R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant)
A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant)
Source
Original judgment source is linked above.
Catchwords
Evidence Act 1995 (NSW)R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant)A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant)
Judgment (3 paragraphs)
[1]
Solicitors:
Taylor & Scott Lawyers (Plaintiff);
Curwoods Lawyers (First defendant);
Lee Legal Group (Second defendant)
File Number(s): 2012/393861
[2]
revised extempore judgment
I am dealing with a motion that the second defendant be given leave to rely upon the report of Mr Lance Martin dated 16 July 2015 and the report of Mr Roger Lord dated 22 July 2015. Each of those proposed witnesses is put forward as an expert in drilling bore holes. There is an issue about who, as between the first and second defendant, was responsible for observing any applicable statutory obligations imposed upon drillers by the provisions of s 118A Water Act 1912 (NSW). The first defendant says that it was a coal mine operator and its contract with the second defendant, a drilling contractor, meant that as a matter of statutory construction those obligations necessarily fell upon the second defendant.
The second defendant asserts that it was a term of its agreement to do the drilling work that the first defendant would assume the responsibilities for observing the requirements of the statute. The determination of that question will, of course, in the end, depend upon me hearing the lay witnesses and the arguments of counsel. The need for leave really arises out of the second defendant's non‑compliance with directions that were made for the exchange of expert evidence. The objection to leave being granted is mainly propounded by the first defendant, although supported by the plaintiff. Their objection is founded not upon any actual forensic prejudice, but rather, upon considerations of "overlap", and multiplicity, of expert reports served by the second defendant.
Essentially, the first defendant says that there has been unnecessary duplication in the marshalling of the second defendant's expert case. That duplication contravenes the overriding purpose expressed in the efficiency provisions of the Civil Procedure Act 2005 (NSW) and is contrary to the spirit of the provisions of Practice Note SC CL 5.
In advancing its application for leave, the second defendant relies upon the affidavit of its solicitor, Mr Stephen Lee, sworn today. Mr Lee explains the aspect of delay, and in fairness to it, the first defendant takes no issue with the facts contained in that affidavit. Were that the only matter informing the exercise of my discretion, I would be satisfied that the delay in complying with the directions made by Garling J has been adequately explained. Certainly it has been explained to my satisfaction.
The applicable provisions of Practice Note SC CL 5 are contained in cl 32 to 35. It is certainly true that in express terms the practice note is underpinned by a concern about the number of experts expected to give evidence in personal injury cases. To overcome this "mischief" the Court is empowered, under cl 33, where it considers an unnecessary expert has been qualified, to reject the tender of the expert's report and to refuse to allow the expert to be called. The first defendant substantially invokes that provision.
Clause 34 of the practice note provides a guide which suggests limiting expert witnesses to one medical expert in any speciality and "two experts of any other kind". As I expressed during argument, I am not convinced that cl 34 applies to liability experts as opposed to medical and other experts who might be called to substantiate a plaintiff's, or other parties, case as to quantum. However, I am prepared to assume, for the purpose of making this decision, that it does apply.
The first defendant points out that the second defendant has served four expert's reports including the reports of Mr Martin and Mr Lord. The others are two mining engineers, Professor Galvin and Mr Butcher.
By reference to a schedule, which I have marked MFI 5, handed up by Mr Cavanagh SC, the first defendant demonstrates that there is a substantial overlap in the issues dealt with by each of the four experts. So much is accepted by Mr Harris QC for the second defendant. However, he points out that there is a difference in expertise, clearly, between the mining engineers, on the one hand, and the drilling experts on the other. He also says that the evidence of the drillers might well be admissible as lay evidence going to common industry practice in the bore-drilling industry.
Dealing with that second point first, it is very clear that the evidence of the drillers is propounded for the purpose of relying upon expressions of opinion rather than simply describing how work is normally done, although that latter aspect is certainly dealt with in their reports. But to the extent to which they express opinions about matters, or adopt and approve of opinions expressed by the mining engineers, they are clearly being put forward as an exception to the hearsay rule in accordance with s 79 Evidence Act 1995 (NSW). This is especially so, I might add, when one considers that much of the content of their reports addresses the obligations of a driller under s 118A. I will leave entirely to one side the question of their competence to give that evidence, involving as it does arguably anyway questions of law. That consideration can be left until deciding objections that may be taken in due course to the admissibility of their reports.
I stress at this stage I am not exercising my powers under s 192A Evidence Act 1995 to make an advance ruling on admissibility because no one has invoked those powers. The question is simply whether the second defendant ought to be able to rely upon such evidence of Mr Martin and Mr Lord as may be ruled admissible in due course on the grounds which I have already summarised.
It seems to me that it is not uncommon that experts from different fields may be required to prove the same thing. Accepting that mining engineers may have relevant expertise which will inform questions relevant to the safe method of drilling deep bore holes, they do not necessarily cover entirely the same ground as expert drillers. And even if one was to apply the practice note literally, and I do not understand Mr Cavanagh to say I should, then in terms it is permissible for the second defendant to qualify two mining engineers and two drilling experts to give evidence. To the extent to which the first defendant relies upon, if you like, the spirit or purpose of the practice note, the general consideration that the number of experts should be limited ought not trump its express terms. It is hard to read down language which permits "two experts of any other kind" as meaning "less than two in any field", even, and always, accepting that the Court has a discretion under cl 33 to reject a tender if it considers that a particular expert is "unnecessary".
Mr Cavanagh also argued that there was an element of prejudice in permitting the second defendant to rely upon these experts. That was developed in this way. I had previously indicated, perhaps strongly, a provisional view that the experts ought to be called individually. I have also said that I have that view because it would unduly delay the progress of the hearing were I to adjourn to permit expert conferences to take place and joint reports to be produced after all the lay evidence has been heard, as had been suggested at one time. If experts are to be called separately then there may be prejudice to the first defendant because learned senior counsel will have to cross‑examine four experts about similar topics seriatim and concessions made by one may not be made by another. To my mind that is not the kind of prejudice which is fairly described as forensic prejudice. Rather, that may be tactical prejudice which must arise in every court case. It seems to me that that is no more than the fortunes of war.
It is permissible under the practice note for the second defendant to have two experts in any field. There is a real difference between the type of expertise that might be possessed by a mining engineer when compared with the type of expertise that will be possessed by a person with long experience in drilling bore-holes. Although there is an overlap in as much as they address the same issues, there is no unnecessary overlap in expertise. I should say that it is hardly surprising that each of the experts talks about the same topics. After all those topics by and large represent the factual issues that have to be decided in this case, to the extent to which expert evidence may inform a decision about them.
For the reasons I have expressed, I think it appropriate that I exercise my discretion to permit the second defendant to rely upon the evidence of Mr Lance Martin and Mr Roger Lord to the extent to which it may be ruled admissible in due course.
That being my decision I also grant leave to the plaintiff to rely upon the further amended statement of claim handed up in court earlier today. The only objection to it being filed was the objection by the second defendant that leave to rely upon it ought to be subject to the conditions that the second defendant be permitted to rely upon the evidence of Mr Martin and Mr Lord. Given my ruling it is unnecessary to impose any conditions upon the filing of the further amended statement of claim.
I give the plaintiff leave to file the further amended statement of claim dated 30 July 2015 in court and to rely upon it for the purpose of the case.
[3]
Amendments
17 August 2015 - Amendment to name of parties
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Decision last updated: 17 August 2015