MOORE -v- LANDSDALE PTY LTD [2012] WASC 452 (28 November 2012)

3 The issue which presently arises for my determination is the plaintiff's application for leave to rely at trial upon five expert reports which they served out of time on the defendants' solicitors between 19 and 26 September 2012.

4 The plaintiffs were originally ordered (on 25 June 2009) to file their expert reports by 14 October 2009.

5 In the aftermath of the Court of Appeal's decision rejecting a split trial, I made revised orders on 25 November 2009 extending the time for the plaintiffs to provide their expert reports to 9 February 2010.

6 At a directions hearing on 11 February 2010, I was told the plaintiffs would require a further three to four months to provide their expert evidence. Over some opposition, I extended time for the plaintiffs to file their expert reports to 19 June 2010.

7 The plaintiffs still did not file their expert reports. On 1 July 2010, I reluctantly extended time again by another two months, until the end of August 2010. However, I ordered on 1 July 2010 that if the plaintiffs' expert reports were not filed by 31 August 2010, that leave to file and thereby rely on expert evidence at trial, granted to the plaintiffs under my earlier orders, would be withdrawn. This was not quite a 'springing order' in the sense of a noncompliance ending the plaintiffs' action. But denying the plaintiffs' their opportunity to adduce expert evidence at a trial in a negligence case of this kind would be a tactical blow to the prospects of the plaintiffs proving their negligence case at a trial. In July 2010 that sanction was a necessary and appropriate measure to effectively compel the plaintiffs to remedy a longstanding and unacceptable default as regards their expert reports.

8 I will return to the chronology of events. But at this point two key features of significance to note are, first, by mid2010 the extended time for provision of expert reports by the plaintiffs had reached 31 August 2010. Second, I dealt with the plaintiffs' defaults in filing their expert materials to that point on the basis an appropriate sanction and incentive to remedy that noncompliance would be to disallow the plaintiffs their opportunity to adduce expert evidence at trial.

9 In the end, the plaintiffs (just) met the extended 31 August 2010 deadline, by serving:

(a) an accounting report dated 31 August 2010, authored by a Mr Tony DouglasBrown of Grant Thornton Australia Ltd, calculating various postulated financial losses by the plaintiffs;

(b) a report by a Dr Matt Landos of 30 August 2010, concerning his investigation about deceased marron in the plaintiffs' ponds at relevant times on the basis of adverse agrichemicals exposure; and

(c) a report by a Dr Andrew Hewitt (dated 6 March 2009) entitled 'Spray Drift Exposure for Marron Ponds at Denmoore, Mount Barker, WA'.

10 So, in the end, these three expert reports were provided on behalf of the plaintiffs at the eleventh hour in August 2010 to retain the leave that would otherwise have been lost to the plaintiffs to rely upon such expert material at trial.

11 An (unanswered) affidavit of Erin Lee Blight relied upon by the defendants and sworn 2 August 2012 (with attachments), shows that the remainder of 2010 and about half 2011 was then largely consumed by dialogue back and forth between the parties' respective solicitors, with the defendants calling for further information, details or documents underlying or related to the three expert reports. See, in this respect, pars 11 through 36 of Ms Blight's affidavit, which culminate in communications of 9 and 15 June 2011 from a solicitor on behalf of the plaintiffs, providing responses and further information which, with the prior correspondence, then 'substantially satisfied the defendants' requests for information and document references in relation to the plaintiffs' expert reports'.

12 Extra foundational information that emerged from the plaintiffs across 2010 and 2011 was required in order for the defendants' experts to properly engage with the plaintiffs' experts, so as to prepare their own reports.

13 The defendants served an expert accounting report by a Mr Sherif Andrawes of 8 February 2012 (with addendum of 1 June 2012). Mr Andrawes carried out a forensic analysis of the plaintiffs' claimed losses. On two scenarios, he reaches lower calculated damages outcomes than Mr DouglasBrown.

14 The defendants also served an expert report dated 17 February 2012 of a Dr Monro Mortimer, an aquatic ecotoxicologist, concerning the two spraying events and the toxicity of the various agrichemicals the plaintiffs had pleaded were used by the defendants.

