The evidence of other seaweed farmers, village heads and other lay observers
171 A large body of evidence was called from other seaweed farmers and the heads of villages in the Rote/Kupang region concerning the observations they made in late 2009, particularly in the September/October period, of the presence of (what they described as) oil on beaches and in the surrounding waters, and the impact of that oil on the seaweed crops growing in the area at that time. In many cases, this evidence was given orally through interpreters and subjected to cross-examination.
172 As to be expected, the evidence differed from witness to witness, no doubt reflecting each witness' attempt to recall events that had occurred many years beforehand. There were, however, noticeably recurring observations across the evidence, such as the observations of waxy clumps of material, variously coloured, that was slippery or oily to the touch and which irritated the skin, and the presence of rainbow-coloured sheen on the water. Some witnesses spoke of the smell of kerosene or diesel oil or other fuel smells.
173 The substance of this evidence is summarised in Schedule C to these reasons. A number of the witnesses referred to maps (some maps better than others) showing the locations of their villages or seaweed farms. Where possible, I have included these maps in Schedule C. Schedule C also summarises the evidence of lay observers who were not seaweed farmers or heads of villages.
174 The respondent challenged the reliability of this evidence, submitting that the Court should exercise considerable caution before accepting it. The respondent pointed out, correctly, that, in their affidavits and oral evidence, the witnesses were relying on their memories of events which occurred many years ago. The respondent submitted that it is highly improbable that anyone would could recall with precision the characteristics of a substance observed almost ten years ago. The respondent pointed to the lack of photographs, notes or other contemporaneous records to support these recollections.
175 The respondent also contended that, in the case of the seaweed farmers, there was a risk that the potential of receiving a financial benefit from this litigation "impacted the construction of the impression that they presented". It is not entirely clear to me what the respondent means by that expression. I assume that the respondent means that, subconsciously, the witnesses presented their recollections in a way that enhanced their prospects of receiving a financial gain.
176 The respondent devoted a section of its written submissions to outlining the respects in which it contended that the testimony of some of the witnesses was unsatisfactory, or should be treated as unreliable, either generally or in certain respects, or should be treated with caution.
177 One recurring theme in the respondent's submissions was that the memories of some seaweed farmers had been contaminated, to a very large extent, by "consensus" versions of the facts they had discussed many times. To explain, the process of information gathering for the purposes of this proceeding involved meetings attended by seaweed farmers from particular locales. These meetings were called "sign up" meetings - meaning that the seaweed farmers were "signed up" to the class action (the definition of Group Members in the further amended statement of claim includes the requirement that they have signed a particular funding agreement before the commencement of the proceeding). At the "sign up" meetings, a number of topics were discussed, including the nature of the proposed class action and certain facts about the Montara oil spill. Information was collected and entered into standard forms - called Form V2 and Form V3. Form V2 was a summary of seaweed production for the locale for certain years. It contained collective information concerning the nature of the seaweed crops and the quality of seaweed grown in those years. It also provided information on average sales prices for dried seaweed in the relevant locale. Form V3 was a listing of seaweed farmers and the quantity of their individual dried seaweed production in 2008.
178 Affidavits, annexing some of these forms, are in evidence. Some of the witnesses were cross-examined on the information contained in them. These forms provide the genesis for the contention that, through the instrumentality of these meetings, the seaweed farmers reached "consensus" views. In cross-examination, this was extended to consensus views of the observations that had been made of the arrival and the appearance of oil in the coastal regions of Rote/Kupang, and in the seaweed farms. This led the respondent to submit that the Court could have no confidence that the descriptions of what the witnesses saw, as recounted in their affidavits or oral evidence, actually reflected their recollections as opposed to impressions drawn from, or at least strongly influenced by, many discussions which must have taken place.
