Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors

EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - GENERALLY - where the plaintiffs sought to adduce expert evidence in the form of a report from an expert in rail and other infrastructure as it relates to the development of a mine - where the defendants objected to extensive parts of the reports produced by the expert and some portions of the joint expert reports for which he was responsible - where the bases of the objections included that the matters contained in the report are not properly the subject of expert opinion, that the expert is not adequately qualified to make the impugned statements and that the opinions stated are not based wholly or substantially on the expert's expertise - whether the objections to the expert reports should be upheld

Uniform Civil Procedure Rules 1999 (Qld), r 149

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, considered

Holdway v Arcuri Lawyers (A Firm) [2008] QCA 218; [2009] 2 Qd R 18, considered

Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549, considered

Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221, considered

HG v The Queen (1999) 197 CLR 414, considered

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, considered

Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102, considered

R v Naidu [2008] QCA 130, considered

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 1) [2018] QSC 308, considered

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199, considered

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210, considered

K E Downes QC with D B O'Sullivan QC, J P O'Regan and D M Turner for the plaintiffs

D Clothier QC with A M Pomerenke QC, A C Stumer, E L Hoiberg and M J Hafeez-Baig for the defendants

[1] This judgment is a sequel to Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210 (Sanrus No. 5), which was a decision in which I provisionally dealt with some of the extensive objections which had been made during the trial of the present proceeding to expert opinion evidence which the plaintiffs sought to adduce from Mr Freeman (P).[1]

[2] Mr Freeman had produced three expert reports for the purpose of this proceeding -

• (a) Report dated 2 November 2018 [EXP.010.005.0001];[2]
• (b) Supplementary Report dated 15 November 2018 [EXP.010.006.0001]; and
• (c) Report (Actual Costs) dated 22 November 2018 [EXP.010.007.0001].

[3] He also participated in four joint expert conclaves which led to the production of the following four joint expert reports -

• (a) Joint Expert Report for Offsite Water Supply dated 15 July 2019 by Mr Freeman, Mr Simpson (P), Mr Harradine (D), Mr Smith (D), Mr Cavanagh (D) and Ms Power (D) [EXP.500.004.0001_2];
• (b) Joint Expert Report for Offsite Power Supply dated 15 July 2019 by Mr Freeman, Mr Simpson (P), Mr Harradine (D), Mr Smith (D) and Mr Cavanagh (D) [EXP.500.011.0001_2];
• (c) Joint Expert Report for Port dated 22 July 2019 by Mr Freeman and Mr Morton (D) [EXP.500.026.0001_2]; and
• (d) Joint Expert Report for Rail dated 24 July 2019 by Mr Freeman, Mr Hunter (D), Mr Morton (D) and Mr Cavanagh (D) [EXP.500.027.0001_2].

[4] In Sanrus No. 5, I identified the stage at which the trial had reached and the procedural context in which the objections had been advanced. I also identified and explained the decisions which I had reached by the application of general legal principle to parts of Mr Freeman's reports to which objection had been taken and which I had time to consider. I had only ruled specifically on 25 of the 120 objections which had been pressed. But I also stated that those rulings were provisional only, because I required some further submissions on an alternative argument presented by the plaintiffs. I published before having received those submissions and before having finalised my ruling on all the objections, because it was my expressed hope that ruling on some of the objections would lead to agreement on the remainder of the objections. That hope proved misplaced. Having now received further submissions, this judgment finalises the rulings which I make in relation to the objections dealt with in .

The defendants' objection to the plaintiffs' attempt to advance a new unpleaded case

[11] The trial of this proceeding concerns complaints made by junior joint venture partners (the plaintiffs) about the conduct of the senior joint venture partner (the first defendant, Monto Coal 2) in relation to decisions made in the course of performing a Joint Venture for the exploitation of a coal deposit at Monto in Queensland. For present purposes it is not necessary to describe the bases on which liability is sought to be attributed to the second and third defendants.[5]

[12] The two sides of the Joint Venture had entered into a written Joint Venture Agreement in May 2002 which expressed various obligations in relation to the following two stages in the possible exploitation of the subject coal resource:

• (a) Stage 1, namely "Mining Operations producing between 1,000,000 and 1,500,000 tonnes of saleable coal per annum"; and
• (b) Stage 2, namely "the Mine Development and Mining Operations beyond Stage 1 with the expectations of production being 10,000,000 tonnes or more of saleable coal per annum".

[13] In brief summary, in this proceeding the plaintiffs contend that Monto Coal 2 breached the Joint Venture Agreement by deciding to suspend all work on the Monto Coal Project in July 2003 and, accordingly, by failing to develop Stage 1 of the Project by 16 May 2005 and by failing to undertake a Stage 2 feasibility study in that time (or, indeed, at any time up to 31 December 2008). The plaintiffs allege Monto Coal 2's decision-makers made relevant decisions in the absence of good faith and for contractually impermissible purposes.

[14] The plaintiffs claim that by reason of the impugned conduct of Monto Coal 2 they -

• (a) lost the opportunity to earn a profit from the sale of coal from Stage 2 of the project and to receive royalties therefrom and also lost the value of free carried interest in Stage 1 capital costs; and
• (b) further or alternatively, lost the opportunity to sell their interests in the Joint Venture at a value which would reflect the stage to which the Monto Coal Project would have advanced had the impugned conduct not occurred.

[15] Because this is a loss of opportunity case, the plaintiffs rely on Sellars v Adelaide Petroleum NL and to contend that there are two stages of analysis. The first, they contend, is concerned with proof of causation of an identifiable loss of some kind and the second, they contend, involves assessing the quantum of the loss. The plaintiffs contend that the first stage is to be assessed on the basis of proof on the balance of probabilities and the second, by reference to the Court's assessment of the possibilities and probabilities of occurrence of the relevant hypothetical scenario or scenarios.

[16] Rule 149 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) requires plaintiffs to set out a statement of all the material facts on which they rely, including by stating specifically any matter that if not stated specifically might take another party by surprise. Of course, the purpose of pleading material facts is not just to avoid surprise: it is to enable the pleader's case to be defined and confined and to enable the defendants to plead to that case, thereby defining and confining the issues for decision. That is reinforced by the terms of r 157 UCPR.

[17] It is a trite proposition of law that defendants are entitled to a direct and unambiguous identification of the material facts relied on to establish the causal link between the conduct which plaintiffs impugn and the loss they allegedly suffered, and which identification at least arguably establishes that link.

[18] I made this point in Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [81] and in Chan v Macarthur Minerals Ltd [2017] QSC 13 at [39]. The defendants particularly sought comfort from my observation in Lee v Abedian (at [81](f)) that:

The defendants are entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity and which, at least arguably, establishes the requisite causal connection between the implementation of the conspiracy and the suffering of loss. If there is more than one causation hypothesis, then the statement just made must apply to each one. The pleading device of merely cross-referring back to events alleged to have happened is unlikely to be a satisfactory way of addressing a proper plea of causation. There must be a direct and unambiguous identification of the material facts relied on to establish the causal link which the law requires. And it must be something which makes narrative sense. The defendants should not be required to cherry pick through the pleading to work out what the case is that they have to meet in this regard.

[19] In Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221, Jackson J collected some further general statements of principle, to similar effect. His Honour made it clear that he was doing so to demonstrate that there was no shortage of case law for the proposition that the plaintiff must plead a relevant counterfactual scenario to establish the alleged causal link between breaches of contract or negligence and the loss. His Honour observed (footnotes omitted, emphasis added):

[26] However, there is no shortage of relevant case law [which stands as such authority]. In Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd, Chesterman J said:

"In any cause of action in respect of which causation is an essential element it is necessary to plead the material facts which are said to give rise to the causal connection. In particular it is necessary to plead the facts which lead to a reasonable inference that the acts complained of (here the relevant non-disclosure) and the alleged later event (here the making of the dragline agreement) stand to each other in the relation of cause and effect. [...]"

[27] Another well-known judgment in this area is Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd, where French J said:

"The material facts establishing the necessary causal link should be pleaded. In cases of contravention of s 52 said to be constituted by misrepresentation this will generally require more than appears in the opening words of par 50: 'by reason of such conduct ...'.

Some guidance to the proper approach may be derived from the ordinary rule of pleading applicable in cases of fraud of which Lord Watson said in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221:

'... The ordinary rule of pleading applicable to cases of fraud, ... was thus expressed by Earle Selborne in Wallingford v Mutual Society (1880) 5 App Cas 685 at 697: "General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice." It is not a sufficient compliance with the rule to state facts and circumstances which merely imply that the defendant, or someone for whose action he is responsible, did commit a fraud of some kind. There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it; and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments. Facts and circumstances must in that case be set forth, and in every genuine claim are capable of being stated, leading to a reasonable inference that the fraud and the injuries complained of stood to each other in the relation of cause and effect.'

A perusal of the relevant precedents in [Bullen, Leake & Jacob's Precedents of Pleadings 12th ed, pp 702-7] supports the view that the approach enunciated by Lord Watson is equally applicable to actions for negligent misstatement."'"

[20] As the Full Court of the Federal Court said in Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102 at [30]:

There should be no doubt about whether any particular cause of action is relied upon. At a minimum, the pleading should be pellucidly clear about the causes of action, or claims, relied upon by the applicant, including any claims made upon an alternative hypothesis. The explicit clarity with which a claim is expressed should ensure that there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged, much less to decide whether a particular cause of action is raised. The same basic requirement applies to any defence raised in answer to a claim.

[21] The result is that where a party's causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading. This should be done with the degree of clarity referred to in Oztech Pty Ltd v Public Trustee of Queensland. The pleading so framed must at least arguably establish a reasonable inference that the impugned conduct and the claimed loss stand to each other in the relation of cause and effect.

[22] In Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 1) [2018] QSC 308 (Sanrus No. 1), I explained that significant changes were made to the plaintiffs' case by the delivery of new expert reports in reply towards the end of 2018. I permitted the plaintiffs to amend their pleading to accord with the case identified in the reports so delivered. The causation hypothesis contained in that pleading was set out in their statement of claim at [23]. It is in now the following terms, having been slightly modified since I permitted the amendments recorded in Sanrus No. 1 so as to articulate alternative net present value (NPV) calculations as set out in subsequently delivered expert reports (emphasis added):

23. By reason of Monto Coal 2's breaches of the Joint Venture Agreement:

(a) the development of Stage 1 has not been achieved;

(b) the Stage 2 Feasibility Study has not been undertaken;

(c) the plaintiffs have lost the opportunity to earn a profit from the sale of coal from Stage 1 and Stage 2, to earn Royalties under the Monto Coal Royalty Deed, and the value of free carried interest in Stage 1 capital costs;

(b) The Stage 2 Feasibility Study (as that term is defined in clause 1 of the Joint Venture Agreement) would have been prepared by about May 2005;

(c) Coal produced from Stage 1 would have obtained market acceptance and would have been sold during Stage 1;

(d) The Stage 2 Feasibility Study would have demonstrated that Mine Development of Stage 2 would have been profitable with a Net Present Value of $518 million as set out in paragraphs 9 to 31 of the report of Mr Hall dated 21 November 2018 or alternatively $501 million as set out in paragraphs 14 and 15 and "Hall Attachment 1" to the Supplementary Joint Report on Financial Modelling of Mr Hall and Ms Power dated 29 July 2019 [EXP.500.036.0001].

