photographs, to the extent that they can be relied upon, and Ms Jones's evidence where it is consistent with Mr Michael Armstrong's evidence and other evidence, I find that on 23 December 2009, in relation to the Reiziq crops: 1. there was generally good and even germination of the Reiziq crops on P14 and P15 but there was a lesser rate of germination in the last bay of P15; 2. the difference in germination observed in the last bay of P15 cannot be attributed to the water applied to that bay, whether as a result of toxicity, contamination or otherwise, because the same water had been applied to the other bays in P15 which had experienced good and even germination; 3. rice plants in P14 and P15 had root damage consistent with damage from bloodworm attack but were showing some signs of recovery; 4. the chlorotic symptoms and lack of vigour, consistent with nitrogen deficiency and bloodworm attack, observable in P15 were not significant enough to warrant comment by Mr Hutchins in section 7.2 of his June 2010 report; 5. the areas of "damage" significant enough to record in Mr Hutchins's June 2010 report were: 1. areas in P14 where water concentrated prior to draining or evaporating and in those areas the rice had not germinated or had died after germination, which was consistent with: 1. water remaining in those areas after sowing and flushing so that the ground became waterlogged and the seed did not germinate; or 2. water remaining on the rice plants after germination but before the plants could make the transition from aerobic to non-aerobic conditions at the roots so that the plants were weakened or died because of waterlogged soil, nitrogen deficiency and/or bloodworm attack; and 1. areas in the part of the 20 ha of P14 that was sown later on 4 November 2009 and where water ran into the bays, and in those areas the rice lacked vigour and showed signs of chlorosis, consistent with waterlogged soil, nitrogen deficiency and/or bloodworm attack; and 1. the evidence did not establish: 1. the size of the "damaged" areas on P14 observed by Mr Hutchins or what proportion of P14 was, to his observation, "damaged"; or 2. whether or not the "damaged" areas observed by Mr Hutchins corresponded in any way with the bays that were not top dressed or sprayed on 9 and 13 December 2009 or areas that were deprived of top soil by cutting during the landforming in P14.

[21]

First application of water to the Illabong crop

The Water Supply Details record that on 28 November 2009, 10 ML was drawn from outlet Q1 and used to fill the system for Q13. Thereafter: 1. on 29 and 30 November 2009, 20 ML was drawn daily from outlets Q1 and Q2 and was used for flushing Q13; and 2. on 1 December 2009, 30 ML was drawn from outlets P1, P2 and Q1 was were used for flushing Q13.
It can be noted here that Ms Jones gave evidence in par 138 of the First Jones Affidavit, in the context of other evidence dealing with the Illabong crop, that "[i]n early December 2009" she was present when an unidentified "channel attendant of MI" released water into North Corynnia. Ms Jones says that she noted that the water was very dirty and the attendant responded: "It is the last of the water stored in the Intermediate Cell at Barren Box."
It is unclear in what capacity the channel attendant was acting or whether releasing water into North Corynnia was a function performed on behalf of MI. Since it was Ms Jones's decision whether and when to take irrigation water onto her property, the channel attendant may have been acting on Ms Jones's instructions or on her behalf when he or she "released the water into 'North Corynnia'".
The evidence did not establish whether a channel attendant of MI would be likely to know the precise source of water at a farmer's outlet immediately before it was released into the property.
In addition, there was no other evidence supporting the occurrence, timing or terms of this conversation. Moreover, Ms Jones gave no specific details as to whether the irrigation water in question was drawn through the P or the Q outlets, whether it was used to irrigate the Illabong crop or the Reiziq crops or both, how much of the water she observed on that occasion was "very dirty", what the nature of the dirtiness was or whether it was typical of the water delivered by MI to North Corynnia. Mr Michael Armstrong's evidence was that the water supplied to North Corynnia had "always been soupy".
I found above, based on the evidence of Mr Lacy and Prof Meyer, that flushing a rice crop with turbid or dirty water will generally have little or no impact upon the germination or growth of a rice crop sown by the method used for the Illabong crop or the Reiziq crops.
Consequently, even if the evidence of the observation and conversation were to be accepted, in my view, it would not be sufficient to justify an inference that there was a relationship between this incident involving some very dirty water and the problems experienced by Ms Jones's rice crops in 2009/10 or subsequently.
Returning to the initial application of water to the Illabong crop, there was no specific evidence as to how long water from this first flush remained on Q13 but water was drawn for "[f]lushing" Q13 for three days, after the "system" had been filled, according to the Water Supply Details.

[22]

Lack of observed germination of the Illabong crop

Following the initial flushing of the rice crop on Q13, Ms Jones said that she and Mr Cave searched the paddock for evidence of germinating rice seed but very few germinating rice seeds could be located. This evidence was consistent with Mr Cave's evidence and subsequent observations of Q13 and photographs. Thus, I was prepared to accept it.
In light of my findings concerning rice growing in the MIA set out above, possible explanations for what was observed include: 1. The water in the first flush over the newly sown seed and fertiliser was allowed to stay on the paddock too long with the result that: 1. the soil became waterlogged depriving the seeds of oxygen needed for germination and, as a consequence, the seed failed to germinate or failed to thrive if germination occurred; 2. bloodworms attacked and killed the germinating seeds and the seedlings. Although Dominex Duo was dripped into this water, this may not have been generally effective as dripping was not the recommended method of application, which is aerial spraying; 1. Some seed germinated but the seedlings grew under the crust that had formed and did not break through the crust; 2. As a result of the process of sowing and rolling used and the first flush, seeds were pushed down very deep into the soil so that some seed, lacking adequate oxygen, did not germinate and seed that did germinate had difficulty reaching the surface through the crust; or 3. a combination of these explanations.
The evidence of Ms Jones's management of the Illabong crop was not sufficiently comprehensive, detailed or reliable to allow any of these explanations to be excluded.
The evidence did not establish whether, when Ms Jones and Mr Cave inspected the Illabong crop after the first flush, they dug down into the soil to see whether germination had taken place below the crust. If there was germination below the crust, a second flush would be used to soften the crust and assist shoots to break through.

[26]

Mr Hutchins inspected the Illabong crop on 23 December 2009

As noted above in relation to the Reiziq crops, on 23 December 2009, Mr Hutchins attended North Corynnia. On that occasion, he also inspected the Illabong crop.
Mr Hutchins's evidence concerning his inspection of the crops on 23 December 2009 was contained in his June 2010 report, to which I have referred earlier. In relation to the Illabong crop, Mr Hutchins observations were: "There was no rice remaining except for an odd very sick plant. The scene was one of utter devastation such as I have rarely seen. The only plants growing were a few native millet … and perennial Lovegrass … plants, which were looking quite stressed. The photo of Q13 (Figure 6) below demonstrates the almost complete devastation of plants on the block, notably: ➢ the total absence of the normal annual weeds such as Barnyard Grass …, Bathurst burr … etc; and ➢ the complete absence of rice plants. The damage was evident across the 26 ha block where the ground had been inundated. I immediately collected samples of soil from the block, with the intention of testing the samples for traces of Diuron. Diuron is a residual herbicide that kills plants by inhibiting the process of photosynthesis, and is absorbed by the plant via the root system …"
Figure 6 (CB5/2126) referred to by Mr Hutchins is reproduced below:
This photograph appeared to show the crusting characteristic of the sodic soils in the MIA.
The photograph, Figure 6, also shows that there are plants growing on Q13. The description, which is quoted above, of what the photograph depicted refers to "the total absence of the normal annual weeds …" and "the complete absence of rice plants" and the figure is labelled "showing almost complete devastation of plants on the block". In the circumstances, I am satisfied that Mr Hutchins was using emphatic and absolute language to try to make a point rather than attempting to be strictly or scientifically accurate. There are plants shown in the photograph. Given the similarity of all the plants, they may well be rice plants but the evidence did not establish that they were.
Another example of Mr Hutchins's rhetorical or emotional, rather than factual, reporting style in his reports was his description of Q13 as "[t]he scene was one of utter devastation".
Mr Hutchins then said that he "immediately collected samples of soil from across the [Q13] block with the intention of testing the samples for traces of Diuron" which is a residual herbicide that kills plants by inhibiting photosynthesis and is absorbed through the roots. It did not appear that he seriously considered at that stage, or for that matter at any other stage, other possible explanations for what could be observed, such as the potential explanations referred to earlier in these reasons.
Mr Hutchins's "immediate" reaction involved seeking an exogenous explanation without apparently considering in detail whether Ms Jones's farming practices and water management might have caused or contributed to the state of the crop that he observed.
Further examples of rhetorical, rather than scientifically accurate, descriptions can be found in Mr Hutchins's December 2016 report concerning his observations of the Illabong crop seven years earlier. The December 2016 report did not, in my view, add anything of substance concerning the Illabong crop as observed on 23 December 2009.
Nonetheless, I accept that the state of the Illabong crop on 23 December 2009 meant that it was unlikely to become viable. However, the way in which that cropping was prepared and managed could not be excluded as the explanation, in whole or in part, for the state of the crop on 23 December 2009. Mr Hutchins's immediate conclusion that the state of the crop was attributable to toxicity or contamination of the water from Diuron turned out not to be the case, as Mr Hutchins recorded in his reports.

[28]

Ms Jones's first complaint to MI and inspections

On 24 December 2009, the day after Mr Hutchins's first inspection of the rice crops on North Corynnia, Ms Jones contacted Mr Kelly, Environmental Manager of MI. There was a dispute between Ms Jones and Mr Kelly as to what had been said during their conversation. Ms Jones's evidence was that the conversation was: "SJ: 'The rice crops have been devastated and I believe it is MI water that has caused the damage' RK: 'We will test some of the damaged plants to see if we can establish a cause of damage."
Mr Kelly's evidence (CB12/5373) was that the conversation contained the following: SJ: "I believe the water supply has been sabotaged and that is what has killed my rice." RK: "If you truly believe it has been sabotaged, you should call the police as it is a police matter." SJ: "The damage occurred in early November." "Sigrid [Tijs] will come out and have a look after Christmas".
There are difficulties with both versions. In Ms Jones's case, Mr Hutchins had only told her that the Illabong crop was devastated not both crops. Also at this time, Mr Cave believed that although the Illabong crop was gone, there was hope that they could get the Reiziq back. As a result, it is unlikely that she said "[t]he rice crops [in the plural] have been devastated". On the other hand, in Mr Kelly's affidavit (at CB12/5373) where he recounts this conversation, there are words missing at the end of par 93 and the beginning of par 97, which undermines the reliability of his evidence. In addition, on his version, Ms Jones said that the damage occurred in early November, which is unlikely as the Illabong crop was only sown on 28 November 2009.
An almost contemporaneous record is found in Ms Jones's email to Mr Hutchins of 30 December 2009 in which she thanked Mr Hutchins for inspecting her rice crop on 23 December 2009 and said that Mr Hutchins discovered that "my rice crop was comprehensively damaged by the water applied to it". As a result she contacted a representative of MI, Mr Priest, "to advise that there had been chemical damage to my crop via the water".
According to Ms Tijs's evidence, Mr Kelly told her on 24 December 2009 that Ms Jones had made a complaint about "suspected chemical damage" to her rice in November.
I find that Ms Jones's complaint on 24 December 2009, her first complaint to MI, involved an allegation of chemical damage to her Illabong rice crop.
On 24 December 2009, Ms Jones collected sample plants and placed them in a refrigerator. These were provided to Mr Hutchins on 30 December 2009.

[34]

Ms Jones's very unsatisfactory evidence concerning bloodworms

As has already been noted above, Ms Jones did not mention in the First Jones Affidavit either inspecting the crops on 29 December 2009 with Ms Tijs or bloodworms. In response to Ms Tijs's affidavit, where these matters were raised, Ms Jones stated in the Second Jones Affidavit that: "62. … In fact, I pulled out and handed to Ms Tijs a number of rice plants from bay P15. The roots of those plaints were covered in soil. I did not observe any bloodworms on the roots of the rice plants or in the soil surrounding them. 63. At the time, we were standing next to one of the bankless channels of P15. As outlined below, I had been treating the incoming water with a pesticide called Dominex Duo, in order to kill all bloodworms as they entered the rice crops. At page 105 of the exhibit is a copy of a photograph that I took on 20 December 2009 of a mass of dead bloodworms floating on the surface of the bankless channel of P15. At page 106 of the exhibit is a copy of a photograph that I took on 21 December 2009 of a mass of dead bloodworms floating on the surface of the bankless channel of P15. 64. The photos at pages 26 to 28 of the exhibit to Ms Tijs's affidavit show rice plants that had been washed in the bankless channel. I believe that the photos show dead bloodworms from the bankless channel."
There are a number of problems with this evidence and Ms Jones's evidence concerning bloodworms in her rice crops generally.
First, the Rice Cropping Program established that Ms Jones did not treat P14 and P15 with Dominex Duo at any time after sowing on 28 October and 4 November 2009. Her evidence at par 63 that she was using Dominex Duo at about 29 December 2009 was, therefore, incorrect. The only bloodworm treatment applied to P14 and P15 after sowing was on 13 January 2010, when Skycroppers aerially sprayed Lorsban over some parts, but not all, of those paddocks. For similar reasons already explained above, I also rejected Ms Jones further evidence concerning her treating P14 and P15 for bloodworms with Dominex Duo in late 2009 at pars 84 to 87 of the Second Jones Affidavit.
Secondly, to the extent that Ms Jones was attempting to suggest in par 63 that she was "treating the incoming water with … Dominex Duo" at about 29 December 2009, this was also incorrect because there would have been no incoming water at that time, since P14 and P15 had been dewatered on 22 December 2009. In light of Mr Cave's evidence as to his general advice concerning bloodworm treatments and the fact that Dominex Duo was applied to the Reiziq crops by dripping it into the incoming water on 28 October and 4 November 2009, according to the Rice Cropping Program, it is more likely that Ms Jones observed bloodworm in the water at about 28 October and 4 November 2009 and not on about 29 December 2009.
Thirdly, in the paragraphs quoted above, Ms Jones appeared to be attempting to convey that the bloodworms came onto her crops in late December 2009 in the water supplied by MI and, as a result, it was implied that MI (and not Ms Jones) was responsible for the bloodworms in her crops. Even if there were no other problems with this evidence, I am not satisfied that this implication is correct. No substantial amount of water was being drawn by Ms Jones at about this time. Further, the bloodworm midge lays its eggs in water that is essentially still, not water flowing in channels, and once hatched the bloodworms go into the soil. It was more probable that the bloodworms observed on 29 December 2009 hatched from eggs laid in the still water on or near P14 and P15 at about that time. That still water may have been in areas of the paddocks that did not drain on dewatering or in the supply channels and drains around the paddocks.
Fourthly, Ms Jones was cross-examined about Ms Tijs finding bloodworms on the rice plant's roots on 29 December 2009. Her oral evidence in this regard was unsatisfactory and at times inconsistent with her evidence in the Second Jones Affidavit quoted above. At first during this cross-examination, Ms Jones denied having any recollection of Ms Tijs inspecting a rice plant and finding a number of bloodworms on the roots, [28] despite her evidence in pars 62-64 of the Second Jones Affidavit. When shown the photographs that Ms Jones had commented on in par 64 of the Second Jones Affidavit, she claimed it was difficult to see whether the photograph showed bloodworms because it was a copy and because she did not know where the plant was obtained. [29] The next day, the cross examiner took Ms Jones to enlarged copies of the relevant photographs which were high quality colour reproductions that were, to my observation, very clear. Ms Jones continued to deny that she could identify any bloodworms in the photographs. [30] In the cross-examination which followed and took up some pages of transcript, Ms Jones resolutely, but not convincingly, refused to acknowledge that she could see something that she knew to be a bloodworm in the photographs. [31] Next, Ms Jones claimed not to know whether she was with Ms Tijs when the rice plant was pulled out, contrary to what was in par 62 of the Second Jones Affidavit. [32] Ms Jones denied any recollection of Ms Tijs taking photographs of the rice plants with bloodworms on the roots or that Ms Tijs took the photographs at that time. [33] Eventually, however, when Ms Jones was asked by me whether the things depicted in the enlarged photographs corresponded in appearance with what Ms Jones understood to be the appearance of bloodworms, she said yes. [34]
Considering the content of this evidence and observing the way in which it was given, I formed the distinct view that Ms Jones was not genuinely attempting to answer the cross examiner's questions but rather was seeking to deny the presence of bloodworm in her Reiziq crops and to deflect any responsibility for the presence of bloodworms from herself, as the farmer, even by giving incredible, inconsistent and incoherent evidence.
Not only did this undermine my confidence in the reliability of her evidence concerning the management of her rice crops and the identification of causes of the problems she encountered, it also suggested forcefully to me that Ms Jones appreciated, but did not wish to admit in any way, that: 1. bloodworm attack was likely to be a significant factor in the failure of her rice crops; and 2. she was responsible because of her water management and her failure to spray the Reiziq crops with Lorsban at about the time permanent water was applied or to take other timely or effective steps to eliminate or mitigate bloodworm attacks.

[40]

Inspection on 4 January 2010

Ms Tijs attended North Corynnia later on 4 January 2010 and there spoke with Ms Jones, Mr Cave and Mr Hutchins. Mr Cave said that the root system had been so affected in one of the bays in the Reiziq crop that even if the crop picked up again, the plants would not be able to support filling grain. However, in other bays where the rice was better looking, Mr Cave demonstrated that the plants could not be pulled out so easily. It was Mr Cave's opinion that this was a sign of a more developed root system and that bay still had a yield potential of 7-8 t/ha. The location of these bays was not identified in the evidence nor was the extent of the crop affected by poor or damaged root system development specified.
Ms Jones raised deoxygenation of the water as a cause of the problem. While Mr Cave agreed that it was and Ms Tijs said that they should wait for the test results to come back, Mr Hutchins, in effect, avoided the question by mentioning the weeds in the channel.
At this time, Ms Jones said that she believed MI's weed control program had caused an excess of decomposing organic material in the channels, and that this organic matter had caused deoxygenation in the water. She also said that she believed the undershot nature of the outlets had made the situation worse.
Mr Hutchins's report of June 2010 recorded his observations of the rice crops on 4 January 2010. He observed that, although there had been rain over the Christmas period and he anticipated a positive response to the rain, the plants that "remained inundated" continued to deteriorate. He concluded that this decline in health of the inundated plants confirmed the role of the water in causing the damage. If he meant that the quality of the water caused the damage, his conclusion does not follow from his observations. Assuming, as seems reasonable, the rain water was not contaminated with herbicides, was not deoxygenated, was not turbid when it fell, and did not contain toxic levels of metals, the more probable conclusion would be that the mere presence of water caused the problems. This would be consistent with waterlogging inhibiting growth before the plants could make the transition from aerobic to anaerobic conditions or bloodworms hatching in the still water and attacking the roots or a combination of such problems.
Mr Hutchins noted that "[m]ost of the Reiziq crop had been dewatered" but his figure 12 in his June 2010 report showed a pool of still water in the crop. This confirmed that the landforming or layout on P14 and P15 was such that water remained on certain areas even some days or weeks after dewatering. As a result, when the crop had been originally flushed, water would also have remained on those areas for days or weeks, rather than the approximately 12 hours accepted by the expert witnesses as the appropriate length of time. These areas would remain underwater or waterlogged, which would have inhibited germination and initial growth and would have rendered any plants in the water susceptible to bloodworm attack. Mr Hutchins did not, however, consider in any detail these possible explanations for what he observed in relation to the Reiziq crops.
Nonetheless, Mr Hutchins observed that most of the Reiziq crop: "showed signs of recovery such as vigour and colour … but less so in P14. Rice plants in P14 remained stunted, and there was no plant germination of any kind in previously bare areas. Rice leaves were noticeably thin."
In this regard, however, Mr Hutchins's report failed to provide any specific information as to where his observations were made or what areas or proportions of P14 and P15 were affected.
When he examined the roots of plants, Mr Hutchins observed clear signs of damage. As described by him, the damage was consistent with Mr Lacy and Prof Meyer's description of damage from bloodworm attack and nitrogen deficiency.
Mr Hutchins recorded that on this occasion, Ms Jones "recommended irrigation of the Reiziq rice crop", which is difficult to reconcile with a belief that the water used for irrigation was contaminated or was otherwise unsuitable for irrigation use.

[45]

Test results for the MI water samples

MI received the test results issued on 5 January 2010 for the sample of water taken by Ms Tijs from "Bay 3" on 29 December 2009. On 7 January 2010, MI informed Ms Jones of those results by email. The results indicated that the level of Diuron, which Mr Hutchins originally suspected might have caused the damage, was below the detectable level. [35] This was consistent with Ms Tijs's notes which recorded that no weed control, which, as I understood it, would usually involve treatment with herbicides such as Diuron, had been carried out by MI since late November on relevant supply channels. The email to Ms Jones also stated: "We have received the results from the water sample which was taken from Bay 3 of your Reiziq crop on 29 December 2009. The sample was taken and to try to determine a cause for the poor state of your crop, which at the time you thought was due to herbicide damage. The water had been in the bay for approximately one month. Evapotranspiration of about 344 mm as well is a total of approximately the 26 mm of rainfall took place during the month of December 2009 and this would obviously have affected the concentration of any chemicals present. The laboratory reported trace (negligible) levels of a number of chemicals as well as a notification level of diazinon. This chemical is registered for use on rice and is a pesticide for the control of sucking and leaf eating insects. We expect results from our water sampling of 3 & 4 January early next week."
On 11 January 2011, the test results for the water samples taken by MI on 3 and 4 January 2010 were provided to MI. [36] The results for biochemical oxygen demand (BOD) and chemical oxygen demand (COD) did not indicate that there was any significant deoxygenation of the water tested. Three samples were tested and the results were as follows: Sample [37] COD BOD "30P - Carinya [sic]" <5 mg/L 10 mg/L "No2 Offtake" <5 mg/L 7 mg/L "30L Carinya [sic]" <5 mg/L 7 mg/L

[51]

Mr Hutchins's inspection on 21 January 2010

Mr Hutchins inspected the rice crops on North Corynnia for the last time on 21 January 2010. He recorded in his June 2010 report that, by then, Ms Jones had applied a phosphorous based foliar fertiliser with calcium nitrate. This observation is surprising in that it refers to part of the spraying carried out on 13 January 2010 but does not mention that Lorsban was applied on that same day to address the bloodworm problem identified by Mr Cave, on 11 January 2010.
Mr Hutchins said that since 13 January 2010 there had been a further marked deterioration of rice and weeds. He found bronzing of rice leaves, commensurate with the time exposed to water.
On the Illabong paddock, Q13, he said that the Bathurst Burr was dying or dead. However, on top of the banks the burrs were prospering but lower down they were dying.
As to the Reiziq crops, according to Mr Hutchins, the tips and leaves of the Reiziq plants had become chlorotic where the plants had been inundated. The barnyard grass was also chlorotic often with purple leaves and prostrate growth. Specifically concerning the rice on P15, Mr Hutchins's report included the following: "[t]he P15 rice crop was quite chlorotic and necrotic, as can be seen from Figure 24, and the crop developed dead tips where it had been re-flooded for the longest period.
Mr Hutchins then went on to describe chlorotic and unhealthy weeds, apparently in P15.
Finally, in relation to the Reiziq crops Mr Hutchins said in his June 2010 report: "Plants that had been inundated continuously were more damaged than those that had been periodically deflooded. In Figure 28 (photo from [Ms Jones]), a rice plant from a shallow borrow pit … is compared to one from the bay … . Both are stunted, chlorotic and have thin leaves and extensive root damage, however the inundated plant is more severely affected."
Thereafter in his report, Mr Hutchins went on to describe vegetation along the P channel and the Corynnia Channel which in many cases he described as chlorotic. Mr Hutchins also included photographs of the channels - Figures 29 - 35. Even acknowledging the difficulties inherent in attempting to derive information from photographs, I do not accept that Mr Hutchins's descriptions of lack of weeds, chlorotic or sick or dying plants depicted in the photographs are entirely consistent with, or obviously discernible from, the photographs themselves, for example, in figures 29, 31, 32 or 33.
Before leaving Mr Hutchins's observations on 21 January 2010, it is appropriate to note specific comments made by Mr Lacy and Prof Meyer concerning what the photographs of chlorotic plants in Mr Hutchins's report might indicate. Prof Meyer, when discussing nitrogen deficiency, during the experts' concurrent evidence, said that the photographs in Mr Hutchins's report depicted nitrogen deficient plants - chlorotic, yellowing plants with spindly characteristics. [40] Mr Lacy's evidence in this regard was: [41] "I agree with [Prof] Meyer that … Mr Hutchins photos … showed very severe nitrogen deficiency and … if you want to read a bit more about what - and, then, you know, just stunted plants, and you also get [much] less till[er]ing, and there's a section in, "Production of Quality Rice," manual, written … by the experts of what nitrogen deficiency looks like … and … Mr Hutchins photos just … are exactly … the description … in that manual that … Professor Meyer and I have just described."
In response to this, Mr Hutchins made a number of comments but the only comment concerning nitrogen deficiency was: [42] "But, the evidence is that it was 123 kilograms of urea applied on 1 December. So, that would have counteracted any nitrogen deficiency that arose if the Maximiser was all lost. So, I, I - and the other comment I want to make is that if you remove a root system from a plant, no matter what - by what reason, be it bloodworm, or be it some toxin - of course it's going to look nitrogen deficient because the roots can't take it up."
It will be noted that Mr Hutchins did not dispute that his photographs depicted nitrogen deficient plants but he sought to explain the deficiency by reference to damaged root systems caused, for example, by bloodworm or toxins.
I accept Prof Meyer's and Mr Lacy's evidence in this regard and in relation to the quantity of urea required on a crop such as Ms Jones's Reiziq crops. I also find, based on Mr Hutchins's evidence, which was consistent with other evidence given by Prof Meyer and Mr Lacy, that bloodworm damage to the roots of plants could inhibit the uptake of nitrogen and lead to their being nitrogen deficient or exacerbate pre-existing nitrogen deficiency. Furthermore, from the evidence of Prof Meyer and Prof Bush, I accept that deoxygenation of the water in the root zone of the rice plants can lead to denitrification and other forms of consequent toxicity in that zone.
The Reiziq crop having been abandoned on about 20 January 2009, Mr Hutchins did not inspect the crop after his visit on 21 January 2009.
It can be noted here that the photographs that Ms Jones says that she took of the southern bankless channel of P15 on 23 January 2010 and the northern bankless channel on 30 January 2010, [43] days or a week after deciding to abandon the Reiziq crops, show significant green, as opposed to yellowish, rice in the bays of P15 next to the bankless channels, even though the channels themselves, which were no longer being used for irrigation, appear to have debris and sludge floating in them. Even allowing for the different coloration of reproductions of photographs, the rice shown in these photographs does not obviously correspond with the photographs of the rice taken by Mr Hutchins on 21 January 2010. The evidence did not provide any explanation for the differences.

[52]

Prof Meyer's analysis of where the Reiziq crops suffered damage

In order to consider the cause or causes of the problems with Ms Jones's 2009/10 rice crops, I have also had regard to the analysis carried out by Prof Meyer of the areas where topsoil was cut from P14 and P15 and used to fill other areas. This analysis was not challenged by cross examination of Prof Meyer and was, in my view, logical, convincingly explained and properly based on the documentation to which he referred. For these reasons and in light of my other conclusions concerning the expert witnesses in this matter, I accept Prof Meyer's analysis and conclusions, including that: [44] "… The variable seedling establishment on P14 and P15 is strongly associated with the cut and fill patterns of land forming as illustrated by comparing the patterns from Annexures D3 and D4 and from the Landsat images in Annexure J, image from 1 Jan to 2 Feb 2010. A large patch in P14 that had the top soil removed (cut) showed no signed of seedling establishment. In P14 and P15 the initially poor seedling growth and establishment due largely to the very poor nitrogen status of the soil was later partially offset by the crop responding to the nitrogen fertilizer aerially applied on 1 December. The duration of the green canopy in the uncut areas of P14 and P15 even after watering ceased … suggests to me that there is a high likelihood that a harvestable crop could have resulted if additional nitrogen fertilizer was applied and irrigation had not ceased. …"
Based on that evidence, Prof Meyer's cut and fill contour drawings and the Landsat images, I find that to a significant extent seedling establishment in the Reiziq crops was poor or very poor in areas where the cutting during landforming of P14 and P15 equalled or exceeded 5 cm. [45]
I did not understand Prof Bush's comment that he "looked at the evidence in relation to the variability and I couldn't find any pattern or systematic relationship between … the sporadic … failure of the crop, and the variability in the soil, in the soil properties of a [as?] reported" [46] to be inconsistent with Prof Meyer's conclusions. Prof Bush was addressing the question: "what mechanisms are there which would cause the non-uniform symptoms?". [47] He was addressing reported soil properties not Prof Meyer's analysis at that point. Later, in response to a question concerning the effect of landforming on "the chemical and physical fertility of the soils that been subject of landforming", Prof Bush said: [48] "It is, that is typically observed because when you landform you essentially are scalping from some areas and filling in another, and it's, it's well understood that the properties vertically down the soil profile will vary in terms of the amount of organic matter, the nutrients, physical properties, the amount of clay, their pH, all sorts of properties do vary down profile and essentially by scalping some parts and filling others you're changing the growing conditions for the crop, which is generally grown in a topsoil of about 15 centimetres."
In essence, the other experts did not disagree with Prof Bush's evidence in this regard, which was consistent with Prof Meyer's analysis. Prof Cook and Mr Mulvey did, however, contend that the particular soil on North Corynnia did not display a profile with marked differences down the profile and consequently cutting and filling may not have as marked an impact as in some other cases.

[56]

Star Brothers' rice crop on Dry Lake

In 2009/10, Star Brothers Farming Pty Ltd, of which Mr Gregory Star is a director, grew rice on block 30L, which is part of the property known as Dry Lake and is immediately to the north of blocks 30P and 30Q where Ms Jones grew rice in 2009/10.
The water used to irrigate Star Brothers' rice crop in 2009/10 was delivered by MI through the Corynnia Channel and then Corynnia Channel 3, which branches off the Corynnia Channel at regulator G where Corynnia Channel 2 also branches off the Corynnia Channel. Water for Ms Jones's 2009/10 rice crops was delivered through the Corynnia Channel and Channel 2.
As Mr Star explained in his evidence referred to above, Star Brothers did not rely on water flowing over the escape, at the end of Corynnia Channel 3, to provide water for their rice crops, as it was too intermittent. They drew water through the Doppler metered outlets 30L1 and 30L2 on Corynnia Channel 3 for their rice on 30L.
In 2009/10, Star Brothers grew 43 ha of Langi rice sown in mid-October 2009 on 30L. In that season and given the sowing method used, namely dry broadcast seed onto a prepared seed bed, permanent water was applied almost immediately after sowing. [49] The water level was maintained at around 25 mm and it took around six to eight weeks until the growing tips of the rice plants emerged from the water.
In total, Star Brothers applied urea at the rate of 375 kg/ha. Two thirds were applied at sowing and one third in about mid-January 2010. This split is appropriate where, given the sowing method used, 25 mm of permanent water is applied at about the time of sowing.
In or about the first week of 2010, Ms Jones called Mr Star and asked if he had had any trouble with the rice crop on Dry Lake. He said that he had sprayed the crop with herbicide which, given the weather, scalded the crop but by draining the water and re-watering, with the advice of his agronomist, Mr Peter Hill, they managed to save the crop. Ms Jones gave a slightly different version of what appeared to be the same conversation. In her version, Mr Star acknowledged that the water delivered by MI was "very dirty" and that he had to treat the crop for bloodworm three times and drain it.
Whichever version is correct, neither herbicide scalding nor bloodworm nor dirty water led to the Star Brothers' crop failing. When the crop was harvested in late April/early May, they obtained 431 t from the 43 ha, which Mr Star considered a very good yield for long grain rice, such as Langi, in that season.
Although Mr Star inspected his rice crop almost every day in 2009/10, he did not notice any problems with the irrigation water. He said he had not noticed any problem with the irrigation water used to grow rice crops in later seasons, up to the date he gave his affidavit in February 2018. There was evidence of black or dark water being delivered by MI to Star Brothers in 2019 and an arrangement being made to flush that water out of the system by sending further water down the channels. I do not accept that this evidence concerning an incident about 10 years after the 2009/10 season had any relevant role to play in determining the issues in the present case.

