[13] As noted above, paragraph 1 of the objection notice,[7] makes the objection that the notice of non-party disclosure is too broad in scope to be directly relevant to the allegation in the proceeding. In support of this notion the objection notice specified three particular issues.
[14] Firstly, that the notice is too broad in scope to be relevant, insofar as it seeks information within a period from 2005 until present. That is, it seeks detailed information for a period of approximately 6 years prior to the building of the bund until present. As a notice of non-party disclosure is not a continuing disclosure requirement,[8] the notice must be interpreted as requiring discovery of the information over a period from 2005 through to the date of the filing of the notice, 25 November 2019. Relatively speaking, that is for a period of approximately 6 years prior to the building of the bund wall, to a period approximately 8 years after the building of the bund wall.
[15] As set out in the notice of non-party discovery, the group plaintiffs allege losses from September 2011 to date. Accordingly, information from at least the construction of the bund wall in September 2011 to date are directly relevant to matters raised in the pleadings.
[16] Obtaining proof, even on the balance of probability, of what a fisherman would have caught had something not occurred, may be expected to be a controversial and difficult matter. In paragraphs 208 to 216 of the defence, Gladstone Ports Corporation ('GPC') deny causation and loss. They further raise the positive case that prior to 16 June 2011, there were various species of fish that had been discovered within Port Curtis with rashes or conditions and that commercial fishermen had experienced reductions in catch rates for some species of fish.
[17] In paragraphs 208 to 213, the defendants plead that due to above average rainfall in the areas of the Calliope and Boyne Rivers in November and December 2010, the Awoonga freshwater dam began to overflow for the first time in 8 years. This caused an unusually large influx of fresh water into Port Curtis, along with approximately 30,000 large barramundi being washed over from the Awoonga Dam into the Boyne River.
[18] In further response to the allegations concerning causation and loss, the defendants rely upon a series of scientific studies, contained in Annexure A to the defence and referred to in paragraph 215(b)(iii) of the defence. Annexure A summarises 11 expert reports which have been commissioned on the topic in respect of analysis of the water quality and fish health in the Port Curtis area during the relevant period. These reports raise multiple potential stressors including, in the CSIRO report of March 2013 that "often the cause of environmental effects is a result of multiple stressors of which freshwater and associated turbidity would rank highly, along with the stormwater runoff of contaminants, licensed discharges, excessive fish stocks, food scarcity."