(da) In the alternative to sub-paragraph (d), The Stage 2 Feasibility Study would have demonstrated that Mine Development of Stage 2 would have been profitable with a Net Present Value of $408 million as set out in paragraphs 20 to 29 and "Hall Attachment 7" to the Supplementary Joint Report on Financial [Modelling] of Mr Jeffrey Hall and Ms Lucy Power dated 29 July 2019 [EXP.500.036.0001].

(e) The Joint Venture Participants or the Manager would have convened a Meeting of the Management Committee to vote on whether Mine Development of Stage 2 should be undertaken. [The meeting of the management committee would have been convened in about May or June 2005.[6]];

(f) Each of the Participants' Representatives, would have attended that meeting and, acting in the best interests of the Joint Venture in accordance with clause 7.5 and 7.6 of the Joint Venture Agreement, would have exercised their vote in favour of undertaking the Mine Development of Stage 2. [The parties' representatives would have attended the management committee meeting to vote in favour of undertaking the mine development of Stage 2 in about May or June 2005.];

(g) Coal would have been produced and sold from Stage 1 and Stage 2 at a profit with a net present value of $2,569m, the plaintiffs' share of which is $1,002m, as calculated in paragraph 13 of, and Annexure B to, the report of Mr Hall dated 30 November 2018 or alternatively with a net present value of $2,481m, the plaintiffs' share of which is $968m, as calculated in paragraphs 14 and 21 of the Supplementary Joint Report on Loss and Damage of Mr Jeffrey Hall and Mr Tony Samuel [EXP.500.048.0001];

(ga) In the alternative to sub-paragraph (g), coal would have been produced and sold from Stage 1 and Stage 2 at a profit with a new present value of $2,481m, the plaintiffs' share of which is $943m, as calculated in paragraphs 22 and 29 of the Supplementary Joint Report on Loss and Damage of Mr Hall and Mr Samuel [EXP.500.048.0001]

(k) Monto Coal 2 would have paid its Respective Proportion (being 51%) of the Royalty payable to the plaintiffs quarterly at a rate of 1% of the FOBT price at which export Coal was sold, such royalty having a net present value of $47m as calculated in paragraph 13 of, and Annexure B to, the report of Mr Hall dated 30 November 2018 or, in the alternative, as calculated in paragraphs 14 and 21 of the Supplementary Joint Report on Loss and Damage of Mr Hall and Mr Samuel [EXP.500.048.0001], or in the further alternative, as calculated in paragraphs 22 and 29 of the Supplementary Joint Report on Loss and Damage of Mr Hall and Mr Samuel [EXP.500.048.0001].

(l) The plaintiffs would have received a free carried interest in Stage 1 capital costs, such interest having a net present value of $16m as calculated in paragraph 13 of, and Annexure B to, the report of Mr Hall dated 30 November 2018.

[23] The following observations may be made about the causation hypothesis as pleaded:

• (a) The counterfactual propositions are pleaded as particulars, when they should be pleaded as material facts. For present purposes that deficiency may be put to one side, as the defendants did not take that point before me.
• (b) It is evident that the plaintiffs' causation hypothesis does depend on establishing a particular counterfactual scenario. The plaintiffs' case is that no decision to suspend Stage 1 would have been made and Stage 1 would have been completed and -
  • (i) there would have been prepared by about May 2005 a particular document (namely "The Stage 2 Feasibility Study"); and
  • (ii) the Stage 2 Feasibility Study document would have had a particular content (namely in specified alternative ways it would have demonstrated that Stage 2 would have been profitable with a particular NPV as set out in identified parts of an expert report).
• (c) The former proposition is apparent from the use of the definite article and the phrase "would have been prepared" in particular (b) and the repetition of the definite article in particulars (d) and (da). And the latter proposition is evident from particulars (d) and (da), where three alternative NPV propositions are set out, each by reference to particular aspects of an identified expert report.
• (d) The plaintiffs accepted in oral argument before me that it was absolutely clear that although the particular stated that the Stage 2 Feasibility Study would have been prepared "by May 2005" (which, I observe, at first blush might be thought to contemplate the possibility that it might form part of the plaintiffs' case that the document would have been prepared at some earlier unspecified time between May 2002 and May 2005), in fact the plaintiffs' case was based on the document being prepared (in the sense of finalised) in about May 2005.[7]
• (e) The concession was appropriate. There are multiple confirmations of that proposition to be found in the terms of the expert reports cross-referenced in particulars (d) and (da), including in the fact that, amongst other things, the expert analysis relies on information which could not have existed in earlier years. For example:

(a) It is alleged that the mining lease application for Stage 2, environmental impact statement process for Stage 2 and the processes for land compensation agreements for Stage 2 (and all associated expenditure) would have commenced in mid-2002 and been successfully concluded at particular times. This assumes, on the plaintiffs' case, that these steps would have commenced within months of the execution of the Joint Venture Agreement and been progressed before the grant of the Stage 1 mining lease, which on the plaintiffs' case would have been granted in March 2003.

(b) It is assumed that early works arrangements and associated approval processes would have been entered into with third parties prior to the completion of the Stage 2 Feasibility Study and any final investment decision for Stage 2. The early works arrangements and associated approval processes include (without being exhaustive):

(i) (Rail) rail design and approvals commencing in January 2003, a conditional contract for rail infrastructure executed in early 2004 and a commitment to an arrangement for $20 million in long lead procurement items (sleepers and rails) in January 2005.

(ii) (Water) entry into an Early Works Reimbursement Deed with SunWater in July 2004, with detailed design from September 2004 to March 2005 and relevant approvals commencing in December 2004;

(iii) (Power) entry into an early works arrangement with Powerlink for power supply in July 2004, with design and procurement processes commencing in November 2004;

(iv) (Road) engineering and approvals for the Burnett Highway diversion by Main Roads commencing in May 2002, with construction commencing in June 2005;

(v) (Accommodation Village) purchase of the necessary land, development approval, and the design and construction of an Accommodation Village to support the Stage 2 mine workforce between May 2002 and May 2005.

(c) It is assumed that an agreement for port capacity would have been executed between mid-2004 and mid-2006 and a conditional agreement may have been executed prior to an investment decision for Stage 2.

(d) It is assumed that the engineering and procurement for the Stage 2 mine and CHPP would have commenced in May 2004.

1. Those matters of timing are critical to the plaintiffs' case on causation. That is because, on the plaintiffs' case, those steps would have been taken prior to the Stage 2 Feasibility Study being completed and prior to the joint venture making a decision on whether to proceed with Stage 2 development. If those steps had not been taken, Stage 2 of the Monto Coal Project could not have proceeded in the manner which the plaintiffs allege in their expert reports. [...]

[27] Until the ground shifted during the course of argument (in the manner I will shortly explain), it seemed to be common ground that the foregoing passage could be regarded as broadly representative of the nature of the relevant unpleaded counterfactual propositions forming part of the plaintiffs' case.

[28] Compliance with the rules of pleading required the plaintiffs to frame their pleading in such a way that the plaintiffs' unpleaded counterfactual case was identified at an appropriate level of detail in the pleading. If it was critical to the counterfactual proposition that a decision would have been made in May or June 2005 based on a Stage 2 Feasibility Study having a particular content prepared in May 2005, that there would have been, for example, antecedent decisions to enter into particular contracts in a particular form and that such contracts would have been entered into by a particular time, then those matters were material parts of the counterfactual case and should have been pleaded. The plaintiffs' failure to do so was a major deficiency in their pleading.

[29] It must be acknowledged that that deficiency and its significance has been ameliorated to some extent by the fact that the pleading was delivered in the context of a proceeding which was case managed, including by orders which -

• (a) required the parties to deliver witness summaries in respect of their lay witness evidence;
• (b) required the parties to deliver the expert opinion evidence on which they intended to rely in the form of written expert reports;
• (c) constrained the parties from adducing evidence in chief from a lay witness about a topic not identified in a summary of evidence filed in accordance with the orders, except with the leave of the Court; and
• (d) constrained the parties from adducing any expert evidence at the hearing other than in the form of a report filed in accordance with the orders, except with the leave of the Court.

[30] As I explained in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199, the purpose of the superimposition on a case conducted by pleadings, of orders requiring the parties to identify to their opponents during the pre-trial process the evidence by which they intend to prove their pleaded cases, is also grounded in a desire to require the parties to define and confine their cases. I wrote (at [15], emphasis added):

It is axiomatic that if case management orders have required the parties to disclose to their opponents the way they intend to prove their respective pleaded cases, that course was required because the Court determined that it would serve to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. But recitation of that sort of motherhood statement is not a sufficient articulation of the purpose of requiring such a course. The underlying purpose is to avoid surprise to the other party and to allow the issues to be narrowed, albeit at a more granular level than is achieved by the delivery of pleadings. It is to allow any eventual trial to proceed in a more efficient manner than it might otherwise have proceeded. In order to fulfil that purpose, it must follow that there is some degree to which the parties are confined to the manner of proving their case which they have flagged by the material which they have delivered in compliance with such case management orders. That is why such orders conventionally also specify that the parties may not deliver evidence outside the constraints of the orders concerned, except with leave of the Court. The extent of confinement which must be regarded as having been achieved by such orders and the attitude which must be taken to applications for leave will be very much a question of fact and degree, and will vary from case to case. The considerations which would be relevant to the exercise of a discretion to permit evidence to be adduced outside the constraints imposed by the case management orders of the type under discussion are similar to those applicable to pleading amendment: see Sanrus No. 2 at [12] to [15].

[31] It must also be recognised that the extent of the amelioration of any pleading deficiencies achieved by such orders is not complete, for a number of reasons.