[59]

Investigations by Ms Jones from January to June 2010

In the First Jones Affidavit, Ms Jones's evidence was that from early January to early February 2010, she arranged for various soil, water and plant samples to be taken and sent for testing by Sydney Environmental & Soil Laboratory Pty Ltd (SESL). She gave no specific evidence to identify precisely where, when, how or by whom the samples were taken. Some test results from SESL for that period were contained in exhibit SJP-1:69 to the First Jones Affidavit. Some of these results were signed on behalf of SESL and some were not. From the results exhibited, it appeared that Ms Jones continued to cause samples to be collected until about May 2010.
The results were identified by batch number and sample and contained information such as "sample detail" and date received by SESL: [52] The results exhibited to the First Jones Affidavit related to batches and samples, and were signed or unsigned, as follows: 1. Batch 12765, water samples 1 ("Water 1") and 2 ("Water 2") and soil samples 4 ("Q Block"), 5 ("P Block Bay4/5 Nth") and 6 ("P Block Bottom Bay") - received by SESL on 7 or 8 January 2010, all unsigned; 2. Batch 12919, plant samples 1 ("Rice Leaf") and 2 ("Rice Roots") with two sets of results for sample 2 because different parts of the plant were tested - received by SESL on 20 January 2010, all signed; 3. Batch 12919A, sample 1, which was apparently additional testing of batch 12919 sample 1, with two sets of results because different parts of the plant were tested - received by SESL on 29 January 2010, all signed; 4. Batch 13070, water samples 1 ("Q13 NE"), 2 ("S+D"), 3 ("P Doppler") , 4 ("Corynnia Channel"), 5 ("Recycled Drain") and 6 ("P14") and soil sample 7 ("Pink Layer") - received by SESL on 3 February 2010, all signed; 5. Batch 12992R, soil samples 1 ("Road 6/w P&Q") and 2 ("Q12") - received by SESL on 5 February 2010, all unsigned; 6. Batch 12993R, soil sample 1 ("Bottom of Channel") - received by SESL on 5 February 2010, signed; 7. Batch 13257, plant samples 1 ("Dry Paddock Rice - not Washed"), 2 ("Bankless Channel Rice - not Washed"), 3 ("Dry Paddock - Rice Root"), 4 ("Bankless Channel - Rice Root"), 5 ("Dry Paddock Rice - Washed"), and 6 ("Bankless Channel Rice - Washed") - received by SESL on 18 February 2010, all signed; 8. Batch 14023, water samples 1 ("Q Regulator Unfiltered Pres"), 2 ("Q Regulator Filtered Pres"), 3 ("8PM 12/4/10 Unfiltered Pres"), 4 (("8PM 12/4/10 Filtered Pres"), and 5 ("Yambiana Stock & Domestic 20/4/10") - received by SESL on 23 April 2010, all signed; and 9. Batch 14199, soil test ("sludge analysis") of sample 2 ("Hdam #2") - received by SESL on 7 May 2010, signed.
In the Second Jones Affidavit, Ms Jones gave evidence that from 23 to 30 January 2010 she inspected and photographed the bankless channels in P14 or P15 and the P channel. All of these are internal channels on North Corynnia and not supply channels which are part of MI's infrastructure for delivery of water to North Corynnia, Corynnia Station, Dry Lake, Bundara or other properties in that area.
Ms Jones said that on 30 January 2010 she observed and took photographs of: 1. living plants on the banks of the P channel but dead plants in the channel (the channel appeared dry in the photograph); 2. living plants on the banks of the northern bankless channel of P14 and a large accumulation of algae and solids in the channel (the photograph appears to show some living plants in the channel).
Ms Jones did not give any evidence of further investigations carried out by her during the period from January to June 2010. Nor did she identify any other relevant test results she obtained during that period. Nonetheless, it is clear from the documents produced by Mr Cave on subpoena, that he provided copies of test results to Ms Jones during this period by email which do not correspond exactly with the test results which Ms Jones referred to in and exhibited to her affidavits.
In the first half of 2010, Ms Jones supplied copies of certain test results to Mr Hutchins with handwritten annotations at the top but these did not include all the test results she had exhibited to the First Jones Affidavit or all of the test results Mr Cave had sent to Ms Jones by email. Mr Hutchins attached copies of all the results that were supplied to him by Ms Jones to his June 2010 report.
In June 2010, Ms Jones received a copy of Mr Hutchins's report dated June 2010.

[66]

Deoxygenation of the water

In section 9.3, Mr Hutchins considered whether deoxygenation of the water delivered to Ms Jones was a cause of the problems with her rice crops in 2009/10.
It will be recalled that Ms Jones had first attributed the problems with her rice crop to deoxygenation in her second complaint to MI on 3 January 2010. She had reiterated her beliefs about deoxygenation when Ms Tijs had inspected the crops on 4 January 2010 and, at that time, identified the cause of deoxygenation as MI's weed control program which she said had caused an excess of decomposing organic material in the channels. On that day, however, Mr Hutchins had said to Ms Tijs that he "found the deoxygenated excuse 'hard to swallow'".
Nonetheless, Ms Jones continued to develop this theory. She said in her 1 February email to Mr Hutchins and Mr Cave, which has been quoted above, that "Based on reading I have done, what could happen is that a deoxygenated water body could pick up and transport soluble iron, which is potentially toxic to plants (and animals)".
At the beginning of section 9.3, Mr Hutchins opined that "the quality of water in the North Corynnia Pond was obviously poor" and that test results which he obtained subsequent to the crop damage indicated "very poor water quality".
No basis for the opinion concerning the North Corynnia Pond was provided at this point; nor was there any specific identification of the period during which the water quality was said to be poor. I do not accept that this opinion should be given any weight.
The latter opinion of "very poor water quality" was said to be based on test results which stated that: 1. the biological oxygen demand (BOD) of the water was 62 mg/L whereas environmental water should have a BOD of less than 15; and 2. the chemical oxygen demand (COD) was 120 mg/L compared to less than 40 for environmental water.
Those test results were annexure I to his June 2010 report.
Mr Hutchins also referred to Ms Jones "report[ing] that the water in the Corynnia channel was stratified, with a cold lower layer that was deoxygenated and very low oxygenation near the channel floor" and similar anecdotal material. There was no specific evidence from Ms Jones which supported this. It was an assumption made by Mr Hutchins which was not established on the evidence. His opinions based on it therefore do not attract any weight.
Mr Hutchins then stated that: "Deoxygenated water can have major consequences if applied to irrigated crops. The ANZECC water quality guidelines refer to research indicating acute toxicity of several common toxicants roughly doubles as the DO concentration was halved from 10 mg/L to 5 mg/L. The toxicity of zinc, lead, copper, pentachlorophenol, cyanide, hydrogen sulphide and ammonia all increase at low DO concentrations. In addition to these, nutrient related impacts, deoxygenated water can damage the functioning of plants."
There are many unsatisfactory aspects to this part of Mr Hutchins's report concerning dissolved oxygen, DO, and the BOD and COD levels in the water that was tested, in addition to those already noted.
First, the results he relied upon, annexure I, did not contain results for dissolved oxygen or DO. Thus, the results did not establish that DO was at low concentrations.
Secondly, Mr Hutchins's opinion as to the very poor quality of the water based upon the specific test results for BOD and COD, was founded on results from just one sample of water. It lacks credibility to reach a firm conclusion in relation to the many megalitres of water delivered by MI over a period of three months based only on one sample, especially when there was no specific, detailed information as to when, where and how the sample was taken and stored.
Thirdly, the version of the results relied upon by Mr Hutchins, annexure I to his June 2010 report, [53] was not the version originally supplied to Mr Cave and Ms Jones. Mr Hutchins's version indicated it was from SESL and it was marked to Mr Cave's attention. It identified the sample of water being tested as "Batch No: 12765 Sample: No 2". The "name" of the sample was "Water 2". It was received by SESL on 8 January 2010. The test type was "BOD, COD". The report of the results was signed by a named consultant and a named authorised signatory and was dated 19 January 2010. Ms Jones had provided Mr Hutchins's version of the results to him with the annotation by her at the top "Q Channel System".
Ms Jones had received a signed version of these results from Mr Cave, without the "Q Channel System" annotation, under cover of an email to her on 24 March 2010. [54] Attached to that email were results not only for batch 12765 sample 2 but also results for samples 1 and 3 and 4, 5 and 6 in that batch. Samples 1 and 2 were, however, the only water samples.
Further, although Mr Cave had submitted the samples for testing, he did not take the samples. He gave no specific evidence as to when or where any of the samples in batch 12765 were taken or by what method.
Confusingly, the copy of the results in relation to Batch 12765 Sample 2 exhibited to the First Jones Affidavit [55] was not the same as the copy provided to her by Mr Cave attached to his email of 24 March 2010, in that Ms Jones's version was unsigned. Nor was the version exhibited to the First Jones Affidavit the same as the copy that she provided to Mr Hutchins. The copy Ms Jones provided to Mr Hutchins, which was annexure I to his report, was signed, had an annotation written by Ms Jones "Q Channel System", but, more importantly, the only notes printed on this version given to Mr Hutchins were as follows: "Analysed by Envirolab NATA #2901 Report #36723 No recommendations required from SESL."
In the signed version Mr Cave provided to Ms Jones and in the unsigned version exhibited to the First Jones Affidavit, the notes were different. Instead of the notes referred to in the preceding paragraph, these versions stated: "Analysed by Envirolab NATA #2901 Report #36723 Biochemical oxygen demand (BOD) is a measure of the amount of oxygen that bacteria will consume wild decomposing organic matter under aerobic conditions. Chemical oxygen demand (COD) does not differentiate between biologically available and in that organic matter, and it is a measure of the total quantity of oxygen required to oxidise all organic material into carbon dioxide and water. COD values are always greater than BOD values. The BOD and COD levels are elevated when compared to environmental waters. Typical levels in environmental waters are BOD =<15 mg/L and COD =< 40 mg/L. These elevated levels could indicate an increase in the organic matter and in organic matter content in the water, i.e. algae, vegetation or inorganic chemicals (pesticides). It is uncertain whether these levels of COD and BOD are contributing to a reduction in the growth of the rice crop." (emphasis added)
I accept that these more detailed notes in the other versions of the results were not brought to Mr Hutchins's attention. Nonetheless, they do indicate that his opinion was not based upon an appreciation of the potential lack of significance of the elevated levels of COD and BOD reported in relation to water sample 2 in batch 12765. Mr Hutchins did not, in his June 2010 report (or his December 2016 report), consider the information and qualifications contained in the notes in the versions not provided to him. Moreover, his reasoning did not disclose how his opinions would be consistent with that information and qualifications or why the information and qualifications did not apply.
Troublingly, there was also no explanation in the evidence as to why there were three different versions of the results for sample 2 in batch 12765. It can be noted, however, that the same email from Mr Cave to Ms Jones which attached the results for samples 1 and 2 in batch 12765, also attached the results for samples 5 and 6 in that batch. Those results, and other test results exhibited to the First Jones Affidavit, contained the printed words "No recommendations required from SESL", which also appeared on the version of the results for batch 12765 sample 2 given by Ms Jones to Mr Hutchins.
In any event, I am satisfied that Mr Hutchins formed his opinion concerning COD and BOD and deoxygenation of the water delivered to Ms Jones by MI on the basis of incomplete information from the testing laboratory, even for the one sample upon which he relied.
Fourthly, the only information Mr Hutchins had concerning the sample was that it was taken from the "Q Channel System", but that could only be an assumption on his part. Mr Hutchins did not disclose what other assumptions he made concerning this water sample 2. It was not suggested that the sample came from any of Q13, P14 or P14. In the absence of any identification of his assumptions and of reliable evidence to support those assumptions, whatever they were, I do not accept that the plaintiffs have established precisely where, when and how sample 2 in batch 12765 was obtained or that it was relevant to the quality of the water delivered by MI to irrigate Q13, P14 or P15.
Fifthly, Mr Hutchins was given one set of results by Ms Jones relating to sample 2 from batch 12765 and he relied upon this in forming his opinions. As has already been noted, the subpoenaed documents from Mr Cave and the documents exhibited to the First Jones Affidavit contained another set of results from SESL, which related to sample 1 from batch 12765, and which was said to have been submitted to SESL on the same date as sample 2. These results were dated 26 January 2010 and signed by the same signatories as the sample 2 results. It appears Mr Hutchins was not given a copy of these results, because he did not annexe these sample 1 results to his report or comment on them.
The BOD result for sample 1 was <4 mg/L and the COD was <50 mg/L. The notes to that report stated: "Analysed by Envirolab NATA #2901 Report #36723 Biochemical oxygen demand (BOD) is a measure of the amount of oxygen that bacteria will consume wild decomposing organic matter under aerobic conditions. Chemical oxygen demand (COD) does not differentiate between biologically available and in that organic matter, and it is a measure of the total quantity of oxygen required to oxidise all organic material into carbon dioxide and water. COD values are always greater than BOD values. These BOD and COD levels are acceptable for environmental waters. The BOD and COD levels are elevated when compared to environmental waters. Typical levels in environmental waters are BOD =<15 mg/L and COD =< 40 mg/L."
The BOD and COD for sample 1 of batch 12765 are very different from those for batch 2. Unfortunately, the evidence did not disclose precisely where, when or by what method sample 1 was taken. Nor did it disclose why Mr Hutchins was not provided with the results for sample 1.
Sixthly, it appears that Mr Hutchins was also not given the results of the testing for BOD and COD carried out on samples taken by MI on 3 and 4 January 2010 from the Corynnia Channel in the region of the 30P and 30L outlets and the No 2 Channel offtake from the Corynnia Channel. [56] These establish that in each case the COD was <5 mg/L and the BOD was 10 or 7 mg/L. These results are well below even the standard required for environmental water, as opposed to irrigation water.
Seventhly, on 4 January 2010, Mr Hutchins had a conversation with Ms Tijs, the contemporaneous record of which is set out above. In that conversation, Mr Hutchins expressed the view that he "found the deoxygenated excuse 'hard to swallow'". As the email of 1 February 2010 indicated, it was Ms Jones who had developed the idea of deoxygenation as a possible cause of the problems in her rice crops. In section 9.3 of his report, Mr Hutchins did not refer to holding the view he expressed on 4 January 2010 nor did he explain why he had changed his opinion when he came to write his report in June 2010.
Taking all those matters into account and the other comments I have made concerning Mr Hutchins's evidence, I do not accept that it has been established that any water which Mr Hutchins considered in section 9.3 of his June 2010 report was directly relevant to Ms Jones's 2009/10 rice crops or was relevantly deoxygenated. Similarly, in my view Mr Hutchins's opinions as to the "very poor quality" of the water he was considering or of any water delivered by MI to Ms Jones for her 2009/10 rice crops were not well founded or reliable. Those opinions deserve no weight and I reject them.
In his December 2016 report, Mr Hutchins developed further his opinions concerning deoxygenated water and its role in causing "redox reaction". He said, at pp 4 and 5: "Organic matter is also contained in the turbid water, it will lower the oxygen level of the water causing certain redox reactions to occur, thus changing the chemical composition of the water. The dissolved oxygen (DO) of the water delivered to N. Corynnia was low. The Biological oxygen demand (BOD) was 62 compared to ANZECC guidelines of <15, in excess of four times the recommended level. The BOD is a measure of the amount of oxygen need to break down the organic matter carried in the water. The chemical oxygen demand (COD) was 120 compared with irrigation water standard of <40 this is three times the recommended level for environmental water. The COD is a measure of the organic pollutants in the water. It in effect measure the amount of oxygen needed to convert all organic compounds to carbon dioxide. Both DOD and COD are in effect a measure of water quality. The level of dissolved oxygen will cause redox reaction that will change the form of the dissolved elements, so that it the concentration of elements is dynamic and constantly changing."
It is manifest that this opinion was also based on the same results for BOD and COD referred to in the June 2010 report. This further opinion did not take into account the test results for water sample 1 in batch 12765 or the MI water sample results or explain why they were not relevant. Nor did it take into account the notes on the versions of the results for sample 2 that come from Mr Cave's or Ms Jones's evidence. Nor was his further opinion qualified in any way as a result of being based upon only one sample of water taken from a location, which was not specifically identified, at a time and by a method that were apparently unknown to Mr Hutchins. The further opinions in the December 2016 report, even if they might be sound at the level of statements of general chemical principles, were not established as being applicable to the water delivered to Ms Jones by MI for her rice crops in 2009/10.
Having regard to all these matters, I find the plaintiffs' case, as put forward by Mr Hutchins, in relation to deoxygenation of the water being a cause of the problems with Ms Jones's 2009/10 rice crops quite unsatisfactory.
Based on: (a) the reasons I have already given for being cautious or not accepting Mr Hutchins's and Ms Jones's evidence; (b) the fact that the information relied upon by Mr Hutchins to form his opinion as to deoxygenation was extremely limited, unreliable and incomplete in the ways outlined above; (c) Mr Hutchins's evidence in cross-examination on this topic; and (d) the unsatisfactory nature of the case in this regard, I specifically reject Mr Hutchins's opinions, in section 9.3 of his June 2010, concerning deoxygenation, BOD and COD in relation to the water delivered by MI to North Corynnia in 2009/10. I similarly reject Mr Hutchins's opinions on this same topic on pp 4 and 5 and elsewhere in his December 2016 report.
Since the issue of whether or not water delivered by MI to Ms Jones for her rice crops in 2009/10 was deoxygenated was also relevant for Mr Hutchins's arguments concerning metal toxicity, it is appropriate to set out here my findings based on samples 1 and 2 in batch 12765. I find that, wherever the samples were taken: 1. in respect of sample 2 of batch 12765, that it is uncertain whether the levels of COD and BOD identified in relation to that sample contributed to any reduction in the growth of Ms Jones's 2009/10 rice crops, as stated in SESL's notes to the versions of the results obtained from Mr Cave and Ms Jones; 2. in respect of sample 1 of batch 12765, the BOD and COD levels in the water were acceptable, even for environmental waters, and certainly for irrigation water; 3. it was not established that the BOD and COD levels in the water delivered by MI to Ms Jones were such as to render the water unsuitable for irrigation or such as to indicate that the BOD and COD levels played any causal role in the lack of success of Ms Jones's 2009/10 rice crops; and 4. the results of the oxygenation testing of the samples taken on 3 and 4 January 2020 indicated that the water near the P outlets was not deoxygenated at that time.
Indeed, these findings (1) and (2) were accepted by Mr Hutchins in cross examination as being all that could be taken from the results for samples 1 and 2 in batch 12765. [57]

[67]

Metals

Metals and metal toxicity were dealt with in section 9.4 of Mr Hutchins's June 2010 report.
At the beginning of that section, Mr Hutchins stated his conclusion that soil samples from across P14, P15 and Q13 did not explain the symptoms in the rice crops in 2009/10.
In this regard, he appeared to be referring to the test results for batch 12765 samples 4, 5 and 6 received by SESL on 7 or 8 January 2010, although his report was not entirely clear in this regard. The descriptions on those test results as to where the samples were taken from were more or less general: "Q Block"; "P Block Bay 4/5 Nth"; and "P Block Bottom Bay", respectively. There was no precise evidence as to when, by whom and where these samples were taken or as to whether other relevant samples were taken at that or any other time.
Mr Hutchins gave no reasoning to support his stated conclusion that they provided no explanation for the symptoms in Ms Jones's 2009/10 rice crops. In addition, there was no suggestion that the three samples were taken by a process or in sufficient numbers to ensure that they would present a scientifically valid or reliable indication of the state of the soil across the more than 100 ha in P14, P15 and Q13 at any relevant time. In particular, the evidence did not indicate that the samples were taken in such a way that they might reveal the effect of cutting and filling in the land formation of the irrigation bays on those paddocks.
In all the circumstances, I do not accept that Mr Hutchins's conclusion in this regard was well founded or correct. Nor do I accept that it was established that the soil in paddocks P14, P15 and Q13 had no role to play in the failure of Ms Jones's rice crops. Once again, I preferred the evidence of Prof Meyer and Prof Bush, in relation to this issue.
Mr Hutchins's subsequent reasoning, in this section of his June 2010 report, related to iron toxicity and other metals. The essential elements of this reasoning in section 9.4, which led to his ultimate conclusion that the damage to Ms Jones's 2009/10 rice crops was caused by the toxic levels of iron and other metals in the water delivered by MI to Ms Jones, can be summarised in the following propositions drawn from this section of his report and based upon test results annexed to the report (in most but not all cases): 1. "Plant tissue tests of rice leaves and roots revealed extraordinary levels of iron, sufficient to explain the damage to the rice crop", relying on the test results for samples 1 and 2 in batches 12919 and 12919A, received by SESL on 20 and 29 January 2010 respectively. 2. "Subsequent tissue tests of washed and unwashed samples taken after the crop was abandoned confirmed high levels of iron in and on the roots", referring to test results from batch 13257 samples 1, 2 3, 4, 5 and 6, received by SESL on 18 February 2010. 3. "[W]here plants had remained inundated for longer at the edge of bankless channels", the iron levels were higher, and again he relied on results from batch 13257 samples 1 to 6. 4. "Water tests confirmed the presence of significant levels of iron" in that "[w]ater collected from the last remaining pool of water on the Illabong block Q13 tested as having 330 mg/L of iron" relying on test results for batch 13070 sample 1, received by SESL on 3 February 2010 and the short term trigger value for iron in irrigation water being 10mg/L and the long term trigger value 0.2 mg/L. 5. "Irrigation water entering North Corynnia through P1/P2 outlets on 16 January 2010 was found to contain 5.5 mg/L of iron confirming that the source of the iron was indeed the MI channel". In this case, it can be noted that there were no results which corresponded with this contention which were annexed to Mr Hutchins's June 2010 report, and his evidence was that he had included with that report all the results that Ms Jones had given him. The results were, however, consistent with those for both sample 3 ("P Doppler") and sample 4 ("Corynnia Channel") in batch 13070, received by SESL on 3 February 2010, which were included in results exhibited to the First Jones Affidavit as Ex SPJ-1:69. 6. "A layer of sediment was left over previously inundated areas…. A sample of the sediment taken from Q13 tested as having 378 mg/kg of iron … compared to the overall soil test result for the block being 293 mg/kg." These comments were based, respectively, on the results for batch 13070 sample 7, received by SESL on 3 February 2010, and some other results that were not annexed to Mr Hutchins's June 2010 report. 7. On 13 January 2010, in the P recycle drain, which allegedly contained water sourced from MI at about the same time as the Illabong crop was irrigated, there was an "absence of plants" and "the soil had a foul smell and there was a distinct black layer in the mud … consistent with sulfidic deposits." 8. "[D]amage to the rice at North Corynnia and the tissue tests were consistent with iron toxicity" and other plants that Mr Hutchins observed at relevant times supported the likelihood of iron toxicity. 9. "[R]ice tissue samples tested after the Reiziq crop was abandoned showed iron levels had dropped in the leaves, but zinc and copper levels had risen, with copper at concentrations toxic to plants and animals if they consumed the plants". This was based on results for batch 13257 samples 1 to 6, received by SESL on 18 February 2010 compared, presumably, to results for batches 12919 and 12919A received on 20 and 29 January 2010 respectively. 10. "The levels of iron in situ prior to irrigation were not high at between 200 and 300 mg/kg, extrapolating from various soil samples taken from the property" and "[e]ven after irrigation, at Christmas, analysis of soil from P blocks tested at 401 mg/kg of iron, not an excessive level". The results for "various soil samples taken prior to irrigation" were not attached to Mr Hutchins's report and the results of a sample taken after irrigation was based upon results for batch 12765 sample 5.
Mr Hutchins's conclusion was then stated as follows: "The evidence from my observations, combined with test of soil, water and tissue samples, led me to the conclusion that the principle cause of the damage at North Corynnia was deoxygenated water supplied by MI, carrying very high levels of dissolved iron and other metals, with ongoing consequences once in situ. The levels of metals involved were far in excess of guidelines for water quality."
To assess the reliability of this reasoning and to determine whether there was any sound foundation for the conclusion, it is necessary to address these propositions in turn.
Proposition (1) concerned test results for samples of rice plants which Mr Hutchins said revealed "extraordinary levels of iron". This comment was based on the results for plant samples 1 and 2 of batches 12919 and 12919A, as certified by the relevant officers of SESL. Those results contained the following note, in the box headed "Summary and Recommendations", in respect of both samples: "Given the excessive iron levels, it would appear that these tissues may have been dust contaminated at the time of sampling/transport."
In cross examination, Mr Hutchins conceded that dust contamination was not mentioned in his report and his cross examination continued: [58] "Q. But that may be a relevant factor to explain the results, mightn't it? A. Well, it could be. But I - yes, yes, all right."
As a result, I do not accept that the results relied upon by Mr Hutchins established that there were extraordinary levels of iron present in the tissue samples.
A similar issue arises in relation to proposition (2), which was to the effect that subsequent tissue tests of washed and unwashed rice plant samples taken after the crop was abandoned confirmed high levels of iron. The test results from SESL for batch 13257 included the following notes: Sample Plant part Name Note 1 Youngest open leaf blade Dry Paddock Rice - not Washed "The iron levels are excessive which could be from contamination with soil" 2 Youngest open leaf blade Bankless Channel Rice - not Washed "The iron levels are excessive which could be from contamination with soil" 3 Youngest open leaf blade [59] Dry Paddock - Rice Root "The rice root was analysed for its nutrient levels. The rice root has a high concentration of iron and copper. The sample was washed however some of this high iron could be from some residual dirt on the sample." 4 Youngest open leaf blade Bankless Channel - Rice Root "Iron is extremely high in this sample. Copper is found to be low in the roots." 5 Youngest open leaf blade Dry Paddock Rice - Washed "The washed rice [h]as iron levels within normal ranges" 6 Youngest open leaf blade Bankless Channel Rice - Washed "The washed rice in the bankless channel has lower iron levels compared to the unwashed analysis. This indicates that some soil contamination occurred in the unwashed species." (It can also be noted that for this sample, the iron level was within the normal range.)

[68]

Mr Hutchins did not, in his report, refer to those notes that contradicted or tended to contradict his conclusion. Nor did he explicitly take the notes into account or address them when reaching that conclusion. These failures fundamentally undermine the reliability and credibility of his opinion.
As to proposition (3), that where plants remained inundated for longer on the edge of bankless channels the iron levels were higher, this was not consistent with the notes referred to immediately above: see for example the comments in relation to samples 5 and 6 in batch 13257 and the fact that for sample 6 the iron level of 136.15 mg/kg was within the normal range of between 125 and 175 mg/kg (as set out in the results). Once again, Mr Hutchins did not address these notes or explain how the notes and the results could be consistent with his conclusion.
Proposition (4) concerned the level of iron in "the last remaining pool of water … on Q13" of 330 mg/L. This result came from batch 13070 sample 1, received by SESL on 3 February 2010. If it was collected a few days before it was delivered to SESL, this was approximately 50 days after the last irrigation water had been applied to Q13, according to the Water Supply Details, and after rain during the Christmas period. If this pool of water remained on Q13 for 50 days, even though there was some rain, there must have been considerable evapotranspiration during that time. Thus the concentration of iron in the water in that last remaining pool would not be indicative of the iron level in the water applied to the rice on Q13 between 28 November and 9 December 2009. Mr Hutchins did not mention this in his report or take it into account. The result he relied upon related to water taken from a pool that had been subject to evapotranspiration for a lengthy period. It could not credibly be argued that this result could properly be compared to the trigger values for iron in irrigation water, as Mr Hutchins purported to do.
Proposition (5) was to the effect that, because 5.5 mg/L of iron was measured in water at the P1 and P2 outlets, this indicated that water delivered from MI was the source of the excessive iron levels referred to previously by Mr Hutchins. There are at least four difficulties with this evidence. First, Mr Hutchins did not explain how he reached his conclusion in this regard.
Secondly, even if, contrary to what has been said above, there were excessive iron levels in the water from "the last remaining pool", it would not follow that those excessive levels came from the water referred to simply because that contained iron at acceptable levels.
Thirdly, Mr Hutchins did not provide a basis for the proposition that the water contained 5.5 mg/L of iron. Mr Hutchins only attached to his June 2010 report results for samples 1, 2 and 7 in batch 13070. There was no report of test results attached to his June 2010 report, which gave the figure of 5.5 mg/L of iron in the water from the P1 and P2 outlets. He said in evidence that he attached to his report all the results that Ms Jones gave him.
Fourthly, even though Mr Hutchins did not have them, there were results for samples 3, 4, 5 and 6 in batch 13070, which were exhibited to the First Jones Affidavit. These included results for the following samples in batch 13070, received by SESL on 3 February 2010, as follows: Sample Description Iron level 3 "P Doppler" 5.5 mg/L 4 "Corynnia Channel" 5.5 mg/L 5 "Recycled Drain" 0.2 mg/L 6 "P14" 3.2 mg/L

[69]

None of these additional results, wherever they were taken from on or about North Corynnia in about early February 2010, indicated that the water tested had an iron level that exceeded the short term trigger value for iron in irrigation water, as referred to by Mr Hutchins in his June 2010 report. They did not support the conclusion that the water delivered by MI contained excessive levels of iron or subsequently caused there to be toxic levels of iron in the rice crops.
Proposition (6) related to the iron level in a layer of sediment, described in the test results for batch 13070 sample 7 simply as "Pink Layer". In his report, Mr Hutchins said that this sample was taken from Q13. In his cross examination, however, he said that it could not have been Q13, but it: [60] "would have probably been taken from the channel that supplies Q13 with its water. Either that or the - if there might have been some in the tail, in the drainage water."
Mr Hutchins did not take the sample and I do not accept that he had any reliable idea as to where it came from.
Furthermore, the sample was received by SESL on 3 February 2010. The result for such a "Pink Layer" left in about early February 2010 probably after water had concentrated and evaporated could not credibly be said to be a basis for determining the level of iron in the irrigation water delivered by MI to Ms Jones while she was irrigating her rice crops in 2009/10.
While the test results for batch 13070 sample 7, the "Pink Layer", indicated that the iron level was 378 mg/kg, this was not an excessively high level. Other results, such as batch 12765 sample 5 ("P Block bay 4/5 Nth"), indicated that an iron level of 400.8 mg/kg was at about the middle of the adequate range. Thus, the iron level of the "Pink Layer" was a little below the middle of the adequate range, according to the adequacy levels in the results provided by SESL.
Moreover, the basis for the statement that the "overall soil test result for the block" was 293 mg/kg in proposition (6) appeared to be the results for batch 12765 sample 4 ("Q Block") the iron level was 292.7 kg/mg, being towards the lower end of the adequate range. There were, however, other samples from the P and Q blocks which had iron levels of 211.2 mg/kg (in the low range) and 280.9 mg/kg (at the bottom of the adequate range) - see batch 12765 sample 6 and batch 12992R sample 2, respectively.
None of these results indicated an excessive iron level in the soil or sediment.
Proposition (7) related to internal channels on North Corynnia for which MI was not responsible. I shall address Mr Hutchins's observations concerning those channels later in these reasons.
Proposition (8) concerned the possible causes of the damage to the rice crops and other plants observed by Mr Hutchins on his inspections in December 2009 and January 2010. He said that what he observed was consistent with iron toxicity. He conspicuously failed, however, to consider whether his observations were also consistent with other potential causes, such as bloodworm attack, nitrogen deficiency, waterlogging, poor layout, cutting top soil in the process of levelling the paddocks, the herbicides sprayed on or near the paddocks or a combination of such causes. I shall refer to this failure in a little more detail below.
Proposition (9) apparently concerned a comparison of the levels of iron and other metals in test results for rice tissue samples in batch 13257 with those in batches 12919 and 12919A. The problems with these results have already been discussed in relation to propositions (1) and (2), above. Mr Hutchins did not address these problems and, as a result, his conclusions were, in essence, unsupported and no weight should be given to them.
Finally, proposition (10) was expressly stated to be based on "extrapolating from various soil samples taken from the property", without identifying the samples or the nature of the extrapolation. In any event, it can be noted that the considerable majority of the irrigation on Ms Jones's rice crops had occurred before Christmas 2009. Thus, Mr Hutchins's observation in proposition (10) that "even after Christmas, analysis of soil from P blocks tested at 401 mg/kg of iron, not an excessive level" did not indicate that the irrigation water delivered by MI and applied to Ms Jones's crops prior to that time had an excessive iron level or some other characteristic such as to cause the iron level in the soil to which it was applied becoming elevated above an adequate level.
Furthermore, in relation to proposition (10), the 401 mg/kg figure was derived from the results for batch 12765 sample 5 ("P Block Bay 4/5 Nth"). Other relevant samples from this batch in or about P block and Q block, gave results which were less than 401 mg/kg for iron. These other relevant results from batches 12765 (received by SESL on 7 February 2010) and 12992R (received by SESL on 5 February 2010) were: Batch/Sample Description Iron result 12765/4 "Q Block" 292.7 mg/kg 12765/5 "P Block Bay 4/5 Nth" 400.8 mg/kg 12765/6 "P Block Bottom Bay" 211.2 mg/kg 12992R/1 "Road 6/w P&Q" 172.7 kg/mg 12992R/2 "Q12" 280.9 mg/kg

[71]

Section 10

In section 10 of his June 2010 report, Mr Hutchins sought to determine how contaminated water could have been supplied by MI. Although it does not fully reflect his analysis based on his assumptions as to how the MI system operated, a sufficient summary of Mr Hutchins's contentions was that: 1. layers of soil exposed on the redevelopment of the BBSW "could potentially be acidic and/or contaminated"; 2. management of BBSW has been changed to frequent wetting and drying of the soil. Wetting and drying of acid sulfate soils and artificial drainage can be contributing factors to trace metal fluxes. Artificial drainage can lead to the increasing export of anoxic surface water with high deoxygenation potential; 3. although those risks were "not evident in the currently available material published by MI", it is "possible that MI has released water from BBSW without consideration of the level of metals it contains, and the potential impacts on downstream stock and domestic users and irrigators"; and 4. as water from BBSW was not tested before release and releases are determined by fluctuations in demand and the supply of water from drainage and Mirrool Creek with BBSW pumps being used to meet the shortfall, "a large proportion of contaminated BBSW water" could enter the MI water delivery system.
Based on those speculative possibilities, he then concluded as follows: "Evidence that this [a large proportion of contaminated BBSW water entering the MI system] may have occurred is provided in Figures 41 and 42 below, showing carp surface gulping in the North Corynnia pond of the Corynnia Channel, and later a bloom of blue green algae. The water was also heavily infested with bloodworm through much of the rice program at North Corynnia. … Such algal blooms have been associated with metal flux, as in the case of the Darling River. This and other analysis as described led conclusively to metals, particularly iron, as the cause of the damage at North Corynnia. However, it became clear from a parallel investigation of sheep deaths that significant concentrations of metals other than iron were likely to be the contributing to the damage."
Even if there were evidentiary support for Mr Hutchins's assumptions relating to water in the BBSW and its testing and release, which I do not accept that there was, the reasoning in this passage was far from persuasive in supporting his expert opinion. Gulping carp, a blue/green algal bloom and bloodworm infestation (despite Mr Hutchins's contention in cross examination that "there is absolutely no evidence that there was bloodworm in that crop ever" [61] ) could not, without more, provide a sound basis for concluding "conclusively" that water delivered to Ms Jones in December 2009 and January 2010 had been released from the BBSW and was deoxygenated and contaminated with toxic levels of iron. The opinion was, in reality, an assertion of a possibility without convincing reasoning or established facts to support it.
Mr Hutchins, however, went further and relied upon investigations into sheep deaths to conclude that significant concentrations of other metals were also likely contributors to the damage to the rice crops. His evidence dealing with livestock was in section 11 of the June 2010 report.

