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[2010] NSWSC 945
procedural. Mr Combellack's undated report prepared in 2005 was admitted, subject to the judge's individual rulings on objections that had been separately notified ([29]).
The decision is about whether an expert report could be used in the proceedings, not who should win the underlying dispute. The report prepared in 2005 repeated substantial material from a 2001 report written for the plaintiff. The first defendant argued that the earlier work had not been prepared under the Expert Code of Conduct and that the report did not adequately explain its facts, assumptions or reasoning. Harrison J accepted that the Code mattered, but concluded that these circumstances did not require the whole report to be excluded. The expert had given evidence and been cross-examined, the report had been known for a long time, and the judge found no discernible procedural or forensic prejudice. The judge admitted the report while leaving individual objections to be decided separately. Admission did not mean that the judge had accepted the expert's opinions or decided the ultimate issues.
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In NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 945, Harrison J had to decide an evidentiary question during the hearing of a longer-running dispute: whether the plaintiff could rely on an expert report by Harry Combellack. The decision did not determine the underlying parties' claims or establish that the expert's opinions were correct. Its operative order was that the report be admitted subject to separate rulings on objections to particular parts of it ([29]).
The report was undated, but it was expressed to have been prepared in response to a letter of instructions dated 22 August 2005. Harrison J observed that it incorporated verbatim material from a report Mr Combellack had prepared in 2001 for the plaintiff and its advisers ([1]). The first defendant argued that the earlier material had been prepared for the client, not the Court, and without acknowledgement of the Expert Code of Conduct. It submitted that the later report could not cure that problem merely by referring to the Code ([2]-[4]).
The first defendant also challenged the report's explanation of its underlying facts, assumptions and reasoning. It said that the report included unsupported or inscrutable reasoning and conclusions that could not be linked to the reasoning given ([1], [22]). It referred, by way of example, to a passage stating that it was possible for a plume containing glyphosate or metsulfuron to have drifted from one property to another after inspections and consideration of meteorological records. The objection was that the report did not identify the inspections or records, or explain the link between them and the opinion ([23]-[24]).
The judge considered the Code argument against the background of the hearing. Mr Combellack had given oral evidence and had been cross-examined by the defendants. That course had been adopted by agreement, in part because of his health and travel circumstances ([10]). The reports had been exchanged and the expert's role had long been understood. Harrison J noted that the first defendant had possessed both reports for a considerable time and that the Code objection had not been raised until the hearing recommenced in August 2010 ([11]-[14]).
The judge also heard evidence about Mr Combellack's approach to his work and considered his qualifications and professional experience. He had authored or co-authored approximately 108 publications between 1964 and 2005, and the judge regarded his expertise as relevant to the inquiry ([15]-[18]). On the whole of those circumstances, the judge admitted the report, but did not resolve the weight to be given to it or its conclusions on the ultimate issues ([20]-[21]).
Harrison J did not treat the Expert Code of Conduct as a mere formality. He expressly recognised the learning that the Code cannot be ignored and that more than a mechanical acknowledgement of it must be demonstrated ([16]). He also set out the first defendant's reliance on earlier decisions concerning the risks of an expert forming an opinion without the Code's discipline, including the possibility that the expert may later find it difficult to retreat from that opinion ([5]-[9]).
The outcome turned on the court's assessment of this particular record. The judge had the unusual advantage of observing Mr Combellack in the witness box for almost a full day and hearing his answers in cross-examination ([16]-[18]). The judgment recounts evidence in which he described considering possible causes and acknowledged that the explanation he advanced was difficult to prove. Harrison J concluded from the evidence and the expert's conduct that Mr Combellack was not apparently compromised in the way identified in the authorities discussed ([19]).
The judge also considered procedural fairness and prejudice. The first defendant had known about the reports for a considerable period. No fundamental Code-based objection had been raised earlier, including during the judge's involvement in the matter since 2007. The first defendant's objections schedule had not raised the relevant Code issue in the form later advanced, and the expert had been cross-examined by all defendants over 60 pages of transcript ([13]-[14]). The judge did not find the first defendant was seeking a tactical advantage, but considered the timing relevant and stated that it was too late in the circumstances to raise the Code as an impediment to tender ([13], [20]).
A further factor was that competing experts had been asked to consider Mr Combellack's report and had expressed views about it. Harrison J found no discernible forensic or procedural prejudice that justified excluding the report altogether ([20]). This was not a general holding that late objections must fail, or that cross-examination invariably cures problems in an expert report. It was an assessment of the particular history and evidence before the Court.