[32] First, the evidential material which each side provides to their opponent consequent upon such directions is proposed evidence. It is not a pleading. It does not actually bind the party providing it in the same way as does a pleading. If a pleaded allegation is admitted on the pleadings, no evidence is required on the admitted fact and the admission may not be withdrawn without leave. On the other hand, a plaintiff's witness summary (or expert report) and a defendant's witness summary (or expert report) delivered before trial might well suggest that the witnesses agree on a fact or on an opinion, but that does not bind either party in the same way as a pleaded admission.[8] Even if the proposed evidence is admitted into evidence at the trial, either party can still ask the trier of fact not to accept one aspect of the evidence it adduces at trial, or ask the trier of fact to prefer one aspect of the evidence it adduces at trial over another.

[33] A second and related point is that, for one reason or another, the proposed evidence may not actually find its way into evidence at the trial. A party may choose not to call the witness or to tender the expert report. Or, the proposed evidence might be held out because of successful objections as to its admissibility.

[34] Third, in any event the extent of the clarity which a party obtains concerning the fact and nature of any unpleaded counterfactual propositions in an opposing party's pleading would necessarily derive from their own analyses of the opposing party's evidence rather than from the opposing party having committed to a statement in their pleading which defined and confined their case. Pleadings are required so that a party does not have to work out itself what is the opposing party's case. As the Full Court of the Federal Court said in Oztech Pty Ltd v Public Trustee of Queensland in the passage I have earlier quoted, the pleading party should ensure that "there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged". , when a party has left the definition of its case to be divined from its evidence, delivered in a case which has been managed in the way I have described.

The form of the reply confirmed that which the defendants had already (and in my view, reasonably) concluded, namely that the plaintiffs' case as to the critical counterfactual proposition and as to damages was confined to that set out in the expert opinions which the plaintiffs had obtained from Mr Hill, Mr Hall and Mr Freeman in 2017 and delivered to the defendants. As will appear, that judgment had informed the defendants' preparation for trial, particularly in relation to the way in which they had sought and obtained expert opinion evidence.

[36] The emphasised part of the quoted observations did not continue to be literally true after the events dealt with in Sanrus No. 1. Amongst other things, the plaintiffs had advised the defendants that they would not rely on some of the expert evidence they had previously delivered, and that included a report delivered by Mr Freeman in 2017. That abandonment of reliance on particular aspects of the expert evidence was formalised by my orders of 21 December 2018 which gave the plaintiffs leave to rely on the new reports and which provided (by order 6):

[6] The plaintiffs not be permitted at trial to rely upon the reports or the sections of the reports identified in the spreadsheet emailed from Holding Redlich to Allens on 30 November 2018, which appears at Exhibit RLM-9 to the affidavit of Robyn Morrison affirmed 10 December 2018. For the avoidance of doubt, this order is without prejudice to the defendants' right to object to any of the remaining sections of the reports at trial. [9]

[37] Even though the defendants were now confronted with an altered suite of expert reports expressing the plaintiffs' unpleaded counterfactual case and their case as to damages, the assumption by the defendants that the plaintiffs' case as to the critical counterfactual proposition and as to damages was confined to that set out in the expert opinions necessarily had to continue once I permitted the case to continue to trial on the basis of a pleading amended to accord with the case articulated in the new raft of expert reports identified in Sanrus No. 1.

[38] As will appear, the defendants in fact had conducted analyses of what the plaintiffs' case was as disclosed by their expert reports. That is apparent from -

• (a) the defendants' own pleaded response to the plaintiffs' causation hypothesis;
• (b) the defendants' own evidential material (including expert reports) delivered in response to case management orders;
• (c) the tenor of some of the questioning which occurred during the lay witness evidence; and
• (d) the terms of the defendants' written opening on causation and damages, to which I have already referred.

[39] It was not suggested in argument before me that there was any other aspect of the very extensive pleadings in this proceeding which should be regarded as a pleading of the plaintiffs' unpleaded counterfactual case to which I have referred, or as remedying the pleading deficiency which I have identified. Nevertheless, for completeness, it is appropriate to identify some aspects of the pleadings other than the statement of claim.

[40] It is appropriate to juxtapose the relevant parts of the defendants' defence at [163] (which pleaded the traverse of the statement of claim at [23]) and the plaintiffs' reply at [163] (which pleaded the traverse of the defence at [163]). I do so below (emphasis added):

Fifth Further Amended Defence to the Second Further Amended Consolidated Statement of Claim filed 21 May 2019

Fourth Further Amended Reply to the Fifth Further Amended Defence filed 21 August 2019

[163] As to paragraph 23 of the statement of claim, the defendants:

(a) admit that development of Stage 1 has not been achieved;

(b) admit that the Stage 2 Feasibility Study has not been undertaken;

(c) otherwise deny the allegations contained therein believing them to be untrue for the reasons pleaded in subparagraphs (d) to (n) below;

(d) for the reasons pleaded in paragraph 162 above, Monto Coal 2 has not breached the Joint Venture Agreement;

(e) if Monto Coal 2 has breached the Joint Venture Agreement (which is denied) any such breach or breaches were not causative of any loss to the plaintiffs because for the reasons pleaded in paragraphs 129A to 129D and 130B to 130E above, Monto Coal 2 was not obliged and in any event would not have taken steps to cause the Joint Venture Management Committee to make the decisions necessary to achieve development of Stage 1 and undertake the Stage 2 Feasibility Study by 16 May 2005;

(f) if Stage 1 had been developed by 16 May 2005, no profits would have been earned by the plaintiffs because the costs of Stage 1 would have exceeded revenue;

(g) had the Stage 2 Feasibility Study been undertaken and completed by 16 May 2005 it would not have shown the Monto Coal Project to be economically viable or feasible, so that Monto Coal 2 would not have caused or permitted its Representative on the Joint Venture Management Committee to vote in favour of development of Stage 2;

(ga) if a Stage 2 Feasibility Study had been undertaken and completed by 16 May 2005 which adopted the assumptions and conclusions relied upon by the plaintiffs' experts in this proceeding, Monto Coal 2 would not have caused or permitted its Representative on the Joint Venture Management Committee to vote in favour of development of Stage 2;

(ha) further, if a Stage 2 Feasibility Study had been undertaken and completed by 16 May 2005 which adopted the assumptions and conclusions relied upon by the plaintiffs' experts in this proceeding, Monto Coal 2 would not have been able to obtain finance for the development of Stage 2 because a financier would not have agreed to provide funding to Monto Coal 2 for the costs of Stage 2 development on the basis of a Stage 2 Feasibility Study adopting those assumptions and conclusions;

(i) if the development of Stage 2 had been achieved (which is denied):

(i) no profits would have been earned for the plaintiffs because the capital costs and operating costs would have exceeded revenue;

(ii) the plaintiffs would have suffered losses due to the need to pay Cash Calls to fund the development of Stage 2.

[163] The Plaintiffs deny the allegations in paragraph 163 of the Amended Defence on the following basis:

(b) as to paragraph 163(e), the Plaintiffs deny the allegation on the basis of the matters set out in paragraphs 129A to 129D and 130B to 130E hereof

(iii) Stage 1 of the Monto Coal Project would have earnings before income tax, depreciation and amortisation of negative $3.655 million in 2004 and $10.835 million in 2005, as calculated in Annexure B to the report of Mr Hall dated 30 November 2018 or, in the alternative, negative $0.154 million in 2004 and $10.515 million in 2005, as calculated in "Hall Attachment 1" (Tab "Revised Browne Actual Spot") to the Supplementary Joint Report on Loss and Damage of Mr Hall and Mr Samuel [EXP.500.048.0001];

(d) as to paragraph 163(g), the Plaintiffs deny the allegations on the basis that, had a Stage 2 Feasibility Study been undertaken, it would have shown Stage 2 of the Monto Coal Project to be profitable, with a Net Present Value of $518 million as set out in paragraphs 9 to 31 of the report of Mr Hall dated 21 November 2018, or in the alternative $501 million as set out in paragraphs 14 and 15 and "Hall Attachment 1" to the Supplementary Joint Report on Financial Modelling of Mr Hall and Ms Power dated 29 July 2019 [EXP.500.036.0001] or in the further alternative, $408 million as set out in paragraphs 20 to 29 and "Hall Attachment 7" to the Supplementary Joint Report on Financial Modelling of Mr Jeffrey Hall and Ms Lucy Power dated 29 July 2019 [EXP.500.036.0001], and Monto Coal 2 would have caused its Representative on the Joint Venture Committee to vote in favour of development of Stage 2;

(da) as to paragraph 163(ga), the Plaintiffs deny the allegations on the basis of the matters pleaded in paragraph 23 of the Amended Consolidated Statement of Claim and paragraph 163(d) of this Amended Reply;

(i) do not admit the allegation that Monto Coal 2 would not have been able to obtain finance for the development of Stage 2 because a financier would not have agreed to provide funding to Monto Coal 2 for the costs of Stage 2 development on the basis of a Stage 2 Feasibility Study which adopted the assumptions and conclusions relied upon by the Plaintiffs' experts. The Plaintiffs have made reasonable inquiries and remain unaware of the truth or falsity of that allegation;

(ii) otherwise deny the allegation that Monto Coal 2 would not have been able to obtain finance for the development of Stage 2 because Monto Coal 2 would have been able to obtain funding for the development of Stage 2 from Macarthur Coal, selling down equity in the Monto Coal Project or by a combination of both funding from Macarthur Coal and selling down equity in the Monto Coal Project;

(f) as to paragraph 163(i), the Plaintiffs deny the allegations because:

(i) the revenue from the Monto Coal Project would have exceeded the costs (and further particulars of which are set out in paragraph 13 of, and Annexure B to, the expert report of Mr Hall dated 30 November 2018), or in the alternative, in Hall Attachment 1 to the Supplementary Joint Report on Loss and Damage of Mr Hall and Mr Samuel [EXP.500.048.0001].

