Plaintiff v Defendants

As in their earlier reports, the experts would be told to assume the fuel hazard within the coupes did not exceed "high." [5]

1. DSE argues that SPI is attempting to obtain fresh opinion from Mr Packham in order to mount a wholly new and unpleaded planned burning case. It says that deficiencies in the Incoll coupes were first uncovered in October 2012, when Mr Incoll produced a joint report with Mr Smith (a planned burning expert engaged by DSE), and that SPI should have been aware from that time that the Incoll coupes were likely to be attacked on the basis of impracticality.
2. Moreover, DSE says that the "tactical" decision of SPI to seek a supplementary report at this late stage of the trial would cause severe disruption and inconvenience, and is contrary to the spirit of various orders I have made in the course of this proceeding.[6]
3. Ultimately the question is whether it is in the interests of justice to permit further supplementary reports to be prepared by Mr Packham and Dr Marsden-Smedley, notwithstanding the extremely short notice by SPI of its proposal and the inevitable delay to the concurrent evidence session that SPI's proposed process may cause.

1. On 17 August 2012, on the instructions of SPI, Mr Incoll (a former Victorian Chief Fire Officer in the then Department of Conservation and Environment) produced an expert report concerning the method, manner and amount of planned burning undertaken by DSE between 1 July 2000 and 6 February 2009. Essentially, Mr Incoll was asked to opine on:
   • (a) whether the amount of planned burning carried out by DSE was reasonable; and
   • (b) what level of planned burning should have been carried out during that period.
2. Critically, in providing his opinion Mr Incoll identified 22 notional coupes which he considered were capable of being the subject of planned burning in an area described as the Kilmore Fire Area Public Land.[7] Mr Incoll then estimated the overall hypothetical fuel hazard, had the proposed coupes been treated in the years prior to Black Saturday.
3. In October 2012, Messrs Incoll and Smith prepared a joint report. In it, Mr Incoll accepted that his 22 proposed coupes were "notional," and to translate these into DSE burning coupes under current arrangements, the process required by the Code of Practice for Fire Management on Public Lands and the provisions within the relevant Fire Protection Plans to determine the actual burn area and define the boundaries of each burning block would need to be implemented.[8] The actual location and dimensions of the Incoll coupes was a key area of disagreement, a contest which will no doubt be borne out in the concurrent evidence session commencing 11 March 2014. As stated in the joint report of Messrs Incoll and Smith,

We agree that Mr Incoll's notional coupes do not always identify potential planned burning area boundaries. The notional coupes represent an "area" where DSE could or may apply the provisions of the Code and Fire Protection Plans and/or Fire Management Plans. We agree that in some cases within the notional coupes it would be necessary to fall back to existing roads or trails, or to construct new mineral earth breaks to utilise as the burning block boundary. Wherever it is necessary to do this, an element of land within the notional coupe will automatically be excluded from the burning block and will not be subjected to prescribed fire. We agree that although Mr Incoll has calculated coupe areas, the areas he calculates are not necessarily representative of the actual area to which planned burning could or is likely to be applied. We note that any such exclusions are in addition to areas that might routinely not burn in a burning block, or burn at a lesser intensity because they are riparian strips, gully areas or shaded areas where fuel moisture differential precludes burning. In practice, these latter types of areas are likely to occur within any prescribed burning blocks.[9]

1. In a separate joint report of Mr Incoll and Dr Meredith (an expert ecologist engaged by DSE), dated 24 October 2012, these experts stated,

We agree that the coupes identified in the Incoll report are a set of "notional" burning coupes that represented a maximum potential prescribed burning area, and which do not represent the actual prescribed burning outcomes that would be achieved once the ecological and other constraints (eg. topography, access, practical perimeter locations, etc) had been factored in at the coupe planning stage (as noted on page 22 of the Incoll report).[10]