The court treated the reasoning and factual-foundation objections separately. It considered the example of an opinion based on inspections and meteorological records, and accepted that a statement may be technically objectionable if read as proof of a scientific matter without supporting evidence. However, a statement may also operate as a connecting factor in an expert's explanation, helping make an opinion comprehensible, without itself proving the plaintiff's case ([27]). The specific objections could be determined one by one, rather than requiring wholesale exclusion ([28]).
Finally, the judge distinguished admissibility from the ultimate evaluation of the evidence. He stated that Mr Combellack's evidence would have to be considered with all the other evidence before conclusions could be reached on the ultimate issues ([21]). Admission meant that the report could be received, not that its opinions were accepted as true.
The judgment's account of the law before this ruling stresses the role of the Expert Code of Conduct in controlling the preparation of expert evidence. Harrison J referred to decisions that treated the Code as a quality-assurance discipline, rather than a box-ticking exercise. He quoted Tim Barr Pty Ltd v Nauru Gold Coast Pty Ltd for the proposition that the court's concern is whether an expert has approached the task responsibly and with awareness of the importance of the opinion in the evidence ([7]). He also referred to Investmentsource v Knox Street Apartments and Ray Fitzpatrick Pty Ltd v Minister for Planning, which discussed risks associated with opinions formed outside the applicable Code discipline ([5]-[6]).
The judgment does not reject those concerns. At [16], Harrison J expressly stated that the Code could not be ignored or taken lightly. Rather, the decision illustrates the court's consideration of the circumstances when deciding whether those concerns required exclusion in a particular case. In this matter, the judge placed weight on hearing the expert, the history of the reports and the objection, the opportunity for cross-examination, and the absence of discernible forensic or procedural prejudice ([10], [13]-[21]).
The ruling also illustrates a procedural distinction between admitting an entire report and deciding whether every challenged statement within it is admissible. Harrison J did not conclude that all of the first defendant's specific objections lacked merit. He decided that they did not, without more, invalidate the report in its entirety and could be ruled on individually ([27]-[29]). The report's admission was expressly made subject to the separate rulings.
The judgment therefore records a case-specific application, not a broad replacement of the principles discussed in the cited authorities. Nothing in the decision says that retrospective adoption of the Code always cures an earlier report, that an expert's experience makes Code compliance unnecessary, or that lack of prejudice can never be outweighed by other concerns. The judge instead concluded that these particular circumstances did not warrant excluding this report.
The supplied judgment provides no subsequent appellate decision or later case history for NM Rural Enterprises [2010] NSWSC 945. It is therefore not possible from this material to state how later courts have treated the ruling or whether they have adopted, limited or distinguished it.
At [19], Harrison J said that he could conclude, after seeing and hearing the witness, that Mr Combellack was not apparently compromised in the way identified in the earlier authorities. In plain English, the judge considered the actual evidence given in court relevant to whether the earlier preparation of the report had affected the expert's independence or ability to assist the Court. This was an assessment of the witness and circumstances in this case, not a general test that oral evidence removes any concern about a report's preparation.
At [20], Harrison J stated that he was satisfied the concerns identified in the authorities did not require him to refuse to admit the 2005 report. He also identified a separate reason: the parties had proceeded on the basis that there was no fundamental objection to tender, and the Code was too late to be raised as an impediment in the circumstances. Put plainly, the court considered both the substance of the Code concern and the way the case had been conducted.
At [20], the judge referred to the report as a useful and reliable expression of opinion on which he was likely to be able to rely with confidence. That observation supported the admissibility decision, but it did not finally decide the report's weight. The judge subsequently stated that the expert's evidence would be assessed with all the other evidence before any conclusions were reached on ultimate issues ([21]).
At [27], the judge explained that an expert report may contain material that is not itself proof of a scientific proposition but may serve as a connecting factor that allows an opinion to be expressed comprehensibly. In plain English, a sentence may form part of the explanation without independently establishing the facts it mentions. The judge still recognised that the underlying scientific matters would need evidence if they were to prove a part of the plaintiff's case.
At [28]-[29], the judge concluded that the objections did not invalidate the report as a whole and that they could be addressed individually. The final order admitted the 2005 report subject to those separate rulings. That qualification is important: the decision did not give the report blanket approval or decide the outcome of any particular objection not resolved in the judgment.
The decision is most relevant to a procedural situation where an expert report prepared for a client before litigation is later substantially reproduced or relied on as an expert report for court proceedings. Here, the earlier report dated from 2001 and the later report responded to instructions in 2005. The first defendant argued that the earlier work had not been prepared under the Expert Code of Conduct and that a later reference to the Code could not repair that history ([1]-[4]).