(ii) the Plaintiffs would not have suffered losses due to the need to pay Cash Calls to fund the development of Stage 2;

[41] The following observations may be made:

• (a) In defence [163](e) the defendants plead a positive counterfactual case, namely that the conduct which the plaintiffs impugn would not have caused any loss to the plaintiffs because for the reasons articulated in the cross-referenced paragraphs Monto Coal 2 was not obliged and in any event would not have taken steps to cause the Joint Venture Management Committee to make the decisions necessary to achieve development of Stage 1 and undertake the Stage 2 Feasibility Study by 16 May 2005.
• (b) The cross-referenced paragraphs were the paragraphs of the defence which advanced the defendants' case about the views which Monto Coal 2 had in fact formed over the years. Thus:
  • (i) Paragraphs 129A to 129D asserted that by 4 July 2003 Monto Coal 2 had formed the view that the Monto Coal Project was not then economically viable in light of the then current and predicted thermal coal prices; identified the factors to which it had had regard to form that view; and asserted that it had formed the intention to take no steps to cause the Joint Venture Management Committee to make the decisions which would be necessary to complete development of stage 1 by 16 May 2005.
  • (ii) Paragraphs 130B to 130E asserted that in the period from 4 July 2003 to 16 May 2005, Monto Coal 2 continued to hold the view that the Monto Coal Project in the form contemplated by the Joint Venture agreement was not economically viable in light of the then current and predicted thermal coal prices, identified the factors to which it had had regard to continue to hold that view and asserted that it continued to hold the intention to take no steps to cause the Joint Venture Management Committee to make the decisions which would be necessary to complete development of stage 1 by 16 May 2005.
• (c) It follows that the positive case advanced by the defendants relied on the counterfactual proposition that Monto Coal 2 would have continued to hold the views asserted and would not have caused decisions to be made to achieve development of Stage 1 and undertake the Stage 2 Feasibility Study by 16 May 2005.
• (d) Reply [163](b) traverses the defendants' counterfactual case on the basis of the matters set out in reply [129A] to [129D] and [130B] to [130E]. The cross-referenced paragraphs are the paragraphs in the reply which grapple with the truth or falsity of the propositions which the defendants had advanced in relation to the views which say that, historically, they did have and why they had them, and, amongst other things, contend that if some of the alleged views were actually held then they were held in breach of contract because they were not held in good faith or reasonably. There is nothing in reply [163](b) or the cross-referenced paragraphs which pleads what I have described as the plaintiffs' unpleaded counterfactual case as the reasons for the traverse of the defendants' positive counterfactual case, or which contradicts the defendants' proposition concerning the steps which they would not have taken by reference to a case concerning steps which they would have taken for particular reasons.

The defendants' complaint about the plaintiffs' attempt to advance a new case

[42] Amongst other things, it is evident that, prior to my ruling in Sanrus No. 5, the plaintiffs had flagged that their intention was to conduct their case on the basis that it was possible to prove some of the plaintiffs' unpleaded counterfactual case (namely the fact and timing of numerous decisions, agreements and acts by the Joint Venture and third parties between mid-2002 and May 2005) by eliciting Mr Freeman's opinion that various decisions, agreements and acts would have occurred.

[43] Thus it was that Mr Freeman's reports contained multiple expressions of his opinion as to what the Joint Venture would have actually done in hypothetical circumstances prevailing up to and after 2005. Similarly, they contained multiple expressions of his opinion as to what third parties such as Queensland Rail (QR), Gladstone Ports Corporation (GPC) (also referred to as GPA), SunWater and Powerlink would have done in hypothetical circumstances prevailing up to and after 2005. In fact a substantial part of his reports related to the taking of steps by such third parties, including that the Joint Venture would have entered into particular contracts with particular terms prior to and after completion of the Stage 2 Feasibility Study.

[44] For example, Mr Freeman opined -

• (a) in relation to the joint venture that:
  • (i) the Joint Venture would have taken a calculated investment decision on the timing of a commitment to a port agreement to manage the risk that it may not have obtained port capacity;[11]
  • (ii) port capacity for Stage 2 tonnage would have been discussed and secured (by a port agreement) at the same time as Stage 1 tonnage or separately in the period 2003 to 2004;[12]
  • (iii) the Joint Venture was well progressed with discussions with QR in late 2002 and if it had committed to further studies in late 2002 or early 2003, it would have been able to commit to conditional rail capacity from late 2003/early 2004;[13]
  • (iv) the Joint Venture would have opted for Powerlink to construct the necessary power infrastructure rather than Ergon Energy or doing the construction itself;

[63] During the course of oral argument before me, and without abandoning resistance to the objections advanced by the defendants to the general admissibility of the evidence, the plaintiffs advanced a fall back argument. That argument was that at the least the evidence to which the defendants had objected could be regarded as expressing Mr Freeman's views as to matters which would have been considered by appropriately qualified and competent experts who were preparing a hypothetical bankable feasibility study for the Monto Coal Stage 2 Project, and as identifying what conclusions those experts, acting with reasonable care and skill, would have reached on those matters.

[64] There is support - albeit retrospective support, because that is not how Mr Freeman's underlying reports are in fact expressed - for reading the reports in that way to be found in the joint expert reports for offsite power supply; offsite water supply and rail. The following paragraphs appear in the joint expert report in respect of rail (and similar words appear in the other two reports):

2.2 The purpose of this JER is to set out what the experts to this report agree or disagree with respect to rail for the Monto Coal Stage 2 Project (the Project). It is important to note that this report has been prepared, as have our underlying individual reports, to address what matters relevant to rail would have been considered by appropriately qualified and competent people who were preparing a hypothetical bankable feasibility study (BFS) for the Monto Coal Stage 2 Project, and what conclusions those people, acting with reasonable care and skill, would have reached on those matters.

2.3. The plaintiffs' experts have been asked to assume that preparation of the hypothetical BFS occurred from 2002 to 2005. The defendants' experts have been asked to consider the preparation of that hypothetical BFS as at May 2005. This difference in instructions is the principal source of the differences of opinion noted in Section 4 of this JER.

2.4. When we say that something would or would not have been decided or done, or that something is or is not correct, or is or is not reasonable, that is to be read in each case as expressing a conclusion that in, our opinion, those notionally preparing the hypothetical BFS would have reached on that "something".

[49] Later the plaintiffs shifted their ground. From Mr Freeman's statements being "admissible for the purpose of proving the content of the Stage 2 Feasibility Study", the proposition became, effectively, "admissible for the purpose of proving the content of advice (or communications) which would have been available to the Joint Venture from expert consultants from time to time during the period 2002 to 2005 in the course of work done for the Stage 2 Feasibility Study". The proposition seemed to be that if the reports were admissible for the latter purpose, that evidence would, in turn, provide a foundation from which I could be asked to infer that the Joint Venture would have acted on such advice or communications once it was given to them, and in turn, that the event advised upon or communicated about (namely the plaintiffs' unpleaded counterfactual case) would have come to pass.

[50] The plaintiffs' argument was put in this way in written submissions before me (footnotes omitted):

1. As to the plaintiffs' case, as identified at [13] to [23] of Sanrus No 5, it requires, amongst other things, a determination as to what the hypothetical Stage 2 Feasibility Study would have demonstrated.

12. To do so, it is important to appreciate of what the Stage 2 Feasibility Study consists.

1. The Stage 2 Feasibility Study required by the Joint Venture Agreement is a process of investigation and study, and not merely the final report that records the results of that process. It is a process that occurs over time.

(a) clause 6 of the JVA, which provides the Participants are "to undertake the Stage 2 Feasibility Study during the Stage 1 Mine Development" - the study is something undertaken during a period, not merely a report. Had the parties intended to refer only to the final report, the obligation would have been to produce or complete the study by the end of the Stage 1 Mine Development;

(b) the definition of "Stage 2 Feasibility Study" in clause 1, which includes tasks to be undertaken (exploration to prove up the Stage 2 resource and various studies), rather than defining it as a report which addresses certain topics;

(c) the obligation in clause 5.1 to use all reasonable efforts to develop Stage 1 with 3 years of the Commencement Date - indicating that the parties expected that Stage 1 Mine Development may take place over an extended period.

1. As such, it is not the plaintiffs' case (as the defendants appear to argue) that the Stage 2 Feasibility Study is confined (temporally) to May 2005 and consists of just the final report. If that was the plaintiffs' case, then the plaintiffs would have not instructed experts such as Mr Freeman to assume that a Stage 2 Feasibility Study would have been performed between 2002 and 2005.
2. The Stage 2 Feasibility Study includes, as well as the final report, the investigations that the persons undertaking the Stage 2 Feasibility Study would pursue and the conclusions they would form while undertaking that process.
3. These conclusions would be available to the Joint Venture as they were arrived at, and not only revealed for the first time in a final report in May 2005.
4. Accordingly, the defendants' submission that evidence as to matters prior to May 2005 cannot be evidence of matters considered by experts undertaking the feasibility study is without substance.

[51] The plaintiffs argued that they could seek to establish the facts pleaded in the statement of claim at [23] in whatever way they thought fit. They contended that the various counterfactual propositions contained in what I have defined as the plaintiffs' unpleaded counterfactual case were to be regarded as evidence of the material facts pleaded and particularised in the statement of claim at [23] and not matters which were necessary to be pleaded.

[52] The defendants objected that the plaintiffs -

• (a) had not pleaded -
  • (i) that the Joint Venture/Monto Coal 2 would have received advice or information from consultants engaged by them in the period prior to May 2005 (when the Stage 2 Feasibility Study would have been completed) to the effect they could or should enter into contracts with third parties in respect of the construction or use of infrastructure for Stage 2 (Stage 2 infrastructure contracts); or
  • (ii) the timing, content or basis of any such advice or information; or
  • (iii) the timing or terms of any such contracts; and
• (b) had not pleaded the Joint Venture/Monto Coal 2 would have entered into Stage 2 infrastructure contracts in the period prior to May 2005 either -
  • (i) in consequence of advice or information of the kind referred to in (a) above;
  • (ii) because the Joint Venture Agreement obliged them do so; or
  • (iii) because they would have voluntarily done so,

and contended that it was not now open to the plaintiffs to advance such a case.

[53] The complaint about there not being a pleading that the Joint Venture Agreement obliged the defendants to bring about the Stage 2 infrastructure contracts became unnecessary to rule upon. That occurred because the plaintiffs by their written submissions stated (emphasis added):

[...] that in this case, clause 6 of the Joint Venture Agreement afforded to the parties a wide latitude as to the steps to be taken to discharge the obligation to undertake a bankable feasibility study during the period prescribed by the clause (viz. between 16 May 2002 and completion of the Stage 1 Mine Development). The relevant counterfactual inquiry is therefore not "what steps did the JVA require the parties to take" to undertake a bankable feasibility study. The relevant inquiry is simply "what would have happened in fact" if Monto Coal 2 had not breached (inter alia) clause 6 of the agreement, and instead caused a bankable feasibility study to be undertaken during the prescribed period. In undertaking that inquiry, the Court is to assume that Monto Coal 2 would have performed in its own interests having regard to the factors prevailing at the time, and acted in good faith, with its own commercial interests very much in mind (paragraph 27 above). That assessment is to be made having regard to all of the evidence. The Court is called upon to decide what, in all probability, would have happened, had the contract not been broken in the respects established, or (as the case may be) alleged.