15 The defendants also served a report of 3 April 2012 by Mr Rick Madin. Mr Madin's expertise (about which it appears there is some dispute) is said to be in relation to training persons in the proper deployment (including spraying) of insecticides and pesticides, particularly in a context of his trainees obtaining ChemCert certificates.

16 It will be seen therefore, that the defendants' expert evidence was largely provided by early April 2012 in the form of three expert reports (save for a short addendum financial report of Mr Andrawes, in June 2012).

17 By mid2012, the parties were finally conferring over the likely duration of a trial, availability of counsel and possible trial dates.

18 Indications were given to me at directions hearings that the trial addressing both liability and quantum would be complex and extensive, notwithstanding that a review of the pleadings would not necessarily convey that impression (see the statement of claim indorsed on the writ of summons issued by the plaintiffs on 25 November 2008 and the defendants' defence filed 18 February 2009). Unusually, the original pleadings have not changed at all over time. They remain in the same form as they manifested at the hearing of the appeal over a proposed split trial by the Court of Appeal in September 2009.

19 It is convenient to set out from the Court of Appeal's reasons the factual summary provided by Newnes JA at [3] [12]:

[3] The appellants and the respondents own adjoining properties at Mount Barker in the south-west of the state. Since about 1977 the respondents have operated a marron farm and a cattle stud on their property. The marron farm has from about 1996 had 46 marron ponds. The appellants operate a vineyard on their adjoining property.

[4] The operation of the vineyard has involved the periodic spraying of chemicals to control weeds, fungus and insect pests. The respondents allege that, between 12 December 2002 and 26 February 2003, while the spraying of chemicals was being carried out on the vineyard, prevailing winds carried the spray to the respondents' property causing the death of a large number of marron in 36 of the marron ponds. The respondents claim that the loss of the marron was caused by the breach by the appellants of their duty to exercise reasonable care to prevent the spray escaping from their property to the respondents' property. They claim that as a result of the appellants' negligence they suffered losses totalling $3.1 million. Those losses are said to consist of $1.6 million for the lost marron stock, $500,000 for the cost of pond rehabilitation and $1 million from loss of future sales for a period of seven years.

[5] The respondents further claim that, between 13 October 2004 and 2 March 2005, the appellants again negligently allowed chemical spray to drift to the respondents' marron ponds, causing further losses amounting to $4.8 million. The losses are said to consist of $300,000 for the lost marron stock, $500,000 for the cost of pond rehabilitation, and $4 million from loss of future sales for a period of five to seven years.

[6] The appellants deny they were negligent. They admit that they owed to the respondents a duty to exercise reasonable care to prevent the chemicals reaching the respondents' marron ponds in sufficient concentrations to cause the respondents to suffer loss and damage, but deny that they were in breach of that duty. They say that the spraying of the chemicals was done in the ordinary course of the management of the vineyard and in accordance with the guidelines published by the manufacturers of the chemicals. The appellants say that they exercised reasonable care by appointing a skilled manager to operate the vineyards and following reasonable processes to avoid the spray reaching the marron ponds.

[7] The appellants admit that the chemicals used in the spraying can be toxic to marron but only at certain concentrations. The appellants do not admit that the prevailing winds carried any of the chemicals to the marron ponds but say that if the chemicals did carry to the marron ponds, the level of chemicals involved was not sufficient to cause harm to the marron.

[8] The appellants say that if any loss or damage was caused to the marron farm then it was caused or contributed to by the failure of the respondents to properly manage the marron ponds. They also say that if the loss of the marron was caused or contributed to by a chemical spray drift, the source of that chemical spray drift was not from their property or, alternatively, not solely from their property.

[9] The writ of summons in the action was issued on 25 November 2008. The appellants' defence was filed on 18 February 2009. The application for separate trials of liability and quantum was filed by the respondents on 24 March 2009 and listed for hearing before the Master on 26 May 2009.

