NM Rural Enterprises Pty Ltd v Rimanui Farms Limited

Judgment 1HIS HONOUR : The first defendant applies by notice of motion filed 24 February 2011 for an order pursuant to s 53 of the Evidence Act 1995 that an inspection of the properties "Boonaldoon" and "Tellerega" be held by the Court in the presence of the parties and their legal representatives. Section 53 provides relevantly as follows: " 53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) ..., (e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered. 4. ..." 2The plaintiff opposes the application. The second and third defendants neither support nor oppose it. 3I have referred to the facts that give rise to these proceedings in some detail in previous judgments. See, for example NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2008] NSWSC 472 . In short, the plaintiff alleges that the defendants are in various ways responsible for damage to crops sown on the plaintiff's property Tellerega caused by the herbicide glyphosate that is said to have drifted from the aerial spraying of glyphosate upon the first defendant's property Boonaldoon. The properties are very large and are about five kilometres apart at their closest point. The events that are complained of allegedly occurred in November 2000. The proceedings were commenced in 2003. Although the present application has been referred to or foreshadowed many times throughout the course of the proceedings, it was not formally filed until recently and was not heard until the hearing proper had rolled into its 29 th day. Almost all of the evidence had by then been completed. Much of the evidence consists of experts' reports and documents filling several thick folders. Maps, plans, diagrams, transparencies and overlays, and manifold photographs are included in this material. Constant reference and cross-reference to this material, which exceeds 4500 pages, has been made throughout the hearing. There are also almost 1700 pages of transcript so far with an estimate of more than a week left to complete the case. 4In support of its motion the first defendant relies upon the evidence of its solicitor Mr Moylan and its general manager Mr Grellman. Each is familiar with the respective properties and their relationship to one another, as well as with the local geographical and topographical features and characteristics. Their ability to express opinions based upon acquired knowledge of the area is not challenged. 5Mr Moylan said in his affidavit that his own visits to the properties, and the observations he has made of them and the surrounding areas, have assisted him to understand the scale of the landscape, the distance between the properties and the fields, and how fixed landmarks spatially relate to each other. They have also assisted him to understand the size of the two properties and their relationship having regard to features referred to as the stock route and the buffer zones and the Gwydir River and the Gwydir Highway. Mr Moylan also said that his visits have helped him to understand that "the topography of the landscape" between the two properties undulates quite considerably and that in his opinion that is a feature that cannot properly be appreciated in two dimensions. He also said that he has been helped by his visits in understanding that the river and the highway follow unchanged fixed courses "which also vary in their spatial relationship to each other from point to point", and in his understanding of the operation of the various buffer zones and relative heights and distances and what he referred to as "the type of vegetation that would assist in the dissipation of spray drift". 6Mr Moylan effectively summarised the basis of the first defendant's application at paragraph 18 of his affidavit. It is in these terms: "18. I am of the opinion that the court would be assisted by taking a view of both properties in order to gain a full appreciation of the landscape generally, the size of the two properties and their relationship to each other in the landscape, the distances between them, and the nature and condition of the intervening vegetation." 7Mr Grellman had previously given evidence in the proceedings. He said in his affidavit that he commenced employment with the first defendant in August 2001 and has regularly driven over the roads and fields of Boonaldoon since that time. He has also flown over the property many times in planes and helicopters. He has visited Tellerega four times between 2001 and 2009, and has also viewed it from the air. 8Mr Grellman prepared the map that became exhibit "A". He used a satellite photograph to do so. He offered what I consider to be the uncontroversial opinion that "the topography of the landscape has not changed in any material respect to the way it is shown" in that exhibit. He intended by that to emphasise that the Mehi River still runs the same course, and that the vegetation along the riverbanks and between the river and the Gwydir Highway remains essentially the same as in 2001. However, the internal fence lines on Boonaldoon have been moved and repositioned since about 2004 and the position of the farm roads on that property have also been altered as a result. He said that the vegetation between the Gwydir Highway and the southern border of Boonaldoon is essentially the same as in 2001. He also said that in his view the height and density of the eucalypts and coolabah trees on the southern boundary of Boonaldoon and the buffer zones has not changed significantly. The area has not been affected or changed since 2001 as a result of bushfire. 