NM Rural Enterprises Pty Ltd v Rimanui Farms Limited

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited - [2010] NSWSC 945 - NSWSC 2010 case summary — Zoe

[11]

The report does not properly disclose its underlying facts and assumptions. It contains large sections of unsupported reasoning, inscrutable reasoning and conclusions that cannot be connected to the reasoning. Non-compliance with the Expert Code of Conduct 2 The first defendant's opposition to the report under this heading raises a number of related matters. The general objection is that the 2005 report is a substantial cut and paste of an earlier 2001 report without any acknowledgment of the Expert Code of Conduct. The two reports were not prepared contemporaneously, and are in fact clearly prepared years apart. 3 The Code also requires that the facts and the assumptions on which the expert relies are to be set out clearly in the body of the report. The first defendant contends that this has not been done. The first defendant asserts that it is therefore very difficult to know what facts or assumptions have been made or how it is said that they support or relate to the many opinions expressed. 4 Moreover, there is a substantial correlation between the two reports. The letter of instruction to Mr Combellack for the 2005 report could therefore clearly not have been the basis for the 2005 report, or at least not all of it. The 2001 report was clearly prepared before the letter of instruction in 2005 was even drafted. Although the Code is referred to in the 2005 report, the first defendant contended that it cannot amount to a genuine compliance with it because so much of the 2005 report as was lifted from the 2001 report cannot have been prepared with the Code in mind at all. The later express adoption of the Code does not, according to this submission, cure the problem at all. 5 In Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 at [29] and [30] the position was described by Jagot J as follows: "[29] The problem this creates is not answered by Mr Lee now saying he has read the code and would not amend the reports. If anything, this discloses the existence of the problem. Neither the Court nor the parties will ever be able to know the form the evidence might have taken had the authors been aware of these obligations under the expert witness code of conduct before they commenced the exercise. As observed in many of the decisions on these issues, there 'is a real risk that an expert who has not prepared a report under the discipline of the applicable schedule will form an opinion from which, thereafter, he or she would find it difficult to retreat, even if circumstances arise that might raise this as a possibility' (see lnvestmentsource at [50] and the cases cited therein). This risk is a fundamental problem not capable of subsequent rectification by retrospective adoption of the expert witness code of conduct. The problem is particularly acute in this case given the complexity of the issues addressed in the reports and the way in which the reports were created (including the stakeholder interviews and the lack of disclosure of who they were conducted with, what the results were, and how important the results were to the conclusions reached). The fact is that no one will ever really know what form the reports would have taken if prepared by people mindful of their obligations under the expert witness code of conduct. Moreover, as the applicant submitted, Mr Lee may now be aware of the expert witness code of conduct and not feel any need to amend the reports, but the position of the other authors, including Ms Newby, remains unknown.

[19]

(7) That prejudice is exacerbated because Mr Williams is not available for cross-examination." 7 The first defendant submitted that in the present case Mr Combellack would have been unlikely to resile from any views or opinions expressed in the 2001 report or to modify them as the result of reconsidering his position in 2005 by reference to the Code. The Code must instruct and guide the manner in which an expert constructs a report. Its requirements are mandatory. An expert owes his or her duty to the Court, not the client. The Code is a legislative statement of what is expected and required of experts. The first defendant submitted that this was no mere technical formality, but went to the heart of ensuring that the Courts can be assisted in a just manner with the expert evidence that they receive. As was said by Barrett J in Tim Barr Pty Ltd v Nauru Gold Coast Pty Ltd [2009] NSWSC 49 at [46]: "[46] In relation to rule 31.23(3), the clear intention is as stated by McDougall J in the Investmentsource case at [44], that is, to keep out expert evidence unless it can be seen that the expert has conduct himself or herself in the way required by Schedule 7 in relation to the preparation of the report and the formation of the opinion stated in it. The concern is a quality assurance concern: to be sure that an expert has approached the task responsibly and mindful of the importance the expression of opinion will have as part of a body of evidence placed before the court. As a general rule, a written statement of the opinion of an expert should not be accepted as authoritative on a matter within the relevant field of expertise unless the person expressing the opinion is shown to have proceeded in that way; but the court may, in a particular case, allow the statement to be admitted even where the person is not shown to have proceeded in that way." (emphasis added) 8 A detailed and useful discussion of the relevant principles by McDougall J is also to be found in CJD Equipment Pty Ltd v A & C Construction Pty Ltd [2009] NSWSC 1085. 9 In Ray Fitzpatrick at [34] and [35], her Honour Jagot J also said this: "[34] There is a real risk of significant prejudice to the applicant should the disputed evidence be admitted. Because of the way in which the evidence was originally created that prejudice is not capable of rectification by case management procedures (such as permitting the applicant to call evidence on the same topic and requiring joint conferencing with Mr Lee and the other authors of the reports in dispute). As observed in Investmentsource at [50] the ordinary workings of the human mind might make a process of joint conferencing more difficult for an expert who did not start out with an appreciation of his or her obligations under the applicable schedule.