It is also relevant where the expert has given evidence and been cross-examined before the court decides whether to exclude the report. Harrison J treated that opportunity, together with the evidence actually given, as significant in assessing the asserted risk that the expert was compromised ([10], [16]-[21]). The judgment does not say that oral evidence is essential in every such case or that it will always overcome Code-related problems.
A further relevant feature is the timing and history of the objection. The reports had been in the first defendant's possession for a considerable period, the expert's role had been known, and the Code issue was not raised in the manner ultimately advanced until late in the hearing ([13]-[14]). The decision may therefore be pertinent when a party challenges a report after the other parties and the court have already proceeded on the basis that it would be considered. The judge's express finding that the first defendant was not seeking tactical advantage shows, however, that the timing issue was not treated as a finding of bad faith ([13]).
The case also concerns objections that a report does not disclose enough of its factual assumptions or reasoning, or contains conclusions said to be unsupported. Harrison J considered that such complaints may be capable of separate rulings, particularly where not every challenged statement serves the same function in the report ([22]-[28]). The decision may be less directly informative where the report cannot be understood as a whole, the expert is unavailable for examination, the opposing party has suffered identifiable prejudice, or the court has not considered the specific objections individually. Those scenarios are not decided by this judgment.
The supplied judgment does not include decisions made after 25 August 2010 that discuss or apply NM Rural Enterprises Pty Ltd v Rimanui Farms Limited. Accordingly, this source does not establish whether later courts followed, distinguished, approved or criticised Harrison J's ruling. It would be unsupported to state that the decision became a generally accepted precedent or to describe its subsequent treatment without additional legal sources.
The cases that the judgment itself discusses are earlier authorities, not later treatment of this decision. Harrison J considered Ray Fitzpatrick and Investmentsource in relation to the risk associated with expert opinions formed without the discipline of the Code ([5]-[6]). He referred to Tim Barr concerning the quality-assurance purpose of the Code ([7]), and to CJD Equipment as containing a detailed discussion of the relevant principles ([8]). He also considered Sydney South West Area Health Service v MD in relation to the timing of objections and litigation conduct ([11]-[12]).
The judgment therefore places its ruling within that existing discussion, while reaching a case-specific result. It does not say that it overrules, disapproves or rejects those authorities. Rather, Harrison J accepted the importance of their concerns and concluded that the particular evidence and procedural history did not require exclusion of this report ([16], [19]-[21]).
For legal research, the distinction is important: the text supports describing what Harrison J decided and the reasons given in 2010. It does not support a claim about the decision's continuing authority, the extent to which it has been adopted, or its present status beyond the supplied material.
The judgment leaves the ultimate evidentiary weight of Mr Combellack's report unresolved. Harrison J expressly stated that the evidence would be assessed with all the other evidence before conclusions were reached on the ultimate issues ([21]). The admission ruling therefore did not determine whether the expert's conclusions were correct or whether the plaintiff had proved its case.
The decision also does not state the result of every objection to individual passages in the report. At [28], the judge said that those objections could be assessed seriatim and that the report was admitted subject to separate rulings. The operative order likewise refers to rulings separately notified ([29]). The present judgment thus does not provide a complete account of the treatment of every disputed sentence or opinion.
Another question is how the same Code concerns would be assessed in different circumstances. The judgment does not establish a universal rule about whether later acknowledgment of the Code can cure earlier preparation, whether oral evidence can address perceived compromise, or what degree of prejudice is required for exclusion. Its reasoning turns on the unusual combination of a long-known report, a late objection, cross-examination, the judge's direct observation of the expert, and the absence of discernible forensic or procedural prejudice ([13]-[21]).
Finally, the judgment does not disclose the later history of the case or any subsequent appellate consideration of this evidentiary ruling. Those matters cannot be answered from the supplied text.
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CITATION : NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 945
DECISION : Mr Combellack's undated report prepared in 2005 is admitted subject to my individual rulings that have otherwise been separately notified.