[54] Accordingly, it seems that the plaintiffs acknowledge that performance of the Joint Venture Agreement according to its terms would have permitted a range of discretionary choices, and it is not the plaintiffs' case that the only discretionary choices consistent with performing it according to its terms were the choices which would have led to the occurrence of the unpleaded counterfactual case. Rather their case is that the choices which would have led to the occurrence of the unpleaded counterfactual case are the choices which, having regard to all the evidence, would nevertheless probably have been made. I agree that if it does not form part of the plaintiffs' counterfactual case to assert the unpleaded counterfactual events would have occurred because performance of the Joint Venture Agreement according to its terms mandated the particular choices which would have led to the occurrence of those events (such that it would have been a breach of contract not to make those choices), then the plaintiffs would not have to plead that fact. But if the contrary had been the case, it would have been incumbent on the plaintiffs explicitly to plead that case. In any event, once the plaintiffs clarified that they did not advance a breach case in this way, the defendants did not pursue this aspect of their complaint.

[55] The remaining issues raised by the defendants' objection do require examination.

[56] Insofar as the plaintiffs' argument suggests that the fair reading of the statement of claim at [23] was that it was a reference to things which would have been demonstrated from time to time during a 3 year process culminating in May 2005, rather than to a particular document prepared by about May 2005, I reject that proposition for the reasons expressed at [23] above. Particular (b) of the statement of claim at [23] was a reference to a particular document, namely the Stage 2 Feasibility Study which would have been prepared by about May 2005. A 3 year process is not "prepared by about May 2005". And when particular (d) refers to what the Stage 2 Feasibility Study would have demonstrated, it was referring to the content of the particular document prepared as at about May 2005, which in turn would have been the subject of the meeting referred to in particular (e) and the vote referred to in particular (f).

[57] I reject also the plaintiffs' argument which I have recorded at [51] above concerning what was required of their pleading. For the reasons I have expressed at [16] to [21] above, where, as here, a party's causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading.

[58] The plaintiffs' difficulty is that they have only pleaded and particularised part of the counterfactual case which they say that they should be permitted to advance.[27]

[59] The first missing part is what I have defined as the plaintiffs' unpleaded counterfactual case, namely that various decisions, agreements and acts by the Joint Venture but also by various third parties (land-holders, statutory bodies and regulators, corporate infrastructure providers and the like) would have occurred and that they would have occurred at or by particular times.

[60] The second missing part is the added ingredient that not only would those events have come to pass, but the mechanism by which that would have occurred is what it is convenient to refer to as , namely a case to the effect that -

[60] Discussion of the causation issue must commence with an appreciation of the purposes served by the system of pleadings in civil litigation, and the consequences of parties choosing to broaden the issues in dispute beyond the scope of the pleadings. In Gould v The Mount Oxide Mines Ltd (In Liq) & Ors, Isaacs and Rich JJ said:

"Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. See, for instance, Nevill v Fine Art and General Insurance Co ((1897) AC 68 at 76); Browne v Dunn (6 R 67 at p 75), the relevant passage being quoted fully in Rowe v Australian United Steam Navigation Co [1909] HCA 25; (9 CLR, 1 at p 24). There are qualifications, no doubt, and each case must depend for the proper application of the principle upon its own facts. It has been laid down by the Privy Council that 'As a rule relief not founded on the pleadings should not be granted.' 'But in this case' (said their Lordships) 'the substantial matters which constitute the title of all the parties are touched, though obscurely, in the issues; they have been fully put in evidence, and they have formed the main subject of discussion and decision in all three Courts. The High Court are right in treating the case as not within the rule': Sri Mahant Govind Rao v Sita Ram Kesho (25 Ind App 195 at p 207). Nocton v Lord Ashburton ((1914) AC, 932) is a decisive authority that even where fraud is charged and the charge fails, the plaintiff does not necessarily fail. He may still have a sufficient cause of action left. . The case has been fully tried out, as far as the parties desired, on the three matters before us, and the only question is whether the judgment appealed from as to the challenged items should be affirmed, modified or reversed on the merits."

[61] More recently, in Banque Commerciale SA v Akhil Holdings Ltd the High Court reiterated that observance of the rules of pleading is intended to facilitate the fair determination of the real issues in dispute between the parties, and is not an end in itself. Their Honours said:

"The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) ((1916) [1916] HCA 81; 22 CLR 490, at p 517), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, eg, Browne v Dunn ((1893) 6 R, at p 76); Mount Oxide Mines ((1916) 22 CLR, at pp 517 - 518).

Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference ..."

[70] The plaintiffs say, first, that it is demonstrable that the defendants must be taken either to have deliberately chosen to engage with the unpleaded counterfactual propositions identified in their expert reports or that they acquiesced to the plaintiffs' advancing the case founded on those unpleaded counterfactual propositions. Second, they say that it would be unfair to permit the defendants to hold them to their pleaded case in circumstances where it must have been apparent to the defendants that the plaintiffs advanced a case which was broader than that pleaded.

[71] I accept that the considerations to which I have referred at [28] to [38] above suggest that the defendants must be taken to have assumed that the plaintiff's case as to their counterfactual propositions was that fairly disclosed by the pleadings as narrowed and confined by the expert reports which the plaintiffs were permitted to rely on at trial.

[72] It follows that there is a solid foundation to the plaintiffs' argument that the defendants have, during the course of this hearing, already engaged with the validity of some of the assumptions on which the plaintiffs' experts opinions rest. I have mentioned already the nature of some of the questioning of the lay witnesses. Further, evidence has been adduced from some experts already which plainly sought to do so: see, for example, the evidence of Mr Smith (D) and Mr Masters (D).

[73] That foundation will be reinforced if the defendants call all their experts and their reports go into evidence. The plaintiffs took me to parts of the experts reports from defendants' experts who have not yet been called, but which were delivered in compliance with case management orders, which they submitted (and I agree) demonstrated that it is plain that defendants' experts reports filed and served in compliance with case management orders have specifically sought to engage with whether or not particular assumptions underlying the plaintiffs' expert reports would have come to pass.

[74] I agree with the plaintiffs that it is too late for the defendants now to contend that the plaintiffs may not seek to prove the truth of the counterfactual assumptions which were fairly disclosed to the defendants by the pleadings as narrowed and confined by the expert reports delivered pursuant to case management orders and which the defendants have engaged with in either by: (1) evidence which has been adduced at this trial or questions which have been made of witnesses who have given evidence in this already, or (2) evidence which by the form of their expert reports the defendants have made it clear that they are ready and able to deal with at this trial.

[82] In my view, the plaintiffs cannot on the present state of the pleadings be permitted to advance the unpleaded advice case. And I reject their submission that the parties must be treated as having otherwise broadened the scope of the issues in this proceeding to include that case. The defendants' objection as to the plaintiffs being permitted to advance that case should be upheld.

[83] At [8] above, I identified the circumstances which led to the plaintiffs seeking leave to rely on the further supplementary Freeman report. As I mentioned, that leave was opposed.

[84] There was no dispute that leave was required. It was common ground that the considerations applicable to leave to rely upon new expert evidence were those set out in Sanrus No. 1 at [70] - [71] and Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 2) [2019] QSC 162 at [12] - [15].

[85] For their part, the plaintiffs contended that -

• (a) the question of whether to grant leave is primarily concerned with a balancing of the prejudice to be suffered by the plaintiffs if leave is refused against any prejudice to the defendants if it is granted;
• (b) the prejudice to the plaintiffs was significant;
• (c) the prejudice to the defendants was minimal; and
• (d) the balance therefore favoured the grant of leave.

[86] I observe that I do not think that that is an adequate statement by way of general principle, and I would rely on what I said in the two Sanrus cases to which I have referred.

[87] The plaintiffs recognised that the application was made at a very late stage, but explained the delay by referring to the following matters -

• (a) Mr Freeman's November 2018 reports were prepared under the pressure of having to meet court ordered time limits;
• (b) the impetus for the application was the ruling in Sanrus No. 5, which upheld objections to the existing Freeman reports, and which led to the plaintiffs' advisers determining to approach Mr Freeman about the preparation of a supplementary report;
• (c) a submission that:

[...] having regard to the volume and timing of the service of the objections and associated submissions between 8 August 2019 and 24 August 2019, the nature of the objections taken (often on several discrete grounds in relation to numerous paragraphs and sentences) and the late withdrawal of numerous objections, the plaintiffs cannot be criticised for not realising prior to the decision in Sanrus No 5 being handed down that, instead of spending their time attempting to address and make submissions about the numerous objections, they should instead be giving up and focussing on preparing a new report of Mr Freeman.

(d) a submission that the plaintiffs had not delayed in making the application once the need for it to be made had become apparent.

[88] As to this, I observe that I do not regard the first proposition as a persuasive explanation for the need for yet another report from Mr Freeman. The third submission is impossible to accept, in light of the fact that the plaintiffs have explicitly not given up on resisting the objections. There is some merit, however, in the second and fourth propositions. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [19], the High Court identified as one of the reasons why the general rule was that a ruling on admissibility should be made before the party who tendered the evidence closed its case was so that the party might "then know whether it must try to mend its hand". I regard the substance of the plaintiffs' explanation to be that the further report represents their attempt to remedy the position which they had themselves created by seeking to rely at trial on expert reports which were inadmissible to the extent identified in Sanrus No. 5. Of course that being the real explanation does not mean that a discretion should be exercised in favour of permitting the alleged remedial course.

[89] The plaintiffs contended that the prejudice to the defendants of the grant of leave was minimal, but the prejudice to them of the denial of leave substantial. They submitted (footnotes omitted, emphasis added):

The evident prejudice to the plaintiffs from a refusal of leave is significant, for if leave is not granted and the defendants' objections are upheld such that evidence about the topics referred to in the supplementary report are not admitted on any basis, the plaintiffs will be without evidence which is important to their case in seeking to establish the counterfactual process, being matters relevant to the offsite power supply, offsite water supply, port and rail which would have been considered by appropriately qualified and competent people who were preparing a hypothetical bankable feasibility study for the Monto Coal Stage 2 Project, and as identifying the conclusions which those people, acting with reasonable care and skill, would have reached on those matters, assuming the preparation of the hypothetical bankable feasibility study in the period from 2002 to 2005.

In addition, the supplementary report of Mr Freeman (P) assists in the interpretation of the 2 November 2018 report (and informs the issue of whether the objections to that report should be upheld, which is important to the plaintiffs' case) because it identifies a process which Mr Freeman (P) considers that an expert would have undertaken during the Stage 2 Feasibility Study in 2002 - 2005, which includes identification of likely terms which the infrastructure provider would agree upon and subsequent negotiations of those terms. This means that Mr Freeman's (P) evidence in the 2 November 2018 report which has been expressed in terms of what an infrastructure provider would have done should be construed as being an opinion as to what an expert would have considered were the likely terms on which an infrastructure provider would have entered a contract, subject to negotiation of those terms which needed to follow.