[10] It is not apparent what stage the interlocutory processes had reached by the time the application was heard. It appears from the appeal books that the appellants had served a request for further and better particulars of the statement of claim. All of the requests were directed to the respondents' claims of loss and damage. A response to that request was served by the respondents on 20 April 2009. The response to each of the requests was to the effect that the respondents were not in a position to provide the particulars requested.

[11] In support of the application, the respondents filed an affidavit of the second-named respondent, Mr Warren Moore. In that affidavit, Mr Moore identified a number of matters which he said he expected would arise in relation to damages but which were separate and distinct from issues of liability. They included the number of marron in the ponds at the time of each spraying and their value; the world market and prospective growth of the market for marron for human consumption and ornamental purposes, respectively, from 2002; the prices achievable for such marron; the cost to the respondents of replacing the breeding stock and recommencing production (which had not recommenced); and issues in relation to mitigation of damages. It appears from Mr Moore's affidavit that the sale of ornamental marron was likely to be much more profitable than the sale of marron for consumption but depended upon the prospects of genetically modifying the marron.

[12] Mr Moore referred in general terms to the nature of the documentary evidence and the expert and other evidence which he considered the respondents would need to adduce in respect of the various issues involved in the quantification of the damages. In some instances, Mr Moore says that the relevant information is contained in the respondents' records. A number of the matters he describes simply as being matters for 'expert and market evidence'. There was no reference to the number of witnesses likely to be called or any description of the likely extent of their evidence, nor was there any indication of the volume of discovered documents which would have to be produced. There was nothing from which any reasonable conclusion could be drawn as to the length of time the case on quantum of damages was likely to take or the cost (including the cost of market and expert evidence) that was likely to be involved. There is also nothing to indicate the time or cost likely to be involved in the case on liability.

(my emphasis in bold in [11] and [12])

20 I draw attention particularly to [11] and [12] above. In consequence, the plaintiffs clearly knew in 2009 that a fundamental component of their damages case would be evidence about the world market for ornamental blue marron.

Developments underlying the present application

21 The first indication I received that the plaintiffs were seeking to adduce further expert evidence above and beyond their 2010 materials was at a directions hearing on 2 August 2012. The dispute which then arose with the defendants was not about the plaintiffs adducing further supplementary expert evidence by way of responses to the defendants' expert reports of February 2012. The plaintiffs indicated at that hearing they desired to file a further financial report from Mr DouglasBrown dealing with financial issues and responding to aspects of the defendants' expert financial reports by Mr Sherif Andrawes. No objection was raised by the defendants to provision of a responsive report by Mr DouglasBrown. His report of 16 August 2012 was subsequently filed and served. There is no contention over its use at trial by the plaintiffs.

22 However, there was very considerable concern expressed by defendants on 2 August 2012 over the plaintiffs' (then, only foreshadowed) provision of three additional expert reports said to relate to chemical sediment, valuation of the plaintiffs' marron business and the ornamental marron market. [In fact, five further expert reports later emerged.]

23 Strong concerns were expressed by the defendants over any new unresponsive material, with the interlocutory timetable taking the matter through to a trial already set and the trial dates fixed by me on 2 August 2012. The issue was whether I should allow openended leave, as the plaintiffs now requested, to adduce the as foreshadowed three additional expert reports, when the foreshadowed further reports were acknowledged not to be responsive in their content.

24 The plaintiffs' expert reports should, of course, have all been exchanged by the end of August 2010, at latest. However, rather than deal with wholly theoretical arguments about expert reports only foreshadowed, I directed, on 2 August 2012, that any further expert materials from the plaintiffs should be served as soon as possible. I said I would deal with the issue of leave for their use at trial at another directions hearing on 27 September 2012. Effectively, that timeline allowed another two months for the plaintiffs' further expert reports to emerge and then be assessed by the defendants before that next hearing. I had hoped then to be better placed to evaluate the extent of any real prejudice the defendants might suffer by having to respond to late further expert materials from the plaintiffs. I also indicated that if use of the expert materials at trial was not ultimately consented to by the defendants, then the plaintiffs would need to demonstrate to me (typically this is done by affidavit) a proper basis to justify the late receipt in order to obtain leave to use this material at the trial.