[72]

Section 11

The plaintiffs' case as pleaded included claims in relation to loss of and damage to livestock caused by exposure to high levels of contaminants in the water delivered by MI in November 2009 to February 2010 by way of drinking water, deposits on plant material and soil, ingested by stock.
In the First Jones Affidavit, Ms Jones gave evidence of reasonably healthy flocks of 1,700 Merino/Dorper sheep and 500 Wiltidorp/Dorper sheep between September and November 2009.
In relation to the Merino/Dorper sheep, Ms Jones's evidence was that: 1. by mistake, in December 2009 the sheep were given water in the dam in 30H from the irrigation water intended for Q13; 2. from November 2009 to early January 2010 she noticed a deterioration in this flock as well as isolated sick or dead sheep; 3. after about 20 sheep died, she moved the flock to Glencory but the sheep remained listless and unwell and refused to drink; and 4. the conception rate fell from 80 to 62%.
In relation to the Wiltidorp/Dorper sheep, her evidence was that: 1. in January 2010, because other sources of water dried up or became inaccessible, the sheep sourced their water primarily from the Corynnia Channel; 2. from November 2009 to early January 2010 she noticed a deterioration in this flock as well as isolated sick or dead sheep; and 3. about 10 sheep died between 16 January and 25 February 2010.
It can be noted here, that on Ms Jones's account, the deterioration of both flocks was observed from November 2009 but this was apparently before the Merino/Dorper sheep were given the water in the dam on 30H in December 2009 and before the Wiltidorp/Dorper sheep started to source their water primarily from the Corynnia Channel in January 2010.
It was also not explained how water would have been provided to these sheep at this time if not from these sources.
Ms Jones organised a veterinarian, Dr Gabrielle Morrice, to investigate. She conducted three autopsies on the sheep and organised for a water sample from the dam to be tested. Following the autopsies, Ms Jones was provided with a report by a veterinary pathologist, Dr Andrew Thompson, on the blood and tissue samples taken by Dr Morrice. Neither Dr Morrice nor Dr Thompson nor the laboratory manager, who could verify the test results, was called to give evidence. The report and test results were admitted only to prove the fact of the report and the results being obtained and provided but were not admitted to prove their contents.
Mr Michael Armstrong, who assisted Ms Jones in the running of her sheep, gave evidence that he noticed some problems with sick sheep that had skin problems around the ears, face and back and a "good number of sheep died". He did not, however, say when this occurred nor did he link it to the consumption of water in any way.
In the Second and Third Jones Affidavits, problems with livestock and stock losses were not mentioned. The claim in relation to stock losses was not the subject of any final submission on the plaintiffs' behalf.
Mr Hutchins, however, included in his June 2010 report section 11 dealing with livestock and, as has been noted above, relied upon his opinions concerning the livestock to support his other opinions and conclusions in that report. The material in section 11 was not based on Mr Hutchins's own observations. Although not identified as such in his report, the information he relied upon amounted to no more than his assumptions. Ms Jones's and Mr Armstrong's evidence referred to above did not provide support for Mr Hutchins's assumptions, except to a minimal extent.
It is perhaps noteworthy that in Mr Hutchins's later December 2016 report, problems with, or deaths of, livestock were not mentioned at all and were not relied upon as supporting his conclusions in the later report concerning iron and other metal contamination of the irrigation water delivered to North Corynnia in 2009/10.
Taking into account my concerns and doubts relating to Ms Jones's and Mr Hutchins's evidence generally, the lack of any reference in his curriculum vitae to veterinary expertise or experience with sheep or other livestock, the matters referred to above and the general lack of substantial evidentiary support for Mr Hutchins's assumptions: 1. I do not accept that the plaintiffs established on the balance of probabilities that any livestock was adversely affected by drinking or otherwise ingesting irrigation water supplied by MI to Ms Jones in 2009/10 or at any other relevant time; and 2. I do not accept any of Mr Hutchins's evidence or opinions in section 11 of his June 2010 report concerning livestock or any other conclusions substantially based upon that evidence or those opinions.

[73]

Section 12

Section 12 of Mr Hutchins's June 2010 report was headed "Confirmation of Water Contamination". In this section, Mr Hutchins asserted that aluminium was highly toxic to plants and "inhibits the roots and shoots of rice seedlings at concentrations of 1 - 2 mg/L in soil solution". Mr Hutchins then noted that water and silt samples were taken in May 2010 from "the H dam, which had been filled from the Q outlets in December 2009" and that "[p]rior to filling the dam level was low". These matters could, however, only be assumptions on Mr Hutchins's part.
Mr Hutchins recorded the results of the testing of silt from the H dam as follows: "➢ The water, which had been sitting in the dam for five months, had among other metals, aluminium of 0.86 mg/kg, boron of 1.1 mg/kg, iron of 0.90 mg/kg and strontium of 0.47 mg/kg. ➢ The silt had, among other metals, iron of 22,000 mg/kg and aluminium of 26,000 mg/kg. ➢ The field in which the dam was located had 3 mg/kg of aluminium when the soil was tested several years ago."
Mr Hutchins's conclusion was then: "The tests conducted on water and silt from the H dam confirm the extraordinarily high levels of aluminium and iron that were borne in the water released from the MI Channel, …".
Once again there are a number of difficulties with this evidence. First, Mr Hutchins's assumptions were not clear and were not substantially supported by the evidence. Mr Hutchins did not specify what his assumption was as to how much water from the Q outlets was put into the H dam. In addition, rather than the H dam being filled from empty or near empty with water from the Q outlets, as Mr Hutchins assumed, Ms Jones's evidence was, at par 164 of the First Jones Affidavit, that: "In December 2009, I am aware that water intended for irrigation of an Illabong crop on Block Q13 was inadvertently used to top up the water dam in Block H."
Ms Jones did not say what volume of water was used to "top up" the dam.
Secondly, there were no test results attached to Mr Hutchins report which supported his assertions as to what the results either for the water, silt or field contained. In any event, the levels which he included in his report of aluminium and iron in the water, as opposed to the silt, were not established as being at toxic or problematic levels. There were in the test results exhibited to the First Jones Affidavit results in relation to "Hdam", namely: Batch 14199, soil test ("sludge analysis") of sample 2 ("Hdam #2") - received by SESL on 7 May 2010. The type of test was "ASS [acid sulphate soil] Screen" and the notes to those results stated: "For the purpose of screening for Acid Sulphate Soil (ASS), this soil shows slight alkalinity. Although there is a drop in pH, it is above the threshold of risk. Although sulphate and sulphide are present in the sample, it is not expressing significant aggressiveness to warrant further investigation. This soil indicates nil Actual Acid Sulphate Soil (AASS) risk and nil Potential Acid Sulphate Soil (PASS) Risk."
Thirdly, the testing of the water and the silt apparently took place five months after the dam had been topped up with water intended for the Illabong crop. There was no evidence as to the level of metals in the water in the dam or the silt, prior to the inadvertent topping up. There was no evidence concerning over what period, how or from what water, soil, chemicals or other material, the silt in the dam had been deposited. Nor was there any evidence as to the amount of evapotranspiration during those five months or whether other water, chemicals or other materials had been put in the dam during the five months between topping up and testing.
Finally, Mr Hutchins did not explain how it could be concluded that the level of metals in the water, which were not established to be extraordinarily high, and the silt, which may have been deposited over many years from water, soil, chemicals and other material not sourced from water from an MI channel, could "confirm" that "extraordinarily high levels of aluminium and iron were borne in the water released from the MI channel" used inadvertently on one occasion to top up the dam five month previously. His conclusion lacked any substantial credibility.
The conclusion in section 12, to the effect that there was confirmation of toxic levels of iron and aluminium in the water delivered by MI to irrigate Ms Jones's rice crops in 2009/10, deserved no weight and should not be accepted.

[76]

Other potential causes of the problems not considered

In the 2010 report, Mr Hutchins did not give any substantial consideration to other potential causes for some or all of the problems with Ms Jones's rice crops. He stated, in section 6.5 of the report that he had "not discovered any action or omission in the rice growing program which could explain any damage to the crop, given normal circumstances". Mr Hutchins did not, however, support this conclusion with detailed consideration of what Ms Jones had done and not done, apart from the little that was contained in sections 6.3 and 6.5 of his report.
As noted above, I generally accept Mr Lacy and Prof Meyer's evidence concerning rice growing in the MIA. Based on this, I infer that an expert agronomist with experience in rice growing, who observed what Mr Hutchins observed on his inspections of North Corynnia, would have considered the following potential causes before he or she would have legitimately reached a conclusion as to whether Ms Jones's preparation for, and management of, her rice crops in 2009/10 was wholly or partly responsible for the problems experienced: 1. inadequate preparation of P14 and P15, after landforming, especially in the cut areas; 2. failure to dewater the bays in both P14 and P15 and Q13 in which there was poor germination or growth quickly enough after flushing which failure had the result that water remained on the sod sown rice crops for too long thus inhibiting germination and growth and rendering the seedlings susceptible to bloodworm attack; 3. poor layout of the bays, in all the paddocks but especially as observed by Mr Hutchins in P14, where water remained or pooled in certain areas instead of draining so that after the first and second flushes water remained on the crop in those areas for much longer than 12 hours, thus inhibiting germination and growth and rendering the seedlings susceptible to bloodworm attack; 4. poor preparation and rolling of Q13 so that when the first flush was applied seed were pressed too deep into the soil to allow good and even germination; 5. failure to inspect the soil in Q13 below the crust for signs of germination and then not draining water applied after 7 December 2009 quickly thus leaving the soil covered with water or waterlogged for many days thereby inhibiting germination and growth and rendering the seedlings susceptible to bloodworm attack; 6. failure to apply effective bloodworm treatment, before 13 January 2010, even though rice crops should be sprayed with a pesticide such as Losban when permanent water is applied and bloodworms were actually identified in the Reiziq crop on 29 December 2009 and 11 January 2010 and root damage obviously consistent with bloodworm attack was observed as early as about 19 and 23 December 2009; 7. failure to apply a sufficient quantity of urea on the areas of P14 and P15 that were top dressed with 123 kg/ha of urea on 1 December 2009 and failure to apply any urea to the areas of P14 and P15 that were not top dressed at that time; 8. failure to top dress the Reiziq crops with additional urea even after there were obvious signs of nitrogen deficiency including chlorotic, spindly plants; and 9. spraying the crops and areas around the crops with herbicides, including spraying the Reiziq crops with herbicides recommended for use on thistles on P16.
Mr Hutchins's comment in his June 2010 report that he had "not discovered any action or omission in the rice growing program which could explain any damage to the crop, given normal circumstances", was not explained and was not said to be been arrived at after a full and proper consideration of all the relevant issues, some at least of which are identified in the preceding paragraph. In the circumstances, the proposition implicit in Mr Hutchins's comment, that there was nothing in Ms Jones's preparation and management of her rice crops which could explain their failure, should not be accepted.
Mr Hutchins's failure to consider other potential causes before reaching his conclusion that the "damage" to Ms Jones's 2009/10 rice crops was caused by deoxygenated water containing levels of dissolved iron or other minerals that rendered it toxic or unsuitable for irrigation was a further factor which deprived his opinions and conclusions, in my view, of credibility and weight.

[77]

The internal water supply channels on North Corynnia

Separately from his observations of the rice crops, Mr Hutchins's evidence in his June 2010 and December 2016 reports included his observations of the internal water supply channels on North Corynnia during his inspections on 23 December 2009 and 4, 13 and 21 January 2010.
Ms Jones, Mr Cave, Ms Tijs and Mr Hedditch also gave evidence of their observations of the internal water supply channels on North Corynnia at about these times.
As I understood it, Mr Hutchins sought to support his conclusions in his report by the argument that MI had supplied water in late 2009 and early 2010 that caused plants to die in North Corynnia's internal channels and, thus, the water supplied by MI was also the probable cause of the failure of the Illabong crop and the problems with the Reiziq crops. The submissions made on behalf of the plaintiff by Mr Scott of counsel, who appeared with Mr Connor, also placed significant emphasis on the state of the weeds in the channels and the alleged absence of an explanation other than contaminated water delivered by MI. [63]
For example, in his June 2010 report, Mr Hutchins gave considerable attention to his observations on 23 December 2009 concerning the P channel, fed by the P1 and P2 outlets. In section 7.2, Mr Hutchins said: "On the peaks of the banks of the P Channel above the water line, there was Soft Roly Poly … growing but not much else (Figure 11). Below the water line there were no weeds growing, not even Barnyard Grass, which would normally be growing prolifically because the channel had been in intermittent use since early November 2009, and no herbicide had been used to control weeds."
There were at least three difficulties with this evidence. First, there was no identification of where the observation was made or the photograph was taken along the length of the P channel, which is in the order of 4 or 5 km long. It was not stated that it was close to P14 and P15. There was no evidence in the June 2010 report as to whether Mr Hutchins's observation was consistent all along the P channel.
Secondly, it can be noted that the photographs of the outlets leading into an unspecified internal water channel (Figure 2 in Mr Hutchins's June 2010 Report) [64] and of the P channel near the P1 and P2 outlets (Figure 3 in Mr Hutchins's June 2010 Report) [65] appear to show significant green vegetation at and near the waterline and in the channel below the waterline as well as up the banks, respectively.
Thirdly, the assumption that "no herbicide had been used to control weeds" was not consistent with: 1. the fact that on 1 December 2009, both P14 and P15 and adjacent areas had been aerially sprayed with broadleaf herbicides, Basagran and MCPA; 2. the fact that on 9 December 2009, all but the western bay of each of P14 and P15, had been sprayed with grass herbicides, Aura and Barnstorm; or 3. Mr Cave's recommendations on 30 November 2009 to spray P16 with MCPA and on 10 August 2009 to use Roundup and Metsulfuron methyl on roads and fence lines on North Corynnia.
More generally, Mr Hutchins provided further observations and photographs of the internal supply channels on North Corynnia in section 7.6 of his June 2010 report which were similar to his earlier observations.
Seven years after December 2009, Mr Hutchins provided somewhat more elaborate evidence in his December 2016 report concerning the internal water delivery channels on North Corynnia, without identifying whether this was the P channel, the Q channel or some other internal channel. The evidence in that report was that there was no weed growth below the waterline in the channel, although there was weed growth on the banks above the waterline, where the weeds deteriorated in condition as they grew closer to the water line and: "Even the hardy water couch … was badly damaged and largely absent. These symptoms went right back to the junction with the [MI] channel. The symptoms were also observable in the MI channel though not so obvious."
Mr Hutchins was aware, by the time of preparing his December 2016 report, of the use of herbicides in the relevant area in 2009, since they were mentioned on p 5 of that report. Nonetheless, he did not refer to or consider, in this context, whether herbicide use might explain what he said he observed in the internal channel. Nor did he qualify or explain his opinions in his earlier report which had been mistakenly based on the assumption that herbicides had not been used in the area.
In addition, Mr Hutchins made a comment in his December 2016 report that the water in the channels was "extremely turbid" but he did not refer to any testing or other evidence that would establish the precise degree of, or the reason for, this turbidity. Without more, the comment concerning turbidity, even if it were accepted as reliable, was of little or no assistance in resolving any issues in these proceedings.
On 29 December 2009, Ms Tijs inspected the rice crops on North Corynnia with Ms Jones and others. Photographs of the Corynnia Channel and internal channels taken by Ms Tijs at that time showed channels that were generally full of water with plants growing above the waterline without signs of distress to the extent that any could be discerned from the photographs. [66]
Ms Jones gave evidence concerning the work done on the channels in about 2006, as a result of discussions and arrangements with MI, but nothing was submitted to turn on this.
On 30 January 2010, Ms Jones inspected the P channel and took a photograph. This photograph showed a dry channel and dead plants in the channel below where the waterline had been. From inspection of the photograph it is quite possible that it shows smaller living plants among the dead plants in the lower parts of the channel. However, it is not sufficiently clear to make a definitive finding one way or the other.
Mr Cave also gave evidence concerning the P channel in about mid-January 2010 when the Reiziq crops were, as he described them, "unhealthy" and a "pretty horrible colour of yellow". His observations of the P channel were not entirely consistent with Mr Hutchins's or Ms Jones's. They were also apparently given from memory almost 10 years after the event and without the benefit of contemporaneous notes or photographs and there was no precision at all concerning where the observations were made. Mr Cave said that: [67] "we found bloodworm in it, which is not a big deal in its, itself. The water out there is, is not the best of all possible qualities and it does come out of the back of the swap, Barren Box swap, and it can be a bit green, you know, a bit difficult to deal with at the time, but you know, not, not something that I would say, "Well, you know, we're in trouble here." The only, the only thing that was odd was that the supply channel down to P, everything below the water line had died. Which was extraordinarily unusual because there was umbrella sedge, which is a type of water weed. They're very difficult to kill and there was boneo(?) grass. I remember looking at the boneo grass, which is another water weed and it grows particularly well in rice country, and it was probably 5 or 6 foot tall and it had fallen into the water and rotted, and I hadn't seen that before. That was very unusual. So, that was probably the only out of the ordinary thing that I was thinking about the water, it, you know, water's water. It didn't really smell particularly badly, but that was, that was, for me, highly unusual. I don't see that, and I see a lot of water in channels."
Mr Hutchins did not refer to bloodworm in his reports. Nor did he refer to boneo grass, which had grown tall but fallen into the water and rotted, or to umbrella sedge. Despite his observations, Mr Cave did not believe that there was something about the water that suggested that "we're in trouble here".
It was submitted by the plaintiffs that "it is accepted that bloodworms do not attach [sic] weeds, which means that … a bloodworm infestation does not explain the cause of the weeds dying in the supply channels and failing to grow in the irrigated bays". [68] This was apparently based on Mr Hutchins's evidence "it could not be bloodworm because bloodworm does not attack Bathurst burrs, all that sort of, that weed spectrum along the channel" and his assertion that bloodworm was a specific pest for rice not for weeds. [69] I do not accept Mr Hutchins's evidence in that regard. The rice production manual entitled "Production of Quality Rice in South Eastern Australia," stated in the section relating to bloodworms: [70] "While some bloodworm species feed on rice plants, none are solely rice feeders and all species can be found in other aquatic habitats. Most species can live on a range of foods including algae and decaying organic matter, while a few species are predatory."
Mr Hedditch also gave evidence that when he inspected the rice crops on North Corynnia some day or so after 18 December 2009, Ms Jones showed him weed plants under stress in channels and drains, which were dry by that time.
There was no specific evidence that established where Ms Jones's, Mr Cave's, Mr Hedditch's and Mr Hutchins's observations were made. Thus, it is difficult to know whether they were referring to the same or different parts of the internal channel system and what the precise nature of the problem was.
All of this essentially anecdotal and vague evidence concerning the internal water supply channels on North Corynnia did not provide, in my view, a sound foundation for any specific findings as to the state of the channels at particular times and places or what caused the conditions said to have been observed in the channels. Nor did that evidence provide a proper and reliable basis for making any findings as to the contents of the water delivered to Ms Jones's internal supply channels by MI through its channels, which were not for the most part the channels referred to in these aspects of Mr Hutchins's, Ms Jones's and Mr Cave's evidence.
In relation to the observations of dead or dying plants in the internal channels at about late 2009 and early 2010, Prof Meyer provided a possible explanation for these observations, as follows: [71] "… I take the observation as described as being, being valid. But because I have no information about what was the situation prior to the water coming down there and what were the conditions under which the sedge and the barnyard grass was growing at, as a speculation the only thing that I could think of that could potentially happen there is that when you have plants that have been growing in a situation, for example, if that was in, during the preceding dry period, those plants would basically be adapted to growing in the dry period. In other words, they would have a root system which is - and since they were obviously being very, had grown well, they would have roots which had basically adapted to growing in dry conditions. And probably deep roots, very few shallow roots, quite deep roots. And the plants are adapted to that, so that now when you come and you put a, a fresh water, a water, and saturate the soil that they're growing in, these plants are not adapted to that situation. And plants take time to adapt. They're not, as we've seen with rice, you know, it has to adapt to the aquatic conditions. That's the - and certainly the plants would be stressed under that, that situation. Whether that happened in this case, I can't say. It's speculation."
Mr Lacy did not disagree and said that there was nothing he could add to what Prof Meyer had said. [72] Mr Hedditch was of a similar view. In his affidavit, he said that as a result of his observations he formed the view that the lack of moisture was the likely cause of the stress symptoms in the weeds. This evidence is also consistent with Mr Cave's evidence that, in his opinion, the plants in the channels died because they were underneath water. [73]
The plaintiffs' written submissions contended, at par 41, that Mr Lacy gave evidence that the weeds in the supply channels died from some form of toxin. This was not correct. [74] That evidence came from Mr Hutchins and he conceded that this view had been abandoned by the time Mr Hutchins wrote his first report in June 2010.
Taking into account the caution that should be exercised in relation to Mr Hutchins's and Ms Jones's evidence, the limitations of Mr Cave's evidence and the expertise and experience of Prof Meyer, Mr Lacy and Mr Hedditch, I accept that one potential explanation for the stressed or dead weeds, as were observed in internal supply channels on North Corynnia in late 2009 or early 2010, was the failure by the weeds to adapt to the change in conditions from those in the channels during a lengthy drought to having their roots saturated with water, below the water line. Their condition may have been exacerbated by the removal of moisture when the channels dried after the paddocks were dewatered. It is also possible that the plants in the channels, especially where water had remained still for some days, were attacked by bloodworms.
I also accept Mr Cave's evidence, although not expressed as a formal expert opinion, that the water in the channels at the time he made his observations was typical, did not smell particularly bad and was not likely to be a cause of "trouble". That evidence was consistent with Mr Michael Armstrong's evidence that the water supplied to North Corynnia had "always been soupy" and, in this sense, the water described by Mr Cave was "typical". It was also consistent with Ms Jones's evidence that Mr Cave tested the water, at least for salinity and possibly other potential problems, at the early stages of the crop and informed her that he found no cause for concern. Finally, it was consistent with what could be discerned from photographs such as Figures 2 and 3 in Mr Hutchins's June 2010 report and the photographs taken by Ms Tijs on 29 December 2009. [75]
It should also be borne in mind that the use of herbicides on or near the channels might have been an additional explanation for what Mr Hutchins, Ms Jones and Mr Cave observed, although the evidence was not sufficient to allow me to make any definitive findings in that regard.
In any event, at the relevant times the internal water supply channels belonged to Ms Jones and she could control when and how much water was in them, what was done with that water and what was done to those channels and when.
In all the circumstances and having regard to the evidence as a whole, I am not satisfied that the plaintiffs have established on the balance of probabilities that "the only logical explanation for the death of the weeds in the supply channels around the rice crops" was the water delivered by MI into those channels in 2009/10. [76]

[78]

Mr Hutchins's limited consideration of Ms Jones's neighbours' successful crops in 2009/10

In his June 2010 report, Mr Hutchins did not expressly deal with the fact that neighbouring farmers who drew water delivered using the same channels as the water that was delivered to Ms Jones in 2009/10 did not suffer crop failures or the fact that the two neighbouring farmers' rice crops attained yields of about 10 t/ha. Mr Hutchins did, however, state in section 6.3 of his June 2010 report that: "Exits from the North Corynnia Pond to most other users - the Wah Wah No 2 Stock and Domestic Channel, Greg Star and the Armstrongs - draw water from the most oxygenated, surface layer of the channel water."
This was apparently based upon a misunderstanding by Mr Hutchins, which was explored in cross examination, [77] concerning the nature of the regulators, outlets, and escapes in the relevant part of the MI irrigation infrastructure and, in particular, the significance of the escape at the end of the Corynnia Channel 3 near the Star Brothers' rice growing paddocks on Dry Lake.
As I indicated earlier, I accept the evidence of the employees of MI concerning the nature of the irrigation infrastructure in the MIA and the evidence of Mr Star concerning the escape at the end of the Corynnia Channel 3 near Block 30L in preference to Mr Hutchins's assumptions which were, according to Mr Hutchins, based on information received from Ms Jones and information derived from the internet, as well as some of his own observations.
I have already found above, when considering the successful crops grown by Mr Williment, Mr Armstrong and Star Brothers in 2009/10, that the undershot or overshot nature of the relevant regulators and outlets did not provide an explanation for why her neighbours' crops were successful and Ms Jones's 2009/10 rice crops were not.
Having regard to all the relevant evidence and findings, Mr Hutchins did not put forward any convincing explanation why Ms Jones's neighbours' crops in 2009/10, which received water from the same upstream channels and sources as Ms Jones's crops over the same period, were successful if, as Mr Hutchins contended, the water supplied to Ms Jones by MI caused her crops to fail, whether because of deoxygenation, iron and other metal toxicity or some other issue with the contents or quality of the water.
This was a further factor which indicated that Mr Hutchins's conclusion as to the cause of the failure of Ms Jones's 2009/10 crops should not be accepted.

[79]

Mr Hutchins did not differentiate between the Reiziq crops and the Illabong crop in reaching his conclusion

Finally, it was significant, in my view, that Mr Hutchins did not, in reaching his conclusion as to the cause of the failure of Ms Jones's 2009/10 rice crops, take into account that the Reiziq and Illabong crops progressed very differently. Nor did he explain how his conclusions were consistent with that fact. The Reiziq crops experienced good and even germination, except in one bay in P15, and progressed well until about mid-December 2009. During this same time, the Illabong crop generally failed to germinate, and what did germinate, failed to thrive. Yet both crops were irrigated with water delivered by MI in November and December 2009.
Mr Hutchins was aware of this difference in progress. In section 5 of his December 2016 report he stated: "The Reiziq had good initial establishment, but started to deteriorate in about mid-December. The Illabong crop never established properly."
Nonetheless, he provided no account of why the crops progressed so differently. No scientific evidence as to water quality was pointed to which might provide a satisfactory explanation consistent with his opinions. Indeed, Mr Hutchins's attempt to explain why Ms Jones might possibly have received poor quality water from MI appeared to be contrary to what occurred in relation to the Reiziq and Illabong crops.
In section 6.4 of his June 2010 report, Mr Hutchins assumed that early in the cropping season deoxygenated and contaminated water was released from BBSW to supply irrigation water to farmers such as Ms Jones and, as the season progressed, water from other sources became available and the proportion of water sourced from BBSW declined except when there was a temporary shortfall between downstream demand and supply from upstream sources. He went on and said, apparently based on his assumptions: "The management and configuration of the [MI] system explains how the North Corynnia Pond could become highly toxic in the event that contaminated and deoxygenated water is released from BBSW. Contaminated releases at the commencement of the season could form the main source of water for those at the end of a channel system for some time, given the length and capacity of the channels. In subsequent mixed releases, contaminated water could travel in the lower strata right through to the North Corynnia pond without exposure to oxygen, then become concentrated because the oxygenated top layer from the pond is skimmed off and sent downstream."
This potential explanation of how deoxygenated and contaminated water might been delivered to Ms Jones's crops in 2009/10 was inconsistent with the water initially delivered for the Reiziq crops being of good quality and becoming of poor quality only at about the time that water was first applied to the Illabong crop. If anything, Mr Hutchins's explanation would have had the worst quality water being delivered at the commencement or earlier part of the season. If this is so, it would more likely have damaged the Reiziq crop and her neighbours' crops, which were sown earlier than the Illabong crop. This is inconsistent with what actually occurred.
The failure of Mr Hutchins to consider this issue and provide a credible explanation, which was consistent with his opinions, for the quite different progress of the Reiziq crops and the Illabong crop was a further reason for not accepting Mr Hutchins's opinion that deoxygenated and contaminated water from BBSW delivered by MI caused the crop failures on North Corynnia in 2009/10.
It can be noted that the differences in the crops can, however, be explained by the other potential causes relating to Ms Jones's management of her paddocks and rice crops which have been identified above but which Mr Hutchins failed to consider in any detail.

[81]

Ms Jones's further steps and investigations in August 2010

Mr Hutchins's June 2010 report including a significant number of recommendations in section 15 directed at what MI should do in response to his conclusions. As I have not accepted his conclusions, I do not accept that the steps he recommended MI take were reasonable or necessary in the circumstances, or that a reasonable person in MI's position would have taken those steps. There was, however, also one recommendation directed at what Ms Jones should do. That recommendation was as follows: "… on farm remediation … at North Corynnia to address the accumulation of metals in the soils that have been irrigated since 2006/7 (approximately 600 ha) and the dams that have been filled (6 dams including Glencory 32A). Remediation is likely to include the application and incorporation of phosphorous and calcium."
Mr Hutchins did not at that time recommend in that report the use of a flocculant in relation to the irrigation water coming onto North Corynnia.
After Mr Hutchins provided his report of June 2010, Ms Jones's investigations did not cease.
Ms Jones said that she inspected paddock H20 on 4 July 2010 and observed deposits of dead algae on the surface and limited plant growth.
At Ms Jones's request, further water, soil and sediment testing was carried out on North Corynnia between 17 and 19 August 2010 by EAL Consulting Services which were associated with the Environment Analysis Laboratory, a part of Southern Cross University (EAL). Mr Nick Davison of EAL was the project manager, Mr Troy Shepherd was the field technician and Mr Graham Lancaster was the laboratory manager, who was responsible for the laboratory testing results.
Ms Jones provided Mr Hutchins's June 2010 report to Mr Shepherd and the other EAL employees and Mr Shepherd used it to determine the proposed investigation objective and the scope of works. In order to decide on the sites to be tested, Mr Shepherd relied upon information from Ms Jones.
The samples were collected on North Corynnia on 17 and 18 August 2010. For most of the samples, Mr Shepherd took the sample and Mr Davison recorded details of the samples. Other samples, being three water samples and one sediment sample, were collected from locations not on North Corynnia on 19 August 2010.
In addition, it was an agreed fact that the water samples taken by Mr Kelly on 5 January 2010 were delivered by him "in an esky with ice blocks" to Mr Shepherd at his motel on 18 August 2010.
Despite their mode of delivery on 18 August 2010 being an agreed fact, there was no evidence as to whether those water samples were kept refrigerated between 5 January and 18 August 2010 and what the effect of refrigeration or non-refrigeration or other aspects of storage of the samples might be.
Originally, the plaintiffs sought to adduce evidence of this testing in August 2010 and the results by tendering a report by Mr Nick Davison, Mr Troy Shepherd and Ms Katie Whitney from EAL. This report (the Rejected EAL Report) was not admitted in evidence in these proceedings, for the reasons set out in Jones v Murrumbidgee Irrigation Limited [2019] NSWSC 1228. Eventually, the plaintiffs read affidavits of Mr Shepherd and Mr Lancaster limited to the taking of the samples between 17 and 19 August 2010 and the results obtained.
It was expressly agreed that MI could make submissions concerning the unreliability of this testing, even though Mr Shepherd was not cross examined on those matters or, indeed, at all. [78]
The samples obtained between 17 and 19 August 2010 were received or collected by the EAL laboratory on 24 August 2010.
Mr Lancaster's affidavit had exhibited to it his certified results of testing of water and soil samples and his acid sulfate soil analysis of various sediment samples. These results were relied upon by the plaintiffs' soil and water experts, Prof Cook and Mr Mulvey, but only indirectly in that they relied upon the Rejected EAL Report and that report was based, in part, on Mr Lancaster's results.

[82]

Further water use in and after 2010 and sale of water entitlements

Ms Jones said in the First Jones Affidavit that, later in 2010, she irrigated pasture on blocks 30H, 30D and M24, though this involved substantially less water than rice irrigation, and following irrigation she observed a white residue on the ground and a proliferation of weeds and from this time, she ceased to conduct irrigation on North Corynnia. It is useful to summarise Ms Jones's subsequent use of irrigation water delivered by MI at this point.
The MI Water Statements dated 22 February 2016 and 14 February 2017 covering the period from July 2009 to February 2017, relating to water use on North Corynnia, indicated that water delivered by MI was used and continued to be used for winter cereal and summer and winter pasture, as well as small amounts for stock and domestic use, on various blocks on North Corynnia from August 2009 to May 2010, April to May 2013, October 2013, December 2013, April to June 2014, October and November 2014, March and May 2015 and March and April 2016. I accept that this use of irrigation water supplied by MI to Ms Jones occurred as indicated in these Water Statements.
Ms Jones also gave evidence that she was unable to sell any water in 2011 and 2012 as MI had suspended her account. Although Ms Jones did not give detailed evidence as to how her account came to be suspended, I accept that what occurred is briefly summarised in an email of 28 October 2011, from Mr Geoff Beard, Executive Manager, Assets of MI replying to an email from Ms Jones which alleged that MI had suspended her water allocation without due process. [79] In this email Mr Beard explained that Ms Jones had been forwarded the appropriate notices, in accordance with her Member Contract, requesting that she pay her outstanding accounts, which included charges dating back to the 2009/2010 season, and that her account was subsequently suspended following the continued non-payment of the outstanding amounts. MI offered Ms Jones the opportunity to enter an instalment payment program in order to pay her accounts.
Although MI had suspended the delivery of water to all of Ms Jones's landholdings in 2011, MI permitted Ms Jones to take "non-account flood water" in 2012 and, on occasion, MI delivered water for stock, even though MI contended it was under no obligation to do so. Formal notice of suspension of all water deliveries, including for stock, was given for the purposes of cl 28.1(1) of the Water Delivery Contract on 12 February 2013.
Eventually, Ms Jones's account was reactivated but it was not submitted that the precise date of, or basis for, reactivation had any significance for the purposes of the present proceedings.
The contractual records establish that Ms Jones sold 3,000 ML of water entitlements for $2.376 million, by one contract dated 27 March 2013 and three contracts dated 21 November 2013. Ms Jones's evidence was that the sale of these entitlements was "necessitated by financial losses incurred during the period [she had] not been able to access water suitable for irrigation". From the correspondence between Ms Jones, Mr Borrows, CEO of MI, and Ms Radue, Company Secretary, between 30 September 2013 and 18 October 2013 [80] , it appears that part of the proceeds of these sales was used to pay the outstanding charges. In that regard, Ms Jones indicated in her 30 September 2013 email, that if MI sought to exercise any rights under cl 16.1(2) of the Water Entitlements Contract and cl 28.1(3) of the Water Delivery Contract to restrain her trade in water, she would pay the amount claimed by MI "under duress" and commence legal action to recover the payments. [81]

[83]

Soil and water experts

Ms Jones also gave evidence that on and after 21 September 2010 she inspected and took photographs of various paddocks, channels, outlets and regulators. Her observations were recorded in the Second Jones Affidavit.
Ms Jones next engaged Prof Cook to assist her. His areas of expertise include soil and water. He undertook a number of field trips to North Corynnia in 2013, 2014 and 2018. Mr Hutchins also continued to pay visits to North Corynnia. They both provided reports and recommendations to Ms Jones. I shall deal with those reports and recommendations later in these reasons according to when they were provided to Ms Jones.
It is appropriate to pause at this point and make some observations and findings concerning the evidence of soil and water expert witnesses called by the parties.
Prof Cook and Mr Mulvey were called by the plaintiffs as expert witnesses in relation to soil and water in these proceedings.
In response, MI relied on the evidence of Prof Meyer, as a soil and water expert as well as a rice growing expert, and the evidence of Prof Bush in relation to soil and water.
These experts' reports from these witnesses were, as noted above, generally admitted on the following bases: 1. the factual matters not observed by the witness were admitted as assumptions only; 2. summaries of conclusions were admitted as summaries only, not as evidence themselves; 3. argumentative material was admitted only as submission, not evidence; and 4. evidence in relation to testing and test results not carried out by the witness was admitted as assumption only.
Once again, in addition to providing multiple reports, these soil and water experts: 1. participated in a conclave of relevant experts; and 2. gave evidence concurrently with the other experts, using the same format as was used for the rice growing experts.
Prof Cook was cross-examined individually but Mr Mulvey, Prof Meyer and Prof Bush were not. Given the way in which the concurrent evidence session was conducted, Mr Mulvey's, Prof Meyer's and Prof Bush's evidence was effectively unchallenged, except to the extent that one of the other experts disagreed with their evidence during the concurrent evidence. Prof Cook's evidence was, however, significantly challenged in cross-examination and I shall comment on aspects of his evidence raised in cross-examination in more detail below.