[90] Although they disputed some aspects of detail concerning some timing aspects of the explanation which the plaintiffs advanced, in my view the resolution of the application rises and falls on whether I am persuaded to refuse leave because of what the defendants characterised as their three primary reasons for opposing leave, namely their submissions that -

• (a) the report is directed towards the plaintiffs' unpleaded advice case and the plaintiffs should not be permitted to advance that case;
• (b) the report is objectionable in many respects; and
• (c) the report does not cure the admissibility defects in Mr Freeman's earlier reports.

[91] The first proposition is correct. For reasons which I have explained in the first section of this judgment, the defendants were correct to submit that the plaintiffs should not be permitted to advance the unpleaded advice case in this trial. The further supplementary report is principally directed to that case. As will appear, and for the reasons advanced in Schedule 3 to this judgment, the second proposition is also correct and there is not much of the supplementary report which survives my rulings on the defendants' objections. To my mind the question then becomes whether, to the extent that there is some admissible material in the report, there is any reason to deny to the plaintiffs such advantage as they might be able to establish for their case by reference to that material.

[92] Even though a substantial argument can be advanced in favour of not exercising a discretion to permit reliance on a report which is directed to inadmissible purposes and only contains small components of admissible material, bearing in mind there are no particular adverse consequences to the conduct of this trial in permitting it to be relied on, I think the balance of considerations favours the grant of leave. It is not necessary to consider the third of the defendants' primary reasons for opposing leave.

The principles which inform the disposition of the objections

Expert opinion evidence must satisfy the Makita criteria

[93] In Sanrus No. 5 at [45] to [49] and [51] to [52], I sought to identify relevant aspects of the criteria which expert opinion evidence must meet in order to be admissible. In argument before me for the purpose of making final rulings in relation to the objections to the reports of Mr Freeman, the plaintiffs did not dispute the correctness of that identification of general principle. I will reproduce that previous identification of general principle at [94] to [100] below.

[94] In Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85], Heydon JA stated that for expert opinion evidence to be admissible, it must meet the following criteria:

• (a) it must be agreed or demonstrated that there is a field of "specialised knowledge";
• (b) there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
• (c) the opinion proffered must be "wholly or substantially based on the witness's expert knowledge";
• (d) so far as the opinion is based on facts "observed" by the expert, those facts must be identified and admissibly proved by the expert;
• (e) so far as the opinion is based on "assumed" or "accepted" facts, those facts must be identified and proved in some other way;
• (f) it must be established that the facts on which the opinion is based form a proper foundation for it; and
• (g) finally, the expert's evidence must explain how the field in which the expert has expertise - as established pursuant to (a), (b) and (c) - applies to the facts assumed or observed so as to produce the opinion propounded.

[95] This passage of the reasons of Heydon JA in Makita has been applied by the Queensland Court of Appeal on multiple occasions, including at ; at ; at ; at and at [44]. As will appear, his Honour developed his thinking and expressed it further in .

[43] To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from [the expert] really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.

[44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions" (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided.

(d) His Honour's remarks, although specifically directed at the statutory expression of this common law rule, are just as applicable to the common law rule itself.

(e) A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Dasreef Pty Ltd v Hawchar per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42].

(f) Notably, because demonstration of these matters could come only from the evidence given by the expert, the need to direct attention to these matters requires that the opinion be presented in a form which makes it possible to answer that question: HG v The Queen per Gleeson CJ at [39] and Dasreef Pty Ltd v Hawchar per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [36].

[98] The second relevant aspect of the Makita criteria is that the facts on which the opinion is based must be identified by the expert. As to this:

• (a) This is part of what the fourth and fifth of the Makita criteria address. In R v Naidu,[34] Fraser JA said that '[i]t is unquestionably the law that expert opinion evidence is inadmissible if the opinion is not expressed upon a state of facts both identified and proved in evidence' (emphasis added).
• (b) In Dasreef Pty Ltd v Hawchar at [64] Heydon J called this the "assumption identification rule". His Honour observed (footnotes omitted, emphasis added):

There is no doubt that the assumption identification rule exists at common law. Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert - by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways. Thus Dixon J said that the assumptions of fact on which an expert opinion rested had to be "adverted to by the witness".

(c) The previous two subparagraphs demonstrate that a failure to identify the state of facts on which the expert opinion is expressed goes to the admissibility of the evidence, not its weight.

(d) Heydon J explained the purpose of the "assumption identification rule", in these terms in Dasreef Pty Ltd v Hawchar (at [65]) (footnotes omitted):

The rule facilitates the operation of the proof of assumption rule and other rules of admissibility. It helps to distinguish between what the expert has observed and what the expert has been told; to ensure that the expert is basing the opinion only on relevant facts; to ensure that experts do not pick and choose for themselves what aspects of the primary evidence they reject, what they accept, how they interpret it and what the court should find; and to ascertain whether there is substantial correspondence between the facts assumed and the evidence admitted to establish them.

(e) His Honour's reference to the "proof of assumption rule" was to the common law rule that an expert opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of fact which are sufficiently similar to the factual assumptions on which the opinion was stated to be based to render the opinion of value: Dasreef Pty Ltd v Hawchar at [66]. When in R v Naidu, Fraser JA referred to "and proved in evidence", I apprehend it was to this requirement.

[99] The third relevant aspect of the Makita criteria is that to the extent that the opinion rests on facts "observed" by the expert, they must be admissibly proved by the expert. As to this:

• (a) That is part of what the fourth of the Makita criteria addresses. Whilst it is often the case that experts will not seek themselves to prove some or all of the facts on which their opinion is founded, Makita recognises that there is no reason why that cannot occur, so long as it is done in an admissible way.
• (b) An expert might well prove, for example, a particular experiment, analysis done or set of observations made by the expert and then express an opinion based on the results of the experiment, the outcome of the analysis or the content of the observations. In that way the expert would be both a witness of fact (as to the experiment, analysis or observations) and a witness of expert opinion (as to the expert opinion properly drawn within the scope of the expert's demonstrated expertise based on the facts so demonstrated). Sometimes the dividing line between fact and law in this respect might be unclear. For example, an expert might need demonstrated specified training, study or experience for the experiment, analysis or observations to be valid.
• (c) The important point is that insofar as a litigant seeks to prove facts on which an expert opinion is based by way of the expert's own evidence, that proof must be done in an admissible way by that expert. If the expert witness' own evidence of the facts is not admissible to prove them, then the most that that part of the expert's evidence could be regarded as, is a statement of what the expert assumed to be true for the purpose of the expert formulating the expert's opinion evidence. If those assumptions are not confirmed in some other way by admissible evidence in the proceeding, then the expert opinion evidence will not be admissible.

"The process of inference that leads to the [expert's] conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them."

As Lord Cooper, the Lord President, said in Davie v Magistrates of Edinburgh:

"The value of [expert opinion] evidence depends ... above all upon the extent to which [the expert's] evidence carries conviction ...

[T]he defenders went so far as to maintain that we were bound to accept the conclusions of [an expert witness]. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted. [...] [The] duty [of expert witnesses] is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. ... [T]he bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert."

1. It is sometimes said that these words deal with weight only, not admissibility. But this is contradicted by the Lord President's use of the word "admitted".

(d) As to the importance of the rule from the point of view of fairness to an opposing party, citing Lewis v The Queen [1987] NTCCA 3; (1987) 88 FLR 104 at 124, Heydon J wrote that the rule required the reasoning to be stated in chief because the opposing party is not to be left to find out about the expert's thinking for the first time in cross-examination.

[101] The particular aspects of the objections advanced by the defendants which are informed by this analysis will be identified later in this judgment and in the rulings which I make as expressed in the Schedules to this judgment.

Proof of what a person would have done in hypothetical circumstances

[102] An important but, in one respect, disputed aspect of general principle dealt with in Sanrus No. 5, concerned how evidence might be adduced as to what a person would have done in hypothetical circumstances, should proof of that hypothetical fact be relevant in a proceeding.

[103] In Sanrus No. 5 at [54], I recorded that the plaintiffs did not dispute the following summary of principle set out in the defendants' submissions:

• (a) A witness may give evidence of what he or she would have done in hypothetical circumstances. Such evidence is not opinion evidence, but evidence of fact.[36]
• (b) Similarly, a witness with appropriate authority may also give factual evidence of what his or her corporate employer would have done in a hypothetical set of circumstances.[37]
• (c) On the other hand, evidence of what another person would have done in hypothetical circumstances, or what a reasonable person would have done in hypothetical circumstances, is opinion evidence.[38] There are generally three circumstances in which such evidence can be given:
  • (i) A suitably qualified professional expert may give evidence of the content of general practices of professionals in his or her field, or to put it another way, evidence about what professionals generally do in stated circumstances.[39] Outside the field of professional practices, an expert may give similar evidence about the content of industry practices.[40]
  • (ii) A suitably qualified professional expert may go beyond evidence of the content of general practices, by expressing an opinion about the practice of competent and careful professionals in specified circumstances which are recurring or typical.[41] However, evidence of what an expert would himself or herself do in hypothetical circumstances is inadmissible.[42]
  • (iii) A suitably qualified professional expert may go beyond evidence of the general practice of competent and careful professionals in stated circumstances, and give evidence of what, in stated circumstances which are out of the ordinary and not amenable to observations about a developed practice, a competent and careful professional would be expected to do. It has been suggested that some additional and special qualification over and above the ordinary training and experience of a professional in the field is required in order to be able to express an opinion of this kind.

[56] [...] That subject matter is not a proper matter for expert opinion. The plaintiffs were not able to identify any authority which supported the argument beyond the authorities which permit experts to give evidence of the content of industry practices and of the practices of consumers or industry participants generally. In my view those cases do not permit of such an extension. As Allsop CJ observed in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2007] FCA 1828; [2007] 245 ALR 15 at [24] in relation to cases which authorised expert opinion evidence about how customers in the market would react in hypothesised circumstances "... it goes without saying that [the expert] cannot say what any particular individual person would have done on a particular day."

[57] That is not to say that an expert might not be able to give admissible factual evidence concerning practices or procedures in an industry. But the expert would have to do so in an admissible way. And, as we have seen in the principles stated at [103](c) above, in some circumstances an expert might go on to express opinion based on the expert's admissible factual evidence. But in so doing, the expert would have to comply with the Makita criteria.