25 In the meantime, the parties were attending to other pretrial matters, including the exchange and filing of nonexpert evidence. I made some more directions in that respect on 6 September 2012.

26 Subsequently, between 21 and 27 September, the plaintiffs served five further expert reports:

(a) on 21 September 2012, a report of Dr Inge Werner of the Swiss Centre for Applied Ecotoxicology;

(b) on 21 September 2012, a report of Mr David (Dos) O'Sullivan who is the managing director and principal consultant of Dosaqua Pty Ltd;

(c) on 25 September 2012, a report of Mr Daniel Machin of Azure Consulting Group;

(d) on 27 September 2012, a report of Mr Andrew Gilmour of RSI Bird Cameron; and

(e) on 27 September 2012, a report of Mr Shane Willis of the National Aquaculture Training Institute.

27 The defendants now having received this extra material, maintain their objections to the plaintiffs being granted leave to adduce any of it at trial.

28 The defendants rely upon the affidavit of Ms Blight, to which I have referred. It sets out the history of a slow and, in my view, less than acceptable progress of this matter towards a trial, across 2009 to 2011.

29 The plaintiffs have filed no affidavit in support of the leave they now seek to rely upon the five new expert reports.

30 By the consent of the parties, all expert reports on both sides were put before me for the purpose of my resolution of this application.

31 Although it is useful to have this material (indeed unavoidable), I point out that the reports are of an expert scientific or accounting nature. The trial has not yet commenced, let alone been opened by counsel. Whilst I shall endeavour, with the benefit of the pleadings, to make what I can of all this material, considerable caution is called for in the absence of the case yet being opened and explained to me or with the expert material being adduced in proper context with the benefit of crossexamination.

32 The stance of the defendants in opposing leave to adduce any further new expert evidence at the trial is articulated in a chronology, list of issues and position statement of 17 October 2012.

33 The defendants' opposition was expressed as follows:

1. The plaintiffs should be refused leave to rely upon 5 additional expert reports served on 21, 25 and 27 September 2012 (Werner, O'Sullivan, Machin, Gilmour, Willis). In particular:

(a) three years have passed since the plaintiffs were first required to serve their expert evidence [this is correct, with my first orders for the provision of expert reports by the plaintiffs made on 25 June 2009 stipulating 14 October 2009 as the compliance date];

(b) over a year has passed since the plaintiffs ultimately provided their expert evidence [this submission draws upon the extensive requests for further material concerning the three primary expert reports provided on behalf of the plaintiffs, as explained in Ms Blight's affidavit culminating at par 36 with the responses by the plaintiffs' solicitors in June 2011];

(c) the defendants served their expert evidence as to quantum of damages and ecotoxicology in February 2012;

(d) a mediation conference was held on 1 June 2012;

(e) the plaintiffs have filed no affidavit evidence in support of the late grant of leave;

(f) expert conferral cannot occur until all expert evidence has been served;

(g) the grant of leave would require responsive expert evidence, from new experts, such that expert conferral could not occur for many months; and

(h) such delays prejudice the current trial directions.

1. The defendants' position generally is that it is prejudicial for it to be required, after the matter has been programmed for a trial in May 2013, to meet entirely new expert evidence resulting in delay and potential loss of trial dates.

34 As stated previously, the two liability incidents the subject of the statement of claim are now somewhat distant. The first spray drift event is pleaded to have occurred in the period between 12 December 2002 to 26 February 2003. The second spray drift event is said to have occurred between 13 October 2004 and 2 March 2005.

35 Senior counsel for the defendants drew my attention to the delays exceeding 12 months in obtaining clarifying materials and information for the three initial expert reports received from the plaintiffs after their eventual provision in August 2010.

36 The defendants have now only had a shortish period to grapple with the implications of five new expert reports, but are concerned. Clearly any prospect of the defendants needing to go on a similar pursuit of foundational materials, as (most unsatisfactorily) occurred with the first tranche of three expert reports, is not a prospect to be countenanced.