1. Mr Incoll, who had some but limited and dated familiarity with the public land, adopted a ballpark figure of 80-90 per cent of the notional coupes that could be the subject of burning,[11] the remaining 10-20 per cent being excluded owing to topography, reference areas, or other land uses.
2. Despite these questions concerning the viability of the burning areas within the Incoll coupes, Mr Incoll's estimation of fuel hazard levels formed the basis of the assumptions SPI provided to Mr Packham (an expert in fire behaviour analysis and planned burning), as part of his instructions to map the extent of the putative fire had there been burning as Mr Incoll suggested. Accordingly, in August 2012, Mr Packham produced a report mapping out the hypothetical development of the fire on the basis of these assumptions.
3. DSE then instructed Dr Marsden-Smedley (an expert in fire behaviour analysis and qualified fire investigator) to determine what he considered to be the likely path, location and behaviour of the Kilmore fire, on the assumption that the fuel hazard on Black Saturday did not exceed "high" (the result of Mr Incoll's estimation) and that the overall fuel load in relevant areas was equivalent to 14t/ha (as estimated by Mr Packham and used in his report). Dr Marsden-Smedley delivered an initial report on 17 August 2012 and a supplementary report on 21 September 2012, responding to Mr Packham's report.
4. A joint report of Mr Packham and Dr Marsden-Smedley, produced on 16 October 2012, addressed the differences between each expert's methodology used to predict the likely path and behaviour of the fire on Mr Incoll's coupe assumptions, and considered what role spotting would have played in each expert's respective hypothetical fire path.

1. On 26 February 2014, SPI delivered to Mr Packham (with a copy provided to DSE) a set of instructions to provide a supplementary report on the course of the fire, taking into account the new assumptions described above at paragraph 6, based on Mr Grant'[12]evidence.12 On the same day, solicitors for DSE wrote to the solicitors for SPI alleging that SPI was in breach of Court orders which required all expert reports to be filed and served by 17 August 2012, and subsequent orders which gave leave for supplementary reports by named experts to be filed at later dates.
2. In oral submissions SPI proposed a timetable allowing for each expert to prepare further reports, as well as conduct a further conclave meeting and produce an additional joint report.
3. DSE says that the new assumptions given to Mr Packham by SPI are inconsistent with Mr Grant's evidence, and do not have regard to:
   • (a) the location of fuel management zones (particularly Zone 5);
   • (b) Melbourne Water's policies about burning in water catchments;
   • (c) the percentage of each area that would not be treated during a planned burn pursuant to a burn objective; and
   • (d) the presence of gullies in each area, which would not be burnt during a planned burn.[13]

1. Over the course of six days, Mr Grant gave evidence as to his experience and expertise in the role of Fire Management Officer of the Broadford district in the eight years prior to Black Saturday.
2. In this role, Mr Grant was responsible for the planning and carrying out of all planned burning in the Broadford region, including liaising with government and community stakeholders about the location and extent of any planned burns and devising numerous three-year rolling Fire Operations Plans. By virtue of his experience in hundreds of planned burns at both Horsham and Broadford, Mr Grant has extraordinary practical experience of the constraints imposed on planned burning activities, along with an intimate knowledge of the topography and weather conditions affecting the area of public land within the Broadford district.
3. Broadly speaking, Mr Grant gave extensive evidence on the level of planned burning undertaken from 2000-2009, and the various logistical and technical factors which affected burns planned or attempted by DSE. He described the planning process at both a local and regional level, particularly in relation to the policy documents applicable to planned burning in Victoria and the chain of command in place at Broadford.
4. In particular, during cross-examination by counsel for SPI, Mr Grant reviewed each of the Incoll coupes.[14] In doing so, Mr Grant commented on the feasibility of proposed boundaries as control lines, identified various assets or topography within the coupes which could inhibit planned burning activities, and estimated the proportion of each notional coupe which could have been realistically treated in light of his assessment. [15]
5. For example, when questioned about the practicality of an Incoll coupe at Clonbinane, an area of 2370ha, Mr Grant commented that two major recreation facilities on Allison's Road in the Mt Disappointment State Forest - "Number One Camp" and "Regular Camp" - would impede DSE's ability to conduct burning in the coupe. He pointed to other inhibitors within the proposed coupe, including a water catchment and logging/firewood areas, two of which were for the purpose of providing firewood to the public and an actual logging site.[16] Mr Grant explained that the southern proposed boundary was an Ecological Vegetation Community line (or "ECV" line), which could not form a realistic control line, and that the western boundary would be problematic, as both sides of the boundary were heavily forested, along which it would be extremely difficult to construct control lines using bulldozers as there were no tracks.[17] He estimated that approximately 60 per cent of this notional coupe would actually be treatable.[18]
6. Prior to Mr Grant's evidence, no witness, lay or expert, had in either a report or viva voce evidence addressed in detail the area of public land which could in a practical sense have been the subject of planned burning. It may be recalled that Mr Incoll's figure was a broad-brush 80-90 percent but, I infer, this was simply intuitive, based on his experience.
7. Counsel for SPI described Mr Grant in the following terms: "rarely has there been over six days a witness of such obvious ability and honesty and knowledge to assist, path by path, on possible burns."[19]