179 The caution expressed through this submission is entirely appropriate. Generally speaking, the witnesses who were cross-examined in this way accepted the possibility, when it was put to them, that their recounting of what they observed in the water in late 2009 was, or might have been, affected by discussions they had had over the years or accorded with a consensus view. This acknowledgement sounds to their credit. My impression is that all the witnesses spoke frankly on this topic, although at times some had difficulty in following the line of questioning put to them. What does strike me is that the descriptions given by the witnesses of what they observed are not uniform, but vary in matters of detail. This will be apparent from the summaries I have provided in Schedule C. These descriptions are sufficiently different, in each case, to lead me to conclude that, when giving their evidence, the witnesses were relying on, and seeking to express as best they could, their personal observations, albeit that these observations might have accorded with a view that the witness regarded as also shared by others and was thus, in that sense, a consensus view. Some witnesses advanced support for their observations by reference to the fact that others had made a particular observation. In such cases, I do not think that the witness was resiling from his evidence that he, personally, had also made that observation.
180 Some witnesses gave an account in oral evidence of their observations that varied from the account given in their affidavit evidence. However, when this happened, the variation was, generally, to supply greater detail of what they had observed, which had not been included in the affidavit. Once again, when challenged, the witnesses adhered to the truthfulness of their oral accounts.
181 I now turn to consider the respondent's criticisms of some particular witnesses.
182 The respondent criticised the evidence given by Mr Nikodemus Ndun. Mr Ndun is a shopkeeper and seaweed trader in Nemberala village. Amongst other things, Mr Ndun gave evidence of seaweed prices in various years.
183 The respondent submitted that Mr Ndun was "not an impressive witness" and that his evidence should be treated with "great caution". This submission was based on Mr Ndun's evidence of the number of truckloads of seaweed he sold in the wet and dry seasons, and of seaweed prices in 2008. I make no findings in that regard. It has not been necessary for me to rely on Mr Ndun's evidence of these matters. The respondent did not challenge the reliability of Mr Ndun's evidence of seaweed prices in other years.
184 The respondent submitted that the evidence given by Mr Silwanus Aplugi was so unsatisfactory that it should not be accepted as a whole. Mr Aplugi is a teacher and a seaweed farmer. At the time he gave his evidence, he was also the head of Anarae village.
185 According to the respondent, Mr Aplugi had knowingly given a false estimate of his seaweed production in 2008, when signing a Form V3. The figure given in that form for Mr Aplugi's production was 10,000 kg. In oral evidence, Mr Aplugi said that his production was, in fact, between 15,000 to 17,000 kg, but he only put in 10,000 kg for the purposes of the form. Earlier in his cross-examination, Mr Aplugi said that his production for 2008 was 11,000 kg.
186 Mr Aplugi did not accept that the entry he had made in the Form V3 was false. He said that he thought that the Form V3 was only for "data collecting" purposes and that, for that reason, it was "okay" for him to "give a false number".
187 The respondent also pointed to the fact that Mr Aplugi had attended a "sign up" meeting and had been told that oil from the Montara oil spill had killed the farmers' crops in 2009.
188 Based on the differences in the figures given by Mr Aplugi for his seaweed production in 2008, his acknowledgement that the figure he gave for the Form V3 was "false", and the fact that Mr Aplugi had attended the "sign up" meeting and been told of the Montara oil spill, the respondent submitted that the Court could have "no confidence" in his evidence.
189 I do not accept that submission. Mr Aplugi was cross-examined at length, but he was not challenged on his account of his observations about the death of his seaweed crop in mid to late September 2009. His account included his observation of "bubbles of oil" in the form of "candles and liquid" that were "yellowish and chocolate". He observed that his seaweed became soft. There were dead birds and fish, and coral had become detached. He experienced itchiness in his arms and legs after he had entered the water and came into contact with these substances.
190 It is not necessary for me to resolve the differences concerning Mr Aplugi's seaweed production in 2008. It is enough for me to say that, whatever criticisms might be made of his evidence on that topic, I am not persuaded that the evidence of his observations of oil in mid to late 2009 was false or cannot be relied upon, particularly when the respondent did not challenge those observations in any way. The fact that some years later Mr Aplugi was told about the Montara oil spill does not lead me to a different view.