[84]

Prof Cook

Like some of the plaintiffs' other evidence, the evidence from the plaintiffs' soil and water expert, Prof Cook was not without its difficulties and limitations.
Prof Freeman Cook holds a Bachelor of Science in mathematics and chemistry, a Master of Philosophy in soil physics, a Diploma in Agricultural Science from Massey University in New Zealand and a Doctorate in Philosophy from the University of Technology Sydney in environmental physics. He has held many positions including being the Project Leader and Senior Principal Research Scientist in relation to land, water and irrigation with the CSIRO, between 1987 and 2011, as well as being the Research Leader of eWater Cooperative Research Centre from 2008 to 2011. Since 2011, Prof Cook has been the Principal of Freeman Cook and Associates. He is an Honorary Professor at the University of Queensland in the School of Agriculture and Food Sciences and an Adjunct Associate Professor at Griffith University. Prof Cook has an extensive list of academic publications.
I had no doubt of Prof Cook's expertise in the relevant fields of soil and water.
The issues concerning Prof Cook's reliability related more to whether he brought the independence required of an expert giving evidence in accordance with Expert Witness Code of Conduct to bear in the present case and the reliability of his evidence. While I give some of my reasons for having concerns in these regards at this point, additional reasons are given elsewhere when considering particular reports provided by Prof Cook.
Prof Cook provided quite a number of reports and an affidavit not all of which were relied upon or admitted. The reports which were admitted were the reports of April 2012, August 2015, April 2018, 6 October 2018, 19 November 2018 and 7 May 2019. The first three of his reports were unsigned but, eventually, all were acknowledged to be his in oral evidence.
In five of the reports which were admitted, Prof Cook expressly stated that he had read the Expert Witness Code of Conduct and agreed to be bound by it in compiling his report. He also attached a copy of Sch 7 to the Uniform Civil Procedure Rules 2005 (NSW) to these reports. There was no such acknowledgement in the report of April 2018. In relation to that report, I admitted it subject to Prof Cook giving evidence as to his compliance with the code of conduct, and as to whether or not he adhered to his opinions, if the code was complied with. This evidence was given. [82]
Notwithstanding the statements and his evidence that he had read and agreed to be bound by the expert witness code, Prof Cook's April 2012, August 2015 and April 2018 reports, each had the following notification on the front page: "Disclaimer. Freeman Cook and Associates Pty Ltd makes no representations or warranties as to the accuracy or completeness of the Report and disclaims all liability for all claims, expenses, losses, damages and costs any third party may incur as a result of them relying on the accuracy or completeness of the Report."
That disclaimer was in exactly the same terms as the disclaimer on Mr Hutchins's reports, except for the identification of "Freeman Cook and Associates Pty Ltd" instead of "Hutchins Agronomic Services".
Once again, I was concerned that by putting this disclaimer on some of his reports Prof Cook was indicating that the Court should not rely on the accuracy or completeness of his reports or that he did not understand his duty as an expert witness when putting his opinions before the Court. In my view, it called into question whether the Court should rely on his evidence.
More troublingly, Ms Jones exchanged a surprisingly large number of emails with Prof Cook in relation to his opinions concerning: the problems with her rice crops in 2009/10; the irrigation water delivered by MI; and, his reports. Prof Cook counted that there were 431 of these emails. [83] These communications suggested that Ms Jones was particularly active in suggesting lines of argument, pointing to research that she perceived supported her case and, in some cases, providing Prof Cook with the actual wording of his reports. Two particularly worrying examples of these communications are referred to in the following paragraphs.
First, the email of 20 March 2012 from Ms Jones to Prof Cook concerned a draft of a report by Prof Cookand attached a version of the draft with Ms Jones's comments added in handwriting. The handwritten comments and additions were, in a substantial number of cases, adopted by Prof Cook in his report of April 2012.
Further, that email of 20 March 2012 included the following: "It would be helpful if you could state that in your opinion, there is a high probability that incoming water carrying nutrients, sediments, algae, sulphur and sediments caused the damage at North Corynnia. You've already stated that this is a logical explanation (hypothesis) which is supported by a wide range of evidence. As you know, the standard proof for a civil case is 'on the balance of probabilities' and not 'beyond reasonable doubt'. In a previous water quality case, Puntoriero, sediment was tested and found to contain atrazine, and this was the basis for a successful claim against MI for damage to a potato crop. Hence the remaining sediment ie in the MI channel as found by EAL is relevant. It would also be helpful if you could say something about the advisability of using my water supply without MI remediating the system. You have not mentioned the role of taking water form the top of the swamp and even through the channel system to avoid the export of sediment plus ensuring oxygenation. Coud this also be inserted somewhere."
Although expressed in terms of what would be helpful for Prof Cook to include and what might be inserted, the apparent purpose of such an email was to encourage Prof Cook to include in his reports material which Ms Jones perceived would assist her case. He was not being left to complete his report independently.
Secondly, the email of 26 March 2012 from Ms Jones to Prof Cook, with the subject "Points from discussion this morning", included detailed comments on, and suggestions for, the contents of his report as follows: "Under page commencing 'Background' Emphasise that immediate action can taken, as well as long term action ie not disturbing sulfidic sediments, taking water from surface etc … 'Fig 1' No comment … Figure 6 Drop Figure 19 in caption in case Nick Hutchins modifies his report in the light of your findings) … Last page Conclusions Sulfide and metal toxicity are logical explanations for the damage that has occurred at North Corynnia, corroborated by the available evidence. Most notable is the presence of high concentrations of iron and low concentrations of sulfur in rice tissue samples, for which there are no other obvious explanations. It has been known by scientists and MI since the late 1990s that the drainage water in the MIA is contaminated and carries high levels of sediment, and therefore needs to be managed accordingly. The presence of sulfur adds an extra dimension to the contamination. Inland sulfidic sediments came to prominence in the early 2000's at Bottle Bend Lagoon near Mildura. Other swamps in the MIA, including Fivebough and Tuckerbill swamps, have been identified as sulfidic. It is therefore surprising that more has not been done by MI to identify and manage sulfidic sediments in their system. The problem will not be sold by shutting down those impacted by the sediment. It must be addressed at source. Concentrating the sediment in surges or at channel ends and then releasing it on to farms may cause significant losses, both at the time release and into the future."
This email was particularly significant because it appeared that Prof Cook adopted Ms Jones's comments and suggestions. For example, in Prof Cook's April 2012 report: 1. in the caption to Figure 6 there was no reference to the photograph in that figure being "Figure 19" from any report of Mr Hutchins; and 2. Prof Cook's section 6 "Summary and Conclusion" in his April 2012 report included the following (with the wording which is the same as Ms Jones's 26 March 2012 email in bold): "Sulfide and metal toxicity are logical explanations for the damage that has occurred at North Corynnia, corroborated by the available evidence. Most notable is the presence of high concentrations of iron and low concentrations of sulfur in rice tissue samples, for which there are no other obvious explanations. … … It has been known by scientists and MI since the late 1990s that the drainage water in the MIA is contaminated and carries high levels of sediment, and therefore needs to be managed accordingly. The presence of sulfur adds an extra dimension to the contamination. Inland sulfidic sediments came to prominence in the early 2000's at Bottle Bend Lagoon near Mildura (McCarthy et al. 2006). Other swamps in the MIA, including Fivebough and Tuckerbill swamps, have been identified as sulfidic. It is therefore surprising that more has not been done by MI to identify and manage sulfidic sediments in their system."
Apart from the insertion in section 6 of Prof Cook's April 2012 report of some material of his own between Ms Jones's first and second paragraphs in her email under the heading "Conclusions" and a reference to the report of McCarthy et al in his version, Prof Cook's wording in his report quoted above was exactly the same as that found in the 26 March 2012 email from Ms Jones.
In cross examination, Prof Cook was asked the question "Would you agree that the conclusion in your 2012 report is almost identical to these amendments that have been made by Ms Jones?" and he responded "No". [84]
The refusal to acknowledge the fact that the conclusion in his April 2012 report was "almost identical to" Ms Jones's proposed amendments in her 26 March 2012 caused me great concern as to whether Prof Cook's evidence was reliable.
In brief, these emails and other emails, such as Ms Jones's email to Prof Cook dated 25 and 27 August 2014, undermined to a significant extent the confidence one could have in the witness's independence and suggested that his expert reports tended to reflect Ms Jones's opinions and research.
An additional problem with Prof Cook's evidence was that the assumptions he relied upon were, in numerous instances, not supported by reliable evidence. This was particularly the case where he relied upon: information supplied by Ms Jones; Mr Hutchins's reports; the Rejected EAL Report; and, photographs which required him to speculate as to what was actually depicted.
The problem with Prof Cook's reports was not his expertise but rather that what Prof Cook was seeking at times to explain by his hypothesis did not correspond with what actually occurred in relation to the Reiziq and Illabong crops in 2009/10. Nor did it take into account other, potentially more likely, explanations for what happened to Ms Jones's rice crops.
Furthermore, from his reports and oral evidence, it also appeared to me that: 1. if what Prof Cook assumed he was trying to explain did not occur or was not supported by the evidence and findings in this case, he would accept that his "hypothesis" was of little relevance or assistance; and 2. if there were other more likely explanations for the phenomena that actually occurred, he would not contend that his hypothesis should be accepted in preference to the other more likely explanations.
In the circumstances, while Prof Cook's evidence as to the physical, chemical and biochemical interactions of soil and water might be accurate as a matter of scientific theory, his opinions that these interactions provided the explanation for the failure of Ms Jones's rice crops and the problems with paddocks were often not well founded.
Taking all the matters I have referred to here and elsewhere in these reasons and my observations of the witnesses into account, I formed the view that it was only where his opinions were consistent with both other expert opinions, that I accepted, and the facts, as found in this case, that Prof Cook's opinions concerning Ms Jones's crops and paddocks should be accepted.

[85]

Mr Mulvey

The plaintiffs' other soil and water expert was Mr Mulvey. He is a Senior Principal Scientist with Environmental Earth Sciences NSW. Mr Mulvey provided two reports: one dated 14 February 2017 and a second report dated 24 May 2019. He did not provide a separate curriculum vitae but information concerning his qualifications and experience was given in the body of his reports.
Mr Mulvey has a bachelor's degree in Agricultural Science, majoring in soil science, and a master's degree in Applied Science, majoring in environmental geology and hydrogeology. He is also a Stage 3 Certified Professional Soil Scientist. He has over 35 years' experience in soil, groundwater and waste related problems and he has worked in the areas of acid sulphate soils, water quality and soil quality in catchments. I was satisfied that Mr Mulvey was well qualified in his areas of expertise.
As I noted above, Mr Mulvey's evidence was not challenged by way of individual cross-examination.
Although he acknowledged that he had read and agreed to be bound by the expert witness code of conduct in both reports, the second report (but not the first) contained a page headed "Environmental Earth Sciences General Limitations". That page contained many limitations including the following: "Scope of services The work presented in this report is an Environmental Earth Sciences response to the specific scope of works requested by, planned with and approved by the client. It cannot be relied upon by any other third party for any purpose except with our prior written consent. … However, any party wishing to rely on this report should contact us to determine the suitability of this report for their specific purpose. … Limit of liability This study has been carried out to a particular scope of works at a specified site and should not be used for any other purpose. This report is provided on the condition that Environmental Earth Sciences VIC disclaims all liability to any person or entity other than the client in respect of anything done or omitted to be done and of the consequence of anything done or omitted to be done by any such person in reliance, whether in whole or in part, on the contents of this report. …"
Yet again, it is difficult to understand what the purpose of such a statement of limitation could be in respect of a report prepared with the express intention of being submitted to, and potentially relied upon by, a court. It tends to call into question whether the witness fully understood the nature of, and complied with, his duty to the Court as an expert witness.
Moreover, it appeared to me that during the joint cross examination of experts, Mr Mulvey was concerned at times to put forward whatever arguments could be put forward to support the plaintiffs' case, rather than limiting himself to a more balanced answer without regard to the effect it might have on the case of the party which had retained him. For example, Mr Mulvey attempted to argue, in support of Prof Cook's reliance on the ANZECC guidelines in relation to environmental water being relevantly applicable to irrigation water, that "[b]ecause the guideline for irrigation lacks some criteria, it does not mean that you don't consider that criteria". [85] On this basis, it was suggested or implied that the criteria for environmental water should be applicable to irrigation water. This reasoning appeared to me to lack some credibility. I found that Prof Meyer's and Prof Bush's responses in relation to the ANZECC guidelines were more credible and reliable.

[88]

Prof Bush

Prof Bush provided two reports: the first dated 4 April 2018 and the second dated 22 March 2019. His reports said that he had read and agreed to be bound by the expert witness code of conduct. There were no qualifications or limitations on the reports either as to their accuracy or completeness or reliability.
Prof Bush provided his curriculum vitae as well as a more discursive exposition of his training and experience at the beginning of his reports.
Since 2016, Prof Bush has been the founding Global Innovation Chair to the International Centre for Balanced Land Use, which is located at the University of Newcastle. He has a bachelor's degree, with first class honours, in Science (majoring in physical geography) and a doctorate of Philosophy (in environmental geochemistry) from the University of New South Wales, as well as a significant number of certificates and other qualifications from a number of academic bodies. From 2007 to 2015, he was the Director, Southern Cross Geoscience at Southern Cross University. Between 1994 and 2010, Prof Bush was a Scientific Officer (Soils and Water) with NSW Agriculture, Salinity Team Leader with the NSW Department of Land and Water Conservation and a Research Fellow at Southern Cross University. He has a very significant number of published papers and other works and has received many awards related to his work in soil science.
Prof Bush has been a pioneer and a leader in the field of acid sulphate soil research and innovative management in Australia. Between 2007 and 2012, he served as a leading expert and advisor to the Murray Darling Basin Authority on a national response to acid sulphate soils and their impacts on soil and water quality. During this time, he was involved in a large number of key reports and projects concerning these issues.
Prof Bush's discovery of extensive accumulations of iron monosulfidic black ooze (MBO) in rivers and estuaries in the mid-1990s linked for the first time acid sulphate soils with catastrophic deoxygenation, greenhouse gas emissions, eutrophication and contaminant metal dynamics. His work in this area has been recognised as very significant.
In short, Prof Bush's qualifications and extensive experience meant that he was well-qualified to give reliable and properly informed opinions concerning the occurrence and effect of turbidity, deoxygenation, metal toxicity, sulphidic sediments and MBO in relation to irrigation water in the MIA, which is an important part of the Murray Darling Basin. His academic and practical experience also equipped him to express reliable opinions on the scientific rigour and validity of the soil and water testing undertaken in relation to North Corynnia.
From his qualifications and experience, his written evidence, my observation of him giving oral evidence and the fact that none of his evidence was challenged in cross-examination, I formed the view that generally his evidence should be accepted in preference to that of Prof Cook and Mr Mulvey, where there was inconsistency.
My perception was that there were few if any significant points of disagreement between Prof Meyer and Prof Bush. But, where there were, I should prefer Prof Meyer's evidence in relation to how matters of soil and water affect the irrigation of rice crops in the MIA and Prof Bush's evidence concerning the occurrence and effect of turbidity, deoxygenation, metal toxicity, sulphidic sediments and MBO in that region, according to the different focuses of their study and experience.
I now turn to consider what occurred after late 2011 and the reports that Prof Cook and Mr Mulvey, as well as Mr Hutchins, produced between 2012 and 2019. I deal with their reports in this way as the plaintiffs' experts' reports recorded their investigations and advice provided to Ms Jones, during this period, as well as being relied upon as expert reports in these proceedings.

[92]

The specific matters Prof Cook sought to explain were not established on the evidence

Prof Cook summarised his opinion and reasoning in section 6 of his April 2012 report as follows: "A logical science-based explanation for the damage to the rice crop at North Corynnia is presented. This is: 1. The water supply contained sulfide, or sulfate and low dissolved oxygen which resulted in sulfide generation in the flooded conditions 2. The sulfide damaged the roots which resulted in low radial oxygen release and a build up of phytotoxins in the soil especially to Fe2+ 3. The root damage and phytotoxins reduced nutrient uptake and iron was taken up excessively, leading to iron toxicity This resulted in plants which either died or had low vigour. The evidence to support this hypothesis is given in detail above but, briefly, consists of evidence of sulfidic sediments in supply channels and photographic appearance of water with a black sediment content. The root damage is consistent with damage due to sulphide. The high iron concentrations found in plant tissue samples is consistent with reduced conditions in the soil around the roots. The symptoms of the plants and tissue analyses are consistent with iron toxicity."
It can be seen that the task Prof Cook engaged upon was seeking an hypothesis to explain the following "evidence" or "facts": 1. observations as to sulfidic sediments in supply channels; 2. the photographic appearance of water with a black sediment content; 3. root damage observed to have been suffered by rice plants in the Reiziq crops in 2009/10; and 4. high iron concentrations reportedly found in plant tissue samples taken from the crops in 2009/10.
The following comments can be made concerning the "evidence" or "facts" for which Prof Cook sought an explanation or hypothesis.
Observations as to sulfidic sediments in supply channels. In section 9.4 of his June 2010 report, Mr Hutchins did not definitively identify sulfidic sediments in "supply channels". He said: "I inspected the recycle drain on 13 January, and apart from the absence of plants, I observed that the soil had a foul smell and there was a distinct black layer in the mud … . The black layer is consistent with sulfidic deposits …".
Similar anecdotal evidence of smells or sediments from Ms Jones, Mr Michael Armstrong and Mr Cave of possibly sulfidic sediments in the supply channels at about the relevant times did not establish the actual presence of sulfidic sediments, or monosulfidic black ooze (MBO).
It was Prof Bush's evidence, which I accept, that whether MBO or sulfidic sediment is present in a particular situation is difficult if not impossible to assess by observation without confirmation from laboratory testing. In his extensive experience in this area, it was not unusual to find that what was thought to be MBO was actually organic material.
Prof Cook assumed that "limited sampling by Davidson [sic] et al. (2011) [the Rejected EAL Report] found sulfidic sediments". That report was not, however, in evidence.
Acid sulphate soil screen testing had been carried out in relation to the sludge or silt in "Hdam #2" in May 2010 with a finding that the soil tested indicated "nil Actual Acid Sulphate Soil (AASS) risk and nil Potential Acid Sulphate Soil (PASS) Risk." [90] In addition, Mr Lancaster's affidavit had exhibited to it at p 32 results of acid sulfate soil analysis of five samples supplied to EAL on 24 August 2010. Prof Cook did not in his report specifically refer to or analyse that data or explain its significance, if any. Nor did his reports include consideration of whether the EAL sampling, which he described as "limited", was a sufficiently extensive or reliable basis for reaching any scientifically meaningful conclusions.
I accept Prof Meyer's comments on the conclusions drawn by Prof Cook with regard to the sulfide and metal toxicity. [91] Prof Meyer agreed that sulfide and metal toxicity could potentially be a logical explanation for rice crop damage, if such severe conditions were actually shown to exist. He disagreed, however, with Prof Cook's conclusion that it was present for a number of reasons including: 1. Prof Cook did not consider the effects that the very poor nutritional status and unfavourable physio-chemical properties of the soil had on the rice seedlings; and 2. it was extremely unlikely that the anaerobic conditions necessary to generate large concentrations of sulfide and toxic metals existed and even more unlikely that they were transported in the irrigation water so as to damage selectively the plaintiffs' rice crops but not the crops of her neighbours.
Photographs of water with a black sediment content. Prof Cook's report of April 2012 included figures 2 and 4, which were said to have been taken by Ms Jones, in the No 2 stock and domestic channel and at an undisclosed location, respectively but these could only be assumptions on Prof Cook's part. Ms Jones did not give evidence of taking the photographs nor was there any evidence of when or where the photographs were taken or what they depicted. Thus, there was a lack of evidentiary foundation for Prof Cook's assumptions in relation to the photographs.
Further, having regard to the principles and observations concerning photographs as evidence to which I have referred earlier in these reasons, it is particularly difficult to base any reliable conclusion on what is depicted in photographs, especially in the absence of evidence from the person who took them as to the circumstances when the photographs were taken and what was depicted in the photographs. On viewing the photographs and having regard to the evidence of Prof Bush and Prof Meyer as to the difficulty of interpreting the photographs and using them to reach scientifically reliable conclusions in this regard, [92] I accept that no reliable conclusion in relation to sulfidic sediment could be soundly based on them. Indeed, the fact that such photographs were relied upon to support the plaintiffs' case might be an indication that reliable, scientifically rigorous evidence to support the case was not available.
Root damage to rice plants. The only root damage to rice plants depicted in Prof Cook's report was that shown in a photograph taken by Mr Hutchins (Figure 13 in his June 2010 report) and reproduced, without reference to Mr Hutchins's figure number as requested by Ms Jones, in Prof Cook's April 2012 report as Figure 6. Prof Cook quoted a published article to support his proposition that: "[w]hen sulfide is present in the solution around the roots, Armstrong and Armstrong (2005) showed that the adventitious roots stopped growing, emergence of lateral roots was reduced by 90% and length of lateral roots was reduced by up to 99%."
Figure 6 is reproduced below.
Figure 6 in Prof Cook's report did not obviously show, however, the symptoms described in "Armstrong and Armstrong (2005)". Prof Cook himself labelled Figure 6 as showing "new adventitious roots" and if what appeared to be long white roots being held up above the darker lower roots in the photograph were the "new adventitious roots" and "lateral roots", then this was inconsistent with what Armstrong and Armstrong were said to have shown to be the result of sulfide in the solution around the roots. Further, Prof Cook himself also observed in this regard: "The problem with diagnosis using only visual symptoms is that they are similar to insect and disease infestation, herbicide damage, soil salinity and inadequate draining problems. In fact, initially, when the problems with Ms Jones' rice crop became manifest, most of the above were considered and tested for."
Prof Cook did not claim any particular rice growing expertise and he could not be criticised for not addressing other potential causes of what was depicted in the photograph, such as insect infestation, herbicide damage and inadequate draining problems, especially given his apparent understanding that they had been considered previously and ruled out. In fact, however, the evidence established that Ms Jones's rice crops potentially suffered from bloodworm infestation and other problems such as water management and poor layout leading to waterlogging, nitrogen deficiency and possibly herbicide damage as well.
Thus, Prof Cook's hypothesis appeared to have proceeded on a misapprehension of what the "evidence" showed in relation to root damage and failed, not through any fault of Prof Cook, to take into account other potentially more relevant explanations for the "evidence".
High iron concentrations found in plant tissue samples. As explained in detail above when considering section 9.4 of Mr Hutchins's June 2010 report, the SESL test results for the rice tissue samples taken for the rice crops in 2009/10, which Mr Hutchins relied upon, were qualified by notes indicating that it was likely, or at least possible, that the excessive iron levels recorded were the result of dust contaminated at the time of sampling/transport. The notes have been quoted above. Prof Cook apparently relied upon Mr Hutchins's statements concerning these results rather than considering for himself the original test results which included the warning as to contamination being a potential explanation for the excessive iron levels. Accordingly, the "evidence" which Prof Cook sought to explain did not take into account another potential explanation which was raised by the certified test results themselves.
Taking all of these matters into account, while Prof Cook might have presented a logical science-based explanation for what he understood to be the "evidence" of what occurred on North Corynnia, the "evidence" he sought to explain did not accurately reflect all the information that was available nor did it correspond with what actually occurred.
In these circumstances and having regard to the earlier, more general comments, I did not accept that Prof Cook's April 2012 report established that his "hypothesis" of "[a] logical science-based explanation" was applicable in the present case. Consequently, I did not accept that he had established that there was, or was likely to be, levels of sulfide or sulfate and low dissolved oxygen in the irrigation water delivered by MI for Ms Jones's rice crops in 2009/10 such as would lead to the problems experienced with those crops.

[94]

Prof Cook's investigations in 2013 and 2014 and his August 2015 report

After providing his report of April 2012 based on a desktop study, Prof Cook conducted field trips to North Corynnia, on 21 to 24 October 2013 and 26 to 29 May 2014.
It appears that Prof Cook provided a draft of another report to Ms Jones dated September 2014 based on what was derived from those field trips but this report, being a draft, was not in evidence in these proceedings.
Prof Cook produced his next report in August 2015. Once again, this report was based on his acceptance of the conclusion, taken from the Rejected EAL Report and Mr Hutchins's June 2010 report, that the irrigation water was the probable cause of Ms Jones's problems with her rice crops in 2009/10. Prof Cook noted in section 7.1 of his August 2015 report that: "Both the Hutchins [2010] Report and the [Rejected] EAL Report found that water toxicity was the probable cause of the [2009/10 rice] crop failure. … I then undertook fieldwork, and on the basis of the first-hand information and other research, provided an expert opinion on the likely causes of water related damage at North Corynnia. In the interim I and others and advised the farmer not to use the water until the risks were understood and could be mitigated. I carried out investigations during two field trips to the Murrumbidgee Irrigation Area (MIA), one in October 2013 and another in May 2014 and conducted extensive follow up research."
From this it can be seen that Prof Cook directed his research and reports to "the likely causes of water related damage", rather than questioning whether the problems with the 2009/10 rice crops were in fact "water related damage" or whether the problems were caused by factors other than the irrigation water. This is not so much a criticism of Prof Cook but rather a criticism of the conclusion he was asked to assume was correct and the task he was given.
Although it is not entirely consistent with what is quoted above from section 7.1 of his report, Prof Cook said at the beginning of his August 2015 report, in section 5: "This report addresses four questions, which are: 1. Is the Murrumbidgee Irrigation (MI) water supply consistent throughout the Murrumbidgee Irrigation Area (MIA)? 2. Is the MI water supply within the guidelines specified in its license and other relevant benchmarks? 3. Is the water causing harm at North Corynnia? 4. What is required to remediate the water supply and the farm?"
It can be seen that these questions focused on the circumstances at the time of the report, not what occurred in 2009/10. As a result, Prof Cook's analyses and testing did not appear to be focused on "on the likely causes of water related damage at North Corynnia" in 2009/10 but on some alleged later water caused "harm".

[95]

Testing relied upon by Prof Cook for the August 2015 report

From his August 2015 report, it was apparent that Prof Cook relied only indirectly on: 1. the test results provided by EAL in August 2010, in so far as they informed the opinions in the Rejected EAL Report; and 2. the SESL test results from early 2010, to the extent that they were the basis for Mr Hutchins's opinions in his June 2010 report. It did not appear that Prof Cook considered in detail the underlying data in the certified test results from EAL or the data and comments provided SESL in 2010, which have been referred to in some detail above.
Although the Rejected EAL Report was not admitted into evidence, affidavits of Mr Lancaster, the laboratory director of EAL, and Mr Shepherd, a senior field technician with EAL, were read concerning the testing EAL carried out on North Corynnia between 17 and 19 August 2010 and the results obtained. Mr Lancaster's certified results of testing of soil and water samples and his acid sulfate soil analysis of various sediment samples were exhibited to his affidavit and Mr Shepherd explained how and, to a limited extent, where the samples were taken.
There was, however, nothing to indicate that Prof Cook had been provided with the results of the limited water and soil testing carried out on behalf of MI in December 2009 and January 2010, which have been referred to above.
Other sampling and testing relied upon by Prof Cook was described by him in his August 2015 report under the heading "4. Sources of Information" as follows: "• Data including photographs collected during field trips to North Corynnia on 21, 22, 23, and 24 October 2013, and 26, 27, 28, 29 may 2014;…; • The data collected in October 2013 consisted of; water quality measurements made with portable water quality probes (see supplementary file TPS 2013 measurements.xlsx) … • Results from soil, water and sediment samples collected by me and sampled custody statements for the October 2013 samples are in supplementary folder, Supplementary files/Samples/October 2013 and for May 2014 in folder, Supplementary files/Samples/May 14 … • Test results from various scientific laboratories supplied to me by the farmer in folder, Supplementary files/Samples • Sample locations during the October 2013 field trip are in the file, Supplementary files/Locations for October 2013 sampling.docx …".
In relation to the samples taken by Prof Cook and results supplied by the farmer, Ms Jones, there was, however, no specific evidence before the Court of certified test results or as to the precise location, time or method of taking the samples. The results and sampling process were, in effect, assumptions made by Prof Cook that were not otherwise supported by evidence. Consequently, those assumptions were unable to be tested in these proceedings.
In these circumstances, the opinions in the August 2015 report, based on the testing results referred to, were, in my opinion, deprived of weight to a substantial extent.

[96]

Prof Cook's opinion concerning "causation of soil condition and crop failures"

In order to assess his analyses in the August 2015 report, it is helpful to note more specifically what Prof Cook's opinion or hypothesis at this time was concerning "causation of soil condition and crop failures". This was set out in section 8 of the August 2015 report which included the following: "The cause of the problems with the soil condition and the low productivity on North Corynnia are in my opinion, due to the combination of physical, chemical and biochemical properties of the irrigation water supplied by MI resulting in prolonged low oxidation reduction conditions (low redox) and low Ca:Mg. The reasons and evidence for forming this opinion are summarised in figure 24 and explained in detail below. Surges of poor quality water can occur in the MIA system and the analysis here, has shown that water quality varies in both space and time. Without appropriate management poor water quality will occur downstream in the irrigation system where there is more scope for contaminants to accumulate. The analysis here shows that the turbidity in particular can vary widely because there are pulses with high solid loads. Such pulses have a high probability of doing damage to the soils that are irrigated with such water and this most probably occurred in 2009/10 at North Corynnia and to some degree at other times. … Both the dissolved and solid Ca:Mg ratio of the water can contribute to reducing the Ca:Mg of the soil. The low Ca:Mg ratio is known to contribute to dispersion and sealing of the soil surface…. This will especially occur after the addition of low sodium absorption ratio (SAR) water such as rainfall. Thus the low Ca:Mg ratio in the irrigation water both dissolved in the water and attached to the solids will result in soil that is vulnerable to dispersion and sealing… … Rengasamy et al. (1986), showed once the Ca:Mg ratio is less than 1 then soils have dispersion and infiltration problems…"
As can be seen from the diagram and commentary, Prof Cook in effect put forward the hypothesis that Ms Jones's problems with her rice crops in 2009/10, among other things, were the result of a complex combination of physical, chemical and biochemical properties of the irrigation water delivered by MI involving turbidity leading to blockage of soil pores, a low Ca:Mg ratio, and a C:N ratio less than 10, respectively, leading to "Low redox High available metals sulfides formed" and consequent "Poor or no crop growth".