37 Senior counsel for the defendants then addressed the content of the further materials, particularly as regards the international world market for ornamental blue marron. Investigating a global market obviously carries a potential to be expensive. The defendants, it was said, ought not to be put to a late expense of first finding a suitable international expert to deal with such late material, then second, possibly embarking upon costly offshore evidentiary investigations so as to be in a position to properly respond to new reports by Messrs O'Sullivan and Willis concerning alleged aspects of an international market for ornamental blue marron.

38 It was pointed out that the failure to provide this expert evidence over two years earlier (ie by August 2010) simply could not be viewed as some accidental oversight (not that such an excuse was proffered). World market evidence concerning ornamental blue marron was clearly discussed at the time of the split trial argument that was determined by the Court of Appeal on 22 September 2009.

39 Finally, senior counsel informed me that the defendants did not wish there to be any adjournment of the trial, presently listed for six weeks commencing 6 May 2013. The action needed to be resolved. Before those dates were fixed, there had been some difficulties in aligning trial dates to accommodate respective counsel over six weeks of a trial. Any prospect of the 2013 trial dates now being lost or delayed by late expert material was opposed by the defendants who, naturally enough, are anxious for this 2008 action, dealing with spraying incidents going back to 2002, to finally reach some resolution.

Plaintiffs' stance regarding late expert reports

40 Counsel for the plaintiffs, Mr McGowan, was very frank in unequivocally accepting that the further expert material of the plaintiffs was unacceptably late. But no real explanation was proffered by the plaintiffs for its lateness and emergence only now. No affidavit by way of explanation was tendered at the argument on behalf of the plaintiffs.

41 The essential submission from the plaintiffs was that the expert materials had been provided, with the trial still six and a half months away. It is said the defendants would not be prejudiced and that in the overall interests of justice the plaintiffs conduct, acknowledged as regrettable and unsatisfactory, ought nevertheless to be accommodated, including by adverse costs orders, if I thought that appropriate.

42 Mr McGowan then took me through each of the five further proposed expert reports, explaining how the O'Sullivan and Willis reports deal with the international market for ornamental blue marron. It was suggested the new RSM Bird Cameron financial report of Mr Gilmour 'hangs upon' the issue of whether or not the O'Sullivan report is received, in terms of ensuing financial implications.

43 A new report by Mr Machin plots wind directions on satellite photographs and may be related to some work done by Dr Landos (one of the plaintiffs' 2010 experts).

44 However, as senior counsel for the defendants observed, it would appear from what is now provided that Mr Machin's work looks to have been carried out in August 2010. On that basis it could, and in my view ought to, have been provided to the defendants, if it was available, over two years ago. Sales modelling work referred to as being carried out by Mr Machin also appears to have been done in early 2011 and before being provided to Mr DouglasBrown. Mr Machin prepared in 2011 a capacity production model, which emerges (possibly) to be a premise of the lost profits calculations in Mr DouglasBrown's report of 31 August 2010 (see DouglasBrown pages 5 6, page 8 table 4 and Annexures 2 and 3 (Part 1)).

45 Dr Werner's report raises different considerations. Dr Werner is an ecotoxicologist, like the defendants' expert, Dr Monro Mortimer. Most aspects of the Werner report do present as responsive to Dr Mortimer. But the defendants claim her report goes further. In particular, she offers, it would seem, observations concerning the use of esfenvalerate (the active ingredient of two chemicals used by the defendants in one or other of the spraying events called into question by the plaintiffs) and the synergistic effect of another chemical, chlorpyrifos.

46 Senior counsel for the defendants was also frank about the defendants' capacity to respond to Dr Werner's report. Unlike for the other four reports, he accepted the defendants would be in a position to respond to Dr Werner by adducing ecotoxicological evidence from their current expert before trial commences in May 2013. But he pointed out Dr Werner's report appeared to be introducing a wholly irrelevant new issue (the effect of chlorpyrifos), outside the scope of the present pleadings. Raising an extraneous issue at this time would impose unnecessary expense upon the defendants to incur at a late stage, it was said.