191 The respondent submitted that the evidence given by Mr Axel Chalvet should not be accepted. Mr Chalvet is a French national who lives near the village of Boa, on the south-western coastline of Rote. He said that, in September 2009, he observed a large amount of "waxy, white greasy substance" floating all over the ocean. He said that it looked like "a very large river", approximately "a couple of hundred metres" wide. He saw it moving east to west with the wind. At the beach at Boa, Mr Chalvet noticed that this material was "everywhere, accumulating in little whirlpools all over the beach on the sand, making clumps". He noticed that this substance came and went over "a couple of weeks". When he went fishing about 10 km to the south of Ndana Island (which is just off the coastline of Rote, near Boa), Mr Chalvet noticed a lot of grease and wax floating around. He said that it made his boat "really dirty". He had to clean it "more than once".
192 Mr Chalvet also observed "quite a bit of waxy substance" at Kite Beach - so named because it is a location for kite-surfing. It is an eastern facing beach on the southern coastline of Rote, also near Boa. He saw this waxy substance accumulating on the beach. Mr Chalvet also observed "pools of wax" at Oenggaut Beach, although there was more of this in the water than on the beach because the beach is west-facing. He observed the loss of seaweed crops at this time.
193 The respondent submitted that Mr Chalvet's evidence should not be accepted because, it said, this evidence varied significantly from "the contemporaneous records of his observations". The contemporaneous record was an email that had been broadcast by Mr Chalvet's mother on 19 October 2009 referring to "stinky and oily pollution" reaching Rote's shores. Mr Chalvet's mother wrote:
One can see the white and yellow poisoning foam coming toward the beaches instead of dolphins and whales as usual.
194 Mr Chalvet accepted that this was a description he had given to his mother at the time, although in one part of his evidence he referred to this description as his mother's, not his. In cross-examination it was put to him that this was, in fact, the best description of what he had seen. It was also put to him that what he had observed were algal blooms in the water. Mr Chalvet disagreed. He affirmed what he had seen, saying:
... what I saw was waxy and greasy. White and yellow foam is not waxy and greasy, plankton bloom is not greasy and waxy and not stinky.
195 Later, the following exchange took place:
And what I want to put to you is that this email and the description in the paragraph starting "one can see" represent a more reliable record of your observations in 2009 than what you can recall now?---That's up to you to make that decision. You know, I don't think so. I know exactly what I saw and I remember it very well, sir.
196 Although Mr Chalvet appears to be the provenance of the information in his mother's email, it is not entirely clear to me that the use of "foam" was, in fact, of Mr Chalvet's choosing. But even if Mr Chalvet did use the word "foam" when speaking to his mother, I do not see this word as encapsulating the entirety of Mr Chalvet's observations at the time, remembering that his mother's email also referred to "stinky and oily" pollution reaching Rote's shores.
197 Mr Chalvet was an impressive witness. He gave his evidence confidently and calmly. He did not strike me as someone who would give the account he did, unless he was certain of what he had seen. I accept his evidence. I do not accept that his mother's email provides a more reliable record of his actual observations at the time.
198 The respondent also submitted that the substances that Mr Chalvet saw were the same as the substances sampled by a Mr Sibert and supplied to Leeder Consulting for analysis. I discuss the Sibert sample in greater detail below. As I there explain, the integrity of that sample is seriously in question. No sound factual findings can be made about whether it contained or did not contain Montara oil at the point of its collection in late September 2009.
199 The respondent submitted that Mr Gabriel Mboeik's evidence was unreliable and should be treated with considerable caution. Mr Mboeik is a seaweed farmer from Oelua village. He gave evidence that, in September 2009, the sea where his seaweed was grown was full of colours, and that the ropes on which his crop was grown were yellowish in colour with the seaweed chocolate in colour. He said that the smell of the seaweed was like "solid oil" and that it was soft to touch and made his skin feel itchy. He said that he saw dead fish in the water and, where there were trees, blocks of oil were attached to them. He said that, in the following days, his seaweed died and was washed away.
200 The respondent's criticism of Mr Mboeik's evidence was based on his denial in cross-examination that, before September 2009, any part of his seaweed had turned white or gone limp or soft, or had broken off his ropes and washed away.