[20]

[35] The risk of real and significant prejudice to the applicant and the proceedings as a whole by the admission of the disputed evidence is the respondent's responsibility. The respondent did not notify the applicant that it intended to rely on Mr Lee as an expert. The respondent did not provide the expert witness (or, more accurately, witnesses) with a copy of the code of conduct as soon as they were engaged. This is not to suggest that the respondent should somehow be punished for these oversights. That would be wrong. It is merely to recognise the source of the problem when discretionary factors are weighed up." 10 Mr Combellack has given oral evidence and has been cross-examined. This course was adopted by agreement among the parties because he was said to be in less than perfect health and lived remotely from Sydney in country Victoria, with the result that the window of opportunity within which to have him attend Court for these purposes was small and rapidly closing. The plaintiff contended that Mr Combellack was a passionate man of science, and that so much was evident from the oral evidence that he gave. The plaintiff submitted that it was wrong to suggest that Mr Combellack did not have a full and proper understanding of his obligations to the Court as an expert witness. Mr Maconachie put it thus: "MACONACHIE: This case is different from any of the others to which you've been referred. If for no other reason your Honour has already seen Mr Combellack and had him explain to you with some degree of force and passion that he's always conscious of the fact that he needs to speak, as it were, for the court rather than just for the client. You will be impressed in my respectful submission by the force at which he put that and you would accept that he is his own man of science. Accordingly if, which I dispute with all of the rigour that I can, the submissions that have been put and the understanding of the case that have been put has force, then your Honour should otherwise order within the context of the relevant section and rules.

[27]

[55] Here, it would appear that a point was kept up plaintiff's counsel's sleeve seeking to obtain tactical advantage…." 13 I do not consider that the first defendant is, by the timing of the present application, seeking to obtain a tactical advantage. However, this case has been on foot for a very considerable time. Mr Combellack's role in it has been well understood from the start. His reports have been exchanged. Something that has previously occupied my attention has been whether or not Mr Combellack would be able to give evidence by video link from Victoria because of personal difficulties with health and family commitments, or whether he ought to be required to attend Court in person for that purpose. I would have expected that an essential, or at least pertinent, issue to consider before that was resolved would have been the question of whether or not his report could survive an assault of the type that the first defendant now wishes to mount. However, no such concern was raised. 14 As far as I am aware, until recently, including during the period that I have been involved either as the trial judge or as its case manager since 2007, no suggestion has ever been made that any fundamental difficulty existed concerning Mr Combellack's report. Indeed, the schedule circulated by the first defendant containing its objections to Mr Combellack's report did not in terms raise the question of any non-compliance with the Code of the type now promoted as a basis for its rejection. He was cross-examined by all defendants over the course of 60 pages of transcript without any apparent difficulty. 15 Mr Combellack has an impressive curriculum vitae. He has written or co-authored approximately 108 publications between 1964 and 2005. These papers are too numerous to specify here but include discussions on topics such as "The influence of adjuvants on the performance of a glyphosate, 2,4-D mixture", "Optimising herbicide use and alternative weed control strategies", "Efficient utilisation of herbicides", "Rating the off target hazards of herbicides" and "Drift - conventional versus twin fluid nozzles". His latest article in 2005 was entitled "Ways to improve pesticide application in Australia through new sprayer technology and adoption of sprayer manufacturing and testing standards". His qualifications and experience in weed science and technology are also wide-ranging and impressive and obviously relevant to the present inquiry. It is likely that his views, whether ultimately accepted or rejected, will be of assistance in identifying and elucidating the legal and factual issues that are at play in this case. 16 I am mindful of the learning that emphasises that the Code cannot be ignored or taken lightly, and that something more than a mere mechanical or unthinking acknowledgment of its role must be demonstrated. I am particularly concerned to observe that in this case Mr Combellack has put in play his views from 2001, which he circulated when this case was some years away, and when he was not required to agree to be bound by the Code. However, in the somewhat unusual events that have occurred in this case, I have had the distinct advantage of seeing and hearing Mr Combellack give evidence in the witness box over the course of almost a full day. Part of his cross-examination included the following: " Q. Right at the beginning of your engagement here on this problem, it was suggested to you what the likely cause of the damage was? A. Yes, but that's normal.