1. I have previously set out the principles relevant to late service of an expert report, in Thomas v Powercor Australia Limited (Ruling No 3)[20] and Matthews v SPI (Ruling No 20).[21] In Matthews v SPI (Ruling No 20), I thought it appropriate to apply the Aon Risk Services Australia Limited v Australian National University[22] principles in a general sense to such an application (bearing in mind that the principles set out by the High Court in Aon related to an application for late amendment of pleadings, rather than late service of an expert report). I have no reason to change my mind on that score:

Aon demonstrates that there are a number of factors relevant to an application such as this. For instance:

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

It is, however, to be remembered that the primary question still remains:

What do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party. [23]

1. In Thomas, the primary basis for rejecting the admission of a late served report was two-fold: the delay of the plaintiff's legal advisors in filing the report (irrespective of orders of the Court concerning the need to file the reports by certain dates); and, the risk of derailing the expert concurrent evidence sessions in the case.
2. Those factors I have referred to at paragraph 28 need to be considered in the context of whether it is in the interests of justice to permit the filing of a further report or reports. As I stated in Matthews v SPI (Rul[24]g No 23),24 all parties should have the opportunity to adduce further opinion evidence as part of a "just determination" of the proceeding unless it interferes significantly with the "efficient conduct of the business of the Court" or "the efficient conduct of the business of the Co[25]t".25