CATCHWORDS : PRACTICE & PROCEDURE - Expert Code of Conduct - report prepared for plaintiff in 2001 prior to commencement of proceedings substantially reproduced in 2005 as an expert report for use in Court proceedings - where Code not complied with until later report prepared - where defendants object to tender of whole report on basis that expert compromised - whether later report admissible - report admitted
CJD Equipment Pty Ltd v A & C Construction Pty Ltd [2009] NSWSC 1085 Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 995 Investmentsource v Knox Street Apartments [2007] NSWSC 1128 CASES CITED : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2000-2001) 52 NSWLR 705 NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 921 Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 Sydney South West Area Health Service v MD [2009] NSWCA 343 Tim Barr Pty Ltd v Nauru Gold Coast Pty Ltd [2009] NSWSC 49
NM Rural Enterprises Pty Ltd (Plaintiff) PARTIES : Rimanui Farms Limited (First Defendant) Gil Gil Farming Pty Ltd (Second Defendant) Lloyds Syndicate No 1243 (Third Defendant)
J E Maconachie QC with S B Docker and M W E Maconachie COUNSEL : T J Hancock with J P Donohoe and A T Martin (First Defendant) B Loukas (Second Defendant) G T W Miller QC with D A Lloyd (Third Defendant)
TurksLegal (Plaintiff) SOLICITORS : Webb and Boland (First Defendant) Doyle Wilson (Second Defendant) Riley Gray-Spencer (Third Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
2003/93179 NM Rural Enterprises Pty Ltd v Rimanui Farms Limited & Ors
JUDGMENT 1 HIS HONOUR: The plaintiff seeks to rely upon a report from Harry Combellack. It is undated but is expressed to have been prepared in response to a letter of instructions dated 22 August 2005. It is apparent that the report incorporates verbatim material that Mr Combellack included in a 2001 report that he prepared for the consideration of the plaintiff and its advisers at that time. The first defendant objects to the 2005 report and contends that it should not be received into evidence in its entirety for the following reasons: 1. It does not comply with the Expert Code of Conduct, in particular cll 5(1)(b), (c) and (e). It was prepared for the client, not the Court, in 2001 without any acknowledgment of the Expert Code of Conduct and presumably without any regard to it. The 2005 report was then effectively cut and pasted from the 2001 report into what became the 2005 report.
[30] These factors alone are sufficient to warrant exclusion of this evidence. For this reason I am not willing to grant leave or 'otherwise order', with the consequence that the disputed evidence is not admissible." 6 The passage from Investmentsource v Knox Street Apartments [2007] NSWSC 1128 to which her Honour referred was in these terms: "[50] I have come to the conclusion that I should not 'otherwise order' so as to admit into evidence so much of the Colliers material as expresses Mr Williams' opinions. My reasons may be expressed briefly:
(1) Mr Williams did not prepare his report with a conscious appreciation of the obligations imposed by Schedule K (which was applicable at the time it was prepared) or Schedule 7 (which is applicable now).
(2) There is a real difference between the role of an expert retained to advise a client and the role of an expert engaged to give evidence. The former owes his or her primary obligation to the client; the latter owes his or her primary obligation to the Court. It cannot be assumed that those obligations are identical, or that in any given case performance of them would lead to the same outcome in terms of opinion.
(3) For the reasons given by Einstein J in Cassegrain and Campbell J in United Rural Enterprises , 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.
(4) An expert retained to advise a client is not usually confronted with alternative expert evidence. An expert retained to give evidence usually is. In the latter case, the expert's obligations under the applicable schedule require that he or she consider the alternative material, and reconsider his or her position in its light.
(5) Under the usual order for hearing that applies in the Commercial and Technology and Construction Lists, experts are required to confer with a view to defining, refining and where possible limiting the real issues in dispute between them. The ordinary workings of the human mind to which Campbell J pointed in United Rural Enterprises at para [15] might make this process more difficult for an expert who did not start out with an appreciation of his or her obligations under the applicable schedule.
(6) In those circumstances, I think that there is a real risk of significant prejudice to Kimberly if the Colliers material is admitted to prove Mr Williams' opinions.
(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.
[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.
…If the professional witness sits in the witness box, is examined and cross-examined and explains his position and the like, as has happened in this case, it can hardly be said that some failure to acknowledge the code of conduct given the way that Mr Combellack disported himself and explained his ethical position and his philosophical view about what his role in all of these things were, it can hardly be said that a failure to wave his hand over the code of conduct puts him in a position before he wrote his first report where he can't thereafter have anything to say to assist the court in the resolution of these difficult issues. Even more so if there is a 'departure' from the code of conduct because there's a laundry list of matters that are difficult to verify therefore you just shut it out completely." 11 A consideration of some significance to my mind is the fact that the first defendant has been in possession of copies of both reports for a considerable period. I am not aware that any objection to Mr Combellack's report, based upon a failure by him to adhere to the Code, was flagged or foreshadowed at any time before the objection was taken during the recommencement of the hearing before me on 9 August 2010. In this respect I am mindful of the considerations that influenced the Court of Appeal in Sydney South West Area Health Service v MD [2009] NSWCA 343 per Hodgson JA at [29] - [31] as follows: "[29] In my opinion the crucial objection to the primary judge's decision on this matter is that he did not have regard to the circumstance that many months before the hearing, the respondent's solicitors had been served with Dr Reid's report that explicitly addressed a question couched in the precise words used in s 5O, and that, as frankly stated by senior counsel for the respondent at Black 227:
'We've had these reports for a substantial period of time and I've taken the view that they were inadmissible as to the state of the pleadings for a very substantial period of time.'