47 Senior counsel explained that the plaintiffs' statement of claim at par 11 identifies all the various chemicals allegedly used by the defendants upon their adjoining property in the two relevant spraying events complained of. These are expressly identified as:

• Rovral;
• Switch;
• Legend;
• Hallmark;
• SumiAlpha; and
• Captan

The chemicals mentioned at par 11, collectively referred to as the Chemicals, were allegedly sprayed by the sixth defendant at its vineyard for the purposes of weed, fungus and/or pest control. Paragraphs 12 through 17 of the statement of claim explain that each of the six specifically identified chemicals was toxic or highly toxic to aquatic organisms such as marron. Esfenvalerate is identified in Dr Mortimer's report as the active ingredient in both SumiAlpha and Hallmark.

48 Cautious as I am about evaluating, before trial, the relevance of the proposed late report from Dr Werner, it is clear, I think, that a significant component of Dr Werner's report addresses esfenvalerate, which is not a new issue.

49 Dr Werner's references to the chemical chlorpyrifos (which senior counsel complained 'creates more shadows than light in terms of the expert evidence issues' (ts 50)), overall seems to me to be of rather small moment, in the context of her report as a whole. Having been first directed by the plaintiffs' solicitors to assume chlorpyrifos was a chemical of interest, Dr Werner then notes in her report that Dr Mortimer 'does not discuss the toxicity of chlorpyrifos' (page 2) and that chlorpyrifos 'has been shown to increase the toxicity of esfenvalerate' (page 6).

50 On my assessment, Dr Werner's report for the most part responds to Dr Mortimer's opinions that the rapid binding of esfenvalerate to sediment and suspended matter in the marron ponds would reduce the toxicity of that chemical. But more importantly I think, Dr Werner does not assume chlorpyrifos was necessarily present. In the end an issue over chlorpyrifos, if it arises at all, looks to be something that can be conveniently resolved at the trial in short order.

51 A court is traditionally reticent to prevent a party having its day in court and then, when it does, from putting its best foot forward in terms of adducing the best evidence available to it to support its case. A court is also loathe, in the interests of justice, to lay, at the doorstep of a party, possible faults, omissions or misdeeds of its legal advisers in carrying out their instructions or in timeously progressing a matter to trial. A court will usually weigh the possibility of an adjournment, or an adverse costs order in an attempt to redress a case management default, where it is in the overall interests of justice. But, as between parties in litigation, justice is not a oneway street. And, as the High Court explained in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, there are broader public interests at play than simply the interests of the particular parties in litigation. In Aon, the plurality (Gummow, Hayne, Crennan, Kiefel & Bell JJ) said [100]:

The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted (Berowa Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 376 377). In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 at 392, French J said of Bowen LJ's statements in Cropper v Smith:

' ... That may well have been so at one time, but it is no longer true today ... Noncompensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.'

52 See also Aon [101], in relation to recognised pressures imposed by litigation even on corporations, and the illeffects of delays, not only upon parties to the proceedings. Other litigants in the justice system are also seeking a resolution of their proceedings in circumstances where the availability of court resources is finite and these days under some pressure.

53 At [102], the plurality referred to the significance of giving attention to the point where the litigation has reached, relative to trial in the context of a late application to amend. They continued in relation to considerations of delay and costs impacting upon a court's discretion:

Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

(my emphasis in bold)

I repeat that in this case there has been no explanation whatsoever offered by the plaintiffs towards their failure to present their new expert material at the end of August 2010, as directed under sanction back then.

54 At [103] in Aon, in a context of pleading amendments, but also relevant by analogy to present circumstances, concerning late proposed further expert reports, the plurality observed:

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. ... Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.

55 See also observations by French CJ in Aon at [30], in particular the Chief Justice's observations as to the discretion in case management principles 'not supplant[ing] the objective of doing justice between the parties according to law'.

56 Also to be considered according to the Chief Justice is

the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

57 Recently, the Court of Appeal of Western Australia in AttorneyGeneral of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2012] WASCA 73 upheld an interlocutory decision refusing leave to adduce evidence at trial from a witness whose statement was not served in accordance with a timetable established under directions of the trial judge: see Martin CJ at [145] referring to the case management regime in Western Australia established by O 4A of the rules of this court and at [149], applying Aon.

