Sanda v PTTEP Australasia

1. Makes the rulings in [12], [15] and [17] of the reasons published today as Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 5) [2019] FCA 932. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

YATES J: 1 This proceeding is a representative proceeding brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth) concerning alleged damage to seaweed farming activities in Indonesia. The damage is alleged to have occurred from an oil spill at the Montara oil field operated by the respondent. The nature of the claim is more fully discussed in Sanda v PTTEP Australasia (Ashmore Carter) Pty Ltd (No 3) [2017] FCA 1272. 2 At the hearing of the proceeding, the applicant (a seaweed farmer whose crops were allegedly damaged as a consequence of the oil spill) proposes to read a number of affidavits by lay witnesses, including other seaweed farmers whose crops were, similarly, allegedly damaged. The respondent has raised a number of objections to statements made in the affidavits, including in an affidavit made by the applicant himself. 3 Through discussions between the parties, some of the objections have been accepted by the applicant (with the consequence that certain paragraphs or parts of paragraphs in the affidavits will not be read) and some of the objections are not pressed. As regards the latter, in some cases the objection has become otiose because, rather than reading the part of the affidavit objected to, the applicant will adduce evidence orally from the deponent concerned. 4 There nevertheless remain some objections to the affidavits which are pressed, and which require rulings as to the admissibility of the statements made. 5 Other than in two cases, the objections relate to one matter - the competence of the deponent to state that the substance he saw affecting the crops was oil. The respondent objects to such a statement being made, essentially because (on the respondent's argument) the statement that the substance was "oil" is an expert opinion as to the identity, or perhaps characteristics, of the substance in question. Whether oil from the spill at the Montara oil field reached the pleaded Indonesian coastal areas and affected the crops in question are disputed facts in the proceeding. 6 For his part, the applicant submits that the use of the word "oil" in the affidavits is not expressed as an opinion, and is certainly not intended to be relied upon as expert opinion. The applicant submits further that if, as a matter of legal characterisation, the various uses of the word "oil" are "opinions", then they are opinions that fall within s 78 of the Evidence Act 1995 (Cth) (the Evidence Act), which provides: The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 7 The applicant also submits that the word "oil" is used in the affidavits as a sequencing device to delineate events and circumstances before the "oil" arrived, and events and circumstances after the "oil" arrived. The applicant submits further that, in each case, the deponent gives evidence of the appearance, smell and/or feel or other description of the substance he perceived to be "oil". Thus, there can be no doubt what each deponent means by the word "oil". 8 All paragraphs affected by this objection are identified in a schedule provided to the Court when hearing argument on the objection. The respondent accepts that this objection, as it applies to all the affidavits to be read, can be determined by a ruling with respect to the applicant's affidavit sworn on 18 August 2018. As regards the applicant's affidavit, I also record that paras 69 to 74 thereof, as well as other paragraphs, provide a description of the substance he describes as "oil". 9 Having read the challenged parts of the applicant's affidavit, I doubt that, when using the word "oil", the applicant is expressing any opinion of the kind captured by the opinion rule expressed in s 76 of the Evidence Act. The word "oil" is, after all, an ordinary English word. Language, both written and verbal, is used as a means of expressing or communicating human cognition about some event, circumstance, matter or thing. I do not think that the intendment of the opinion rule is to capture, as an "opinion", those cognitive processes that are brought to bear in selecting an ordinary English word to denote a particular object, matter or thing. 10 In any event, if the applicant's use of the word "oil" is properly characterised as an "opinion" for the purposes of the Evidence Act, I am satisfied that the applicant's use of "oil" falls comfortably within the s 78 exception. The word "oil" is used as a statement of the applicant's perception about a matter or event, and this "opinion" is necessary to obtain an adequate account or understanding of his perception. 11 I would add that my acceptance of the applicant's use of the word "oil" does not necessarily entail a finding that the substance he observed as "oil" had any particular chemical, physical or other properties or characteristics beyond those otherwise described (again using ordinary English words) in his affidavit. 12 I therefore reject the objection and, when the affidavit is formally read, will allow this particular evidence to be given. In light of the respondent's acceptance that this ruling can be carried forward into similar paragraphs objected to in other affidavits, I will also allow that evidence to be given when the respective affidavits are formally read. 13 This leaves two further objections to be dealt with. 14 The first concerns the second sentence of para 92 of the affidavit of Adrian John Sibert affirmed on 30 August 2018. Mr Sibert is a youth and community worker, and horticulturalist. He owns freehold property on the beachfront at Sedeoen, which is a small village in Rote Island where, it is said, oil from the spill at the Montara oil field reached. In his affidavit, Mr Sibert makes observations about seeing oil at Sedeoen in about late September 2009. At para 92 he says: At Sedeoen there are a lot of currents and tidal movements. Given the currents, I believed the material was pushed in a northerly direction further up the western Rote coastline. (Emphasised sentence objected to.) 15 The respondent submits that this paragraph expresses an inadmissible opinion. The applicant submits that this opinion is admissible because Mr Sibert is a surfer and fisherman and has relevant expertise for the purposes of s 79 of the Evidence Act, which renders admissible an opinion based on specialised knowledge through the witness's training, study or experience. I am not persuaded that Mr Sibert's claimed expertise is established. Further, the opinion is expressed as a bare conclusory statement. I will reject the second sentence of para 92. 16 The second objection concerns the fourth, fifth and sixth sentences of para 7 of the affidavit of David John Ralph affirmed on 19 August 2017. Mr Ralph is a resort manager at Lualemba Bungalows on Rote Island. At the hearing of the objection, the applicant said that it does not (will not) read the sixth sentence of the paragraph: In August or September 2009, I heard that there had been an oil spill after an explosion on an oil rig in the Timor Sea. I knew that the rig was called Montara but I did not hear much detail about the oil spill at the time. I looked out for news about the spill and was surprised by how little coverage there was other than some short articles on the ABC website. There was general discussion about the spill at my bar and restaurant; however, it was not a detailed discussion. Other expatriates around Nemberala mentioned it; including, as I remember it, how little information had been on the news. … (Emphasised sentences objected to.) 17 The respondent objects to the fourth and fifth sentences on the basis of hearsay. The applicant says that the sentences will not be read to prove the truth of the assertions made; they are relied on only as evidence that people were talking about the oil spill. Part of the sentences objected to contain statements that are admissible on a non-hearsay basis. I will admit the sentences other than the words: … including as I remember it, how little information had been on the news. 18 These words can only serve a hearsay purpose and are inadmissible. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.