[58] Nor is it to say that factual evidence about a corporate person's particular past conduct or practices might not be admissible, with a view to providing an evidentiary basis for a submission that the trier of fact should draw a particular inference about that person's likely conduct in hypothetical circumstances. But the proof of past conduct or practices would have to occur in an admissible way. And whether the trier of fact should draw the inference contended for based on the evidence of past conduct or practices is a matter for the trier of fact. It is not a proper subject for expert opinion evidence. Permitting that to occur would usurp the function of the trier of fact and would permit the party seeking to adduce such evidence to engage in precisely the type of conduct criticised by Gleeson CJ in in HG v The Queen quoted at [97](c) above.

[106] In written submissions which they placed before me for the purpose of my making final rulings in relation to the objections to the reports of Mr Freeman, the plaintiffs advanced what seemed to me to be contradictory positions.

[107] First, they submitted that "where the causation case involves the taking of a step which in fact was not taken, it is orthodox to call expert evidence to opine as to the content of the hypothetical step"[45] and "where the hypothetical step involves a particular third party, case-law indicates that a person with relevant expertise may give evidence as to the prospects of that third party acting in a particular way".[46] But later in the same submissions they wrote:[47]

The plaintiffs do not contend that what the Joint Venture would have done is properly the subject of expert evidence. The Joint Venture is not a body about which one can have specialised knowledge that would permit such opinion evidence to be given.

[108] I agree with the proposition in the last quote. If the Joint Venture and the third parties like QR, GPC, SunWater and Powerlink are not bodies about which one could have specialised knowledge as would permit expert opinion evidence to be given as to what they would and would not do, then my ruling in Sanrus No. 5 was correct.

[109] Despite this it did seem to me that the plaintiffs sought to challenge the correctness of my ruling in Sanrus No. 5, and invited me to reconsider it. The defendants took the same view of the plaintiffs' argument, and submitted that I should not reopen a ruling which had already been decided. At first during the course of oral argument, the plaintiffs confirmed that their intention was to persuade me to reconsider my ruling. Later, also during the course of oral argument, they changed that position and indicated that they would accept the ruling for the purposes of my making the final rulings which I had to make, but, as I had invited them to do, would reserve their ability to argue on appeal that the ruling in Sanrus No. 5 was incorrect. Unfortunately, this approach did not inform their written submissions or the schedule by which they advanced, item by item, their suggested rulings in relation to the impugned parts of Mr Freeman's reports. Some attempt to remedy that flaw was made orally.

[110] In any event, and for completeness, I should indicate that I have considered the written submissions which each side provided to me which addressed the correctness of my rejection of the plaintiffs' argument in Sanrus No. 5. I agree, for the reasons set out in the defendants' written submissions, that the plaintiffs did not advance any submissions which cast any doubt on the conclusion which I reached in Sanrus No. 5.

[111] For the purposes of making my final rulings I will proceed on the basis of the correctness of my ruling in Sanrus No. 5.

[112] This has a number of implications.

[113] First, as I explained in Sanrus No. 5, it is not open to Mr Freeman to give expert opinion evidence as to what the Joint Venture would have done in hypothetical circumstances for the purposes of proving that fact.[48] That means that if it is ever relevant to any issue in this proceeding that I make a finding as to whether the Joint Venture would have done that thing in those hypothetical circumstances (or if it is ever relevant to making a finding on the possibilities or probabilities of that happening), Mr Freeman's opinion that the Joint Venture would have done that thing cannot form part of the body of the evidence to which I could have regard in order to make that finding. Examples of opinion evidence of Mr Freeman covered by this ruling include:

In my opinion it is likely that the Joint Venture would have selected option (ii) given the time constraints were manageable, the capital cost would be amortised over the life of the asset rather than being funded upfront, and in my experience, it was an easier and faster process to acquire an easement when undertaken by a statutory Government Owned Corporation.

(b) The statement at [39] - [40] of the Report dated 22 November 2018:[50]

I consider that the Joint Venture could have negotiated a port agreement in 2003-2004, with the costs of the port services stated in the contract in line with that recorded by GPC for 2003. In my experience these would have escalated at CPI throughout the negotiation period until contract execution.

In my opinion a likely term for a port agreement would be 10 years commencing 1 July 2007 with a renewable option for a further 10 years. In my experience port agreements had options to renew at 5-year or 10-year intervals.

[114] Second, as I explained in Sanrus No. 5, it is not open to Mr Freeman to give expert opinion evidence as to what GPC, or SunWater, or Powerlink would have done in hypothetical circumstances for the purposes of proving that fact.[51] That means that if it is ever relevant to any issue in this proceeding that I make a finding as to whether one of those bodies would have done that thing in those hypothetical circumstances (or if it is ever relevant to making a finding on the possibilities or probabilities of that happening), Mr Freeman's opinion that the corporation would have done that thing cannot form part of the body of the evidence to which I could have regard in order to make that finding. Examples of opinion evidence of Mr Freeman covered by this ruling include:

• (a) The statement at [288] of the Report dated 2 November 2018, in relation to what SunWater would have done "[...] however I consider it unlikely that Sunwater would have objected to HDPE pipe as a suitable product."[52]
• (b) The statement at [38](b) of the Report dated 22 November 2018, in relation to the Joint Venture securing port capacity allocation with GPC:[53]

I disagree with this opinion as capacity was available during the feasibility period and would have been allocated to the Joint Venture upon execution of a port agreement.

[115] Third, the question whether Mr Freeman can give admissible factual evidence on what QR would have done in particular hypothetical circumstances, or whether such evidence must be dealt with in the same way as GPC, SunWater and Powerlink remains to be ruled upon. If it transpires that he cannot give such admissible factual evidence on what QR would have done, then his various statements as to what QR would or would not have done, must be dealt with in the same way as similar expressions of opinion in relation to GPC, SunWater and Powerlink. As I explained in Sanrus No. 5 at [61](a):

Mr Freeman's opinions in relation to QR are in a different category to the other corporations. He was at some relevant times an employee of QR. I do not think it is yet appropriate to express an evaluation as to whether the nature of his role might have been such that he could give admissible factual evidence of what QR would have done in a hypothetical set of circumstances. I would not make findings on that question at this time. If he was not in that position, then the observations I make in relation to GPA, SunWater, or Powerlink would apply. However even if he was, it would be necessary for the expression of his opinions to meet the assumption identification rule and the statement of reasoning rule.

[116] Fourth, what I have said in the previous three paragraphs does not exclude the possibility that Mr Freeman might be able to give admissible factual evidence concerning: (1) practices or procedures in an industry; or (2) particular conduct or practices of one of the corporate persons mentioned. But he would have to do so in an admissible way, and if any of the evidence involved opinion evidence, it would have to comply with the Makita criteria and the principles stated at [103] above. If all those criteria were met, evidence might be capable of being elicited from Mr Freeman which could form part of the relevant body of evidence for the purposes mentioned in the preceding three paragraphs.

[117] The particular aspects of the objections advanced by the defendants which are informed by the foregoing analysis will be identified later in this judgment and in the rulings which I make as expressed in the Schedules to this judgment.

[118] There is another way in which the plaintiffs sought to justify use in this trial of the various impugned statements by Mr Freeman about what the Joint Venture would or could have done, or what third parties would or could have done, or how either would or could have contracted, and that is as part of the fallback argument presented by the plaintiffs to which I have referred at [46] to [48] above. That is a subject to which I will now turn.

[119] The plaintiffs' fallback argument was that at the least the evidence to which the defendants had objected could be regarded as expressing Mr Freeman's views as to matters which would have been considered by appropriately qualified and competent experts who were preparing a hypothetical bankable feasibility study for the Monto Coal Stage 2 Project, and as identifying what conclusions those experts, acting with reasonable care and skill, would have reached on those matters.

[120] Based on this proposition, the plaintiffs then contended that evidence of what the professional judgments of relevant experts would have been was then probative in two ways. First, for the purpose of proving what would have been the content of the Stage 2 Feasibility Study referred to in the statement of claim at [23]. As I have explained in my analysis at [23] above, that meant proving what would have been the content of a document prepared in about May 2005. Second, for the purpose of supporting the unpleaded advice case.

[121] Since I have ruled in this judgment that the unpleaded advice case may not be advanced by the plaintiffs, the second possibility need not be considered further.

[122] In the remainder of this judgment and in the Schedules to it, I will refer to the plaintiffs' fallback argument as the argument that the impugned statements and opinions by Mr Freeman may be admitted to prove Mr Freeman's views as to matters which would have been considered by appropriately qualified and competent experts who were preparing a hypothetical bankable feasibility study for the Monto Coal Stage 2 Project, and as identifying what conclusions those experts, acting with reasonable care and skill, would have reached on those matters, for the limited purpose of proving what would have been the content of the Stage 2 Feasibility Study prepared in about May 2005.

Some objections will be postponed until my final judgment

[133] In Sanrus No. 5, I explained that I would apply the general rule expressed in Dasreef Pty Ltd v Hawchar to which I have earlier referred, namely that ordinarily a trial judge should not defer ruling on admissibility until judgment.

[134] I also explained that my application of the general rule would be subject to some caveats.

[135] One of those caveats concerned the application of the proof of assumption rule. In Sanrus No. 5, I explained that there was often a difficulty with applying the proof of assumption rule before all the evidence was in and before the trier of fact was in a position to evaluate all the evidence in the trial in context. Whilst I thought it was possible that if the evidence was clearly discrete and encapsulated that I might be persuaded to apply the proof of assumption rule before my final judgment, I had not thought it appropriate to do so in relation to the items which I had examined at that time.

[136] In this regard, although the defendants had advanced multiple objections based on an alleged inability of the plaintiffs to prove the assumptions on which impugned parts of the reports were based, after examining my ruling in Sanrus No. 5, they advised me that they were content for me to postpone ruling on such objections until my final judgment on the merits. The plaintiffs did not demur to this course. Accordingly, that is the course which I will follow. The result is that, the schedules which express my final rulings will not deal with the proof of assumption objection. To the extent that provisional rulings had included statements that I would not rule on such questions, I have removed those statements from the final expression of my rulings because they are now otiose.

[137] Another obvious caveat to my application of the general rule concerns the expression of opinions by Mr Freeman on what QR would have done in particular hypothetical circumstances. For the reasons I have previously explained, I would postpone ruling on the admissibility of those opinions until my final judgment on the merits of this proceeding.

[138] As to Schedule 1:

• (a) Columns 1 to 4 reproduce the equivalent columns from the schedule which expressed my provisional rulings in Sanrus No. 5.
• (b) Column 5 reproduces a submission which the defendants had made as to the suggested ruling but I have added to it a summary of relevant further submissions which the defendants made in written submissions in reply.
• (c) Column 6 reproduces a submission which the plaintiffs had made as to the suggested ruling.
• (d) Column 7 sets out my final ruling for each item. Because my final ruling had to consider the plaintiffs' fallback argument which was not dealt with in Sanrus No. 5, that has led to the need to make some alterations to the form of the provisional rulings which were expressed in the schedule to that judgment. I have not tracked the changes I have made and have simply expressed the final ruling I would make in respect of those items in which I had only expressed a provisional ruling.

