The question that I think your Honour asked me a little while ago is, to paraphrase, why we shouldn't have known early, the answer is well, we missed it but so did everyone else, in particular the plaintiff identified or attempted to identify the likely causes of the problem."
22 Mr Lloyd countered the plaintiff's opposition to his proposed course in the following way:
"The effect of what is being suggested is that we should have been more forensically diligent and skilful than the plaintiff's team of lay and expert witnesses. We have got one person relevantly on the ground with expertise, Mr Ghirardello. They have got Mr Ward, Mr Barton, Mr McDougall, Ms Woollams, Mr Lehmann and they all missed the significance of it and the inescapable inference in my submission is they missed it because most of them weren't told about the particular details of Pay's spraying activities on page 4."
23 The reference to page 4 is a reference to the last page of Mr Ward's notes.
24 The potential significance of the proposal consists in the third defendant's ability to establish as a fact on the balance of probabilities that the Pay's Air spraying applied undiluted glyphosate to the crops. Mr Lloyd described this as "a real possible alternative rather than contamination, which is what [the plaintiff] investigated".
25 Mr Lloyd concedes that the new case theory only came to light when, in effect, someone in his camp very recently revisited page 4 of Mr Ward's notes in a different and inspired light. The third defendant contends that this was as a result of the late service of the plaintiff's expert material but there is no doubt that the new case could have been flagged earlier. Mr Gray-Spencer's affidavit, for example, indicates that he had all of the pages of Mr Ward's notes by at least 10 January 2008, which is the date of a letter he wrote in which the notes are mentioned. (The plaintiff was even prepared to concede 29 July 2009 as the very latest date for this purpose). I am reasonably confident that all of the pages of the notes were available to all defendants much earlier than this, but I make no finding about it at this stage.
26 Mr Lloyd's proposition, however, is that the new case theory does not, or at least ought not, call for a fresh investigation or the retention of new or additional expert opinions. The fourth page of Mr Ward's notes does not even mention glyphosate. The issue turns on an isolated question of fact to be established, if at all, out of the mouths of lay witnesses, such as Mr Hovenden and Mr Taylor, and possibly by the use of documents, to the persuasiveness or ancient frailty of which the plaintiff and the third defendant are equally exposed. Interestingly, Mr Ghirardello actually provided Mr Hovenden with detailed information for his consideration in January 2001 of what his investigations had revealed, but so far I have not sighted any response from Mr Hovenden. Moreover, Mr Lehmann nominated foliar fertiliser sprayed by aircraft and aircraft that applied the foliar fertiliser to the plaintiff's land as his first two working hypotheses on 2 December 2000, and in advance of outside farm drift as his third option. These possibilities have been alive at all times since then and all parties have had equal access to the means of establishing or discounting them.
27 In this last respect I am mindful of what has been said by Allsop J in White v Overland [2001] FCA 1333 at [4] as follows:
"However, 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. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the 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 is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil… Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. This is very much the case when an issue, if it is to be propounded, might endanger the instructions of those acting for the other side… In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone."
28 It will be apparent that in my view the present case is not one in which one of the parties has kept an issue hidden or has failed properly to identify it. On the contrary, what emerges is something that falls to be assessed as a comparison of what the plaintiff on the one hand and the third defendant on the other hand, if not all defendants, did with the information that was there for all to see. As Mr Lloyd has submitted, the plaintiff's contention that the defendants ought to have given earlier or clearer notice of what they now propose relies upon the proposition that the third defendant ought to have been more forensically diligent and astute than the plaintiff's own team of lay and expert witnesses in identifying the full raft of possible causes of the damage. That included the inadvertent loading of glyphosate into one of the aircraft operated by Pay's Air. I agree that such a contention should be rejected. The third defendant's defence to the amended statement of claim is sufficiently clear to authorise what is now proposed.
29 Mr Lloyd conceded that if I were to find that the third defendant were for some reason at fault for not raising the present matter earlier, the plaintiff ought to be given a liberal opportunity to call evidence in reply to meet the case. I do not consider that the third defendant is at fault in that sense. However, I earlier foreshadowed that the plaintiff should be protected from any unforeseen consequence that might arise from adopting the course I have endorsed and I see no reason to depart from it now.
Conclusions and orders
30 I consider that the third defendant should be permitted to call the evidence upon which it proposes to rely in support of the contention that the damage to the plaintiff's cotton crops and part of the sorghum may have been caused by the inadvertent loading of glyphosate into Pay's Air aircraft VH-LIU on 23 November 2000. The costs of the third defendant's application to do so should be costs in the cause. The plaintiff should have liberty to apply as it may be advised.