[98]

Turbidity and water related issues

The physical property of the irrigation water to which Prof Cook directed particular attention was turbidity. In this regard, the reliability of his report was undermined because of an absence of evidence of certified test results and of specific detailed information concerning the sampling, such as to establish that any conclusions were scientifically or statistically valid and applicable to the circumstances in 2009/10 or later relevant time periods.
A further problem with Prof Cook's opinion in relation to turbidity was his assertion that certain ANZECC guidelines were applicable in relation to the turbidity of the water delivered to Ms Jones's property by MI. He stated (in section 7.2 of his August 2015 report) that he had used the Aquatic Ecosystem or freshwater quality guidelines to assess the MI water supply and in his executive summary he said: "The water supply was often found to be outside ANZECC (2000a) water quality guidelines in samples taken by me, others and in published data from MI and other sources. In particular the turbidity is greater than the 50 NTU guideline (in ANZECC, 2000a) or 40 mg/L (ANZECC, 2000b) for most samples … The turbidity and salinity of the MI water supply at North Corynnia is excessive and needs to be reduced. … To prevent harm and meet MI's license requirements and the ANZECC guidelines and other benchmarks that turbidity needs to be less than 50 NTU. … If turbidity is greater than 50 NTU, the excessive solids need to be removed prior to water use. …"
This was apparently the reason why Prof Cook recommended irrigating with "clean" water, building weirs and use of a flocculant.
Although Prof Cook refers in the passage quoted above to salinity being excessive, it can be noted that salinity was rejected by Mr Hutchins in his June 2010 report as being the cause of the problems with the 2009/10 rice crops and, as I understood it, the plaintiffs did not press a case based on salinity.
Prof Meyer's response in his report of 29 May 2018 to this opinion of Prof Cook concerning turbidity was not effectively challenged, and I accept it as correct. It was as follows: "[Prof Cook's] report "Analysis of water quality issues and effects on soil and plant prop activity at North Corynnia … dated August 2015, mostly considers the suitability of water supplied by MI using reference to the ANZECC water quality guidelines. As indicated in 87 (above), reference to a threshold turbidity of 50 NTU is that which is indicated for a river ecosystem. There is no threshold guideline for irrigation water because it [turbidity] is not regarded as a critical limitation to irrigating crops. The water being supplied by MI is well below a threshold e.g. 1.3dS/m … that could be considered for growing rice."
Prof Bush also gave a detailed exposition of the role and proper use of the ANZECC guidelines in his first report of 4 April 2018 at pars 83-93 which I also accept in preference to Prof Cook's assertions. I was confirmed in my views by the fact that, in cross examination, Prof Cook acknowledged that, in the ANZECC guidelines, the 50 NTU level was a guideline and not prescriptive as well as being a guideline for fresh water not irrigation water. [94]
Prof Cook's assertion concerning the applicability of the ANZECC guidelines in relation to turbidity in environmental water to the present case, without suitable qualification or explanation, was not only somewhat misleading on the topic of turbidity but it also called into question the general reliability of his evidence. Prof Cook's assertion may have been based on an unquestioning acceptance of Ms Jones's belief, stated in her email to him on 19 August 2014, to the effect that "section 3 of the ANZECC guidelines on aquatic ecosystems" was the standard supposed to be applied.
According to Prof Cook (in section 8 of his August 2015 report), turbidity and the associated high solids content of the water were significant because the solids could form a thin film on the soil surface reducing water flow into the soil as well as oxygen. While this may be the case, I accept Prof Meyer's evidence that turbidity leading to blockage of soil pores in this way is unlikely to be an issue for irrigators in the MIA such as Ms Jones.
Prof Meyer gave his opinions as follows: 1. at par 90 of his 29 May 2018 report: "The deposition of the suspended clay on the rice bay is inevitable and this may slow internal soil drainage which is regarded as advantageous for rice production since it limits water loss to deeper groundwater. It should be noted that rice is a semiaquatic species that needs to adapt during growth to the low oxygen conditions that are inevitable pondered water conditions. Once the seedlings adapt to waterlogged and pondered water conditions they are very tolerant of and will thrive in the hypoxic conditions of the root zone. However when rice seeds germinate the roots need ready access to essential nutrients especially nitrogen and phosphorus to assist ceiling growth and support the adaptation process. Nitrogen nutrition was insufficient in the plaintiff's paddocks during seedling establishment." 1. at par 52 of his 21 March 2019 report "It is my opinion that the effect of the irrigation water sediment on potentially sealing the soil pores and exacerbating the onset of hypoxic and anaerobic soil conditions will be small relative to the effect of in-situ clay dispersion of these soils. It is this dispersion of the in-situ clay and its sealing effect on water movement and oxygen diffusion into the soil that will cause the onset of hypoxic and potential anaerobic conditions in the soil rather than the small deposition of clay carried in the irrigation water. In other words, it is the condition of the in-situ soil that results in low soil oxygen levels at the seedling germination and establishment phase and not the turbidity per se of the irrigation water. The deposition of 0.96mm [as calculated by Prof Meyer on certain assumptions as to turbidity of water, volume of irrigation water and area irrigated] of clay over a whole season from turbid irrigation water can be a positive addition to the soil if cultivation and cropping practices incorporate it."
On this basis, and taking into account my other findings elsewhere concerning turbidity and rice growing, I do not accept that the turbidity of the irrigation water delivered by MI to Ms Jones, in 2009/10 or subsequently, had any relevant role to play in the problems experienced by her rice crops or other problems.

[99]

Ca:Mg ratio

As Prof Cook described it, the relevant chemical property of the irrigation water concerned the calcium to magnesium ratio or Ca:Mg. The significance of this ratio was said by Prof Cook to be that low Ca:Mg is known to contribute to dispersion and sealing of the soil surface. There were, however, problems with Prof Cook's opinions concerning Ca:Mg ratios, including the evidence in section 7.5 of his August 2015 report.
One problem was that in forming his opinions, Prof Cook relied on the Rejected EAL Report and this problem was not cured by the fact that, although the Rejected EAL Report was not in evidence, Mr Lancaster's certified results were available in relation to relevant samples included in Prof Cook's data sets (identified in Table 9 of his report). Part of Prof Cook's analysis purported to justify a conclusion concerning Ca:Mg ratio values of less than 1 in the soil in P14/15 and Q13 (in section 7 of his August 2015 report). Mr Lancaster's results were, however, of no assistance in this regard because the results for the 21 samples, taken by Mr Shepherd and analysed by Mr Lancaster, and included by Prof Cook in datasets 1 and 2 in Table 9 of his August 2015 report did not include any results for the Ca:Mg ratio; indeed, there were no measurements at all for calcium or magnesium. Thus, there was no data concerning the Ca:Mg ratio for the majority of the samples in the data sets identified in Table 9. [95]
There were also no certified test results in evidence for the other 14 samples relied upon to make up Prof Cook's datasets 1, 3, 4 and 5 in Table 9, upon which his analysis of the Ca:Mg ratio was based. Nor was there specific, detailed evidence to establish when, where or how those 14 samples were taken, apart from the brief description given by Prof Cook in Table 9.
Furthermore, out of those 14 samples not covered by Mr Lancaster's results, only 8 were said, without other supporting evidence, to have been taken from P14, P15 or Q13 and even then three of these were described as "composite". What a "composite" sample might involve and whether it could provide reliable data were not explained in the evidence.
More specifically, data set 2 (composed of Mr Lancaster's samples SP12 to SP21) contained no data for any of its data points, since the data depended on Mr Lancaster's results which did not include a Ca:Mg ratio for any of those samples. Data sets 4 and 5 both contained only two data points, but the data for those data points was not supported by any certified testing results and data set 3 contained only four data points, and the data for those points was also not supported by any certified testing results. Data set 1 contained 17 data points, but for 11 of these there was no data, because they were samples SP1 to SP11 in Mr Lancaster's results, and the data for the remaining six data points was not supported by any certified testing results.
It was difficult to understand, in the circumstances, how valid or useful statistical analysis could be carried out or reliable conclusions reached concerning relevant Ca:Mg ratios with such limited data sets unsupported by certified testing results and without details of the sampling methodology and process, which might have established that there were appropriate controls and a sufficient range of samples.
The absence of certified test results in relation to soil sampling and the absence of evidence as to appropriate control samples, alone and together, deprive Prof Cook's opinions concerning the differences in the chemical properties of P14, P15 and Q13 of any substantial weight.
In any event, in relation to the Ca:Mg ratio of the irrigation water, I do not accept that Prof Cook established that it was causally related to the problems experienced by Ms Jones with her rice crops in 2009/10. As has been referred to above, and as Prof Bush opined, [96] the fact that the soils in the MIA are dispersive, become less porous (because of sealing of the soil surface) and hold irrigation water is "a good attribute" and advantageous for irrigated rice crops.
In addition, Ms Jones's neighbours and other rice farmers in the Wah Wah district received water which was, in all probability, very similar to the irrigation water delivered to Ms Jones in 2009/10. There was no suggestion that other irrigators in the Wah Wah district during that time experienced crop failures. Ms Jones's nearest neighbours who irrigated rice and sorghum during this period obtained good rice yields and experienced no problems with the sorghum.
I also accept what is said in par 92 of Prof Meyer's report of 29 March 2018: "The low Calcium to Magnesium ratio that Prof Cook refers to is an expected characteristic of irrigation water coming through the soils of the region. With appropriate management, especially through the applications of lime and gypsum and incorporation of organic matter, most irrigation farmers can consistently produce high yielding crops."
Furthermore, in this regard, I also accept Prof Bush's evidence to the effect that Prof Cook's implication that the soil being dispersive and becoming less porous, because of a low Ca:Mg ratio, are negative attributes is misguided. At par 151 of his 4 April 2018 report, Prof Bush noted: "Cook (2015) emphasises the negative impacts of dispersive soil by using examples from dry-land cropping systems (e.g. Rengasamy et al 1986). Dry land cropping systems are incomparable to flood irrigation farming, as dispersive soils will restrict the infiltration of rainfall, which does limit dryland crop production. It is unscientifically sound to compare flood irrigation and dry land cropping systems as Cook (2015) has liberally done throughout his discussion. Much of the literature referenced in Cook (2017) is related to the concerns of low Ca:Mg ratio for soils in dry land cropping areas which in my experience does not provide clarity on the issues behind the claimed impacts experienced by [Ms Jones]."
Further, Prof Bush observed that measurements of Ca and Mg in BBSW during June 2010 indicated a Ca:Mg ratio of approximately 2:1 or greater, which indicated that Prof Cook's assumption as to a Ca:Mg ratio of <1 for the irrigation water supplied to Ms Jones in 2009/10 was unlikely to be well founded.
Based on Prof Meyer's and Prof Bush's opinions, I find it was unlikely that the Ca:Mg ratio or changes to the ratio in the water delivered to Ms Jones in 2009/10 affected her 2009/10 rice crops to any significant extent. This is particularly so, taking into account that: 1. the problems experienced in relation to Ms Jones's rice crops were more probably explained by landforming exposing poor soil in the cut areas, nitrogen deficiency; poor layout of bays leading to water not draining, poor water management, bloodworm attack and possible herbicide damage; 2. the soils on North Corynnia and in the surrounding region were already highly dispersive in nature and thus the effect of a low Ca:Mg ratio was unlikely to cause any appreciable additional problem; and 3. other farmers in the Wah Wah region around North Corynnia, who took irrigation water during the same period in 2009/10 and subsequently from the same MI source, had successful crops in 2009/10 and in later seasons.

[100]

C:N ratio and low redox

Although the diagram in figure 24 suggested that a carbon to nitrogen ratio, C:N, of greater than 10 led to "good crop growth" but a C:N ratio of less than 10 led to "high oxygen flush required" which was a significant factor in producing "poor or no crop growth", Prof Cook did not comment in his report on nitrogen deficiency in Ms Jones's crops or on the failure to apply any nitrogen, by way of urea, to some areas of the rice crops and less urea than was recommended to other areas. Nor did he explain whether this had any effect on his hypothesis as to the causes of the problems with the rice crops in 2009/10.
It should be noted here, however, that Prof Cook acknowledged in his 7 May 2019 report (sections 4.1 and 4.2) that his diagram (reproduced above) and his commentary in relation to nitrogen required modification. In the later report, he provided a revised diagram and explained that there were two potential nitrogen related processes that could take place, depending on the extent of surface sealing of the soil: one that produced iron toxicity; and, one that resulted in nitrogen deficiency. In his opinion, the first process took place rather than the second but he did not explain how he reached that conclusion.
Prof Meyer's evidence on this topic, as I understood it, was to the effect that both processes identified by Prof Cook involved nitrogen deficiency, although at different stages, but application of appropriate amounts of nitrogen and competent water management would have avoided a problem arising, in either case.
Accepting Prof Meyer's evidence (including the material at pars 44 and 45 of his 21 March 2019 report quoted below), I am satisfied that the chlorotic, yellowing and spindly condition of the 2009/10 Reiziq crops observed in the latter part of December 2009 and in January 2010 was probably caused, or significantly contributed to, by poor water management and the failure to apply the required amounts of nitrogen by way of urea at the appropriate stage of development of the crops, as described by Mr Lacy and Prof Meyer.
Further, as to the low redox potential referred to by Prof Cook in the context of the C:N ratio, his opinions concerning the low redox potential and whether it was associated with low dissolved oxygen in the water delivered by MI in 2009/10 lacked a certain degree of clarity. To the extent that Prof Cook's evidence in this regard was based on Mr Hutchins's opinions and the test results concerning the deoxygenation of the water referred to in his June 2010 report, the serious problems with these results and with Mr Hutchins's opinions have already been explained above.
As to the dissolved oxygen, and other characteristics relevant to low redox, in samples taken by Prof Cook or others, some years after 2009/10, referred to in his August 2015 report in section 7.4.1, the figures were not supported by any certified test results and there was no evidence of specifically when, where, how and by whom the samples were taken. In the absence of that information, it was not possible to assess the accuracy or completeness of the data or the reliability of Prof Cook's reasoning.
Prof Cook himself noted in section 7.4.1 that "high variability in the water quality occurred across the MI system in both time and space", which indicated that results from samples taken somewhere at one point in time could not be taken as a reliable indicator of the relevant state of the water at other times and in other locations. The test results from the samples taken on 3 and 4 January 2010 obtained by MI (which have been referred to above) did not indicate that there was any significant deoxygenation of the water tested at that time from the locations identified. Prof Cook did not refer to those tests.
Whatever might have been the case as to the dissolved oxygen, COD and BOD, in the irrigation water delivered to Ms Jones in 2009/10, it was Prof Meyer's opinion, which I accept, that deoxygenation of the soil in a case such as the present was likely to occur, not so much because the irrigation water was deoxygenated, but because of the interaction of the water applied to the type of soil involved, and this could be addressed by ensuring that there was adequate nitrogen available to the growing seedlings. At par 91 of his report of 29 March 2018, Prof Meyer said: "[Quoting Prof Cook] 'The water has physical (high solids loading and fine particle size), chemical (low Calcium : Magnesium ratio and biochemical (high organic matter and low Carbon : Nitrogen ratio) characteristics which individually and cumulatively are detrimental to soil aeration during and following irrigation'. In this statement Cook is inferring that it is the suspended clay and naturally occurring chemical composition in the water that causes low soil aeration during and following irrigation. From my research on the water movement and soil oxygen status of these heavy clay, rice growing soils I can say that any flood irrigation applied to these very slowly draining clay soils will cause soil oxygen to decrease the levels that affect plant functions. A significant effect of these flooding events can be the loss of nitrogen from the root zone. Rice plants adapt to the low soil oxygen conditions associated with flooding and provided there is a protected source of nitrogen nutrient in the root zone it can be expected that the crop will thrive."
Finally, I also note that, even if the data upon which the graphs in Figures 10, 11, 12, 13 and 14 of Prof Cook's report is based had been supported by certified test results and was relevant, those graphs do not indicate that the levels of iron, aluminium or chloride in those samples were at levels in excess of the irrigation water guidelines, except in very limited cases. Before any conclusion could be drawn as to whether those exceptional cases had any significance, the location, time, circumstances and purpose of the testing would need to be considered. Prof Cook did not undertake such consideration.
In relation to the low redox conditions, their effect on metal solubility, and their potential occurrence in Ms Jones's rice crops, I generally prefer the evidence of Prof Meyer and Prof Bush. In particular, as noted in pars 44 and 45 of Prof Meyer's 21 March 2019 report, I accept that: "… reduction of iron and sulfur compounds occur at much lower redox potentials i.e. even more severe soil oxygen depletion levels than those needed to reduce nitrate compounds i.e. NO3-. Hence, by the time plant toxic levels of iron and sulphur compounds exist there would be little or no nitrate in the root zone of soils with reasonable levels of readily available carbon from organic matter. In this situation, plants, especially establishing seedlings would almost certainly exhibit symptoms of nitrogen insufficiency since they were not adapted to low soil oxygen levels. As explained above, in soils with little organic matter that become waterlogged, not all of the nitrate may be lost because denitrification is limited by limited, readily available carbon. However if the nitrate levels in the soil are low at the time of waterlogging, any denitrification will reduce the level even further. I believe that this was the highly probable situation in the plaintiffs soils at the time of sowing and flooding. This loss of nitrate nitrogen in the [soil] will occur on all rice farms in the area. The amount of nitrogen that is lost by denitrification will be influenced by the soil and flood irrigation conditions and hence will vary for each setting. … In the plaintiff's case, there was very little soil nitrogen present at sowing and this, combined with anaerobic conditions and hence denitrification induced with flooding would result in very little plant available nitrogen in the soil. As indicated in Prof Cook's Table 1, with reducing conditions, the loss of nitrogen will precede any other potential toxic effects from chemical changes in soil iron and sulfur compounds. Adopting land practices, fertilisation and water practices similar to those of Greg Star would have greatly increased the chances of the plaintiff successfully establishing a productive rice crop."
As I understood his evidence, Prof Bush's opinion was not different in substance from Prof Meyer's.

[103]

Flocculant trial in 2013 to 2016 and steps related to flocculation

In the First Jones Affidavit, Ms Jones said that, from 2013 to 2016, she trialled using a polymer in incoming water delivered by MI to coagulate the superfine particles in the water. Ms Jones also gave evidence in the Second Jones Affidavit that SNF Australia recommended the use of the polymer or flocculant, Floquat FL4440, to assist the process of sediment deposition. The documentation provided by Ms Jones indicated that Floquat was certified in 2011 as complying with the requirements outlined in the Australian Drinking Water Guidelines 6 (2011), which was endorsed by the National Health and Medical Research Council for use in drinking water applications. The certification did not relate to irrigation water.
Prof Cook referred to the outcome of those trials in section 9.1 of his August 2015 report as follows: "[b]y means of empirical trials the farmer [Ms Jones] has found that the use of a polymer can drastically reduce the solids content of the irrigation water. When this "clean" water is used for irrigation, a better response to water and improvements to productivity occurs ….".
In that same report, Prof Cook also recommended continued use of a flocculant and suggested that, if MI could not get the turbidity levels to consistently below the ANZECC freshwater guidelines, weirs should be constructed to accumulate solids among other steps.
Ms Jones also gave evidence in the Second Jones Affidavit (pars 129 and 130) that Prof Cook recommended that she construct: 1. weirs along the Q channel in order to improve the quality of water travelling along that channel; and 2. a sediment trap along the Q channel, which was a loop a few hundred metres long, to slow the water and allow sediment to be deposited.
Ms Jones's evidence was that she built weirs and the sediment trap loop on the internal Q channel but it was not clear from her evidence when this was done.
As a result of using the flocculant, Ms Jones found that a great deal of sediment accumulated in the channels. She treated it, and then removed the sediment from the channels and distributed it at some expense.
Mr Hutchins gave evidence that he visited North Corynnia on 28 November 2016 in his December 2016 report. He noted that Ms Jones had successfully flocculated suspended solids out of irrigation water and these had been deposited in sediment traps and then were treated with calcium rich ameliorant.
Prof Bush's evidence, which I accept, established that flocculants such as Floquat are used primarily for drinking water or for clarifying water for drip irrigation (which was not relevant in Ms Jones's case) and their use in relation to general irrigation has not been deemed necessary by anyone else, to his knowledge.
Similarly, Prof Meyer's evidence, which I also accept, was that using a flocculant in the present case served no purpose other than to fill up the channel with sediment rather than distributing it over the paddocks. Distribution of the sediment, consisting largely of clay and some silt, over paddocks such as those on North Corynnia by irrigation was a positive thing that would have helped to improve the fertility of the soil.
Having regard to Prof Meyer's and Prof Bush's evidence, as well as my other findings in this matter, I do not accept that the plaintiffs have established that use of the flocculant, the construction of weirs, the building of a sediment trap and consequent treatment and disposal of sediment, or any of these steps, were reasonably required as a result of the quality of irrigation water delivered to Ms Jones by MI, whether in 2009/10 or at any other time.

[104]

Other "remediation"

Ms Jones's evidence in relation to what was called "remediation" of P14, P15, Q13 and other paddocks was, however, quite unclear and provided another example of the unsatisfactory nature of her evidence.
Ms Jones's evidence in the First Jones Affidavit at par 194 was that remediation of land was carried out, including incorporation of green weeds and various forms of calcium and phosphorous and sowing of oats, barley and pasture species for grazing. She then said that there had been some good winter rain and beneficial species had grown in rain fed remediated areas, particularly balansa clover. There was, however, no specification of when or where this was done, although it would be a natural inference that it was done on P14, P15 and Q13 as these were the only paddocks that received substantial amounts of irrigation water at relevant times.
In the Second Jones Affidavit at par 137, however, she said that Q13, P14 and P15 were not modified, fertilised or cultivated for many years after 2009/10 and after rain, including unusually large falls of rain, she noticed sparse growth of mainly non-beneficial species with stunting and deformity of roots.
In the Third Jones Affidavit (of 30 May 2019) at par 8, her evidence was that: "Since 2010, I have taken steps to remediate the land in bays Q13, P14 and P15, including the steps set out in paragraph 194 of my First Affidavit. … Despite the remediation steps taken by me, the land in bays Q13, p14 and P15 remains unproductive relative to adjacent blocks. Since 2010, I have, and continue to observe poor plant growth, and stunted and deformed roots."
This evidence concerning remediation of her land, and in particular Q13, P14 and P15, appeared to me to be inconsistent and consequently lacking in credibility, when the evidence in her three affidavits in this regard was considered together.
I formed the view that, in so far as they relied on that evidence, the plaintiffs had not established whether any relevant, effective or ineffective remediation steps had been taken in relation to P14, P15 or Q13. Further, even if such steps had been taken, I was not satisfied that the plaintiffs had shown that they were reasonably necessary as a result of MI having delivered to Ms Jones contaminated irrigation water or water that was unsuitable for irrigation.

[105]

Mr Hutchins's inspection of North Corynnia in November 2016

Mr Hutchins gave evidence that he visited North Corynnia on 28 November 2016 in his December 2016 report. In addition to noting that Ms Jones had successfully flocculated suspended solids out of irrigation water, he also gave evidence concerning "remediation".
Mr Hutchins suggested remediation steps in section 8 of his December 2016 report which can be summarised as follows: 1. discing as a stand alone treatment; or 2. applying a soil ameliorant of both gypsum and agricultural lime and phosphatic fertilisers: 1. by discing; or 2. following deep ripping.
Mr Hutchins said, based on his inspection on 28 November 2016, that: 1. various paddocks in Q block other than Q13 had been treated in 2014 with gypsum and triple super and sown with persistor pasture mix; and 2. Q13 had had no treatment but had made a recovery "at least one stage behind the other Q paddocks".
This suggested that, if Q13 had been treated as suggested by Mr Hutchins, or in a similar way to the other paddocks in Q block referred to by Mr Hutchins, Q13 might well have showed a similar result compared to the other paddocks. It will be recalled that only part, not all of Q13 was used to grow the Illabong crop in 2009/10. Accordingly, only part of Q13 was irrigated with water delivered by MI. In the circumstances, I do not accept that this evidence of Mr Hutchins established that: 1. relevant parts of Q13 required remediation as a result of being contaminated by irrigation water delivered by MI in 2009/10; 2. the treatment given to the other paddocks in the Q block was necessitated by or related to irrigation water delivered by MI to Ms Jones in 2009/10; or 3. parts of Q13 irrigated in 2009/10 were materially different from the other parts of Q13 or Q block as a whole.
In relation to P14, Mr Hutchins's evidence was: "The overleaf [photograph] is of Paddock P 14, the area on the top left of the photo has been disced, with no additional treatment. The remainder has had no treatment. As can be seen the nil treatment has outperformed the disced area."
Notwithstanding Mr Hutchins's comment, I could not see in the photograph the difference he described. In any event, his comment indicates that Mr Hutchins's suggestion of discing as a stand alone treatment was ineffective. Further, this evidence did not establish that any remediation of P14 was required as a result of being contaminated by irrigation water delivered by MI in 2009/10 or that the remediation Mr Hutchins suggested was necessary or appropriate.
In summary, Mr Hutchins's December 2016 report indicated, presumably based on information provided to him by Ms Jones, that Q13 had received no treatment and P14 had received no treatment except for discing of some part, which was of no benefit. Mr Hutchins did not refer to any observations of P15 on 28 November 2016.
Accordingly, even if his evidence should be accepted, there would be no basis for reaching any conclusions as to the requirement for or effectiveness of remediation treatment, apart from the lack of effectiveness of discing as a stand alone treatment, on any of P14, P15 or Q13 as at 28 November 2016.

[106]

Mr Mulvey's 14 February 2017 report and later supplementary report

In late 2016, Mr Mulvey was retained to provide his opinion: "as to whether the water quality being supplied to the property owned by [Ms Jones] and known as North Corynnia … during and from the 2009/2010 cropping season onward, has been impacted by historic uses of the water storage facilities, climatic influences, or infrastructure changes, sufficient to cause an adverse impact for users of the water."
Given the nature of the task he was set, Mr Mulvey was necessarily dependent upon assumptions as to the quality of the water supplied to Ms Jones in 2009/10 and subsequently, as well as the historic uses of water from storage facilities, climatic influences and infrastructure changes. As a result, a fundamental problem for Mr Mulvey's evidence was that, if the factual assumptions he relied upon concerning the circumstances of the present case were not supported by evidence or did not correspond with the facts as found, his opinions had little if any relevance to the matters in issue and would attract little if any weight.
In this regard, in sections 19 to 23 of his 14 February 2017 report, Mr Mulvey helpfully identified what were the specific factual assumptions concerning the 2009/10 rice crops and related matters that underlay his opinions. The assumptions in sections 19 to 23 were all identified as being taken from the Rejected EAL Report, Mr Hutchins's June 2010 report or Prof Cook's April 2012 and August 2015 reports. For example, he assumed that the probable cause of the crop failure in 2009/10 was water related metal toxicity, based on the Rejected EAL Report and Mr Hutchins's June 2010 Report, and he also assumed that Prof Cook's hypotheses in his 2012 and 2015 reports as to causation of the crop failure and damage were correct.
I have already given my reasons for rejecting the EAL report. I have explained why I do not generally accept Mr Hutchins's opinions and conclusions in his June 2010 report and why I do not accept his observations except where they were credible, reliable and consistent with other evidence. Finally, I have explained, above, why I have generally not accepted Prof Cook's opinions in his April 2012 and August 2015 reports.
In addition, it appears that Mr Mulvey, at pars 86 to 91 made the following assumptions based on information from Ms Jones: 1. "MI were pumping the last water out of the intermediate cell of BBSW in early January 2010, being the last water contained in the swamp during this period in the summer of 2009/2010. This water was delivered to [Ms Jones's] Property, according to the farmer"; 2. "in early January 2010, other rice farmers were not receiving water, according to the farmer"; 3. "the farmer … noted similar symptoms occurred in neighbouring bays of her rice crop on Corynnia Channel and No. 1 channel an also in rice crops on her neighbours properties who received water later in the month"; 4. the "farmer reported that her Property was affected first, during first 'take off' (first flush) in later 2009/ early 2010. The Property was one of the few farms irrigating rice at this time"; 5. "increased germination during this time was reported in the rice crop, but then increased high turbidity water and the associated effects on poor crop growth were documented by the farmer" who "informed us that the neighbours also reported to her on the occurrence of high turbidity water on their properties, during this time during late 2009/ early 2010"; and 6. "Timing on crop damage was first noted by the farmer in January 2010 …".
Mr Mulvey's assumptions set out in the preceding paragraph were not supported by the evidence or did not accord with what I have found to have occurred in relation to Ms Jones's rice crops and her neighbours' crops in 2009/10. In these circumstances, his opinions based on those assumptions were effectively deprived of relevance and significant weight.
At one point during oral evidence, Mr Mulvey, like Prof Cook, described his evidence as involving putting forward an hypothesis consistent with the evidence, as he understood it, and assessing whether there are competing hypotheses consistent with the evidence. If there were no such competing hypotheses, Mr Mulvey's hypothesis should be accepted. He said, during the concurrent expert oral evidence: [97] "So [on] the evidence I've got at hand, based on the chemistry that is, okay, exceptionally complicated, I accept that, it is the only explanation. So though it doesn't prove the hypothesis, it disproves the null hypothesis. Anything [Nothing?] else was possible. The only thing possible is the presence of iron. … … I'm saying if there's a better theory, I'm happy to acknowledge it. At the moment, I can't find one."
Mr Mulvey put forward his hypothesis as the only one consistent with the assumptions he took from material including in particular the Rejected EAL Report, Mr Hutchins's evidence, Prof Cook's evidence and information provided by the farmer, Ms Jones.
Mr Mulvey's hypothesis involved the presence of MBO in the irrigation water delivered by MI leading to iron toxicity, according to the lengthy explanation given by Mr Mulvey in the concurrent soil and water experts' evidence [98] (which also includes some contrary evidence from Prof Bush). Mr Mulvey's report opined that the MBO and sulfidic sediments could have come from BBSW, been carried through the MI channels depleting oxygen from the water, dissociating ferrous iron, and eventually settling as rich sulfidic sediments on the irrigated land or plant stems. The iron and other reduced metals would be available for uptake by plants and would be likely to cause toxicity.
Mr Mulvey's hypothesis is consistent with, and provides an explanation for, what he was apparently asked to assume including, for example, what is stated in par 46 of Mr Mulvey's 14 February 2017 report: "Cook (2012) has reported that the damage reported at the Property was likely to be caused by sulfidic sediments (MBO's) in the water supplied by MI. …"
Mr Mulvey was not asked for his opinion if "the facts" were that the problems with Ms Jones's rice crops in 2009/10 were caused by: inadequate preparation of P14 and P15, after landforming, especially in the cut areas; poor water management so that water was left on the crops for too long; poor layout of the bays so that water did not drain but pooled in certain areas after flushing or dewatering; poor preparation and rolling of Q13 prior to sowing; bloodworm attack; insufficient application of nitrogen; spraying with herbicides; or, a combination of one or more of these factors. Nor was he asked for his opinion having regard to the facts as I have found them concerning Ms Jones's neighbours' crops in the 2009/10 season.
As I understood him, Mr Mulvey was saying that, if what actually occurred was not consistent with the assumptions which he made, his hypothesis should not necessarily be accepted. Indeed, on Mr Mulvey's approach, if there were an explanation that was consistent with, and accounted for, what actually occurred, he would accept it, if it was a "better theory" than his hypothesis. I understood a "better theory" to be one that provided a more likely and simpler explanation for what occurred.
In my view, there was a "better theory" as to what occurred which is consistent with my findings. That was the explanation or combination of explanations given by Prof Meyer and Mr Lacy in relation to rice growing and by Prof Meyer and Prof Bush in relation to the nature of the soils on North Corynnia and their interaction with irrigation water when used for rice growing.
For all of these reasons, I generally do not accept the opinions of Mr Mulvey in his report of 14 February 2017.
It is convenient also to deal with Mr Mulvey's second report, dated 24 May 2019 at this point. This was a supplementary report which, among other things, involved Mr Mulvey commenting on seven photographs, not taken by him, that he was given by the plaintiffs' solicitors.
Mr Mulvey cannot be criticised for basing his opinions in his May 2019 report on those photographs as this was what he was asked to do. Nonetheless, his interpretation of the photographs was essentially conjectural, like that of any person viewing photographs taken by another. Indeed, Prof Bush and Prof Meyer both confirmed, during the concurrent soil and water experts' evidence, the difficulty, from a scientific point of view, of interpreting these photographs and the unreliability of attempting to base a conclusion on such interpretation. [99]
I understood that Mr Mulvey recognised this problem when he labelled his interpretation of the photographs "Potential interpretation" in Table 2 of his May 2019 report. Photographs such as those provided to Mr Mulvey amounted at best to visual anecdotal evidence which lacked scientific rigour. In any event, Mr Mulvey was asked to assume that five of the photographs were taken in August 2018, one in July 2011 and one on 7 January 2010. Thus, only one photograph was to be assumed to be related to the period when Ms Jones was irrigating her rice crops in 2009/10. Mr Mulvey's "[p]otential interpretation" of this photograph from January 2010 was: "The black dark browning mottling of the bottom board is typical of wood having moderate to prolonged exposure to reduced conditions".
Otherwise, Mr Mulvey was asked to comment on Prof Bush's report of 2018 and Prof Meyer's March 2018 report concerning sulfides and MBO. Mr Mulvey once again based his comments and opinions in his May 2019 report on the Rejected EAL Report, Mr Hutchins's June 2010 report and Prof Cook's reports. Mr Mulvey said that he stood by his "original conclusions".
Given the unreliability of the Rejected EAL Report, Mr Hutchins's June 2010 report and Prof Cook's reports and for the reasons given by Prof Bush and Prof Meyer, Mr Mulvey's evidence in his May 2019 report based on this photographic material did not attract any substantial weight as opinions that were scientifically well founded or reliable. Where there was a conflict between the evidence of Mr Mulvey and that of Prof Bush and Prof Meyer, I preferred the evidence of those latter two witnesses.
In particular, I accept Prof Bush's opinion in par 23 of his report of 4 April 2018 that: "there is no evidence presented by [any of the plaintiffs expert witnesses], that would suggest 'sulfidic sediments', 'acid sulfate soils', 'monosulfidic black ooze', 'sulphate' or related environmental issues are significantly influencing MIA irrigation water quality and/or rice production at North Corynnia or elsewhere in the MIA. In fact, it is my view the data presented by [the Rejected EA in Report] and later by Cook (2012), supports the alternative view indicated by the Murray Darling Basin Authority Acid Sulphate Soil Assessment … that acid sulphate soils [are] insignificant in the Murrumbidgee Irrigation Area…"

[108]

Prof Cook's 2018 water testing

During his February 2018 field trip, Prof Cook used sondes to measure the dynamics of the water quality in the irrigation channels. He obtained data over the period of 1 to 5 February 2018 concerning the water in the channel at a bridge, said to be near the P outlets, and one described as "Cameron Road", about which there was some confusion. The data related to: depth of water; turbidity; electrical conductivity; pH and temperature; chlorophyll; and dissolved oxygen; and, oxidation reduction potential. In addition, he used a device called a Horiba U-53G to measure turbidity at various sites at this time.
From this information concerning water dynamics in the channels in February 2018 and his analysis, Prof Cook drew conclusions which he described as "major findings" and which included the following relating to water: 1. "The water quality varied by change in water depth of 0.277 m, 3-fold change in turbidity and 2-fold change in electrical conductivity (EC) during a 24-hour period. In my opinion, this indicates that infrequent spot samples are unlikely to capture important pollution events …". 2. "The water was highly turbid, saline and had dangerously high levels of coliforms." 3. "The turbidity could be attributed to several sources: the source water; resuspension in transmission, streambank collapse and algae and bacteria."
In my view, none of these conclusions concerning the water testing in February 2018 was of any assistance in determining the nature or cause of the problems experienced by Ms Jones's rice crops between November 2009 and January 2010 and any subsequent issue in relation to irrigation water delivered by MI to Ms Jones. In particular: 1. Variability in aspects of water quality reported in 2018 might well support the conclusion that infrequent spot samples are unlikely to capture important pollution events, but it does not assist to establish that a relevant "important pollution event" occurred in 2009/10 or at any other time, or whether or not that event ought to have been captured but was not. 2. In relation to coliforms, I accept Prof Meyer's evidence that coliforms have no relevance for irrigating water on a rice crop although "it's very important in terms of people who might want to jump in it or inadvertently drink it". [100] 3. Turbidity can be attributed to several sources but, as Prof Meyer explained, for soil such as that found on North Corynnia, the principal source of turbidity, when a paddock in the region of North Corynnia is irrigated, is the soil in the paddock not the sediment suspended in the irrigation water before it is applied. This is because of the dispersive nature of the soil. Turbidity of the irrigation water is not generally a significant concern for rice crops. Moreover, Prof Meyer noted at par 50 of his 21 March 2019 report, and I accept, that many irrigators downstream on the Murray River used water with turbidity levels similar to those in the water that was supplied to North Corynnia at about the time of Prof Cook's measurements, and despite there being a 10 fold increase in the median turbidity levels from the upstream Murray to downstream.