1. It is true, as DSE argues, that this application is made at a very late point in the trial and in a case in which I have been at pains, both in my rulings and orders, to emphasise the necessity to finalise expert witness material.[26]
2. However, I am persuaded that SPI should have the opportunity to seek Mr Packham's opinion on the basis of Mr Grant's evidence as to the practicality of the Incoll coupes. My reasons are as follows.
3. First, and primarily, the evidence of Mr Grant is unique. He is the only person who has an intimate knowledge of the physical characteristics of the public land. For better or worse (I remain firmly of the view that it was for the better) I determined that witness statements would not be provided in this case. It may be that if a witness statement had been provided by Mr Grant his evidence as to the practicality of the Incoll coupes would have emerged at an earlier point in time. In any event, it was only in cross-examination by counsel for SPI that Mr Grant's views as to the practicality of planned burning operations in the Incoll coupes were ascertained based on a detailed and thorough analysis.
4. There is real force in the criticism that SPI should have tried harder once the two joint reports were received: the reports must have demonstrated to SPI that that the Incoll coupes could not survive scrutiny. However, notwithstanding that inaction I am sceptical, having heard Mr Grant's evidence, that even the most determined litigant would have been able to pursue the issue further absent a mole in DSE defecting to SPI.
5. The extent and clarity of Mr Grant's evidence (which is acknowledged by SPI) means that there is now a firm evidentiary basis upon which to analyse the question of planned burning. Absent prejudice to a party or a severe disruption to the trial calendar it would, in my opinion, be inimical to the interests of justice to permit this part of the case to proceed on Mr Incoll's assumptions of fact as contained in his first report, when it is distinctly possible - if not likely - that the evidence of Mr Grant will be relied upon in terms of determining the appropriate assumptions of fact.
6. Second, I have made numerous rulings and comments about the necessity for the parties to adhere in substance to the material contained in the expert reports and the joint reports. In the main (but with a few notable exceptions), the parties have adhered to this approach. As I have already indicated, Mr Grant's evidence is in a special, if not unique, category. It will not require Mr Packham to express an opinion on matters different to those contained in his original report. Rather it will simply require him to consider Mr Grant's evidence and determine whether he wishes to modify his opinion. The central thrust of his opinion is directed towards the land which may or would have avoided destruction if planned burning had been carried out in the Incoll coupes.
7. Third, as I mentioned, once SPI knew of Mr Incoll's reservations, it probably should have done more. However, I do not accept the submission that there was some Machiavellian scheme on the part of SPI to endeavour to have Mr Incoll's coupe theory avoid a confrontation with the evidence of DSE. At one time, counsel for DSE asserted that SPI's proposal was in deliberate disobedience of court orders (to the effect that SPI was knowingly in contempt of court), though this submission was swiftly withdrawn unreservedly.[27] Whilst it is true that SPI's counsel needed slight encouragement from the bench to tackle Mr Grant with the Incoll coupes, the reality is that at some point of time the practicality of the implementation of the Incoll coupes had to be addressed, whether in evidence-in-chief or in cross-examination.
8. Fourth, permitting a party to put an alternative hypothesis (or series of assumptions of fact) to an expert is quite common, particularly where the issues of fact may either be in dispute or unclear until evidence is given at trial. In a "run of the mill" trial, it is also not unusual for an alternative hypothesis (not addressed in an expert report) to be put in cross-examination or, at times, in evidence-in-chief. I do not accept that SPI is attempting to obtain fresh opinion on new matters - it is simply providing a different set of assumptions to its expert. This is a totally different situation to that in Thomas where an expert had been engaged at the last moment to bolster a party's case.
9. Fifth, assumptions of fact based upon Mr Grant's evidence do not, in my opinion, fall outside SPI's pleaded case. The pleaded case, in essence, is that DSE should have conducted planned burning within the Incoll coupes. However, Mr Grant's evidence does not extend the number of coupes either in size or number - quite the opposite, it reduces the area of land which could have been the subject of planned burning. Mr Grant's evidence, given from extensive local experience, supports the proposition that only a proportion of the proposed coupes could be subject to planned burning. As I mentioned earlier, Mr Incoll had, on a general basis, assumed that around 80-90 per cent of the coupes could, in fact, be burnt. Mr Grant's evidence gave greater specificity to those areas within the notional coupes which could be burnt and, in almost every case, produced a lower percentage than that postulated by Mr Incoll. In other words, the case against DSE, if Mr Grant's evidence is accepted, is narrower than it was when based on the Incoll coupes (assuming an 80-90 percent burn). To decide this application on the basis of a divergence from SPI's pleadings would be a triumph of form over substance. The only real consideration that flows from the pleaded case is whether the fresh set of assumptions based upon Mr Grant's evidence can be met in a timely fashion by DSE.
10. Sixth, although there may be some incongruities (between the new assumptions given to Mr Packham by SPI and Mr Grant's evidence, as alleged by DSE and referred to at paragraphs 6 and 20 above), this is not a reason to permit Mr Packham to proceed on the basis of those assumptions. Of course SPI will be aware that if there is a disparity of substance, it will affect the weight given to any opinion arising out of Mr Packham's supplementary report.
11. Finally, there is the question of prejudice to DSE. Provided Dr Marsden-Smedley is able to produce a supplementary report to respond to that of Mr Packham, DSE will suffer no prejudice. Rescheduling the concurrent evidence of the two experts will cause some disruption to the trial timetable but not to the point of that being a disqualifying factor for the provision of the two supplementary reports. My current thinking is that the evidence of those two witnesses can be deferred for three weeks. Whilst this will cause some difficulties with the planning of other expert witness evidence, those problems are not insurmountable.