58 The present case is not one of a late pleading amendment. It is a situation of leave to use new expert material being required (bearing in mind a sixweek trial set for commencement in early May 2013 and orders of 1 July 2010 that if the plaintiffs did not file their expert reports by 31 August 2010, that leave to file expert evidence would be withdrawn). The question is whether I ought now, more than two years post August 2010, grant leave for the plaintiffs to rely at trial upon five extra expert reports which only emerged in September 2012 and in respect of which nothing has been offered by the plaintiffs as an explanation for the late emergence of the extra material.

59 Having reviewed the five proposed further expert reports (admittedly at a pretrial level at this time), I am of the view that as regards the four expert reports of Messrs O'Sullivan, Willis, Gilmour and Machin, leave to use this material at trial should be refused to the plaintiffs. These reports would substantially seek to ventilate new expert issues. That is particularly so in respect of the international market for ornamental blue marron. That was an obvious potential area for expert evidence which simply cannot have been overlooked by the plaintiffs until September 2012.

60 The report of Mr Gilmour would seek to open up an alternative path for a possible assessment of the plaintiffs' damages. But the alternative path was well open to be pursued in 2010. The plaintiffs clearly chose to obtain and serve only Mr DouglasBrown's financial report. The new damages assessment path approach is effectively, in truth, a late 2012 evidentiary afterthought. Mr Machin's report, to the extent it provides an edifice for assumptions in Mr DouglasBrown's first report, ought to have been provided by 31 August 2010.

61 Strong considerations arise against allowing the very late receipt of this material. It is more than two years overdue, based on my directions. First, there is not even an attempted explanation by affidavit (or at all) put before the court seeking to provide a reason for late materials. I emphasise again that the four reports are not contended to be responsive materials reacting to the defendants' early 2012 expert reports. They are fresh expert materials. The lack of even an attempted explanation for its late emergence, by itself, applying Aon, goes against their receipt.

62 Second, having casemanaged this action in the CMC List since June 2009, I am acutely aware that there have been previous noncompliances with case management directions by the plaintiffs. Recently, springing orders had to be made in respect of the plaintiffs' failures to meet my directions concerning exchanging nonexpert evidence as ordered. Eventually, a considerable body of witness statements emerged, only at the last minute in order to inhibit a 'springing' of that enforcement order against the plaintiffs. This is unacceptable.

63 Third, this action on my assessment was delayed from a trial for a period approaching 12 months (between September 2010 and the middle of 2011) by reason of the unsatisfactory need for foundational materials from the plaintiff in clarification or explanation of the plaintiffs' initial three expert reports. When eventually served at the end of August 2010, those reports lacked the proper foundational base which should have been provided in the first place.

64 At present, the defendants have only had a truncated opportunity to evaluate five proposed further expert reports. But a prospect of delays to a trial associated with their foundational evaluations is not acceptable.

65 I reach the position (see French CJ in Aon at [30]) that I assess this as a situation where there would be a serious risk of public confidence in the judicial system being undermined, if leave were to be granted at this stage for the plaintiffs to rely on late, nonresponsive further expert reports of 2012, bearing in mind the point where the action currently stands before trial, and all that has (unsatisfactorily) gone before.

66 As regards Dr Werner, the issue is different. Her report is, as I assessed it, substantially responsive to Dr Mortimer's report (paragraph by paragraph). I assess it as within the scope of the present pleadings, despite its few passing references to chlorpyrifos. Even in what is in a most unsatisfactory scenario of noncompliance with caseflow management directions by the plaintiffs, I will, because the defendants accept (fairly) that they are in a position to deal with this material at the trial, allow leave for Dr Werner's report responding to Dr Mortimer's expert evidence.

67 In the end then, I reach a position that leave must be refused to the plaintiffs in respect of any tendering in evidence at the trial of four of the five proposed further expert reports. But the report of Dr Werner of 20 September 2012 may be used and leave to that end is granted accordingly.

68 As the defendants were substantially successful in opposition to the grant of leave sought by the plaintiffs in respect of four out of five reports delivered late, in the circumstances it is my prima facie view that the defendants should have their taxed costs of this application.