[109]

Prof Cook's analysis of 2018 soil tests

As to soil testing in 2018, according to Prof Cook, a member of staff of Aitken Rowe, an environmental consultancy, took 19 soil samples during the field trip in February 2018 and those samples were sent to EAL for analysis.
It should be noted that there was no evidence adduced from the member of staff of Aitken Rowe as to the taking of the soil samples, nor was there any evidence before the Court from a suitably qualified laboratory manager or tester from EAL, such as Mr Lancaster, certifying the results of the testing of the soil samples. Further, EAL's certified test results for the soil samples taken in February 2018 were not before the Court.
Prof Cook said he provided a summary of what he called "only the salient results" and this was attached to his April 2018 report. [101] In the circumstances, Prof Cook's results, whether or not they were "salient", were assumptions which were not supported by the evidence and could not be tested. His analyses and conclusions were thus deprived of significant weight.
In addition, in Table 8 of his April 2018 report, [102] Prof Cook gave descriptions of the sites from which the soil samples were taken. These descriptions included information which could not have been observed when taking the samples. For example, SP7 and SP8 were described as "P14 bay 6 in area that had been irrigated" and "P14 bay 6 in area not irrigated". If this referred to irrigation in 2009/10, it could only be an assumption and it was not supported by evidence. Indeed, if it referred to irrigation in 2009/10, it appeared inconsistent with the evidence concerning the use of all of P14 in 2009/10 to grow rice. Further, given the layout of P14 and the bays within it, it was not obvious how one area in a bay could be irrigated and another area in the same bay not be irrigated. These matters were not addressed in the evidence.
Nonetheless, and even assuming that the "salient results" were accurate and the descriptions of the locations from which the samples were taken were reliable, there was a further difficulty with Prof Cook's April 2018 report. In section 4.1 of that report, he concluded that "soil samples … showed that areas that received water in 2009-10 when a rice crop failed still have Ca:Mg <1 even after remediation and primarily support unproductive plants such as Bathurst burrs". This was apparently based on results for only five soil samples (SP5, SP6, SP12, SP14 and SP15) [103] said to be taken from Q13, P14 and P15, out of a total of 13 soil samples said to be taken from those paddocks (SP5 to SP17). [104] The other eight samples from those paddocks presumably had a Ca:Mg ratio greater than one. This, however, could not even be checked against Prof Cook's "salient results" because the results in his report only included results for samples SP1 to SP6. There were no "salient results" or any results given for the soil samples, SP7 to SP19, or the two sediment samples, SED1 and SED2. [105] The absence of results for these samples was unexplained and it served further to undermine the credibility and reliability of Prof Cook's evidence as a whole and this aspect of his report in particular.
Strangely, the number of soil and sediment samples said to be covered by the results given by Prof Cook in the heading to his results was 23, [106] not 21 as identified in Table 9. [107] Once again it was impossible to verify which was correct as only the results for six samples were given.
The photographs of the sampling taking place included in the report did not cure the deficiencies in the evidence and the data. In addition, other observations and photographs said to be of "fish kills", dead sheep, dams, channels and other rice crops, which were included in Prof Cook's April 2018 report, were not established as having any direct relevance to these proceedings.
Accordingly, I was not prepared to accept Prof Cook's opinions based on incomplete and unsupported data which was not established as being such as to support scientifically valid or reliable conclusions.

[111]

Conclusion on Prof Cook's April 2018 report

In pars 35 and 37 of his March 2019 report, Prof Bush summarised the difficulties with Prof Cook's evidence in the following way, which I accept: "The approach date taken by Dr Cook (2018, and early 2012 and 2015), follows a structure of proposing a broad series of theories and ideas, to explain what can only be regarded as the highly unusual and unique situation where a rice crop has failed, in a landscape, where other neighbouring farmers have managed to achieve good yields and successful crops from similar soil, using a shared water resource. In my opinion, Dr Cook's 2018 report and his general approach, lacked the necessary requirements of a technically sound and informative investigation. Based on my 25 years in undertaking and teaching scientific investigations, it is foremost important to design and apply analyses to gather evidence that directly justifies conclusions, and this involves the systematic gathering of primary data to identify cause and effect, to test hypotheses and ideas, to corroborate this starter and the conclusions with independent information and through replication. I find no evidence of replication to simulate and prove the link between MI water and crop growth issues as outlined by Dr Cook, or any effort to systematically investigate, test or validated the conclusions reached by Dr Cook (2018), either in regard to the initial crop failure in 2009 - 2010, or the claim that land experienced a lasting impact that has constrained cropping to now. These principles should also include a consideration of independent evidence, such as the experiences of farmers in similar situations nearby to [Ms Jones]. Notably, the process involving soil and water quality that are included in Dr Cook's explanations, for example, CA: MG ratio in MI water, suspended sediments, soil sulphide, oxygen levels in MI water, nitrogen fertiliser and changes in soil structure to name a few, would be reasonably expected to occur at a broad scale, if not a sub-regional scale such as the MIA, given the similarly in soils and a shared water resource in this region. Dr Cook appears to combine all of these processes in a convoluted and unique way to explain away the very inconvenient observation that it was only at [Ms Jones's] property where the crops fail in 2009/2010, and is only at [Ms Jones's] property in a you specific paddocks where good crops have not been produced since. … Dr Cook relies heavily on statistical analyses to support his theories, irrespective of the significant limitations of the experimental design. In my opinion based on decades of scientific assessment, you can derive statistical information from any dataset, but its utility will be dependent on contextualisation and other elements of the experimental framework and design. The application of statistics by Dr Cook in my opinion, without a full and transparent consideration of the study limitations in terms of design and other corroborating information, can lead to unfounded and potentially misleading conclusions."
Accordingly and also having regard to my previous conclusions concerning Prof Cook's 2012 and 2015 reports, I do not accept that Prof Cook's opinions in the April 2018 report, or his earlier reports, had any direct applicability to the circumstances of the present case.

[112]

Prof Cook's 19 November 2018 report

In November 2018, Prof Cook was requested to provide his opinions concerning the effect of the outlets and regulators on the quality of irrigation water delivered to Dry Lake, Corynnia Station and North Corynnia. His report of 19 November 2018 provides photographs of various outlets and regulators.
For the reasons set out elsewhere in these reasons, I have accepted the evidence of Prof Bush and Prof Meyer in preference to that of Prof Cook and have found that the nature of the outlets and regulators had no relevant effect on the quality of irrigation water delivered to Dry Lake, Corynnia Station, Bundarra or North Corynnia such as would explain why Ms Jones's 2009/10 rice crops failed but Star Brothers, Mr Armstrong and Mr Williment successfully grew crops in 2009/10 with water delivered by MI.
In particular, I specifically accept Prof Bush's evidence in section 29 of his 22 March 2019 report, including but not limited to the following: "The effects of off-take position (either over-shot, undershot, or somewhere between) on downstream water quality manifest in large and deep waterways such as major dams and weirs … . In my experience the issues of water stratification and the effects of off-take position through water control structures would not apply in North Corynnia. These issues affect waterways that are typically 5-100m deep and are stored as bodies of still water for months, if not years, where the long storage time allows differences to establish between the upper water column and a deeper water body. None of these conditions applied to the relatively small size of the engineered feed channel infrastructure, where the water depth is 1-3m that serves North Corynnia, or the regular pulsing of water through the system as normal operations of MI in how it delivers and transfers water in the Wah Wah District [to] farmers …"
Consequently, I find that the nature of the regulators and the outlets in the region around North Corynnia do not provide any explanation for why Ms Jones's rice crops in 2009/10 failed and her neighbours' crops were successful.

[115]

Soil and water experts

In summary, I preferred the opinions concerning soil and water issues of Prof Meyer and Prof Bush to those of Prof Cook and Mr Mulvey, having regard to: 1. the evidence as a whole and my observation of these witnesses giving evidence, especially when they were examined jointly; 2. Prof Meyer and Prof Bush's extensive training and experience in relevant areas of scientific knowledge and their impressive ability to give reasoned, well-supported and credible opinions both in their reports and in oral evidence; 3. the matters referred to above, which indicate that Prof Cook's evidence was not entirely independent, and the opinions expressed were in some cases suggested by Ms Jones; 4. Prof Cook's and Mr Mulvey's descriptions of significant parts of their opinions as hypotheses or theories that were designed to provide an explanation for the "evidence" or "facts" as they understood them, as a result of their instructions, and the circumstance that in many instances that "evidence" or those "facts" did not reflect what I have found to have occurred or what had been established on all the evidence; 5. the very great extent to which Prof Cook and Mr Mulvey relied, in forming their opinions, upon the conclusions and reported data in the Rejected EAL Report and Mr Hutchins's June 2010 report and other data or assumptions not supported by certified testing results that were in evidence; 6. the data and data sets relied upon by Prof Cook were in many cases not established as being scientifically and statistically valid and Mr Mulvey relied, to a significant extent, on Prof Cook's reports which were based on that material ; and 7. the assumptions made by Prof Cook and Mr Mulvey which were not supported by reliable evidence or which were not consistent with my findings as to what actually occurred.
In particular, I accept the opinion and reasons of Prof Bush, referred to in the following passage from par 26e of his report of 4 April 2018: "There is a common theme across the conclusions of these reports [the Rejected EAL Report , Prof Cook's 2012 report, Prof Cook's 2015 report and Mr Mulvey's 2017 report] that starts [and] builds from the initial report [the Rejected EA in Report], and picked up by Cook (2012), Cook (2015) and Mulvey(2017), that sulfidic sediments were present in the MIA channels and water storage wetlands during 2009/2010, at a concentration sufficient to impact on the quality of water supplied by MI, and/or, affect the soil in paddocks under irrigation at "North Corynnia", leading to the loss of crop productivity. Expert reports supplied by the Plaintiff in my view, failed to provide conclusive evidence that would link the crop productivity to MI water quality, and in particular, acid sulfate soils. In short, these reports do not present scientifically rigorous evidence of soil changes resulting from irrigation with MI water, nor a link between MI water quality and crop productivity. The reasons behind my opinion are outlined in detail below (refer to my detailed response to Experts Reports under Points 94-153 [in Prof Bush's report of 4 April 2018])."

[117]

Dispersive nature of the soils and turbidity

Soils such as those in the MIA, including on North Corynnia and in the Wah Wah district generally, are particularly dispersive and become less porous with irrigation and hold water. This is beneficial in the context of irrigated rice cropping.
The property of dispersion is generally variable within paddocks and also down soil profiles. Subsoils tend to be more dispersive than topsoils. If the agricultural landscape is disturbed, for example by landforming involving cutting, the cut areas expose soils that are more dispersive. This effect is in addition to other factors which render soil in the cut areas of poorer quality referred to previously.
When dispersive soil is irrigated, the amount of clay which is suspended in the irrigation water on the paddock, making it turbid, is in very large measure the result of dispersion of the soil in that location, as the irrigation water passes over the soil in the paddock being irrigated. The amount of additional clay and other suspended material that comes in with irrigation water that is turbid is generally insignificant compared to the amount of clay and other suspended material which is generated by the dispersion of the soil of the paddock being irrigated.
None of the measurements of turbidity that were relevant to MI's delivery of irrigation water in the Wah Wah district and in the region of North Corynnia indicated that the water delivered by MI was unsuitable for use in irrigating rice crops, either in 2009/10 or subsequently. More specifically, turbidity in the Corynnia Channel measured during the 2009/10 season at the BBOW, which is upstream of Ms Jones's outlets and of those used by Mr Williment, Mr Armstrong and Star Brothers, was not unusual compared to the level of turbidity for the period 1994 to 2013. The measurements between July 2009 and June 2010 varied between 30 and 166 NTU. A threshold turbidity of 50 NTU is indicated for a river ecosystem in the ANZECC Guidelines, but there is no threshold guideline for irrigation water because turbidity is not a critical limitation to irrigating crops. The water being delivered by MI at relevant times in the region of North Corynnia was below the level of turbidity that would lead to it being considered unsuitable for growing rice.
Turbidity of the irrigation water delivered to Ms Jones by MI in 2009/10 and at any later times did not cause her 2009/10 rice crops to fail. Nor did it harm any paddocks to which that water was applied. If anything, the deposition of clay and other material from turbid irrigation water on irrigated paddocks helps to improve the productivity of the soil.

[118]

Calcium:Magnesium ratio of the soil and irrigation water

The soils on North Corynnia and in the surrounding region are already highly dispersive in nature and thus a low Ca:Mg ratio in irrigation water is unlikely to cause any appreciable additional problems.
A generally low Ca:Mg ratio is an expected characteristic of irrigation water coming through the soils of the region, and contributes to the soil becoming less porous, which is generally beneficial for irrigating rice crops.
The generally low Ca:Mg ratio of soil and irrigation water in the MIA is managed by irrigation farmers with the application of lime and gypsum and incorporation of organic matter prior to sowing as well as ensuring that there is sufficient nitrogen nutrient available while the crop is growing and being irrigated.
I was not satisfied, on the evidence, that it had been established that the Ca:Mg ratio in the soils in P14, P15 and Q13 or other irrigated parts of North Corynnia, after irrigation, was materially different from the Ca:Mg ratio generally for the soils on North Corynnia and the surrounding region.
Further, I was not satisfied, on the evidence, that it had been established that the Ca:Mg ratio in the water supplied to Ms Jones in 2009/10 or subsequently was <1, or that it was materially different from the Ca:Mg ratio of the water delivered to Ms Jones's neighbours or other irrigators in the Wah Wah district.
Further, measurements of calcium and magnesium in BBSW during June 2010 showed a Ca:Mg ratio of approximately 2.1. Thus, if the water delivered to Ms Jones and her neighbours in about 2009/10 was sourced entirely or principally from BBSW (which I do not accept was established on the evidence), that water was unlikely to have had a Ca:Mg ratio of <1.
In addition to Ms Jones's neighbours in 2009/10, other farmers in the Wah Wah region who took irrigation water from MI during the same period in 2009/10 and subsequently had successful crops in 2009/10 and in later seasons.
The Ca:Mg ratio or changes to the ratio in the water delivered to Ms Jones in 2009/10 and subsequently did not affect her 2009/10 rice crops to any significant extent nor did it cause any harm to paddocks to which irrigation water was applied in 2009/10 or subsequently.

[119]

Deoxygenation and Carbon:Nitrogen ratio

I was not satisfied, on the evidence, that it had been established that the irrigation water supplied to Ms Jones in 2009/10 or at other times was deoxygenated, or that the C:N ratio of the soil on, or the irrigation water applied to, P14, P15 and Q13 or other paddocks in 2009/10 or at other times was <10 so as to produce any conditions which led to iron or other toxicity in Ms Jones's rice crops in 2009/10 or in paddocks to which irrigation water was applied at that time or subsequently.
Deoxygenation of the soil in a case such as the present is likely to occur, not so much because the irrigation water was deoxygenated or had a low C:N ratio, but rather because of the interaction of water with the heavy clay, rice growing soil in the region of North Corynnia. Deoxygenation as a result of this interaction can occur to such an extent that it inhibits plant growth.
Rice plants adapt to the low soil oxygen conditions associated with the application of irrigation water and, provided there is a protected source of nitrogen nutrient in the root zone when the plants are developing, the crop will generally thrive.
When there is deoxygenation or soil oxygen depletion, that is, with "low redox potentials", reduction of nitrate compounds (which are nitrogen based) takes place, but this denitrification is limited by the extent to which readily available carbon is present. This is one aspect of the significance of the C:N ratio.
Loss of nitrate nitrogen by denitrification will generally occur on all rice farms in the region of North Corynnia during rice growing.
Reduction of iron and sulfur compounds, leading to plant toxicity, occurs at much lower redox potentials than those needed to reduce nitrate compounds. Thus, by the time plant toxic levels of iron or sulfur compounds exist, denitrification will have occurred, given reasonable levels of readily available carbon from organic matter, so that there will be little or no nitrate in the root zone of soils. In this situation, rice plants that have not yet adapted to low soil oxygen levels, especially establishing seedlings, will almost certainly already exhibit symptoms of nitrogen insufficiency. In other words, the loss of nitrogen will generally precede any other potential toxic effects from chemical changes in soil iron and sulfur compounds.
In these circumstances, which apply generally in the region of North Corynnia, the issue of low soil oxygen conditions in irrigated rice crops is principally managed by applying the appropriate amount of nitrogen to the crops, in addition to normal, well known land preparation and water management processes for rice crops.

[122]

Ms Jones's 2009/10 rice crops

The failure of the plaintiffs' Reiziq and Illabong crops, and the timing of their failure, were the result of the preparation for, and management of, those crops rather than anything to do with the quality or contents of the water delivered by MI. A summary of my more specific findings, on the balance of probabilities, are set out in the paragraphs which follow.
In relation to the Reiziq crops in 2009/10: 1. The Reiziq crops failed because Ms Jones permanently dewatered them on about 20 January 2010 and, as a result, they could not survive and produce rice. 2. The problems experienced by the Reiziq crops by about 20 January 2010 were not such that the crops could not survive with appropriate tending, including treatment for bloodworm, the application of urea at appropriate rates and normal water management, such as Mr Williment and Star Brothers gave their rice crops during the same season. 3. The Reiziq crops initially had good and even germination, except for the last bay of P15 and some areas of P14. The areas of poor germination were areas: 1. where there was poor preparation of the land prior to sowing especially where topsoil had been cut in the landforming and exposed subsoil made it very difficult for germination to occur, as demonstrated by Prof Meyer by reference to Landsat images and contour maps of the cut and filled areas; and 2. where, after flushing or dewatering, as a result of poor layout water remained on the crop for too long including in areas where the water entered the bays and/or did not drain but ponded so that the soil was left covered with water or waterlogged, inhibiting germination and growth and rendering the seedlings susceptible to bloodworm attack. 1. Resowing the areas referred to in the preceding subparagraph was not successful because the nature of the areas involved led to germination being inhibited, both initially and on resowing. 2. Bloodworm treatment was applied at about the time of sowing by a non-recommended method but no bloodworm treatment was applied at all at about the time of application of permanent water on about 2 December 2009. 3. The Reiziq crops suffered bloodworm attack, possibly immediately after sowing, and probably in areas left underwater after flushing. These crops also probably suffered bloodworm attack across all of P14 and P15 after permanent water was applied on about 2 December 2009. 4. On about 23 December 2009, rice plants in P14 and/or P15 were observed to have root damage consistent with such an attack but root regrowth had started to occur. Bloodworms were observed in or about the Reiziq crops on 29 December 2009 and continued to be a problem that required treatment as recorded by Mr Cave in his crop inspection report of 11 January 2010. 5. Even though Lorsban was applied to the Reiziq crops on 13 January 2010 for bloodworm, it was only sprayed on some bays of the Reiziq crops and not the whole of P14 or P15. 6. The chlorotic, yellowing state of the Reiziq crops and the stunted or spindly growth, observed in late December 2009 and January 2010 were caused, to a significant extent, by nitrogen deficiency. I infer that generally the worst affected areas were those that received no top dressing with urea on 1 December 2009 and the less affected areas were those that received the inadequate top dressing with urea, that is 123 kg/ha, which was about 100 kg/ha less than the amount recommended to be applied just before permanent water was put on the crops. 7. The chlorotic symptoms and spindly growth were also contributed to by the root pruning from bloodworm attack which rendered the plants less capable of taking up such nitrogen and other nutrients as were available. 8. In addition, less than optimal water management and poor layout leading to ponding exacerbated the problem of nitrogen deficiency in the Reiziq crops, because the anaerobic conditions in the root zone resulted in the loss of nitrate nitrogen by denitrification, which was not compensated for by the application of any or sufficient urea. 9. Unhealthy rice plants were also more susceptible to damage from herbicide spraying than heathy plants and this may have contributed to the problems with the Reiziq crops.
What occurred with the Illabong crop was entirely different from what occurred with the Reiziq crops. This was, itself, an indication that the problems did not have the same cause.
As to the Illabong crop: 1. The way in which the seed bed was formed had the result that, when the first flush went on, it pushed some of the seed very deep into the soil, thus inhibiting germination. 2. Where seeds did germinate, in some cases the shoot did not reach or break through the crust formed because of the sodic nature of the soil. 3. It is not clear whether or not the water was left on for too long during the first flush leading to flooding or waterlogging at that stage or whether or not there were areas where there was poor layout and water did not drain leading to flooding or waterlogging in more limited areas. If and where this occurred, germination would have been inhibited and the seedlings would have been susceptible to bloodworm attack at that stage. 4. It was not established that Ms Jones and Mr Cave, when inspecting the Illabong crop after the first flush, checked whether there had been germination under the crust, which was not observable by inspecting the surface of Q13. 5. Instead of a second, quick flush, the Illabong crop was "reflooded" between 7 and 9 December and the water was left on until about 18 December 2009 and, as a result, germination and growth were generally inhibited. 6. The seedlings that did emerge in the Illabong crop were also subject to low oxygen and nitrogen conditions in the root zone, as well as bloodworm attack, as a result of the crop being reflooded and not flushed. 7. By about mid-December 2009, these factors resulted in there being insufficient germination or development for the Illabong crop ever to be successful. It was dewatered on about 18 December 2009.
I also find that: if the practices identified by Mr Lacy and Prof Meyer with respect to the pre-sowing amelioration of the landformed areas, especially the cut areas, had been adopted; if the bays had been laid out so that water did not remain for too long or pond on parts of the bays after flushing or dewatering; if the preparation with respect to the seed bed on Q13 had been done well so that seed was not pushed too deep into the soil on rolling and flushing; if the flushing had been at best practice level (which Ms Jones acknowledged involved getting the water on and off quickly to prevent waterlogging) [110] ; if nitrogen had been applied at the appropriate rates and times; and if bloodworm control and herbicide treatment had been properly applied at the appropriate times, then the Reiziq and Illabong crops in 2009/10 would have been successful. [111] All of those steps were normal, well known farming practices generally adopted by farmers in relation to rice growing in the region of North Corynnia in the MIA.
Putting my findings another way, the plaintiffs have not established on the balance of probabilities that the failure of Ms Jones's 2009/10 rice crops was caused by anything to do with the quality of the irrigation water delivered by MI and used to irrigate those crops. Indeed, I specifically accept the opinions of Prof Meyer and Mr Lacy that the quality of the irrigation water in this case had nothing to do with the failure of the crops [112] , for the reasons they give there and elsewhere in their oral evidence and reports, the reasons given in the report of Prof Bush and in light of my findings as to what occurred.

[124]

Remediation and flocculation

Remediation and flocculation have been dealt with earlier in these reasons. In summary, and at the risk of some repetition, I find that: 1. It was not reasonably necessary for Ms Jones to use a flocculant in relation to irrigation water delivered to her property, whether in 2009/10 or after to render it suitable for irrigation purposes. The type of flocculant used by Ms Jones was primarily to produce drinking water or to clarify water for drip irrigation and was not otherwise necessary. Flocculent use, in Ms Jones's context, served no purpose other than to fill up the channel with the sediment rather than distributing it over the paddock. 2. The clay and other sediment brought in by irrigation water is more properly seen as beneficial for the paddocks irrigated using that water. This was borne out by the increasing yields experienced over the region in the past decades. 3. Neither the use of the flocculant, the construction of the weirs, the building of a sediment trap nor any consequent treatment and disposal of sediment were reasonably required as a result of contamination, turbidity or toxicity of irrigation water delivered to Ms Jones by MI, whether in 2009/10 or at any other time. 4. I was not satisfied, on the evidence, that it was established that any specific remediation work had been undertaken on P14, P15 or Q13 or other paddocks on North Corynnia after those paddocks had been irrigated with water delivered by MI in 2009/10 or subsequently, or that, if any such work was carried out, it was reasonably necessary as a result of P14, P15 and Q13 or other paddocks being irrigated with water delivered by MI in 2009/10 or at any other time. 5. The remediation work, other than flocculation, building weirs and the sediment trap, recommended by the plaintiffs' experts was, in substance, nothing more than sound, well known farming practice that would be carried out in any event by farmers to make paddocks in the region of North Corynnia more productive.

[127]

The further amended statement of claim

In their further amended statement of claim filed on 3 August 2016, the plaintiffs identified four causes of action: 1. breach of duty of care, where: 1. the duty was alleged to be a duty "to take reasonable care to ensure that the Plaintiffs did not suffer loss or damage by reasons of any act or omission on the part of the Defendant in the supply of water to [North Corynnia]"; and 2. MI was alleged to be negligent by supplying water to the plaintiffs in that: 1. it failed to take any steps to ensure that the water was suitable for the purposes the plaintiffs disclosed to MI; 2. it undertook no or inadequate testing of water to see if it was fit for purpose, or disregarded test results; 3. it failed to take any reasonable steps to address unsustainable levels of turbidity and salinity in water supplied to members of MI and of which MI was on notice from 1999; 4. it failed to take any reasonable steps to address unsustainable levels of turbidity and salinity in water supplied from BBSW including testing and implementing a plan to achieve a sustainable levels of turbidity and salinity in water stored at BBSW; and 5. it took no or inadequate steps to improve the quality of water supplied to North Corynnia after being made aware of the poor quality of the water since 2010 and continuing. 1. breach of contract, where: 1. the express and implied terms of the Member Contract and the Water Entitlement Contract and the Water Delivery Contract, as applicable at the relevant times, included the following: 1. the express terms in cll 4.1, 6.3, 7.1, 9.1-9.3, 12.2 and 37.3 of the Member Contract, cl 4.1 of the Water Entitlements Contract and cll 8.1, 8.2(8), 9.2, 12.2(2), 12.3 and 13.1 of the Water Delivery Contract ; and 2. terms implied as a matter of fact and by law (relying on s 19 of the Sale of Goods Act 1923 (NSW)) that: (A) MI would not supply water of such quality that it would cause harm and degradation of North Corynnia when used for the purpose of irrigation; (B) MI would not supply water that was not reasonably fit for the purpose of irrigation of rice crops, which purpose had been made known by the plaintiffs to MI; and (C) MI would not supply water of such quality that it would cause harm to livestock. 1. the breaches of contract alleged were that MI: 1. "charged the Plaintiffs for water which was of no value"; 2. "supplied water to the First Plaintiff which caused harm and degradation to [North Corynnia] including its soil and water courses"; 3. "supplied water that was not fit for the purpose of irrigating crops, for which the Defendant knew the water would be used"; 4. "caused there to be deposited upon [North Corynnia] harmful solid matter"; and 5. "[c]ontinued to supply water with poor physical, chemical and biological characteristics effectively preventing the Plaintiff from taking delivery of the water to which she had a contractual right". 1. trespass, where the alleged trespass was identified as intentionally causing harmful solid matter to be deposited on North Corynnia during and after the 2009/10 season, without the consent or approval of the plaintiffs; and 2. nuisance, but in their written submissions dated 19 November 2019, the plaintiffs indicated that they did not press their case based on nuisance [113] . Consequently, the terms of s 137 of the Water Management Act 2000 (NSW), which exclude liability in respect of nuisance in certain cases, do not need to be considered.

[128]

The defence to the further amended statement of claim

In its defence to the further amended statement of claim, in relation to the breach of duty of care cause of action, MI denied: 1. that it owed a duty of care to the plaintiffs as pleaded on the basis that such a duty was inconsistent with relevant provisions of the contracts between the parties at the relevant times (in particular cl 29 of the Member Contract and cl 31 of the Water Delivery Contract and cl 19 of the Water Entitlements Contract) and the allocation of risk inherent in such provisions; and 2. that it was negligent as alleged.
In addition, in answer to the plaintiffs' claim in negligence, within the meaning of the Civil Liability Act 2002 (NSW) (CL Act), MI contended in effect that: 1. it was not negligent to the extent that it failed to take any of the precautions against risks of harm in the present case because each relevant risk of harm did not fall within s 5B(1)(a) or (b) of the CL Act and/or a reasonable person in MI's position would not have taken the precautions, and thus the circumstances did not fall within s 5B(1)(c); 2. any loss or damage suffered by the plaintiffs: 1. was not causally connected to any acts or omissions of MI, as the requirements of s 5D(1)(a) and/or (b) of the CL Act were not met; and 2. resulted from "obvious risks" within the meaning of s 5F; 1. pursuant to s 5G of the CL Act, the risk of harm were "obvious risks" and the plaintiffs were presumed to be aware of those and there was no proactive duty on MI to warn of them, pursuant to s 5H of the CL Act; and 2. any harm suffered by the plaintiffs was the result of the materialisation of an inherent risk, within s 5I of the CL Act, in using irrigation water delivered by MI in the circumstances.
As to the contract claim, MI denied: 1. that the implied terms alleged by the plaintiffs should be implied as a matter of fact or by law, for example because they were inconsistent with the provisions referred to in the preceding paragraph or because s 19 of Sale of Goods Act did not apply in the present case; and 2. that there was any breach of contract, as alleged.
MI denied that there was any trespass as alleged.
In answer to the whole of the plaintiffs' claims, MI also relied upon the exclusions of liability contained in: 1. cl 29 of the Member Contract in respect of water delivered before 21 October 2011; and 2. cl 31 of the Water Delivery Contract and cl 19 of the Water Entitlements Contract in respect of water delivered on or after 27 December 2011.
MI also contended that, to the extent that the plaintiffs' claims are based on deliveries of water made before 16 November 2009, the claims were statute barred under s 14 of the Limitation Act 1969 (NSW).