9Central to the present inquiry are the questions of whether the inspection will in my opinion assist me in resolving issues of fact or understanding the evidence, and whether or not it can be said that the properties and area to be inspected have materially altered. In this last respect it is inevitable that some alterations have occurred but I would not be disinclined to order an inspection that proceeded upon the basis that these alterations could be described as "material". The evidence is to the contrary. 10I also do not discern that the proponent of the inspection suggests that it is necessary to assist me to resolve specified issues of fact. In putting the matter that way I accept and appreciate that there is a hotly contested overriding issue of fact, namely, whether spray from Boonaldoon could have travelled the four or five kilometres to Tellerega at all, or more particularly whether it could have done so in sufficient quantities or concentrations to cause the damage alleged. The first defendant has maintained in these proceedings that no more than 30 grams of active ingredient per hectare could have been delivered to Tellerega and that it was not possible for such an amount to cause the damage observed. However, as I understand the application, it is promoted on the primary basis that it will generally assist me to understand the evidence. It is axiomatic that a better understanding of the evidence would be coextensive with an increased level of assistance in resolving issues of fact. These considerations have to be assessed and judged in the context of matters that include, but are not limited to, the danger that the inspection might be unfairly prejudicial, misleading or confusing or cause or result in undue waste of time. I also observe that the plaintiff does not contend that the inspection would be unfairly prejudicial, misleading or confusing but does contend that it would cause or result in an undue waste of time. 11In addition to these matters, both the plaintiff and the first defendant recognised that the cost of the inspection was a relevant consideration. The only practical way of conducting an inspection is to fly to Moree and drive to the properties, approximately 50 kilometres to the west. No suggestion that the properties should be inspected from the air has been made. The inspection is estimated to take about four hours although no difficulties would be encountered if longer were required. A plane leaves Sydney at 7.00 am and returns to Sydney at 9.00 pm. The cost of flying to Moree is approximately $450 per person. No accommodation costs would be involved if the inspection took place in one day as anticipated. The total expended cost or outlay would therefore be a function of the number of people who were to be flown to Moree and back. 12The plaintiff assessed the total cost of the exercise at about $45,000, made up of $5,400 in airfares for 12 people, solicitor's costs of $10,500 and counsel's fees of $29,400 for the day. These figures were based upon the prospect that more than one legal representative of whatever persuasion would be required to attend, as opposed to a limited group of one for each party plus me. If the inspection took place during any day when the case would otherwise be running, the costs would increase to the extent that it was prolonged by the day used for the inspection. Conversely, if numbers on the inspection were limited, the costs of the inspection would not equate to the costs of a normal hearing day with everyone present, but would in fact be likely to be much less. There is no prospect of inspecting the properties on a weekend because of flight schedules. Consideration 13It hardly seems in doubt that an inspection would assist me in understanding the evidence. There is a debate about the extent to which it would do so. Significantly, it is not suggested that any particular part of the evidence, or the evidence as a whole, cannot be understood without an inspection. So much is evident from the way in which the case has been conducted so far. For example, no expert witness has felt constrained to suggest that his or her expert opinion or analysis was imperilled by me not seeing first hand the physical locations and environs or the many local features factored into the opinion in question. All experts have to my observation been prepared to resort to and to rely exclusively upon written, diagrammatic and photographic material as sufficient aids to explanation and comprehension. Similarly, all witnesses of fact have appeared to me to be able satisfactorily to describe the relevant events concerned, and the place or places that they are alleged to have occurred, even though I have not viewed these places to which they refer. I accept that the first defendant contends that my understanding would be better if I had. 14Much of the technical evidence in this case touches the question of spray drift as a known and measurable physical phenomenon. Wind vector analysis has figured prominently in the evidence from the experts. The integers involved in calculations in this area of study, as well as others of relevance in the case, include climatic conditions such as the time of day, temperature and diurnal variations, relative humidity, wind speed and wind direction, and factual matters such as the physical and chemical make up of the substance being sprayed, its droplet size, the rates of its application, nozzle angle, plane speed and altitude, the presence or absence of an inversion layer as well as many others. None of these factors as such, whether taken together or in isolation, requires an inspection of the properties before I can understand them, or before the opinions that utilise these factors become clear. That is not to say that the scientific concepts thrown up by this case, and resolution of the competing opinions upon which they are based, are not difficult. The extent to which they require an intimate appreciation of the spatial relationships between or among the physical characteristics of the properties and the locality, before they can be understood, or sufficiently understood, but which I cannot have acquired from the evidence so far, is less clear. 