201 Mr Mboeik later accepted that some of his seaweed had, in fact, broken off and washed away in the windy conditions in January and February 2009, as he had recounted in his affidavit. He said that this was "the season of waves" and that every year the seaweed could be broken off for this reason. Mr Mboeik explained that when he had given his initial denial in cross-examination he was intending to refer to the fact that he had never had a problem with seaweed breaking off because of oil. The respondent submitted that Mr Mboeik's initial denial in oral evidence was false and therefore demonstrated his unreliability as a witness.
202 Next, the respondent relied on Mr Mboeik's denial in cross-examination that, between 2006 and September 2009, he had any issue with seaweed breaking off his ropes and washing away. In his affidavit he had said that around October and November 2007 some of his seaweed had broken off in windy conditions and washed away. When challenged in cross-examination, Mr Mboeik accepted that this had happened. Once again, the respondent submitted that Mr Mboeik's initial denial in cross-examination about seaweed breaking off and washing away between 2006 and September 2009 was an indicator of the unreliability of his evidence.
203 In his cross-examination, Mr Mboeik also said that in October and November 2007 the tips of some of his seaweed had become white. He was also picked up on this, but he explained that he was still able to sell his seaweed, "so it was equivalent to no problem".
204 It is tolerably clear that when Mr Mboeik was giving his answers in cross-examination which the respondent said were "false" (and which Mr Mboeik denied were false), his focus was on the major problem he experienced in September 2009, which was that his seaweed had died and washed away. He was not considering what might be described as relatively insignificant day-to-day operational losses in running his seaweed farm which did not impact on him selling his seaweed. When Mr Mboeik's oral evidence is considered in context, including with his affidavit evidence, I do not consider it to be unreliable. I accept Mr Mboeik's account of what he saw in the water near his crops in September 2009.
205 The respondent submitted that the evidence given by Mr Gustaf Lay should be treated as unreliable. Mr Lay is a seaweed farmer and buyer from Tablolong village. His evidence was that early one morning in late September 2009 he observed that the water where his seaweed farm was located had changed colour. It was shiny and looked like a rainbow. He saw blocks that were coloured like chocolate and blocks that were yellowish and greyish. These blocks were the size of his fist. They resembled the texture of a candle and were oil. After touching them his skin felt itchy. He saw dead fish and other dead marine life in the water. His seaweed became soft. It did not recover and he was unable to harvest it.
206 The respondent submitted that Mr Lay's evidence was unreliable because it was internally inconsistent and not supported by a file note taken by the applicant's lawyers on 28 October 2014. The file note recorded a meeting at Tablolong which Mr Lay attended. In relation to Mr Lay, the note refers to him expressing his thanks for the visit and for "caring for life as farmers". The file note seems to mention the Montara oil spill, and then proceeds with a number of dot points, including one which states: "Since spill from oil to now". It is not apparent what that sentence was intended to convey.
207 In a later part of the file note, the question is posed: "When was first problem in 2009?" This is followed by:
March 2009/May2009. Isis.
I take the reference to "Isis" to mean so-called ice-ice disease.
208 Mr Lay explained that this was not a "problem" as such. It was more a situation that was anticipated. In Mr Lay's experience, seaweed crops were prone to ice-ice disease at this time of the year. He said that March was the month for seaweed planting and that if the crops were not controlled - particularly should the ropes begin to sink - ice-ice disease could occur in April, when the season changes. He said, however, that he anticipates the problem by harvesting. If white spots (he said "dots") begin to develop on the stems of the seaweed, Mr Lay said that he immediately picks it. Mr Lay accepted that ice-ice could develop on the tips of the seaweed if exposed to the sun. He also said that he had been told by other farmers that ice-ice disease could develop if the water is too warm. He said, however, that he had not experienced this problem himself. He said that, in his experience, the temperature of the seawater at Tablolong "has always been normal".