[131]

Breach of duty of care

Assuming, in the plaintiffs' favour that all of MI's contentions as to points of law in opposition to the plaintiffs' claim for breach of duty of care should be rejected, and that MI did owe a duty of care: 1. to ensure that the plaintiffs did not suffer loss and damage by reason of any act or omission on the part of MI in the supply of water to North Corynnia, as alleged in par 55 of the further amended statement of claim; or 2. to ensure that the water delivered by MI to the plaintiffs did not cause damage or harm to their crops or land, as effectively formulated in closing submissions, the breaches of duty by MI, alleged in par 57 of the further amended statement of claim, have not been made out on the facts as I have found them.
My conclusions in relation to the water delivered to North Corynnia, at the relevant times, have for the most part been identified elsewhere in these reasons. Based on those findings, my specific conclusions in relation to the breaches relied on by the plaintiff follow.
As to the allegation, in par 57(a) of the further amended statement of claim, to the effect that MI failed to take any steps to ensure that the water delivered to North Corynnia in 2009/10 was suitable for the irrigation purpose disclosed by Ms Jones to MI, the plaintiffs did not establish on the balance of probabilities that there were steps which a reasonable person in MI's position would have taken, but MI did not take, to ensure that the irrigation water delivered to Ms Jones at the relevant times was fit for purpose, or that the water delivered to North Corynnia was not suitable for the purpose of growing rice or any other irrigation purpose disclosed by Ms Jones to MI.
My conclusion was not, however, based only on the plaintiffs' failure to discharge the onus of proof. Since other farmers in the region of North Corynnia took irrigation water delivered from the same sources and delivered through the same upstream channels and grew successful rice and sorghum crops and pasture and successful rice in 2009/10 and other crops have been grown in the region since 2019/10, and having regard to the evidence of Mr Lacy, Prof Meyer and Prof Bush, which I have accepted, I find that the water delivered by MI to the plaintiffs in 2009/10 and subsequently was suitable for the purpose of rice growing and the other relevant irrigation purposes disclosed by Ms Jones to MI. I also find, in all the circumstances, that there were no steps that a reasonable person in MI's position would have taken, but MI did not take, to ensure that the water delivered was so suitable. Thus, there was no breach of duty as alleged in par 57(a).
As to the allegation, in par 57(b) of the further amended statement of claim, to the effect that MI undertook no or inadequate testing of the water to see if it was fit for the disclosed purposes or, if testing was carried out, disregarded the test results, the plaintiffs did not establish on the balance of probabilities: 1. that at relevant times in 2009/10 or subsequently, the water delivered to North Corynnia was not adequately tested, and in particular, I do not accept the evidence of Mr Hutchins, Prof Cook or Mr Mulvey that there were problems with the irrigation water delivered by MI to the plaintiffs which would have been revealed by the testing proposed by them; or 2. that a reasonable person in MI's position would have carried out more or different testing from what was undertaken by MI; or 3. that at any relevant time, MI tested the water and obtained test results that indicated that the water was not fit for the disclosed purposes but disregarded those test results and delivered the water to North Corynnia notwithstanding those results.
Based on Prof Meyer's and Prof Bush's evidence and as set out above, I found that the nature of the monitoring and testing undertaken by MI was sufficient to determine if there were any elements of its system that were undergoing dramatic change, or would present any risk for the farmers to whom MI delivered irrigation water.
Further, the testing that MI carried out did not indicate that the water delivered, or to be delivered, by MI to the plaintiffs was not fit for the disclosed purposes. I am satisfied that MI did not disregard any adverse test results that might have indicated that water to be delivered to the plaintiffs was not fit.
Accordingly, no breach of duty as alleged in par 57(b) of the further amended statement of claim has been made out.
As to the allegation, in par 57(c) of the further amended statement of claim, to the effect that MI was on notice from 1999 that there were "unsustainable" levels of turbidity and salinity in water supplied to members of MI, and MI failed to take any reasonable steps to address those issues, the plaintiffs did not establish on the balance of probabilities that, in so far as it might be relevant to the plaintiffs' claims: 1. in 2009/10 or subsequently, there were levels of turbidity and salinity that were "unsustainable", in any relevant sense, in the irrigation water delivered to the plaintiffs; or 2. there were, in those circumstances, steps that a reasonable person in MI's position would have taken, but were not taken by MI, to address "unsustainable" turbidity and salinity in relation to the water delivered to the plaintiffs in 2009/10 or subsequently.
The plaintiffs did not press a case based on salinity in their closing submissions. Such a case was not supported by Mr Hutchins's evidence, even in his June 2010 report, where in section 9.1 he said: "[Mr Cave] and others tested the incoming water and water in the rice bays for salinity, and found it to be at acceptable levels."
The evidence of Mr Lacy, Prof Meyer and Prof Bush as well as the evidence of successful irrigated cropping in the region of North Corynnia in 2009/10 and subsequently established that the turbidity of irrigation water in the region of North Corynnia and of the water delivered to the plaintiffs did not render it unsuitable for use in any relevant form of irrigation at any relevant times. Further and in any event, I accepted Mr Dick Thompson's evidence that MI did take steps to improve the quality, including turbidity and salinity of the water to be delivered by MI by redeveloping the Barren Box Swamp into the BBSW in about 2006.
On these bases, I reject the contention that MI breached its duty as alleged in par 57(c).
As to the similar allegation, in par 57(d) of the further amended statement of claim, to the effect that MI was aware that there were "unsustainable" levels of turbidity and salinity in relation to irrigation water sourced from BBSW and failed to take any reasonable steps to address those issues including testing the water in the BBSW and developing a plan to achieve "sustainable" levels of turbidity and salinity in the water stored in BBSW, the plaintiffs did not establish on the balance of probabilities: 1. that the water stored in BBSW at any relevant time had levels of turbidity and salinity that were "unsustainable" in any respect relevant to what occurred in 2009/10 or subsequently; or 2. that there were, in those circumstances, steps that a reasonable person in MI's position would have taken to address "unsustainable" turbidity and salinity in relation to the water stored in the BBSW in 2009/10 or subsequently; or 3. that MI failed to take any such steps.
My positive findings referred to in the paragraphs concerning the breaches alleged in pars 57(a) to (c) are also relevant in relation to the breach alleged in par 57(d).
Accordingly, I was not satisfied that any relevant breach of duty as alleged in par 57(d) had been established.
As to the allegation, in par 57(e) of the further amended statement of claim, to the effect that MI took no or inadequate steps to improve the quality of water supplied to North Corynnia despite being made aware of the poor quality of the water since 2010 and subsequently, the plaintiffs did not establish on the balance of probabilities that the quality of the water delivered by MI to North Corynnia in 2009/10 was poor, in any relevant respect, or required improvement. Nor did they establish that there were any steps which a reasonable person in MI's position would have taken to improve the quality of the irrigation water delivered to the plaintiffs since 2010.
Further, I was satisfied that there was no breach as alleged in par 57(e) in light of what I have found, including: 1. that Ms Jones's neighbours and other farmers in the North Corynnia region, and the Wah Wah district more generally, have successfully grown rice and other irrigated crops in 2009/10 and subsequently with water sourced from and delivered through the same sources and upstream channels as were used to deliver water to the plaintiffs at relevant times; and 2. that the characteristics of irrigation water and its interaction with the soil and oxygen when applied to crops and paddocks in the region of North Corynnia and the Wah Wah district are managed by farmers adopting the widely known and widely implemented farming practices referred to in more detail earlier in these reasons.
Thus, I do not accept MI had breached any duty as alleged in par 57(e).
Given these findings, even if MI owed a duty of care to the plaintiffs as the plaintiffs contended, it was not established that MI had breached such a duty in any of the ways relied upon by the plaintiffs.

[132]

Breach of contract

A similar situation arises in relation to the plaintiffs' breach of contract case. Assuming in the plaintiffs' favour that all of the legal issues raised by MI in relation to the contractual claims should be rejected and that the terms relied upon by the plaintiffs were included in the contracts and none of the limitation of liability clauses operated to prevent the plaintiffs recovering damages for breach of contract, I have come to the conclusion that no breaches of the terms relied upon by the plaintiffs have been established.
In pars 8 and 47 of the further amended statement of claim, the plaintiffs alleged that both the Member Contract and the Water Delivery and Water Entitlements Contracts contained implied terms to the effect that: 1. MI "would not supply water of such quality that it would cause harm and degradation of [North Corynnia] when such was used for the purpose of irrigation"; 2. MI "would not supply water that was not reasonably fit for the purpose of irrigation of rice crops"; and 3. MI "would not supply water of such quality that it would cause harm to livestock".
Even if the contracts under which MI delivered water to the plaintiffs contained all the terms relied upon by the plaintiffs: 1. the plaintiffs have not established that the irrigation water delivered by MI in 2009/10 or subsequently was of such quality that it caused harm or degradation to any of the paddocks on North Corynnia to which it was applied. It is unnecessary to repeat here my more specific findings in this regard which have been set out above; 2. the plaintiffs have not established that the irrigation water delivered by MI which was used to irrigate the Reiziq and Illabong crops was not suitable for this purpose. The water delivered in 2009/10 for the Reiziq and Illabong crops was fit for that purpose. The failure of those crops was not caused or contributed to by the quality of the irrigation water. Those crops failed for the reasons I have referred to in more detail earlier. The fitness of irrigation water delivered by MI in 2009/10 was confirmed by the fact that Star Brothers and Mr Williment grew successful rice crops during this season with irrigation water from the same sources and delivered by MI through the same upstream channels; and 3. the plaintiffs have not established that any of the irrigation water supplied by MI in 2009/10 or subsequently caused harm to livestock. I addressed the issue of livestock when considering that topic as it was referred to in section 11 of Mr Hutchins's June 2010 report. As noted there, no relevant expert evidence was adduced by the plaintiffs to establish that any livestock illness or deaths were related to irrigation water delivered by MI, nor did the lay evidence provide a sufficient foundation for a finding that any livestock losses were caused by drinking or otherwise ingesting irrigation water supplied by MI. In the plaintiffs' written submissions of 19 November 2019 and in their final oral submissions, the supply of irrigation water that caused harm to livestock was not relied on as a breach of contract. [114]
For substantially the same reasons, I reject the plaintiffs' case, as alleged in pars 60 and 61 of the further amended statement of claim, that MI breached the Member Contract, the Water Delivery Contract or the Water Entitlements Contract in the circumstances pleaded in those paragraphs.
In particular and even if the contracts contained all the terms effectively relied upon by the plaintiffs, MI did not breach any of those contracts as alleged in pars 60 and 61 of the further amended statement of claim because: 1. MI did not charge "the Plaintiffs for water which was of no value", as alleged in pars 60(a) and 61(a). MI charged for the service of delivery of the water and not the water, as such, and that service was provided. Further and in any event, the water delivered to the plaintiffs had value as it could be used to grow rice and other crops successfully, as was demonstrated by Ms Jones's neighbours and other farmers in 2009/10 and subsequently and by the fact that Ms Jones sold some of her water entitlements, which related to irrigation water, for substantial sums in 2013. 2. MI did not supply "water to [Ms Jones] which caused harm and degradation to [North Corynnia] including its soil and water courses", as alleged in pars 60(b) and 61(b). Consistently with my findings in this matter detailed earlier in these reasons, the water delivered by MI to Ms Jones in 2009/10 and subsequently did not cause harm and degradation to the soil or water courses on North Corynnia. 3. MI did not supply "water that was not fit for the purpose of irrigating crops", as alleged in pars 60(c) and 61(c). The water delivered by MI in 2009/10 and subsequently was suitable for irrigating crops as demonstrated by its successful use by Ms Jones's neighbours and other farmers. The failure of Ms Jones's rice crops and any subsequent problems were not caused by the quality or characteristics of the irrigation water supplied by MI at any relevant time. The causes of the crop failures have been explained in detail earlier in these reasons. 4. MI did not cause "there to be deposited upon [North Corynnia] harmful solid matter", as alleged in pars 60(d) and 61(d). The irrigation water delivered by MI did not contain harmful solid matter and, as the evidence established, the deposition of clay and silt from irrigation water applied to paddocks was beneficial not harmful in the circumstances. 5. MI did not continue "to supply water with poor physical, chemical and biological characteristics effectively preventing the Plaintiff from taking delivery of the water to which she had a contractual right" as alleged in par 60(e) and 61(e). The irrigation water delivered by MI did not have poor physical, chemical and biological characteristics that prevented the plaintiffs and other farmers in the region from successfully growing crops or otherwise using the water as irrigation water, nor were the plaintiffs prevented from taking delivery of that water in any way.
For these reasons, I have concluded that none of the plaintiffs' claims for breach of contract would be successful, even if all of MI's submissions concerning the terms of the contracts and the effect of the limitation clauses were to be rejected.

[133]

Trespass

The alleged trespass relied upon by the plaintiffs was identified in par 64 of the further amended statement of claim as intentionally causing harmful solid matter to be deposited on North Corynnia during and after the 2009/10 season, without the consent or approval of the plaintiffs. In final oral submissions, the nature and amount of the material deposited were said to be indicated by the sediment obtained when Ms Jones used the flocculant and the sediment trap.
Trespass is a wrongful act done in disturbance of the possession of property of another: Halsbury's Laws of England, Second Edition, vol 33 p 2. A defendant who wrongfully and directly causes some foreign matter, for example earth and rubbish, to be deposited on another's land may be liable in trespass: Kynoch Ltd v Rowlands [1912] 1 Ch 527; Gregory v Piper (1829) 9 B&C 591; 109 ER 220. Similarly, wrongly depositing clay or sediment on another person's land could constitute a trespass.
Ms Jones is, as the person entitled to possession of North Corynnia at the relevant times, able to maintain an action in trespass: Barker v The Queen (1983) 153 CLR 338 at 342; [1983] HCA 18.
It was not in dispute, however, that whenever MI delivered irrigation water to North Corynnia it was Ms Jones who ordered the water from MI for delivery to the relevant outlets, including outlets P1, P2, Q1 and Q2, or that she controlled whether and when the outlets were opened to allow the irrigation water to enter her land.
The trespass was said to have been committed by MI when water carrying "harmful solid matter" entered Ms Jones's land through the relevant outlets and came into the internal supply channels and, in some cases, onto the paddocks of North Corynnia.
There are two fundamental factual difficulties in relation to this claim in trespass. First, MI's delivery of irrigation water ceased when the water was made available at the relevant outlets for Ms Jones to draw. MI did not cause the irrigation water, and any solid matter in it, to flow onto Ms Jones's land nor did it cause any solid matter to be deposited on her land. It was Ms Jones, or someone acting on her behalf, who opened the outlets and caused the water and its contents to enter onto her land.
Secondly, turbidity caused by clay and other material in the water was a well-known and observable aspect of the irrigation water delivered in the region of North Corynnia through MI's earthen channels in the dispersive soils of the region. Mr Michael Armstrong noted that the irrigation water delivered to North Corynnia was typically "soupy", which I take to be a reference to turbidity resulting from the clay and other material in the water. The irrigation water did not contain any solid matter which was harmful to the plaintiffs crops or land. The clay and other material contained in the water was a beneficial rather than a harmful aspect of the irrigation water delivered to North Corynnia.
Ms Jones consented to the water together with the clay and other material entering onto her land and she, not MI, caused that to happen.
In all the circumstances, in my view, MI is not liable in trespass.

[137]

Is any duty of care excluded or limited by the relevant contracts?

MI denied that it owed any relevant duty of care to the plaintiffs on the basis that the relevant contractual provisions limiting liability effectively excluded the existence of any duty of care as alleged by the plaintiffs.
The relevant provisions were said to be cl 29 of the Member Contract, cl 31 of the Water Delivery Contract and cl 19 of the Water Entitlements Contract. These provisions seek to limit the liability of MI to members or customers in various ways and could be seen as directed to allocating risk in relation to loss or damage suffered as a result of the activities of the parties under the contracts.
It has been established, and I did not understand there to be any contention to the contrary, that an agreement of the parties evidenced by a contract can modify and shape the tortious duties which, in the absence of contract, would be applicable: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 206, cited with approval by Callinan J in Astley v AusTrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [140] and see also Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49 at [328] and [330].
In the circumstances of the plaintiffs and MI in this case, I accept that any duty of care that might arise, could be excluded or modified having regard to the terms of the contracts between the parties at the relevant times.
It was an agreed fact that the Member Contract was the contract under which water was delivered by MI to Ms Jones during the period from 6 September 2006 to 21 October 2011. It was also agreed that the Water Delivery Contract and the Water Entitlements Contract were deemed to have been accepted by Ms Jones on 27 December 2011 and were the applicable contracts in relation to irrigation water delivered to North Corynnia on and after that date.
The principles applicable to the construction of commercial contracts are well established and include that the meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean in their context and it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract: Lawrence v Ciantar [2020] NSWCA 89 at [98] citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35], among other authorities.

[138]

Duty of care in relation to irrigation water supplied in 2009/10

The applicable contract in relation to the irrigation water used by Ms Jones for her rice crops in 2009/10 included cl 29 of the Member Contract. This clause relevantly provided: "29. LIMITATION OF LIABILITY 29.1 And nothing done or omitted to be done by the Company or any person acting under the authority of the Company will render the Company or that Person liable for any loss, damage, sum of money, costs, cause of action, liability, claim or demand of any type by the Member or any other person, so long as the action or omission of the Company or person acting under the authority of the Company was bona fide for the purpose (directly or indirectly) of compliance with the Licences. 29.2 To the extent permissible by Law, any and all implied warranties or representations by the Company are negatived. 29.3 In particular, and without limitation, the Company makes no warranty as to the quality of or suitability for any purpose of any water delivered by it and the Company expressly states: (1) that the water delivered by the Company is in no way fit for human consumption, or for use in contact with humans; and (2) the Company makes no warranty that any water delivered by the Company is of a quality or suitability fit for watering livestock. 29.4 The Company makes no warranty that any particular volume of water will be available at any time or times unless expressly agreed by the Company in a particular instance. 29.5 The Company indicates and the Member acknowledges that from time to time the Company treats water in the Company's Works with chemicals to control submerged weeds. 29.6 The Company may offer the treated water referred to in clause 29.5 to the Member after having notified the Member that the water is treated and the Member takes delivery of that water at his or her own risk. 29.7 The limitations on the liability of the Company contained in this clause 29 are in addition to the indemnities provided by section 137 of the Act and section 36 of schedule 9 of the Act."(emphasis in the original)
Assuming for the purpose of considering the submissions in relation to breach of duty of care that cl 29 was not void for uncertainty or for unconscionability and could be relied upon by MI, contrary to the plaintiffs' submissions elsewhere, it should be noted that the extent to which relevant liability was limited under cl 29 was quite confined in some respects but was broader in other respects.
Clause 29.1 did not purport to exclude liability for all acts or omissions of MI or its employees. Liability was excluded only for acts or omissions that were "bona fide for the purpose (directly or indirectly) of compliance with the Licences". The "Licences" were defined in cl 1.1(37) as the licences under s 122 of the WM Act, any "Access Licence" under that Act, and any licence under the Protection of the Environment Operations Act 1999 (NSW), held by MI. It was not suggested that those Licences required MI to deliver water to particular members, such as Ms Jones. I was not taken to any provision of the Licences that indicated that MI delivering water to Ms Jones involved an "action or omission of the Company or person acting under the authority of the Company … bona fide for the purpose (directly or indirectly) of compliance with the Licences". Consequently, cl 29.1 should not be construed in the circumstances as excluding liability for acts or omissions of MI or its employees only for the purpose of delivering water to members, such as Ms Jones.
The wording of cl 29.2 only negatived "implied warranties or representations" by MI to the extent that such an exclusion was permitted by law. Liability based on express warranties or representations was not sought to be excluded by cl 29.2.
As to whether the implied terms contended for by the plaintiffs would be implied into the Member Contract, under the Sale of Goods Act 1923 (NSW) (SG Act), parties can contract out of the provisions of that Act concerning rights and liabilities arising out of implied warranties and conditions. Section 57 of the SG Act provides: "Where any right, duty, or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract."
In addition, s 19(4) of the SG Act establishes that a warranty or condition implied by that Act can be negatived by an express inconsistent warranty or condition. Section 19(4) states: "An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith."
Thus, the implied warranties under the SG Act could be excluded in the present case, depending on whether the express terms were inconsistent with such implied warranties.
Clause 29.3 expressly excluded a warranty as to fitness for purpose generally as well as a warranty that any water was fit for watering livestock. In addition, that subclause expressly stated that water delivered by MI was not fit for human consumption or use. These express exclusions of warranties and the express statement of unfitness were inconsistent with the implied condition as to fitness for purpose arising under s 19(1) of the SG Act and thus negatived any such implied warranty or condition. Other warranties or bases for liability were not, however, affected by cl 29.3.
Clauses 29.5 and 29.6 related to contamination resulting from chemicals to control submerged weeds. Liability for this type of contamination was only excluded by cl 29.5 and 29.6 in cases where MI had given the Member to whom the water was delivered notice that the water had been treated with those chemicals. Liability for contamination resulting from other circumstances was not excluded by these subclauses nor was liability resulting from chemicals to control submerged weeds, if notice was not given.
Thus, while the contractual arrangements between the parties can modify the tortious duty, it does not appear to me that cl 29 of the Member Contract would have the effect of relieving MI entirely of any duty of care in relation to the quality of water supplied by it to a member such as Ms Jones, although that clause would limit that duty in the respects expressly dealt with in the clause.
For these reasons, in my view, any duty owed by MI to the plaintiffs to take reasonable care to ensure that the quality of the water delivered by MI to the plaintiffs, under the Member Contract, did not cause harm to their crops or land, did not extend to a duty to take reasonable care to ensure that the water delivered by it was: 1. of a quality or suitability for any purpose, including irrigating rice even though that purpose was disclosed to MI; or 2. fit for human use or consumption; or 3. fit for watering livestock; or 4. not contaminated by chemicals used to control submerged weeds, if prior notice of such contamination was given to the farmer taking the water.

[139]

Duty of care in relation to irrigation water supplied after December 2011

The delivery of irrigation water to North Corynnia after 27 December 2011 was governed by the Water Delivery Contract and the Water Entitlements Contract. MI relied in particular upon cl 31 of the Water Delivery Contract and cl 19 of the Water Entitlements Contract as operating so as to eliminate or limit the duty of care owed by MI to Ms Jones.
Once again, assuming for the purpose of considering the submissions in relation to breach of duty of care that cll 31 and 19 were not void for uncertainty or for unconscionability and could be relied upon by MI, contrary to the plaintiffs' submissions referred to elsewhere, the limitation of liability of MI under those clauses was the subject of a significant exception in relation to negligence.
The terms of those two clauses are identical, except for internal references to the clause itself. The term "Documents" is defined in each case to include, among other things, the contract in question between MI and the customer and the corresponding Water Delivery Contract or the Water Entitlements Contract, as the case may be, between MI and that customer. Clause 31 of the Water Delivery Contract [and cl 19 of the Water Entitlements Contract] provide: "31 Limitation of liability and indemnity 31.1 To the maximum extent permitted by law: (1) all terms, conditions, warranties, statements or representations by the Company (whether express, implied, written, oral, collateral, statutory or otherwise) in connection with the subject matter of the Documents which are not expressly set out in the Documents are excluded, and to the extent they cannot be excluded, the Company disclaims all liability that it may have in relation to them, and (2) the Customer must not make any Claim under or in connection with the Documents unless it is based solely on and limited to the express provisions of the Documents. 31.2 Except as expressly set out in the Documents, to the maximum extent permitted by law, the Customer releases the Company and its Personnel from all Claims, whether in tort (but not including negligence), statute, contract, or otherwise, and all Losses which the Customer has or may have which arise out of the negotiations for, or subject matter of the Documents The Customer agrees that each of the Company's Personnel are entitled to the benefit of the release, which may be enforced by the Company on behalf of any of them The Company holds on trust for those people, jointly and severally, the benefit conferred by this clause 31.2 [19.2]. 31.3 The Customer acknowledges and agrees that (1) except as expressly set out in the Documents, neither the Company nor any of its Personnel is responsible to the Customer for, and the Customer does not rely on, any statement or representation made, any advice, opinion, warranty, undertaking, promise, estimate, projection or forecast given, or any conduct of any kind engaged in, in relation to the subject matter of the Documents (2) without limiting clause 31.3(1) [19.3(1)], neither the Company nor any of its Personnel is responsible to the Customer for, and the Customer does not rely on, any statement or representation made, any advice, opinion, warranty, undertaking, promise, estimate, projection or forecast given, or any conduct of any kind engaged in, in relation to: (a) the availability or delivery of water at any particular time or its flow rate, pressure or height or depth relative to any Works, including where this restricts or prevents the taking of water through those Works; (b) the nature, quality or fitness for any purpose of any water made available or delivered by the Company, including in relation to: (i) fitness for human consumption, or for use in contact with humans; or (ii) fitness for watering livestock, crops or plants, spraying, manufacturing or any other use; (c) whether or not any water made available or delivered by the Company has been filtered, or filtered to any particular standard; (d) future matters, including future water availability, Charges and service levels; (e) the regulation of the water industry, including any act or omission by the ACCC or any other Government Agency; (f) the principles to be applied by the ACCC or any other Government Agency with respect to the regulation of the water industry and, in particular, matters affecting water availability, Charges and service levels; (g) the results of reviews by the ACCC or any other Government Agency or any policies or procedures which they adopt; or (h) the accuracy, reliability or completeness of the Rules; (3) without limiting clause 31.3(1) [19.3(1)] or clause 31.3(2) [19.3(2)], except as expressly set out in the Documents, no statement or representation, no advice, opinion, warranty, undertaking, promise, estimate, projection or forecast and no conduct: (a) has induced or influenced the Customer to enter into the Documents or agree to any or all of their provisions; (b) has been relied on in any way by the Customer; (c) has been warranted to the Customer as being true or accurate; or (d) has been taken into account by the Customer as being important to the Customer's decision to enter into the Documents or agree to any or all of their provisions; (4) except as expressly set out in the Documents, the Customer enters into the Documents relying on his, her or its own evaluation, advice and investigations; (5) the Customer is capable of evaluating the merits and risks of filtering the water made available or delivered by the Company; (6) the Customer is responsible for: (a) determining whether or not to filter, or filter to any particular standard, the water made available or delivered by the Company; and (b) at his, her or its own Cost, installing, commissioning, operating, repairing, replacing, maintaining and improving any filter; (7) having conducted his, her or its own evaluation of the merits and risks of filtering the water made available or delivered by the Company, the Customer understands the consequences of his, her or its determination (including the potential Loss which may result from his, her or its determination); and (8) from time to time the Company treats water the Company makes available or delivers with chemicals including for the purposes of controlling weeds, algae or pests, or managing water quality and the Company may offer the treated water referred to in this clause 31.3(8) [19.3(8)] to the Customer after having notified the Customer that the water is treated and the Customer takes delivery of that water at his, her or its own risk. 31.4 The Company is not liable for any breach of the Documents: (1) to the extent that the breach has arisen out of, or the Loss suffered is increased as a result of, any act or omission by or on behalf of the Company: (a) that is required or permitted by any provision of the Documents; or (b) that is for the purpose (directly or indirectly) of compliance with any Legal Requirement; (2) to the extent that the breach has arisen out of, or the Loss suffered is increased as a result of: (a) a new law, or a change in the law (including its interpretation); (b) a new rule or decision being made by any Government Agency, or a change in any rule or decision of any Government Agency; or (c) a new administrative practice or policy being introduced by any Government Agency, or a change in any administrative practice or policy of any Government Agency; or (3) for any Loss (including any indirect, consequential or economic loss or loss of profits) which does not flow directly, naturally or in the usual course of things from that breach, whether or not that Loss was in the reasonable contemplation of the parties when the Documents were entered into. 31.5 The Company's liability, if any, under the Documents, in relation to the supply of a service not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited to payment of the cost of having the service supplied again. 31.6 The Customer indemnifies the Company against: (1) all Losses incurred by the Company or the Customer arising directly or indirectly as a result of or in connection with: (a) a breach by the Customer of a Document, whether express or implied; or (b) any default, or any negligent or wilful act or omission of the Customer or its Personnel; and (2) all Losses incurred by the Customer arising directly or indirectly as a result of or in connection with the performance by the Company of any of the obligations of the Company under a Document or a Legal Requirement, whether express or implied. 31.7 The limitations on the liability of the Company and indemnities contained in this clause 31 [19] are in addition to: (1) the indemnities provided by section 137 of the Act and section 36 of Schedule 9 of the Act; and (2) the exclusion of liability under section 397 of the Act for any act or omission done, or omitted to be done, in good faith for the purpose of executing the Act."
As noted above, it is of particular significance that cll 19.2 and 31.2 include an express exemption from the releases in the case of negligence. The clauses expressly provide that "the Customer releases [MI] … from all Claims in tort (but not including negligence) … which the Customer has or may have which arise out of the … subject matter of … the Documents" (emphasis added). The "subject matter" of the Documents includes the delivery of irrigation water under or as a result of those contracts, especially the Water Delivery Contract.
It can be noted that the exclusion of negligence from the releases in cll 31.2 and 19.2 appears to be what was referred to on the powerpoint slide shown at the meeting on 8 August 2011 as "Exclusion of liability for negligence has been removed", referred to above.
The provisions of cll 31 and 19, other than cll 31.2 and 19.2, generally relate to: 1. excluding certain types of terms, including implied terms, from the Water Delivery Contract and the Water Entitlements Contract: cll 31.1 and 19.1 2. representations made in relation to the subject matter of the two contracts but not contained in the contracts: cll 31.3 and 19.3; 3. acknowledgements and agreements by the Customer, for example as to non-reliance upon representations not contained in the contracts: cll 31.3 and 19.3; 4. exclusion of liability of MI in relation to certain breaches of the contracts: cll 31.4 and 19.4; 5. MI's liability under the contracts being limited in relation to certain services: cll 31.5 and 19.5; 6. indemnification of MI in respect of acts or omissions of the Customer: cll 31.6(1) and 19.6(1); and 7. statutory limitations on liability which are in addition to the limitations on liability in cll 31 and 19.
Apart, potentially, from cll 31.6(2) and 19.6(2), these other provisions do not appear to be directed at limiting a customer's ability to recover damages from MI for negligence, as opposed to breach of contract or misrepresentation, in relation to MI's delivery of water to a customer.
Clauses 31.6(2) and 19.6(2) provide: "The Customer indemnifies the Company against: … (2) all Losses incurred by the Customer arising directly or indirectly as a result of or in connection with the performance by the Company of any of the obligations of the Company under a Document or a Legal Requirement, express or implied."
"Loss" is defined in cl 1.1(36) of the Water Delivery Contract and cl 1.1(26) of the Water Entitlements Contract as including "any damage, loss, liability or Cost of any kind and however arising (including as a result of any Claim), including penalties, fines and interest". Thus, it appears that "loss" in cll 19.6(2) or 31.6(2) would include damages suffered as a result of MI's negligence.
However, the effect of cll 19.6(2) and 31.6(2) depends principally on what is included in the words "the performance by the Company of any of the obligations of the Company under a Document [which includes both the relevant Water Entitlements Contract and the relevant Water Delivery Contract] …". This, in turn, depends on what obligations each contract imposes on MI.
Clause 7.8 of the Water Entitlements Contract provides that: "Despite anything to the contrary, nothing in this Contract obliges the Company to deliver, or entitles the Customer to delivery of or to take, any water."
The situation under the Water Delivery Contract, which is another of the "Documents" is different. The obligations of MI under the Water Delivery Contract relevantly depend on cl 8, which includes: "8.1 Subject to the Documents and if the Customer holds Delivery Entitlements and seasonal conditions permit, the Company must use its reasonable endeavours to deliver Water Allocation to the Customer during the Water Year in accordance with the Customers Delivery Entitlements and the Access and Ordering Rules. 8.2 The Company is under no obligation to deliver water: (1) unless and until the Company has a volume of water available to it under the Murrumbidgee Irrigation (conveyance) Access License which is sufficient for the delivery of water by the Company to the Customer and all other holders of Delivery Entitlements; … [certain other situations] (8) if the Company reasonably believes that the water to be delivered to the Customer is not of a quality suitable for delivery, including where it is contaminated; (9) if delivery of water would, in the reasonable opinion of the Company, contravene the Company's obligations under a Legal Requirement [which term is defined to include MI's Licences]; … [certain other situations]. …".
It follows that MI has an obligation under the Water Delivery Contract to use reasonable endeavours to deliver water to a customer in the circumstances set out in cl 8.1 but there is no obligation to do so in the various situations listed in cl 8.2. These situations include: 1. where MI reasonably believes that the water to be delivered to the Customer is not of a quality suitable for delivery, including where it is contaminated; and 2. where delivery would, in MI's reasonable opinion, contravene MI's obligations under its Licences.
Accordingly, if MI delivered water to a customer in the circumstances referred to in cl 8(2), this would not be in performance of any obligation of MI under the Water Delivery Contract, as referred to in cl 31.6(2) of that contract or cl 19.6(2) of the Water Entitlements Contract.
In addition, the terms of cl 8.2(8) and (9) of the Water Delivery Contract, make the removal of the obligation to deliver water dependent upon MI's reasonable belief or reasonable opinion. When read with the obligation to use reasonable endeavours to deliver the water in cl 8.1, in my view MI's reasonable endeavours would include taking steps to inform itself as to whether the water was of a quality suitable for delivery, including where it is contaminated, and whether delivery of water would contravene MI's obligations under a "Legal Requirement".
Thus, when the Water Entitlements Contract and Water Delivery Contract are read as a whole, and particularly in light of cll 31.2, 31.6(2) and 7.8 of the Water Delivery Contract and cll 19.2, 19.6(2), 8.1 and 8.2 of the Water Entitlements Contract, those contracts do not restrict or limit the duty of care, and thus any potential liability in negligence, as referred to in cll 31.2 and 19.2, to take reasonable care to ensure that the water delivered was of a quality suitable for delivery as irrigation water, was not contaminated and complied with MI's obligations under its relevant licences among other Legal Requirements.
Further and to that extent, the representation made on the powerpoint slide shown at the meeting on 8 August 2011 was not misleading or deceptive.