[32]

Q. Difficult to prove whether by way of scientific analysis or scientific proof? A. It is difficult because they are very rare occasions." 19 With the rare insight provided by this evidence it is possible for me to conclude that Mr Combellack was not apparently compromised in the way identified by Jagot J in Ray Fitzpatrick and by others to like effect by the free and unconstrained expression of an opinion that is subsequently adopted for the purposes of litigation. I accept that the perception is as important as the fact, and that the first defendant emphasises that in the present circumstances that perception has force greater than any assistance that I can derive from any of Mr Combellack's pronouncements of the sort that I have identified. 20 However, by example before me in Court and by his reputation and experience, I am satisfied that the iniquities identified by the authorities are not such that I should decline otherwise to order that Mr Combellack's 2005 report be admitted into evidence notwithstanding the difficulties with the Code to which the first defendant has drawn attention. Furthermore, I consider as a separate and independent reason that the parties have all proceeded upon the basis that no fundamental objection to the tender of the report existed and it is too late to raise the Code as an impediment to that tender now. Competing experts have been asked to consider Mr Combellack's 2005 report and have expressed views with apparent ease about it and the conclusions he has reached. It would in my view be an excessive and somewhat slavish insistence on regulation and form in the particular circumstances of this case to permit the Code to operate in a way that excluded a report that has not caused any discernible forensic or procedural prejudice, and in circumstances where I am also satisfied that it contains a useful and reliable expression of opinion that I am likely to be able to rely upon with confidence. As Mr Combellack said in his evidence before me: "Well, let me put my position pretty clearly as a scientist. We are not brought up to be arrogant and make statements that we can't uphold. We typically rely on evidence from others, who have been involved in processes, so that we can substantiate our claims." 21 Mr Combellack's evidence will have to be considered in due course in the light of all the other evidence in the proceedings before I arrive at conclusions on any ultimate issues. For the purposes of deciding whether the spirit or the intent of the Code would be subverted by admitting his report, however, I consider that this evidence has been very instructive. I would not in the circumstances be inclined to reject the report upon the basis of any actual or apparent non-compliance with the Code. Evidence inscrutable and reasoning not disclosed 22 The first defendant additionally submitted that the 2005 report was "problematic" for the following reasons: 1. In many places it does not make its process of reasoning clear and is inscrutable. The reader is left guessing as to how the opinions or conclusions set out in it have been arrived at.

[35]

Mr Combellack recently retired and burned his notes and other papers used by him to prepare his report. They are now no longer available to establish or verify the extent to which they informed or otherwise affected the report or might have assisted as evidence at the trial. 23 The first defendant quoted the following paragraph from the report as an example of an opinion expressed with an inadequate or inappropriate degree of scientific rigour: "Following the inspections, and from an inspection of the meteorological records, I was of the opinion that it was possible that a plume of droplets containing glyphosate and or metsulfuron could have drifted from the spraying at Boonaldoon onto Telleraga". 24 The inspections referred to are not specified. It is said that it is not known who carried out these inspections. The meteorological records are not identified. What flows from reference to either of these things or their connection to the final opinion is not known. Similar objections have been identified in a series of specific objections with which I have been asked to deal in the event that the report is admitted into evidence. 25 I was once again referred to what was said by Einstein J in Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 995 at [183]. See also my earlier decision in NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921. The first defendant submitted that the expert opinions expressed by Mr Combellack were not given with appropriate scientific rigour. It was submitted that the flaws were so numerous that they could not conveniently or meaningfully be dealt with individually and that the whole report should be excluded. 26 The plaintiff responded upon the basis that the complaints were all capable of individual consideration and that the validity of the report was not materially compromised by any one objection or any combination of more than one of them. 27 At one point during the consideration of what approach to take with respect to the first defendant's objection to the whole report on the one hand and to the several individual objections to portions of it on the other hand, I said the following in the course of ruling on one of the individual objections: "Objection is taken upon the basis that the underpinning factual material is not specified and the scientific basis for the opinion [that has been] expressed, if it is an opinion, has not been outlined. It seems to me that [the] statement and statements to like effect are unobjectionable to the extent that they do not of themselves without evidence of the scientific matters to which they allude prove the plaintiff's case or a portion of it. Indeed, it would surprise me if the plaintiff promoted sentences like the sentence under consideration as a definitive piece of evidence to which they could resort for proof of their case. Necessarily in the structure of any report, there will be pieces of information otherwise unverified or scientifically established which operate as connecting factors between other portions of an expert opinion which do derive from an expressed expertise and which can be evaluated with reference to the particular expert's qualifications. This sentence does not strike me as such a sentence, and although on one view technically objectionable, it seems to me to be admissible as one of those connecting factors necessary to permit an expert to express an opinion in a comprehensible way." 28 Although it is not possible to speak generally in universally applicable terms about all of the individual objections that the first defendant has nominated in its schedule of objections, I do not consider that they invalidate the whole report on what have become known with some unfortunate imprecision as the Makita principles. I consider that they can be assessed seriatim as the first defendant has otherwise proposed. I am prepared to admit Mr Combellack's report but will rule separately on each objection that has been taken to it. Conclusion 29 Mr Combellack's undated report prepared in 2005 is admitted subject to my individual rulings that have otherwise been separately notified.

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