209 The respondent submitted that Mr Lay's evidence about there not having been a problem with ice-ice disease in March/May 2009 was false because the file note had, in fact, made a reference to it. I do not accept that submission. The file note makes a reference to ice-ice disease but is uninformative on this topic. The note that was made is not inconsistent with the explanation given by Mr Lay that ice-ice disease at this time of the year was a problem to be managed and that, to the extent that it was a problem, it was, in substance, an operational one that was posed each year, not just in 2009. The fact that the file note refers to it in response to a directed question for 2009 does not necessarily mean that it was a problem of any particular significance for that year. I accept Mr Lay's explanation. He said that ice-ice was not a severe problem in April 2009 and not a problem for him in March or May 2009 or, so far as he was aware, for other seaweed farmers in Tablolong.
210 Next, the respondent submitted that it was significant that the file note did not record Mr Lay observing oil in the seawater around Tablolong in 2009. This is not entirely correct. The file note refers to the oil spill, indicating that this was part of the conversation in which Mr Lay participated or at least the context in which the conversation occurred. In other words, the meeting proceeded on the basis that the seaweed had, in fact, been damaged by the oil. It is true that the file note does not record the particular observations of oil which Mr Lay gave in evidence, but there is nothing in the file note to suggest that Mr Lay was, at this time, asked to give a detailed account of what he had seen in the water at Tablolong in late September 2009. I do not accept that Mr Lay would necessarily have volunteered such a description without being asked to give one. Therefore, I do not attach much significance to the absence of any such description in the file note.
211 The file note does record that the "white colour" (presumably a reference to the seaweed turning white) was first seen in "Sept/Oct 2009". Mr Lay said that he informed Mr Phelps (the author of the note) about this. In cross-examination, Mr Lay said that the tips of his seaweed went white and the seaweed went "limp", which he said "started after the oil spill" and "destroyed all the seaweeds". He distinguished this from ice-ice disease which, in his view, was not a disease that attacked the tips of seaweed, but, firstly, the stems of the seaweed and then the whole plant.
212 The file note also records:
What do they know about oil spill?
In the beginning they did not know. Thought it was disease.
Any knowledge of why oil spill occurred? They did not know.
Don't know of Commission of Inquiry
213 In cross-examination Mr Lay said that, in the beginning, he did not know where the oil had come from. He initially denied telling Mr Phelps that, in the beginning, he thought that the seaweed had been affected by a disease, but later accepted that it was possible that he had said that, because "it has been quite a long time". Nevertheless, Mr Lay denied that his seaweed crop had been affected by a disease. He said:
Once again I have to say I know the disease of seaweeds. I know the disease of ice-ice and it was not an ice-ice disease. I would term it a disaster. ...
214 I accept that it is possible Mr Lay might have told Mr Phelps that in the beginning - meaning, when the tips of the seaweed started to turn white and the seaweed became limp in late September 2009 - he harboured the thought that his seaweed might have been affected by a disease, albeit not ice-ice. However, I note that Mr Lay was not the only participant from Tablolong at this meeting. The other participants included Mr Jackarius (the head of Tablolong village in 2014), Mr Zakarius Doroh (presently the head of Tablolong village), and Mr Mester Eryon Bessie (the secretary of the village). It is possible that one of the other participants conveyed the initial thought of disease to Mr Phelps, who recorded it. I infer that if, at any time, Mr Lay did harbour that possibility, the thought dissipated quickly. Mr Lay said:
... on the first day I inspected that that situation had changed, a lot of oil there. On the second day I still had hope that everything could recover. On the third day the same. On the fourth day it was a Sunday, we could not work. So that the plan was for the following day I would pick up the harvest. I took a boat for the purpose of harvesting, but the crops were all destroyed.
215 Mr Lay was directly challenged on the fact that he had seen oil near his seaweed in September or October 2009. He rejected the assertion that he had not seen oil.
216 I accept Mr Lay as an honest witness whose evidence is generally reliable. I accept his account of what he observed in the water in and around his seaweed crop in late September 2009.