[30] This was in my opinion quite a clear indication that the legal advisors of the respondent proposed to take the point about the non pleading of s 5O in order to object to the admissibility of doctors' reports, and did not convey this to the appellant's legal advisors until the point was taken very near to the end of the case. As has been made clear in a number of cases, litigation by ambush is not acceptable: see White v Overland [2001] FCA 1333 at [4]; Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116 at [21], [32]; Baulderstone Hornibrook Engineering Limited v Gordian Runoff Limited [2008] NSWCA 243 at [160]-[164].
[31] The failure of the primary judge to take this consideration into account is sufficient in my opinion to show error in terms of House v The King [1936] HCA 40; (1936) 55 CLR 499. In my opinion, a correct exercise of discretion, having regard to this consideration and the other matters relied on by Ms Adamson, would have been to allow the amendment." 12 Allsop P in the same case dealt with this topic at [53] - [55] as follows: "[53] Thirdly, the Court of Appeal has on a number of occasions since 2001 made clear that the ambush theory of litigation is dead in this State. The same thing has been said in the Federal Court: see in particular Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. As I said in White and Overland [2001] FCA 1333 at [4], which was approved in terms by the Court of Appeal in Nolan at [28] 128:
' by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. … [I]f, something has been said, where it is evident, or indeed suspected, that the other side is proceeding on a basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party, through his or her representative, ensure that the other side is not proceeding on a misconception or that the other side does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. … [N]o one's interests are advance by litigation proceeding on assumptions which are seen or suspected to be false.'
'it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation including [in that case] hard fought commercial cases'.
[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.
Q. So everybody has a theory? A. Yes, but that does not mean to say I agree with it and/or would have agreed with it if I found it to be incorrect." 17 A little later he said the following: "Q. Mr Combellack, your interest from day one was in connecting the event on Boonaldoon with the event on Telleraga? A. No it was not. My emphasis, as I have pointed out many times to you, is to try to establish for and on behalf of anyone there and after, what could the cause have been or what could have caused the effect. I considered all the opportunities that I thought possible and feasible and if I had given - if I have given information to the effect that this didn't happen or that didn't happen, I accept that for what it is. I am not a criminal investigator.
Q. That presumption or those facts you have just told us about strongly influence the opinion that you have given in this report? A. Of course they do because it is an answer to the question and I couldn't find a better answer to the question. The question asked of me was what caused the damage? What caused the damage is glyphosate. I don't think there is anyone disputing that. I mean [Mr Ghirardello] is suggesting that maybe 2,4-D's are involved as well. I don't believe that but anyway that is another issue but certainly glyphosate is the primary agent and if that is the case, how did it get there? There seem to be two rational reasons how it could have got there. One was by drift from the Boonaldoon property or, secondly, it was inadvertently applied by the aircraft that supplied that fertiliser.
Q. You gave some evidence a little while ago about your understanding of your obligations to the court? As I recall it, what you said was that you would just give an opinion of which party you favoured; do you recall that? A. I don't favour any party, I told you that.
Q. Do you agree that what you were doing when you prepared the second version of your report was that you were trying to more clearly identify the challenge to the conclusion that you have drawn in your first report in view of the work by Story et al? A. Look, I have a problem identifying what occurred as much as anyone else. Like anyone else involved in this case, I find it difficult to perceive how it happened. You have asked me to provide a reasonable explanation. I have done that. That letter doesn't say anything different. I have said in that letter exactly what I have said in this Court, that it is very difficult to prove." 18 Finally for present purposes, Mr Combellack gave this evidence when cross-examined by Mr Loukas: "Q. You indicated that the theory that you posited to this Court is a difficult one to accept? A. Yes.
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.
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NM Rural Enterprises Pty Ltd
Rimanui Farms Limited
Mr Combellack's undated report prepared in 2005 was admitted, subject to the judge's individual rulings on objections that had been separately notified ([29]).