[142]

Section 5B

Section 5B of the CL Act is in the following terms: "(1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
MI submitted that, although the plaintiffs had not, in terms, identified what they contended was the risk of harm, the relevant risk of harm was the risk that water delivered to the plaintiffs at relevant times "had levels of iron, aluminium, sulphur, chromium and magnesium, levels of turbidity and a calcium to magnesium ratio which collectively would cause damage to the plaintiffs' rice crops and soil". It was then said that such a risk was novel and not foreseeable and was insignificant on the ground that all of the plaintiffs' neighbours had grown successful crops in 2009 and rice has been grown successfully in the Wah Wah district from 2009 to date.
As to the reasonableness of taking the precautions against the risk of harm, MI contended that these precautions included performing adequate testing and taking steps to improve the quality of the irrigation water being delivered. In this regard, MI pointed to the testing that it did carry out in order to meet its license requirements and submitted that there was no standard required to be met in respect of turbidity in irrigation water and in any event, irrigation water flowing down the channels in the MIA is turbid.
The plaintiffs' position was that the requirements of s 5B(a), (b) and (c) had been met since the following circumstances created a risk that the water delivered would be of such poor quality that it would damage the crops and land: 1. by late 2009, there had been a long and continuing drought and there was little water available in BBSW for irrigation; 2. drawing water from a source such as BBSW in those circumstances would have the consequences of iron and other elemental toxicity, described by Prof Cook; 3. MI did not test the water to be delivered to determine whether it was suitable for irrigation of rice crops even though MI had the requisite equipment and employees for testing; and 4. all of these matters were known to MI.
The plaintiffs' further contended that, because of the serious nature of the consequences, a reasonable person in the position of MI would have carried out testing to determine if the water was suitable.
Judging from the plaintiffs' case, especially Prof Cook's hypotheses as to what caused the failure of Ms Jones's rice crops in 2009/10 and as to the problems with the paddocks irrigated with water delivered by MI at that time or subsequently, it appears that the risk of harm identified by the plaintiffs in this case was the risk that water delivered to North Corynnia at relevant times had levels of oxygen, turbidity, iron and/or other metals and/or sulphur, and a low Ca:Mg ratio such that these physical and chemical properties would, in combination, cause there to be damage to the rice crops and soil to which it was applied. Alternatively, the risk could be identified more generally as the risk that water delivered to the plaintiffs by MI was of such poor quality that it would cause damage to rice crops and soil to which it was applied.
Once again, there are difficulties at the factual level with this identification of the risk of harm. One difficulty is that the evidence did not, on my view, establish that the combination of physical and chemical properties identified by Prof Cook as constituting the poor quality of the irrigation water would cause, or did cause, harm to the crops or soil to which it was applied. The opinions of Prof Meyer and Prof Bush were to the contrary and I accept that evidence and the reasons they gave for their opinions.
A further difficulty is that, even if the irrigation water did have the physical and chemical properties identified, and while harm might be caused to crops to which it was applied, as explained by Prof Cook, that harm would only be likely to occur if the farmer did not adopt farming practices widely known and widely implemented in the MIA and in the region of North Corynnia, in relation to: (a) water management of a rice crop; (b) the application of urea in order to provide the appropriate amount of nitrogen for a rice crop (both as a nutrient and to prevent the iron and other elements reacting in a low oxygen environment leading to toxicity); (c) bloodworm treatment; (d) herbicide management; and (e) steps to improve generally the productivity of soils in the region. [117]
Further and in any event, in relation to the application of s 5B as well as other aspects of the plaintiffs' claim in negligence (as defined in s 5 of the CL Act), s 5E provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Accordingly, in order to establish that MI was negligent in failing to take precautions against the risk of harm in the present case, such as testing the water and taking steps to improve its quality, the onus was on the plaintiffs to establish, in accordance with s 5B that: 1. the risk of harm was foreseeable (that is, it was a risk of which MI knew or ought to have known), and 2. the risk was not insignificant, and 3. in the circumstances, a reasonable person in MI's position would have taken those precautions.
In light of the evidence in these proceedings and my findings as a whole, including but not limited to the following: 1. the fact that there is no turbidity standard for irrigation water because turbidity was not generally a problem when irrigating crops and that turbidity at the levels measured over a considerable period by MI in MI's system relevant to the region of North Corynnia, would not have any adverse effect on rice growing or paddocks to which the water was applied; 2. the fact that when irrigation water is applied to and allowed to remain on crops it will become deoxygenated near the root zones, whether or not it was turbid and/or deoxygenated to any significant extent when it was delivered to the farmer; 3. the dispersive nature of the soils, in the MIA in general and in the region of North Corynnia in particular, and the likelihood that a low Ca:Mg ratio in the irrigation water would have little if any impact on the dispersiveness of, or Ca:Mg ratio in, the soils when irrigation water is applied to them; 4. widely known and widely implemented farming practices in the MIA and in the region of North Corynnia, in relation to: (a) water management of a rice crop; (b) the application of urea in order to provide the appropriate amount of nitrogen for a rice crop (both as a nutrient and to prevent the iron and other elements reacting in a low oxygen environment leading to toxicity); (c) bloodworm treatment; (d) herbicide management; and (e) improving the productivity of soils in the region; and 5. the fact that, where those farming practices are implemented, the application of turbid and deoxygenated irrigation water to the crops or land, a low Ca:Mg ratio in the water and levels of iron and other elements present in the water generally found in MI irrigation water would not have any substantial adverse impact on the crops or paddocks to which the irrigation water was applied, 6. the fact that rice and other crops were successfully grown, in the MIA generally and in the region of North Corynnia in particular, with irrigation water sourced from the same or similar water courses and storage areas and delivered by MI using its same system of earthen channels, for many years before 2009/10, in 2009/10, and in subsequent years, I was not satisfied that the plaintiffs had discharged the onus of proving on the balance of probabilities that either the more specific or the more general risk of harm being caused to crops or soil, identified above, was foreseeable, in the sense that MI knew or should have known of it in the circumstances.
Given substantially those same considerations, I was also not satisfied that the plaintiffs had discharged the onus of proving on the balance of probabilities that either the more specific or the more general risk of harm was not insignificant.
Moreover, in light of the considerations mentioned above and: 1. the testing and monitoring already undertaken by MI, which I have already found was sufficient to determine if there were any elements of its system that were undergoing dramatic change or would present any risk for the farmers to whom MI delivered irrigation water; 2. the unlikelihood that harm to rice crops and paddocks in the region of North Corynnia would occur if precautions by way of further testing or improving water quality in relevant respects were not taken; 3. the absence of any specific evidence as to the cost of carrying out further comprehensive testing of oxygen levels, turbidity, Ca:Mg ratios, and levels of iron and other elements in irrigation water on widespread basis, both geographically and temporally, or as to the likely cost inherent in improving water quality in the respects identified by the plaintiffs' experts; and 4. the considerable social utility of MI's activities, I was not satisfied that the plaintiffs had proved on the balance of probabilities that a reasonable person in MI's position would have: (a) carried out water testing in respect of oxygenation, turbidity, levels of iron and other elements or the Ca:Mg ratio of the irrigation water to be delivered by MI, in addition to the testing MI already carried out; or (b) would have taken steps to increase oxygenation, reduce turbidity, reduce levels of iron or other elements or increase the Ca:Mg ratio in irrigation water to be delivered to farmers.

[146]

Causation of loss

Further, MI submitted that, if (contrary to its submission) MI was negligent, any harm suffered by the plaintiffs was not caused by that negligence, that is, by any relevant acts or omissions of MI. In this regard, MI relied on s 5D of the CL Act. That section relevantly provides: [118] "(1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The High Court has explained the effect and operation of this provision in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14]-[16] as follows: "14. The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. 15. Thus, as Allsop P explained in the present case: '[T]he task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as 'proximate cause' or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not. 16. The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a 'but for' test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence." (footnotes omitted)
It was, therefore, necessary under s 5D(1)(a) for the plaintiffs to prove on the balance of probabilities that but for MI's negligence the harm suffered by the plaintiffs would not have occurred; that is, factual causation.
For the purposes of this analysis, it must be assumed, contrary to my findings above, that MI was negligent, as alleged by the plaintiffs, in that: 1. MI failed to carry out adequate testing of the irrigation water and its sources to determine whether or not it was suitable for irrigating rice crops; 2. MI ignored the testing results that it did obtain and delivered irrigation water to North Corynnia in any event; 3. MI failed to take any steps to ensure that the irrigation water was suitable for rice growing or irrigation of crops and pasture generally; and 4. MI failed to take any reasonable steps to address "unsustainable" turbidity and salinity in the water in water supplied to farmers and in water supplied from BBSW, or otherwise address the poor quality of the water delivered to North Corynnia in 2009/10 and subsequently.
I have set out above my findings as to what occurred to each of the Reiziq and Illabong crops in 2009/10 and as to the state of the plaintiffs' relevant paddocks to which irrigation water has been applied since 2009.
In light of those findings and the evidence as a whole, in my view the plaintiffs have not proved on the balance of probabilities that the Reiziq crops and the Illabong crop would not have failed but for the negligence of MI. In other words, even if MI had taken the steps identified above, the Reiziq crops and the Illabong crop would still have failed. This was because, as a matter of fact, the plaintiffs' Reiziq crops and the Illabong crop failed at the times that they did because of a combination of factors including the preparation of the paddocks and the management of each of the crops, as explained in detail above, and not because of the characteristics of the irrigation water, as contended by the plaintiffs.
This conclusion in relation to factual causation is supported by the fact that similar irrigation water delivered at about the same time as the water was delivered to the plaintiffs in 2009/10 from the same ultimate sources and delivered through the same upstream channels was used by Ms Jones's neighbours to grow successful rice, sorghum and other crops during the same season.
Similarly, I do not accept that the plaintiffs have proved on the balance of probabilities that, if MI had taken the steps identified above, the paddocks irrigated with water delivered by MI in 2009/10 or subsequently would have been in any materially different state from the state they are in now. The paddocks would not have been in a different condition but for MI's (assumed) negligence. Thus, I find that MI's negligence was not a necessary condition of the occurrence of any harm, to the extent that the current state of the irrigated paddocks indicates that they have been harmed, contrary to my other findings.
Finally, if it should be found that MI's negligence was a necessary condition of the occurrence of harm by way of failure of the crops and harm to the irrigated paddocks, it does not appear to me to be appropriate to reach a conclusion, for the purposes s 5D(1)(b), as to whether or not the scope of MI's liability should extend to that harm, in circumstances where the precise nature of the harm and the mechanism of factual causation depend on findings that have not been made and where: 1. some or all harm could have been avoided or eliminated by the plaintiffs' adopting the widely known and widely implemented farming practices referred to above; and 2. MI is an irrigation corporation subject to the Water Management Act and MI's shareholders, including Ms Jones, are landholders in the MIA who hold water entitlements under the Water Management Act and these shareholders, as well as others, are MI's customers for the delivery of irrigation water; and 3. the allocation of risk between MI and its customers was governed, at least to some extent, by the Member Contract, and the Water Delivery Contract and the Water Entitlements Contract, depending on the relevant period; and 4. there has been no evidence or submissions as to how the allocation of risk was likely to have influenced the value of the Water Entitlements held by MI's shareholders, including Ms Jones, and the amount that would be charged for delivery of irrigation water by MI under the Water Delivery Contracts, in different circumstances.

[149]

The plaintiffs' submissions

The plaintiffs contended that the clauses of the Member Contract and the Water Delivery Contract and the Water Entitlements Contract were to be interpreted in light of the water management principles set out in WM Act s 5, having regard to s 9(1) of that Act, which requires all persons exercising functions under the WM Act, including MI, to take all reasonable steps to exercise those functions in accordance with and so as to promote the water management principles. Those principles set out in s 5 include: "(2) Generally - (a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and … (g) the social and economic benefits to the community should be maximised, and … (4) In relation to water use - (a) water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and (b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and …"
The plaintiffs also submitted that the Member Contract, the Water Entitlements Contract and the Water Delivery Contract each contained, the following terms, implied as a matter of fact or by law under s 19 of the SG Act: [119] 1. MI "would not supply water of such quality that it would cause harm and degradation of [North Corynnia] when such was used for the purpose of irrigation"; 2. MI "would not supply water which was not reasonably fit for the purpose of irrigation of rice crops, the purpose for which water was being supplied to [Ms Jones] by [MI] and which purposes was known or ought reasonably have been known to [MI]"; and 3. MI "would not supply water of such quality that it would cause harm to livestock".
Then, the plaintiffs submitted that MI had breached each of the contracts in that MI: [120] 1. "charged the Plaintiffs for water which was of no value"; 2. "supplied water to [Ms Jones] which caused harm and degradation to [North Corynnia] including its soil and water courses"; 3. "supplied water that was not fit for the purpose of irrigating crops, for which the [MI] knew the water would be used"; 4. "caused there to be deposited upon [North Corynnia] harmful solid matter"; and 5. "Continued to supply water with poor physical, chemical and biological characteristics effectively preventing the Plaintiff from taking delivery of the water to which she had a contractual right".
The plaintiffs summarised these breaches in their written submissions of 19 November 2019 as follows: "[MI] by the provision of water of such quality that it caused damage to the Plaintiff's crops and caused the soil upon it which is laid to become unproductive has breached the [Member Contract, the Water Delivery Contract and the Water Entitlements Contract]."

[151]

The issues raised by the plaintiffs to address the limitation clauses

The plaintiffs sought to address the contractual limitations on liability, in the Member Contract as well as the Water Delivery Contract and the Water Entitlements Contract, by contending that the relevant clauses were either void or ought not to be able to be relied upon on the ground that they were included in the contract as a result of unconscionable conduct by MI or that it would be unconscionable for MI to rely on those clauses to defeat the plaintiffs' contractual or other claims. In this regard, the plaintiffs relied upon both unconscionability within the unwritten law, under s 51AA the TPA or s 21 of the ACL, and the statutory form of unconscionability provided in s 51AB of the TPA or s 22 of the ACL, depending on whether the TPA or the ACL was applicable at the relevant time.
The circumstances giving rise to unconscionability were contended to be: (1) each of the contracts was a standard form contract not open to negotiation; (2) MI had a monopoly or dominance over the supply of water to irrigators in the MIA, including North Corynnia, and Ms Jones could not have obtained equivalent water for irrigation from anyone other than MI; (3) MI's bargaining power was greatly superior to that of Ms Jones; (4) Ms Jones was in a position of special disadvantage because of her reliance upon MI for access to water for irrigation; (5) Ms Jones's special disadvantage was sufficiently evident to MI that it was unconscionable to limit MI's liability for negligence, breach of contract and trespass by reliance on these clauses of the Contracts when MI had supplied water with excessive turbidity, salinity and contaminants; and (6) in relation to the Water Entitlements Contract and the Water Delivery Contract, MI had the right unilaterally to vary the Contracts.
In addition, the plaintiffs sought to overcome the operation of the limitation clauses adverse to their claim for breaches of the implied terms they had identified by contending that: 1. MI engaged in misleading and deception conduct at a meeting on 8 August 2011 where statements were made concerning liability in negligence not being within the limitation on liability proposed to be contained in what became the Water Delivery Contract and the Water Entitlements Contract; [121] 2. cll 31 and 19 of the Water Delivery Contract and the Water Entitlements Contracts respectively, or parts of them, are unintelligible and thus void for uncertainty; [122] and 3. cl 29 of the Member Contract was void for illegality. [123]

[152]

Consideration of the other issues

It is not, however, necessary to address each of these quite complex issues in order to determine the plaintiffs' claim based upon breach of contract. This is because, even if the plaintiffs succeeded on each of these issues and the terms upon which they rely should be implied in the Member Contract, the Water Delivery Contract and the Water Entitlements Contract, on the factual level, there has been no breach of any of the terms relied upon by the plaintiffs, as explained above.
Were it necessary to decide the issues, I would accept MI's submissions that the implied terms relied upon by the plaintiffs to found the breach of contract claim should not be implied in the Member Contract, the Water Delivery Contract or the Water Entitlements Contract. In this regard, I rely on the reasons set out above in relation to the consideration of the exclusion clauses in the relevant contracts and, otherwise, would generally accept MI's submissions concerning the implied terms, unconscionability, misleading representations. On the same or similar bases, I would also reject the plaintiffs' submissions that cll 31 and 19 of the Water Delivery Contract and the Water Entitlements Contract, respectively, were void for uncertainty and that cl 29 of the Member Contract was void for illegality.
Further, if I am wrong in finding that there was no breach of any of the implied terms and it was necessary to consider whether the inclusion of, or reliance on, cl 29 in the Member Contract, s 31 in the Water Delivery Contract and s 19 in the Water Entitlements Contract was unconscionable either under the unwritten law (including under s 51AA of the TPA or s 20 of the ACL) or under s 51AB of the TPA or s 21 of the ACL, I accept that the relevant circumstances and occurrences were as described by Ms Radue in her evidence and by Ms Jones in her evidence based on her contemporaneous notes and documents. Having regard to those circumstances, I would not be minded to conclude that MI's conduct was unconscionable, in either sense.
In particular, I do not accept that Ms Jones, an irrigator with tertiary education, significant commercial, economic and advisory experience, substantial resources, a member of MI and a holder of a significant amount of valuable water entitlements, was relevantly in any position of special disadvantage or that MI knowingly took advantage of any special disadvantage so as to offend good conscience, in the circumstances: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14.
Similarly, it does not appear to me, having regard to the circumstances already mentioned and the matters relied upon by the plaintiffs (which have been summarised above), that MI's relevant conduct in relation to the unbundling of the water entitlements and the water delivery rights and putting in place new Water Entitlements Contracts and Water Delivery Contracts, or relying on those contracts, should be characterised as involving such a departure from accepted community standards as can objectively be seen to be against conscience: Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15 at [195] and noting also [277]; 356 ALR 440. More specifically, MI consulted widely concerning the terms of the new contracts and modified them in response to the issues raised. In addition, the allocation of risk between MI and its members by means of the limitation of liability clauses in the relevant contracts was not so unreasonable or contrary to accepted community standards as to constitute unconscionable conduct, especially bearing in mind that, if MI was allocated greater risk under the contracts, any increased costs involved in addressing that risk might well have to be borne by the members and customers by way of higher delivery charges and it might affect the value of members' water entitlements. Further, the risk allocation in the contracts must also be assessed bearing in mind that customers could address some, if not all, of the risks relevant in the present case by adopting well known farming practices, as well as the fact that MI could only deliver the water that it had available to it at any particular time.
An illustration of the application of the principles relating to statutory unconscionability and the types of considerations that may be relevant in the context of unbundling water entitlements and water delivery rights is found in Boucher v Murray Irrigation Limited [2017] NSWSC 1268 at [160] ff and on appeal in Park v Murray Irrigation Limited [2018] NSWCA 166 at [138] ff. While it must be acknowledged that those cases did not concern allegations of delivery of unsuitable or contaminated irrigation water, and related to issues and facts which are somewhat different from those in the present case, the cases do not provide any substantial support for the conclusion that MI acted unconscionably in relation to the unbundling of the Member Contract into the Water Entitlements Contracts or the Water Delivery Contracts.
Moreover, even if I were prepared to draw an adverse inference concerning MI's case on unconscionability because MI did not call Mr Tucker to give evidence concerning what occurred at the meetings leading up to the introduction of the Water Delivery Contract and the Water Entitlements Contract and did not adduce in evidence the recordings of those meeting, it would not, in my view, lead to a conclusion that MI had engaged in unconscionable conduct in any relevant respect, in light of circumstances and factors referred to above.
As to the contention that MI engaged in misleading and deceptive conduct at the meeting on 8 August 2011, in light of the terms of cll 31.2 and 19.2 which expressly exclude negligence from the releases in those clauses and the other provisions of the Water Delivery Contract and the Water Entitlements Contract, as explained above, I am of the view that the powerpoint slide shown on 8 August 2011, which indicated that liability for negligence had not been excluded in those contracts, was not misleading or deceptive or liable to mislead or deceive in any respect relevant to the present case. Nor do I accept that Ms Jones relied on such a representation, in any event.
Finally, in light of my earlier comments concerning the meaning and effect of the limitation clauses, I do not accept that they are void for uncertainty or illegal.

[154]

Limitation defence to claims arising before 16 November 2009

MI also relied on s 14 of the Limitation Act 1969 (NSW) to contend that, to the extent that the plaintiffs' claims are based on deliveries of water made before 16 November 2009, the claims were statute barred, the proceedings having been commenced on 15 November 2015.
In response, the plaintiffs contended that all of their causes of action accrued after 16 November 2009 and thus were not statute barred.
Since I have determined that none of the plaintiffs' causes of action have been successful, it is not necessary to determine whether any of the causes of action are statute barred. Nonetheless, I make the following observations (assuming for the purposes of this consideration and contrary to my findings that some of the water delivered was unsuitable or contaminated).
Each order for delivery of irrigation water on a particular day and each consequent delivery of unsuitable or contaminated water would have given rise to a separate cause of action for breach of contract. The majority of the water was delivered after 16 November 2009. Further, it appears to me that since: 1. there was generally good and even germination of the Reiziq crops, apart from the last bay of P15, and those crops progressed satisfactorily until about mid-December 2009; and 2. the Illabong crop was not watered before 28 November 2009, no unsuitable or contaminated water was delivered by MI prior to 16 November 2009.
Accordingly, any relevant cause of action based on breach of contract by MI delivering unsuitable or contaminated water would have accrued after, and not before, 16 November 2009.
Similarly, any cause of action for breach of duty of care as a result of harm caused by unsuitable or contaminated water being delivered would not have accrued until damage was suffered, and this was not before 16 November 2009.
Thus, if the plaintiffs had established that MI was liable for breach of contract or breach of duty of care that cause or those causes of action would not be statute barred.

[155]

Damages

It is well settled that judges should ordinarily determine all factual issues before them to assist the appeal process and obviate recourse to a new trial and this principle is not confined to the assessment of damages for personal injuries: Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81 at [70]; 105 ATR 431.
In the present case, however, the parties made no specific submissions as to the precise quantification of damages. There was no mention of quantum in the plaintiffs' written submission of 19 November 2010, or in their written submissions in reply of 16 December 2019. In their closing oral submissions, the plaintiffs simply referred to their accounting expert's report. It was also submitted that that there might be a need for some further evidence or submissions on quantification of loss and damage, in light of the findings made in relation to liability. [124]
In MI's written submissions of 3 December 2019, apart from noting the plaintiffs did not address the issue in their closing written submissions, quantum was dealt with as follows at par 277: "The plaintiffs claim the cost of lost production, expert costs, land remediation, water treatment costs, forced asset sales and land devaluation. Depending on which assumptions are accepted by the Court, on the assumption liability is established, the accounting experts agree that the range of damages is between $3,908,067.69 and $502,919."
Quantum was mentioned in MI's oral closing submissions. [125] However, the substantive submissions concerned only two of the six potential heads of damage. In relation to remediation of affected land, it was submitted that opinions of Mr Ryan, the plaintiffs' accounting expert, were based on assumptions which were not supported by any evidence, because that evidence had only been contained in the Rejected EAL Report. In relation to the cost of flocculation, it was submitted that the need for this treatment was not justified on the evidence.
Nothing was submitted as to the actual quantification of any of the heads of damage upon which Mr Ryan or Mr Ivey, MI's accounting expert, opined.
In light of the number of permutations which would have to be considered at this stage assuming that an appeal might, in theory, succeed in relation to any number of aspects of this matter, I am of the view it is not helpful or practical to proceed to assess damages at this stage, covering the likely or possible permutations of assumed counterfactuals. Some of the types of difficulties that might be encountered in such an exercise were adverted to, in a different context, in the comments of Basten JA in DC v State of New South Wales [2016] NSWCA 198 at [153] to [158], although his Honour was in dissent in that case. In addition, such an assessment would have to be undertaken without the benefit of detailed submissions based on the specific findings establishing the basis of liability, which would be less than entirely satisfactory.

[157]

Endnotes

Ex 1, pp 185 - 220.
Ex 1, pp 371 - 416 and pp 417 - 447.
Tcpt, 24 September 2019, p 958(12-13).
Tcpt, 24 September 2019, p 958(32-36).
Tcpt, 24 September 2019, p 922(14).
CB5/2128.
Tcpt, 26 September 2019, p 1135(15);Tcpt, 26 September 2019, p 1136(35);Tcpt, 26 September 2019, p 1136(39).
Tcpt, 26 September 2019, p 1136(41-42).
Tcpt, 26 September 2019, p 1136(50) - p 1137(8).
See for example Tcpt, 26 September 2019, p 1126(44) - p 1127(2); Tcpt, 26 September 2019, p 1123(22-47).
Tillers, in rice plants, are the grain bearing stems that form from the bottom of the plant. In a mature plant, there may be from seven to 20 tillers.
CB1/218 and 219. Note: "CB1/218" refers to the Court Book (Ex E) volume 1 page 218 and other references to Ex E use the same convention. An A2 size version of the plan is the last document in Ex F.
Plaintiffs' written submissions of 19 November 2010 par 53.
Although these documents were not referred to in oral evidence or submissions, they were referred to in the affidavit of Ms Dorian Radue affirmed 28 February 2018 pars 104-105 and the documents are in the exhibit to her affidavit at CB10/4096-4298.
Tcpt, 26 September 2019, p 1094(6-15).
Tcpt, 26 September 2019, p 1093(49) - p 1094(2).
I also do not accept the plaintiffs' submission at par 54 of their written submissions of 19 November 2019 that Prof Meyer was incorrect in saying that the bays in 2009/10 were "very recently land formed". They had been "lasered", that is landformed using lasers, in 2006/7, 2 to 3 years before the crops were sown. Recent, in this context, is to be understood compared to the length of time it takes to bring the cut areas back to being highly productive which maybe 10, 15 or 20 years, as explained by Prof Meyer at Tcpt, 26 September 2019, p 1094(18-21).
CB5/2200.
CB5/2201-2202.
CB5/2406, 2407 and par 63 of the Second Jones Affidavit.
See CB5/2127 and the description accompanying Figure 7 on that page of his June 2010 report.
The First Jones Affidavit par 131.
I do not accept the plaintiffs' submission in their written submissions of 19 November 2019 par 26 that the whole 70 ha was top dressed having regard to the map or diagram on the back of the Skycroppers invoice for this work. The invoice was unequivocal that the "Area sprayed" was "49 ha" and the amount of urea supplied was 6,027 kg. That amount was only enough to spray 49 ha at the specified rate of 123 kg/ha. If the whole area had been sprayed, the rate of application would have been only 86.1 kg/ha.
The presence of water in the photograph does not assist to determine a date as there was water on P14 and P15 on 20 December 2009 and, although P14 and P15 were dewatered after about 22 December 2009, 10 ML of water per day was drawn from outlet P1, or P1 and P2, between 6 and 19 January 2010 and was applied to P14 and P15 during this period including 13 January 2010. The issue was not clarified or addressed in evidence, although it was raised during oral submissions.
Tcpt, 13 September 2019, p 373(44) - p 374(14).
CB12/5336-5338.
CB12/5331-5333.
Tcpt, 12 September 2019, p 303(12-14).
Tcpt, 12 September 2019, p 303(16-46).
Tcpt, 13 September 2019, p 313(5) - p 314(34).
Tcpt, 13 September 2019, p 314-323.
Tcpt, 13 September 2019, p 323(19-34).
Tcpt, 13 September 2019, p 324(3-48).
Tcpt, 13 September 2019, p 329(1-30).
CB12/5342.
CB12/5350-5352.
The email of 13 January 2010 from MI to Ms Jones indicates that in this context "30P" refers to the Doppler outlets from the Corynnia Channel at 30P, "No 2 Offtake" refers to the Corynnia Channel at the "No 2 Stock & Domestic channel" and "30L" refers to the Doppler outlets from the Corynnia Channel at 30L.
CB5/2212-2213.
Ex 22 pp 1478 and 1479.
Tcpt, 26 September 2019, p 1113(4-10).
Tcpt, 26 September 2019, p 1113(19-27).
Tcpt, 26 September 2019, p 1113(42-48).
CB5/2052, 2053, 2057.
Prof Meyer's 29 March 2018 report par 74, CB 17/7462.
The plaintiffs made submissions, in this context, concerning a comment by Prof Meyer as to the "very poor nitrogen status" of the soil on North Corynnia and soil tests carried out on soil from Q13 on about 7 January 2010 which were said to indicate to the contrary. Prof Meyer was not cross examined on this aspect of his evidence and it was unchallenged. In this regard, I also accept Mr Lacy's evidence that there is no test for soil nitrogen levels, only soil nitrate levels, which cannot be equated with the former (CB21/9103 and CB12/9117). Prof Meyer explained the relevant relationship between nitrate and nitrogen levels in his 29 March 2018 report at pars 42 to 48 and this was not challenged in any way and I accept it. I reject the plaintiffs' submissions in this regard. In any event, Prof Meyer's comment was not, as I understood it, an essential step in his reasons but rather an additional observation that was consistent with his explanation and experience.
Tcpt, 27 September 2019, p 1179(39-42).
Tcpt, 27 September 2019, p 1178(44-45).
Tcpt, 27 September 2019, p 1180(12-23).
The different times for application of permanent water, depending on the method of sowing, are illustrated in figures 6 and 7 in Chapter 8, Irrigation and Water Management, Ex 22 pp 1478 and 1479.
Prof Bush's 22 March 2019 report at section 29 and T1196.30-.32 and .40-.45. It can be noted that Prof Bush did acknowledge that "it is often considered that drawing water from the top of a regulator or from the bottom of a regulator can have some effect but this is generally in regards to waterbodies that are very deep, … metres, if not, hundreds of metres of depth and most of the literature, if not all of the literature, pertains to drawing water off the top of dams or the bottom of dams which can be 1[00], 200 metres, 300 metres deep.": Tcpt, 27 September 2019, p 1193(33-38).
Prof Bush's 22 March 2019 report section 32, CB21/9079-9080.
Exhibit SPJ-1:69 to the First Jones Affidavit (see par 154), CB3/1118-1155.
CB5/2216.
Ex 22, pp 3549-3559.
CB3/1124.
CB12/5352.
Tcpt, 24 September 2019, p 939(4-40).
Tcpt, 24 September 2019, p 940(24-25).
There was no explanation in the evidence as to how a sample named "Rice Root" would have a "Youngest open leaf blade". It may be that the sample included both roots and parts of the plant above the root.
Tcpt, 24 September 2019, p 934(35) - p 935(15).
Tcpt, 26 September 2019, p 1120(7-8).
CB3/1048-1049.
See for example the plaintiffs' written submissions of 19 November 2019 par 43 and repeated in substance at par 102.
CB5/2121.
CB5/2122.
CB12/5336-5338.
Tcpt, 16 September 2019, p 383(9-25).
Plaintiffs' written submissions of 19 November 2019 par 101.
Tcpt, 24 September 2019, p 946(32-39).
Ex 22 p 1555.
Tcpt, 26 September 2019, p 1145(11-29).
Tcpt, 26 September 2019, p 1145(31).
Tcpt, 16 September 2019, p 428(8-9).
The original evidence was at Tcpt, 26 September 2019, p 1100(4-10) and the fact that the evidence was from Mr Hutchins not Mr Lacy was clarified during oral submissions - see Tcpt, 18 December 2019, p 1323(1-15).
CB12/5336-5338.
As contended in the plaintiffs' written submissions of 19 November 2019 at par 43 and repeated in substance at par 102.
Tcpt, 24 September 2019, p 941(19) - p 943(33).
Tcpt, 23 September 2019, p 868(28-50).
CB10/4320-4321.
CB10/4358 - 4361.
CB10/4358.
Tcpt, 24 September 2019, p 951(26-46).
Tcpt, 25 September 2019, p 979(25).
Tcpt, 25 September 2019, p 992(33-35).
Tcpt, 27 September 2019, p 1162(43-44) and for the whole passage see Tcpt, 27 September 2019, 1160(49) - p 1162(49).
Tcpt, 24 September 2019, p 974(1-12).
Tcpt, 25 September 2019, p 983(1-17); Tcpt, 25 September 2019, p 994(40-45).
Mr Hutchins's June 2010 report is a different report and was 50 pages in length. This June 2010 report is referenced in Prof Cook's August 2015 report.
See section 7.1 of Prof Cook's August 2015 report at CB6/2495.
Batch 14199, soil test ("sludge analysis") of sample 2 ("Hdam #2") - received by SESL on 7 May 2010.
Prof Meyer's March 2018 report pars 88-90.
Tcpt, 27 September 2019, p 1177(26-41);Tcpt, 27 September 2019, p 1178(24-31).
Tcpt, 25 September 2019, p 999(41-47); and see generally Tcpt, 25 September 2019, p 997 - p 1000.
Tcpt, 25 September 2019, p 1024(4-9).
Table 9 is located at CB6/2534. Mr Lancaster's results were for samples SP1 to SP21. The results were located at pp 25 to 27 of the exhibit to Mr Lancaster's affidavit.
Prof Bush's report of 4 April 2018 par 151.
Tcpt, 27 September 2019, p 1208(11-14); p 1208(38-39).
Tcpt, 27 September 2019, p 1202(33) - p 1205(17).
Tcpt, 27 September 2019, p 1177(26-41); Tcpt, 27 September 2019, p 1178(24-31).
Tcpt, 27 September 2019, p 1185(27-29).
CB7/2804-2807.
CB7/2774-2777.
CB7/2751.
See the list of soil and sediment samples in Table 8 exhibited to Prof Cook's April 2018 report at CB7/2774-2777.
The "salient results" were given by Prof Cook at CB7/2804-2807.
See "No. of Samples 23" at the top of CB7/2804.
CB7/2774-2777.
Tcpt, 25 September 2019, p 1011(45-48); and see more generally Tcpt, 25 September 2019, p 1011 - p 1012.
CB6/2493.
The First Jones Affidavit par 126.
See for example Tcpt, 26 September 2019, p 1115 - p 1118, among other evidence given by Prof Meyer and Mr Lacy.
Tcpt, 26 September 2019, p 1137(30-48); Tcpt, 26 September 2019, p 1138(26-29).
Plaintiffs' written submissions of 19 November 2010 par 18.
Plaintiffs' written submissions of 19 November 2019 par 135.
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [3].
Tcpt, 18 December 2019, p 1350(13-27).
These practices were dealt with in detail in various publications such as the Ricecheck documentation, Ex 22 vol 7 p 1685, and Production of Quality Rice in South Eastern Australia Ex 22 vol 6 p 1295.
No party submitted that this was "an exceptional case" within subs (2) of s 5D and I do not accept that it was.
Further amended statement of claim pars 8 and 47, which was in substance maintained in the plaintiffs' written submissions of 19 November 2019 par 130.
Further amended statement of claim pars 60 and 61.
Further amended reply par 13(eb).
This issue was not raised in the pleadings or during the hearing before final submissions. It was raised in the plaintiffs' written submissions of 19 November 2019 at pars 153-165.
This issue was also not raised in the pleadings or during the hearing before final submissions. It was raised in the plaintiffs' written submissions of 19 November 2019 at pars 123-125.
Tcpt, 17 December 2019, p 1257(47); p 1258(37).
Tcpt, 18 December 2019, p 1348(34) - p 1351(6). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2020

Parties

Applicant/Plaintiff:

Jones

Respondent/Defendant:

Murrumbidgee Irrigation Limited

Legislation Cited (10)

Australian Consumer Law Irrigation Corporations Act 1994(NSW)

Environment Operations Act 1999(NSW)

Trade Practices Act 1974(Cth)

Irrigation Corporations Act 1994(NSW)

Civil Liability Act 2002(NSW)

Competition and Consumer Act 2010(Cth)

Limitation Act 1969(NSW)

Sale of Goods Act 1923(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Water Management Act 2000(NSW)

Cases Cited (28)

Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Category: Principal judgment Parties: Sally Patricia Jones (First Plaintiff) Yambiana Pty Ltd trading as Yambiana Australia (Second Plaintiff) Murrumbidgee Irrigation Limited (Defendant) Representation: Counsel: M Scott with M Connor (Plaintiffs) J Steele with J Thompson (Defendant)

The evidence called by the plaintiffs presented considerable difficulties

The plaintiffs' evidence concerning the 2009/10 rice crops on North Corynnia was not without a number of difficulties which caused me to find it unsatisfactory in various respects.
First, the plaintiffs largely relied upon the evidence of Ms Jones as to the sowing and management of the rice crops. Ms Jones impressed me as a very intelligent and determined witness with firm views. However, she also gave the impression that she adhered to her views, even when a concession that they were wrong or could be wrong was appropriate. In addition, to my observation, Ms Jones appeared to be at pains to avoid giving any answer in evidence that she perceived might damage her case, even if this led to her giving somewhat unlikely or incredible responses. A particular example of these problems is given below in relation to Ms Jones's cross examination concerning the bloodworms seen during Ms Tijs's inspection of the rice crops on 29 December 2009. As a result, it seemed to me that some caution was required in assessing the reliability of Ms Jones's evidence.
Further, considering Ms Jones's evidence as a whole together with the documentary evidence of what occurred at the relevant times and her communications with the experts she retained, I formed the distinct view that Ms Jones decided very soon after she encountered difficulties with her rice crops in 2009/10 that MI was to blame for the difficulties and that thereafter her efforts were focused on finding any plausible basis upon which MI could be said to be responsible, whether or not there was information which suggested that MI might not be responsible for the difficulties. Her efforts in this regard extended to emails such as those referred to above in relation to Mr Hutchins's expert evidence and more than 430 emails exchanged with another expert witness, Prof Cook.

Cited By (1)

Skinner v The State of New South Wales