217 Notwithstanding the respondent's various criticisms of it, I consider the lay evidence of the observations that were made to be reliable. On the whole of that evidence, I am left in no doubt that, at the time, all witnesses (seaweed farmers, village heads, and other lay witnesses) witnessed a single, strikingly unusual, and unique event in the Rote/Kupang region, which coincided with the quick and dramatic loss of local seaweed crops. I am satisfied that this event was so striking that it is likely that it was fixed in their minds, notwithstanding that it was an event that, not unnaturally, was the topic of conversation between them, perhaps on many occasions, in the following years.
218 The respondent submitted that many of the lay witnesses' observations were inconsistent with the substances they observed being oil from the H1 Well blowout. The respondent sought to support this submission by the expert evidence that was given with respect to the weathering of Montara oil and the expert evidence that specifically commented on the lay witnesses' observations. I will discuss these strands of evidence in a later section of these reasons. However, it is convenient to record now that, in closing submissions, after contending that weathered Montara oil would not have looked or smelled as the witnesses had stated, the respondent advanced the following propositions: (a) the expert evidence shows that the substances observed by the lay witnesses cannot have been Montara oil; (b) therefore, some other event or phenomenon caused those substances to reach Rote/Kupang in large volumes, if the lay witnesses' evidence is reliable; (c) the state of weathered Montara oil was "otherwise indicative of the unreliability of the lay witness testimony".
219 It is not clear to me how these propositions stand together. The first two propositions proceed on the basis that the lay witnesses did not observe Montara oil but the widespread arrival of another substance or other substances due to some other event or phenomenon. The third proposition appears to be that the lay witnesses' observations were unreliable because the witnesses did not reliably describe weathered Montara oil. However, the presence of Montara oil in these locations is the very proposition that the respondent denies.
220 The respondent also contended that a "striking feature" of the applicant's case is that oil from the H1 Well blowout reached not only the southern coast of Rote, but also the northern and western coasts of Rote, and Kupang. The respondent pointed to the fact that none of the modelling predicted those outcomes. I will deal with this submission in a later section of these reasons.
221 In closing submissions, the applicant drew attention to the evidence of some of the lay observers who were not seaweed farmers or village heads. Even though the gist of their evidence is included in Schedule C, I will now recount their evidence in a little more detail.
222 Matthew Smith was an aerial observer who was deployed by the Australian Marine Oil Spill Centre (AMOSC) to assist AMSA during the oil spill response effort. Mr Smith swore an affidavit in which he deposed to his observations of the oil during that period. The affidavit included photographs, mud maps and Surveillance Flight Reports related to observations of the spill.
223 Mr Smith undertook daily aerial observations for AMOSC in September and October 2009 from a Dornier search and rescue aeroplane. On each sortie he undertook various activities, including directing vessels which were part of the oil spill response containment and recovery operations to significant patches of oil; performing surveillance on nearby reef systems; and identifying the extremity of the oil and sheen.
224 Over the reefs near the blowout, Mr Smith observed sheen, but no thick, heavy oil. Identifying the extremity of the oil was a difficult task as the oil and sheen did not form a clear unbroken line on the sea surface. He said it was also difficult to identify the edge of the oil and sheen as there was a vast area of the Timor Sea to cover and conditions were variable. He was confident of his observations on some days and not on others, depending on the conditions. He also had no way of knowing how long the oil and sheen he observed had been on the sea surface.
225 Mr Smith said that the pilots of the Dornier aircraft had some flexibility regarding flight paths in Australian airspace but were not permitted to enter Indonesian airspace without prior approval. He did not say whether that approval was granted for any sorties he undertook.
226 To identify the edge of the oil and sheen, the plane tracked to its last known location before following a band of thicker oil as identified by Mr Smith. He said he could not exclude the possibility that oil and sheen had travelled beyond his line of sight and that he may have occasionally lost track of its edges. In closing submissions, the applicant submitted that it was therefore possible that the oil and sheen he observed extended further towards Rote and Kupang than was evident in his mud maps, Surveillance Flight Reports and other contemporaneous AMSA documents.
