Plaintiff v Defendant

Supreme Court of Victoria|2011-09-21|Before: J FORREST J

PROCEDURE - Application to call expert witness without O.44 report provided - No basis established - Application refused.

**1 I have in my previous rulings[1] set out some of the background to this claim and the procedural steps involved with the adducing of expert evidence.

3 The issue of the valuation of the loss of amenity was primarily the subject of expert evidence given by Ms Lisa Stafford, a horticulturist, engaged on behalf of Mr Thomas. The expert called on behalf of Powercor, Mr Tony Hartley, did not have horticultural expertise and did not express an expert opinion on horticultural matters.

4 At the conclusion of the concurrent expert evidence session dealing with loss of amenity of the house as a result of the destruction of trees and shrubs surrounding it, senior counsel for Mr Thomas made application to call Dr Moore, a highly experienced horticulturalist. Dr Moore is the designer of what is known as the "Revised Burnley Method"("RBM") which was utilised by Ms Stafford in calculating her valuation of loss of amenity.

5 No expert report had been provided by Dr Moore, nor had he participated in the joint experts' meeting. It was proposed to call Dr Moore to, in effect, validate the RBM as an appropriate form of calculation of loss of amenity.

6 Ultimately, I determined, after hearing argument, that Dr Moore should not be permitted to give evidence on this topic. Now, as promised, I set out my reasons.**

**7 After the exchange of expert reports, it was clear that Mr Thomas proposed to rely upon the assessment of amenity based upon RBM and referred to in Ms Stafford's report. Mr Hartley, in his original report, took no issue with this method of analysis.

8 However, after the meeting of experts in May 2011, the joint report noted:**

The value of $78,330.00 is comprised of $68,430.00 for the value of trees and shrubs as determined by the Revised Burnley Method which is described at section C page 7 of the Aberdeen Report, and an amount of $9,900.00 as an allowance for removal of the burnt trees.

Mr Hartley disagrees with the use of the Revised Burnley Method as an appropriate valuation for the actual replacement of the trees that were killed or damaged in the Plaintiff's garden.

Mr Hartley disagrees with the use of the Revised Burnley Method for the valuation of trees in rural gardens or settings.

Mr Hartley disagrees with Mr Aberdeen's tree valuation as it has not provided a value for the actual planting of trees to replace the damaged or destroyed trees.

Although Mr Hartley advises that he has had a telephone conversation with Dr Greg Moore who developed the Burnley Method for valuing Amenity Trees, I note that on page 12 of his first report, Mr Hartley decides not to use the valuation methods which I used to arrive at the loss assessment in the Aberdeen report. Instead Mr Hartley states at 4.6 in his first report that he "has been instructed to quantify the replacement of the trees and shrubs that were damaged or destroyed in the fire".

**9 It was apparent from the evidence given by both Ms Stafford and Mr Hartley that each of the parties (through their experts or counsel) had spoken to Dr Moore prior to the trial commencing. Mr Hartley had spoken by telephone to him in 2011[2] and a conference had been held by senior counsel for Mr Thomas with Dr Moore and Ms Stafford prior to the trial commencing[3].

10 Up until the conclusion of Ms Stafford's evidence, neither party had sought leave to adduce evidence from Dr Moore (no Order 44 report was filed).

11 There were a number of directions hearings held subsequent to the delivery of the joint report and no mention was made of calling Dr Moore.**

**12 Since the joint report in May 2011, it has been well known to Mr Thomas' legal advisers that there is an issue about the use of RBM. It was clear that there was a real dispute as to the appropriateness of this method of valuation, notwithstanding that Powercor did not advance an alternative method of horticultural valuation.

13 In my view, Mr Thomas' legal advisers, made a considered decision not to adduce evidence from Dr Moore having had the opportunity to confer with him. It was patently open to them, in the light of the joint report, to put on evidence from Dr Moore and make application prior to the trial to adduce his evidence. It was inevitable that such an application would have been granted, given that that use of RBM was first flagged as an issue in the joint report. However, it would appear that a tactical decision was made not to do so. It was only after the questioning of Ms Stafford by Powercor's counsel in the course of the concurrent evidence session that the application was made. I should add that no expert evidence report was produced and it was simply submitted that Dr Moore should be permitted to give evidence on the following day.

14 In any event there is evidence of Dr Moore's role in the development of RBM within the material adduced from both Mr Aberdeen and Ms Stafford. Attachment 7 to Mr Aberdeen's report sets out Dr Moore's paper "Tree Valuation: 2005 Revised Burnley Method"; which, in turn, refers to three other papers published by him. Ms Stafford, of course, explained in some detail, both under questioning from counsel for Mr Thomas and for Powercor the basis for RBM.

15 No acceptable explanation was proffered for calling Dr Moore without an expert witness report or at such short notice.

16 I should now deal with the matter that caused me some concern on this application. Set out below is part of Question 8 which is one of the questions I have to determine in this trial:

What are the appropriate principles to be applied in determining Mr Thomas' and the group members' damages in relation to:

17 My primary concern if I did not permit evidence to be given by Dr Moore, was the effect that the exclusion of such evidence may have on the claims of group members in the event that liability was decided favourably to the group. It has become clear in the course of this trial that any assessment of loss will be confined to a determination of Mr Thomas' loss pursuant to s 33Z(1)(e) of the Supreme Court Act. Whilst I may be able to answer at least in a general sense this part of the question (posed in Question 8), it is clear that the nature of the assessment of loss of amenity is location and property specific. The method of valuation for loss of amenity at one property may well be totally different to the valuation of the loss on another.

18 In the event that I am persuaded that RBM is the appropriate method to value Mr Thomas' loss of amenity, it does not follow that it is an appropriate measure of the loss for other properties. Much depends upon the location of the trees and plants, the actual amenity provided to the home and its occupants and several other considerations. In other words, it is simply not possible to make any binding order as to the appropriateness of RBM on a total class basis. The reality is that the assessment of this loss will need to be dealt with on a case by case basis, applying appropriate valuation methods which may differ from case to case.

19 Finally, there is a point I have tried (perhaps vainly) to make throughout this proceeding. Many directions hearings were held and orders made by the Court with the idea of the presentation of evidence being conducted in an orderly fashion, i.e. without multiple surprises. Here, a tactical decision was made not to adduce evidence from Dr Moore. To permit Mr Thomas to now call Dr Moore (without any Order 44 report) simply to buttress the evidence of Ms Stafford would, I think, fly in the face of the principles I endeavoured to establish in the pre-trial management. It should be recognised by legal practitioners that there is a purpose to the making of orders for the adducing of evidence, expert or otherwise, particularly in the course of a lengthy and difficult trial conducted in rural Victoria.

20 For these reasons, I refused the application to call Dr Moore.**

[1] 2011 VSC [391] and 2011 VSC [481].

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