15At one level I accept that the more information with which I am provided, and which I can use, the better able I am to decide the case correctly. In cross-examination of the various lay and expert witnesses, reliance was placed from time to time on photographs of the properties and of the areas between them, including the buffer zones. With the exception of the occasional and expected reference to difficulties in perspective that necessarily arise in using and interpreting photographs accurately and reliably, no party ever suggested, as far as I am presently able to recall, that the photographs in evidence were not sufficient or adequate as reliable depictions of the properties and the surrounding areas. It is true that variations in topography, and the subtle variations and undulations in the otherwise apparently flat fields and areas between the properties, as well as the significance of the height and density of the trees, would be informed by an inspection. These matters are clearly relevant to the issue of spray drift. I accept that an inspection would assist me to understand evidence about these features. I do not consider that the assistance would be great. 16My task is a discretionary one. At one level an inspection before the case commenced would have been both sensible and more attractive as a theoretical proposition than it now appears. Evidence that required some explanation as the case proceeded may have required less, or even no explanation, if an inspection had occurred beforehand. However, other than in general terms, the evidence that I might better understand if an inspection were to take place now is not identified. No constantly reoccurring difficulty with the evidence has presented itself during the course of the hearing that appeared to be incapable of adjudication without an inspection. It may be that, in the absence of an inspection, I presently misapprehend the evidence, or some of it, or its significance or lack of it. I repeat that my attention has not been drawn to such evidence except in the sense that an inspection would be a good idea. By way of contrast, the need to understand how a piece of equipment, such as a lathe, operates, and how the fail safe mechanisms engineered into its design may be frustrated or overridden, almost demands a physical inspection as an aid to proper understanding. The fact that trees may cause droplets of glyphosate travelling in a state of atmospheric suspension to be interrupted or completely halted, or that their journey over apparently flat ground may be affected in some way if undulations are shown to exist, are not comparable in my view. 17I had suggested during argument that any inspection that took place might conveniently be limited to only essential representatives of the parties. The first defendant accepted that as a suitable approach. I understand the plaintiff to contend that there may be at least a potential prejudice to it if its representatives were not all able to be present. In the events that have occurred, that distinction is not important. The cost of the inspection would have inclined me to refuse the application if it were to be as much as $45,000. I would have been prepared to order that an inspection take place in a much more confined way, because I would have considered that the absence of the parties, other than by their legal representatives, would not have amounted to a denial to them of a reasonable opportunity to be present. This is so in particular because the inspection would have been no more and no less than a view or an opportunity to look at something with which the parties are all intimately familiar. Conclusion and orders 18In my opinion, an inspection would now amount to an undue waste of time. It has not been demonstrated to me that the benefit that an inspection might now produce would warrant either the delay of an extra day or the costs it would generate. I do not consider that an inspection will presently assist me either in resolving issues of fact or in understanding the evidence in a way that warrants either the expense or delay that such an inspection would involve. This is predominantly because the present state of the evidence is so detailed and extensive, and the expert opinions are so numerous and voluminous, that viewing the properties and the local terrain is unlikely to add anything that is not otherwise available for my use. I accept that an inspection would add to the pool of information available to the Court any thereby generally assist it in resolving issues of fact or understanding the evidence. In my opinion, the assistance and understanding referred to in s 53(3)(b) contemplates assistance going beyond that which almost any inspection might generally be expected to provide. 19I consider that the application should be refused with costs.