227 The applicant drew my attention to a number of sightings recorded in the AMSA Surveillance Flight Reports in September and October 2009 of oil or features consistent with oil north of Australia's Exclusive Economic Zone at distances between 50 and 83 km from Rote. The applicant argued that it was plainly possible for that oil to have travelled north and reached the coastlines of Rote and Kupang.
228 Mr Smith was not cross-examined. However, in closing submissions, the respondent pointed to Mr Smith's observations about the difficulty of identifying oil from the air in support of the contention that numerous phenomena can be mistaken for oil from above.
229 In a later section of these reasons I also refer to how oil spilled on the ocean surface can aggregate into filaments called Lagrangian Coherent Structures (colloquially, "tiger tails"). These structures imply that oil can travel via conduits, thereby potentially impeding its visual detection by, for example, aerial surveillance.
230 Dr Ghislaine Llewellyn, a marine program leader at the World Wide Fund for Nature Australia (the WWF), led an expedition by the WWF to the Timor Sea to document the consequences of the Montara oil spill on marine wildlife between 24 and 29 September 2009.
231 On behalf of the WWF, Dr Llewellyn commissioned Simon Mustoe, Director of Applied Ecology Solutions, to prepare an independent biodiversity survey of the area likely to be affected by the blowout. Mr Mustoe is an ecologist and made his own affidavit, referred to below.
232 The WWF chartered a boat for the expedition, leaving Darwin on 24 September 2009. Joining Dr Llewellyn and Mr Mustoe on the expedition was Kara Burns, a freelance photographer contracted by the WWF to take photographs; Deborah Glasgow, an expert in marine mammal observation and Chris Sanderson, an expert in bird observation and an employee of Applied Ecology Solutions. Lindsay Moller, a journalist and photographer from The Australian newspaper also joined, as well as a small crew.
233 Dr Llewellyn says Mr Mustoe compiled the data and observations from the expedition into a report titled "Biodiversity Survey of the Montara Field Oil Leak" dated 22 October 2009 (the WWF Report). The observations outlined in the WWF Report are recorded below. Dr Llewellyn says the locations identified and observations recorded in the WWF Report accord with her own recollections.
234 In particular, Dr Llewellyn says that on 27 September 2009, she smelled a foul, strong chemical smell and felt a slight burning sensation in the back of her throat. She assumed this was caused by the gases emitting from the wellhead platform and the boat changed course to evade the smell. Towards the end of the same day, Dr Llewellyn observed patches and windrows of oil on the surface of the water. The character of the oil was variable but she says they were in the boat for hours and there was a heavy blanket of oil on the surface of the water as far as the eye could see. The smell changed from earlier in the day and was more akin to the smell of a petrol station forecourt.
235 As Dr Llewellyn had not expected to see slicks or large amounts of oil, she had not made preparations to collect samples of oil. She therefore improvised with available materials and devised a system for the collection of samples. The coordinates where samples were collected was recorded by Mr Mustoe in the WWF Report. Samples were taken between 26 and 29 September 2009.
236 Dr Llewellyn's second affidavit, sworn on 28 March 2019, included further photographs taken by Ms Burns as well as Mr Moller.
237 Simon Mustoe affirmed an affidavit on 10 August 2018 which included a copy of the WWF Report. The WWF Report sets out the locations travelled to and observations made during the field survey. The survey was carried out predominantly in an area to the northeast of the H1 Well, substantially within Australia's Exclusive Economic Zone. The route is shown in Figure 6 of the WWF Report. Mr Mustoe deposed that he observed Ms Llewellyn collecting water and oil samples referred to in the WWF Report during the field survey.
238 On 25 September 2009, the WWF Report records that the observers noted some white specks in the water that they thought might have been broken up cuttlefish. However, the WWF Report notes that after the observers saw wax particles the following day it is possible, with hindsight, that the white specks were wax particles.