1. The alternative to permitting further supplementary reports is having Mr Packham proceed to give evidence on the basis of Mr Incoll's original assumptions, notwithstanding that those assumptions are now the subject of, arguably persuasive, modification.
2. As Dixon J said in an earlier ruling in this case considering the merits of the (now abandoned) fire suppression case:

It is sensible and reasonable to conclude that a claim that is dependent for its success on expert evidence becomes fanciful once the basis for the expert opinion that has thus far sustained it evaporates. That is what has happened here_. The expert's opinion based on unproved assumption will become irrelevant and is likely to become either inadmissible or unacceptable to the court._ It is a central tenet of the Civil Procedure Act, evident in its application to experts, that expert opinion plays a critical role in relation to the overarching purpose expressed by that Act. Its obligations come into play prior to the trial, for participants in litigation on whom the overarching obligation fails, when the basis for expert opinion falls away.[28] (citations omitted and emphasis added)

1. Simply put, Mr Grant's evidence may have occurred at an inconvenient time but it cannot be ignored. It is clearly contrary to the interests of justice for the case to proceed to judgment with Mr Packham operating on a set of assumptions that may prove to be inaccurate or unreliable. Accordingly, Mr Packham should be given the opportunity to prepare a supplementary report.
2. If Mr Packham is to prepare a supplementary report, it follows that Dr Marsden-Smedley (whose report is also based, in part, on Mr Incoll and Mr Packham's assumptions) should be able to prepare a further report. Not only would there be real prejudice to DSE if Dr Marsden-Smedley was not able to reconsider his original findings, it would be nonsensical to have each expert opine on an assumption when it is known that it may be in doubt.
3. At this stage, I do not consider it necessary for Mr Packham and Dr Marsden-Smedley to meet and prepare a further joint report prior to the rescheduled concurrent evidence session on Wednesday 9 April. If on receipt of their supplementary reports it becomes apparent that it is necessary for a further joint report to be prepared, orders can be made giving effect to that course.

1. The Court orders that:
   • (a) SPI have leave to file and serve Mr Packham's supplementary report by Monday 17 March 2014.
   • (b) DSE have leave to file and serve Dr Marsden-Smedley's supplementary report by Monday 31 March 2014.
   • (c) The concurrent evidence session involving Mr Packham and Dr Marsden-Smedley scheduled to commence on Monday 17 March 2014 be vacated and rescheduled to commence on Wednesday 9 April 2014.

[1] I have used the Department's previous title, "DSE", throughout this Ruling.

[2] The term "planned burning", as used in this Ruling, refers to fuel reduction burns. These are fires deliberately lit and controlled by DSE on public (and occasionally private) land. Such burns are aimed at reducing the overall fuel hazard on public land, and accordingly, reduce the threat or intensity of subsequent wildfire on or around that land.

[3] SPI is leading the claim against DSE. Mrs Matthews has also joined DSE, as has UAM on its cross-claim.

[5] SPI's submissions, [14] (CRT.SPN.202.0001, 0004-0005).

[6] I have set out some of these orders at [17]-[22] of Matthews v SPI Electricity (Ruling No 20) [2013] VSC 197.

[7] Appendix Seven to Mr Incoll's report (EXP.SPN.600.0001, 0066). The Kilmore Fire Area Public Land is referred to in this Ruling as "public land" and includes State forest, regional parks and national parks in the Kilmore East/Kinglake area.

[13] DSE's submissions, [21] (SUB.STA.008.0001, 0005).

[15] SPI's submissions, [11] (CRT.SPN.202.0001, 0004).

[20] [2011] VSC 391, [12] ("Thomas").

[21] [2013] VSC 197.

[22] [2009] HCA 27; (2009) 239 CLR 175 ("Aon").

[23] [2013] VSC 197, [38] citing Thomas v Powercor Australia Ltd (Ruling No 3) [2011] VSC 391, [12].

[24] [2013] VSC 239, [21].

[25] Civil Procedure Act 2010 (Vic), s 9.

[26] Matthews v SPI (Ruling No 20) [2013] VSC 197; Matthews v SPI (Ruling No 23) [2013] VSC 239.

[28] [2013] VSC 74, [39].