239 On the morning of 26 September 2009, the survey team crossed a patch of thick white snowflake-like material, which appeared to be a flocculating waxy compound that they presumed was residue from the oil spill. There was an obvious surface sheen layer associated with the wax particles. The survey team recorded surface sheen, and wax particle density and size, systematically throughout the day. In the morning, they mostly passed through areas of patchy light sheen with small wax particles of varying densities. At about midday, they crossed a dense waxy slick, and then a heavy algal bloom with some wax particles within it. In the afternoon they modified their course to head just north of the Jabiru drilling platform.
240 A record of the surface oil observed was kept from 26 to 29 September 2009. The expedition recorded the extent, weight, size and density of the oil. The results of this survey were summarised in Figure 24 and section 11.3.6 of the WWF Report. At times little or no surface oil was evident but at other times both surface sheen and heavier patches of oil were observed.
241 Notably, the WWF Report records that, on the afternoon of 27 September 2009, at about 40 nm from the H1 Well, the survey team observed a very heavy patch of surface oil, covered in a moderate to thick yellowish-brown layer. They observed rainbow patterns on the water and distinct trails of oil behind particles of a yellowish wax. Ripples on the water revealed a blackish streaked tinge to the waves. The area smelled strongly of turpentine.
242 On 28 September 2009, the survey began about 25 nm due east of the H1Well and headed northwest. Light oil sheen was evident in this area but there were not any particularly heavy patches of weathering oil. However the survey team observed long and broad slicks of surface sheen containing waxy particles of varying size and density. At dusk, they encountered the very thick area of oil slick observed the day before.
243 The survey team took photographs recording the behaviour of the oil observed on the sea surface. These are shown in Figure 22 to the WWF Report. The WWF Report observed that surface oil could be identified by extensive patches of continuous glassy water; particles of white waxy residue of varying sizes and densities; smell; or in moderately heavy patches, a clearly visible oil layer on waves or in the wake of the vessel. With regard to the particles of white waxy residue, the WWF Report observed that the larger of these could be seen to leave an oil trail on the surface.
244 With regard to the extent of the slick, the WWF Report concluded that there was extensive patchy surface sheen throughout most of the surveyed area, even in waters situated over 100 nm from the source of the spill. The furthest that surface sheen was found with any certainty was about 140 nm from the Montara H1 Well. It was assumed that this oil had originated from that source. The report concluded that there were areas where particles of white waxy residue of varying size and density were floating on the surface, and one particular area (referred to above) where the surface sheen was particularly thick and accompanied by slicks of yellowish wax particles.
245 Professor James Watson was commissioned by the Commonwealth Department of the Environment, Water, Heritage and the Arts (DEWHA) to lead an expedition to the Timor Sea to undertake a rapid survey of cetaceans, birds and marine reptiles (megafauna) in the Montara oil spill region. The purpose was to identify megafauna in the region and address the impact of the Montara oil spill on them.
246 Professor Watson engaged two colleagues from the University of Queensland to assist with the rapid survey, which was undertaken between 25 September 2009 and 4 October 2009. Professor Watson's observations and findings were presented in a report titled, "A rapid assessment of the impacts of the Montara oil leak on birds, cetaceans and marine reptiles", dated 23 October 2009 (Professor Watson's Report).
247 The survey team conducted five days of transects at sea, incorporating 279 10 minute strip transects covering a distance of 668.5 nm and a total survey area of 99,040 ha. The area covered was directly north and northwest of the H1 Well extending to the Ashmore Reef as recorded at Figure 1 of Professor Watson's Report.
248 In these surveys, a total of 124 10 minute strip transects were in waters visibly affected by oil, representing 44% of the total number of strip transects made. The oil was more prominent in transects directly north of the H1 Well, as shown in Figure 4 of Professor Watson's Report.
249 Professor Watson's Report does not describe the appearance of the oil in great detail, but referred to the variable coverage and thickness of oil on the water in different areas. Figure 7 of the report shows an example of a thick layer of oil on the surface of the water. It is a yellowish-brown colour and appears to be textured, with an area of sheen connected to it.
250 The report found there was a significant risk that a change in conditions could push the slick towards the breeding islands and reefs to the north, west and south of the H1 Well, or into deeper waters to the west and north of the Ashmore reef.