[139] As to Schedule 2:

• (a) This Schedule identifies additional objections advanced by the defendants as referred to at [5] above.
• (b) It largely reproduces a schedule prepared by the parties, but I have added to it a summary of relevant further submissions which the defendants made in written submissions in reply.
• (c) Column 7 sets out my final ruling for each item.

[140] Schedule 3 largely reproduces the schedule by which the defendants advanced objections to the admissibility of the further supplementary report of Mr Freeman, supplemented with a final column setting out my ruling.

[141] The rulings expressed in the final column of each of the Schedules are to be read with the matters discussed in the body of these reasons.

[142] For the reasons set out above and in the Schedules to these reasons, I make the following orders:

1. The plaintiffs are granted leave to rely on the further supplementary report of Mr Freeman dated 8 September 2019 [EXP.010.111.0001]
2. In relation to the defendants' objections to -

(a) Expert Report of Mr Freeman dated 2 November 2018 [EXP.010.005.0001];

(b) Expert Report of Mr Freeman dated 22 November 2018 [EXP.010.007.0001];

(c) Joint Expert Report on Offsite Water Supply of Mr Freeman and Mr Harradine (D), with contributions from Mr Smith (D), Mr Cavanagh (D), Mr Simpson (P) and Ms Power (D), dated 15 July 2019 [EXP.500.004.0001_2];

(d) Joint Expert Report on Offsite Power Supply of Mr Freeman and Mr Harradine, with contributions from Mr Smith (D), Mr Cavanagh (D) and Mr Simpson (P), dated 15 July 2019 [EXP.500.011.0001_2]; and

(e) Joint Expert Report on Port of Jamie Freeman and Euan Morton (D) [EXP.500.026.0001_2]; and

(f) Further Supplementary Report of Mr Freeman dated 8 September 2019 [EXP.010.111.0001],

I make the rulings set out in Schedules 1, 2 and 3 to these reasons.

SANRUS PTY LTD & ORS V MONTO COAL 2 PTY LTD & ORS

SUPREME COURT OF QUEENSLAND PROCEEDING NO. 8609/07

Schedule expressing the Court's ruling on the defendants' objections to reports of Mr Freeman

Report of Jamie Freeman dated 2 November 2018 [EXP.010.005.0001] (2 November Report)

Item 2 from the defendants' schedule of objections

[25] First and second sentences ('I have considered...')

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence

Macarthur Coal's "industry achievement" in relation to the prompt development of coal mines is evidenced by reference to the Moorvale development:

• Macarthur Coal had a 77% interest in the Moorvale Project ([MAC.518.002.8283] p. 8287);
• Moorvale was a greenfield site ([TRA.500.030.0001] T30-69/11);
• A feasibility study in relation to the Moorvale project was produced on 22 February 2002 [MAC.906.001.0927];
• mining lease applications were lodged on 22 February 2002 ([MAC.906.001.0927 at pdf p. .0942];
• A mining lease was obtained in December 2002 ([TRA.500.030.0001] T30-69/31);
• Financing was put in place in late 2002/early 2002 ([TRA.500.030.0001] T30-69/8-9);
• Moorvale was brought into production around the middle of 2003 and the second half of 2003 ([TRA.500.030.0001] T30-69/13-14) including the construction of a new rail spur ([TRA.500.030.0001] T30-69/16-17).

Ms Hollows gave evidence that Mr Talbot considered that Moorvale could be developed within a year (T30-74/33-34). In response to a question "that was his reputation at the time" Ms Hollows said "He did it once - doesn't, yeah ..." (T30-74/33-34). Ms Hollows also agreed that "Moorvale, as I think you have given evidence earlier, progressed quite quickly. It was being pushed hard and it came online really in the middle of 2003" (T32-84/36-37 [TRA.500.032.0001]).

More generally, the major shareholder, Managing Director and CEO of Macarthur Coal was Mr Talbot ([MAC.518.002.8283 at pdf p. .8294]). Mr Greenwood gave evidence that:

• "Ken Talbot was very much a 100-mile-an-hour man and wanted things moving very, very quickly all the time. He certainly didn't like pessimists. I think there was a little balance between what was pessimism and realism on this particular issue, and I did discuss that with him and with Roger Marshall on another occasion, that the programme was very challenging, indeed" (T20-55/15-19);
• "Ken was extremely optimistic and didn't like people with any sort of pessimism regarding the programme. And, in fact, it would not have been worth your while to have said, 'Look, hold on; this is going to take another year'" (21-46/35-37); and
• in relation to the development timetable "It would have been very difficult for me to have pushed it out any further. That would not have easily been accepted by Ken Talbot" (T21-47/16-17).

Mr Wallin gave the following evidence (in cross examination) (T9-65/35-44):

"Now, you also knew, I suggest, that Mr Talbot had a track record for completing mine development at record speed and low cost?---Yes.

And, indeed, of making a success of a mine which needed to market its coal as a niche product?---Yes.

And Coppabella had been an example of Mr Talbot doing both?---Yes.

And you'd had some personal involvement in Coppabella which you've related in your evidence-in-chief?---Yes."

Otherwise, Mr Freeman's industry experience extends to knowledge gained by involvement in the industry about the track record of significant participants in the industry, such as Macarthur Coal (which would have been notorious in the industry): see Cargill at [50(19)].

(The defendants did not insert a suggested ruling for this item, but I took the defendants' position as seeking to support the provisional ruling. The material below for this item merely sets out definitions employed in other parts of column 5 of the schedule.)

In this schedule, the provisional ruling in item 1(2) of the schedule to Sanrus No. 5 - namely, that the evidence is inadmissible because it does not state the facts or assumptions underpinning the opinion - will be referred to as the "assumption identification ruling".

The provisional ruling in item 2(2) of the schedule to Sanrus No. 5 - namely, that evidence expressing an opinion on what a third party would do in hypothetical circumstances is inadmissible for the reasons expressed in the judgment - will be referred to as the "hypothetical conduct ruling".

The provisional ruling in item 5(2) of the schedule to Sanrus No. 5 - namely, that evidence expressing an opinion as to the state of mind of a third party is inadmissible for the reasons expressed in the judgment - will be referred to as the "state of mind ruling".

The provisional ruling in [62] of the judgment in Sanrus No 5 and item 157(1) of the schedule to Sanrus No. 5 - namely, that "it is not a proper matter for expert opinion evidence for an expert to review documents including confidential documents obtained on subpoena and to express conclusions on what the expert would infer from those documents" - will be referred to as the "documents review ruling".

The provisional ruling in [52] of the judgment in Sanrus No 5 - namely, that "the expert must state, in chief, the reasoning by which the conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert's expertise" - will be referred to as the "statement of reasoning ruling".

This evidence was given in response to an opinion expressed by Mr Morton that other projects would have been preferred by the GPC over the Monto Project: see [22] of the 2 November 2018 report.

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Executive Summary of the 2 November 2018 report. The detailed analysis of the relevance of the reputation of Macarthur Coal is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.68).

It is evidence of facts by Mr Freeman who had knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I agree that the impugned sentences do not address proper matters for expert opinion in the sense I have explained that rule. Whilst I acknowledge that expertise can be gained by experience as well as by training or study, the matters expressed fall into the category impugned by Gleeson CJ in HG v The Queen, quoted Sanrus No. 5 at [48].

(2) If the subject matter was a proper matter for expert opinion, I agree that the expression of opinion has not complied with the assumption identification rule and the facts underpinning this expression of opinion have not been stated.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• The plaintiffs' references to Mr Morton's report do nothing to meet the objections as to admissibility.
• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission which attempts to identify the requisite assumptions.
• The impugned sentences do not themselves express factual evidence of the reputation of Macarthur Coal. That evidence is elsewhere if it is anywhere at all. The impugned sentences cannot be upheld on that basis.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.

(4) Subject to the next paragraph, I uphold the objections.

(5) I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the impugned evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence.

The evidence in support of Macarthur Coal's track record and the fact that it was a "well-established producer" includes Macarthur Coal's 4 November 2002 prospectus [MAC.518.002.8283] which, in relation to Macarthur Coal:

• states "Quality management with a proven track record of developing low cost, highly productive coal mines" [at pdf p. 8287];
• lists nine individual projects within its "coal portfolio" [at pdf p. 8294]; and
• refers to the Coppabella Coal Mine "which had been operating successfully since July 1998" [at pdf p. 8294] and in which Macarthur Coal had a 50% interest [at pdf p. 8296].

On 4 November 2002, in relation to the prospectus, the directors of Macarthur Coal resolved to confirm that "all statements that relate to knowledge, belief, intention or other state of mind of the company are accurate and not misleading" ([MAC.907.001.0472] at 0487 and [TRA.500.019.0001] at T19-47/19-27).

Otherwise, refer to the final paragraph of 1 above.

(I took the defendants' position as seeking to support the provisional ruling.)

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Summary Response to Mr Morton's Report (in relation to rail). The detailed analysis of the relevance of the reputation of Macarthur Coal to issues relating to port is provided in Parts A and B of the 2 November 2018 report (commencing at pdf p.68).

It is evidence of facts by Mr Freeman who had personal knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) In column 6, the plaintiffs have clarified that they contended that the first clause of the sentence should be admitted as factual evidence from this witness as to the reputation of Macarthur Coal. I would allow that evidence for that limited purpose.

(2) I uphold the objection to the second clause of the sentence (commencing "and would have been able") because the impugned sentence expresses an implicit view as to Macarthur Coal's ability to commit to port capacity and its timing, which involves an expression of opinion as to what a third party, namely GPC would have been prepared to do. That expression of opinion is inadmissible because:

• it expresses an opinion on what a third party would do and that is impermissible for reasons expressed in the body of my reasons; and
• even if such an opinion was permissible, the facts underpinning it are not stated.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• The plaintiffs' references to Mr Morton's report do nothing to meet the objections as to admissibility.
• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission attempting to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.

(5) I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the impugned evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence

Refer to 1 and 2 above.

(I took the defendants' position as seeking to support the provisional ruling.)

It is evidence of facts by Mr Freeman who had knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) In column 6, the plaintiffs have clarified that they contended that the first clause of the sentence should be admitted as factual evidence from this witness as to the reputation of Macarthur Coal. I would allow the evidence for that limited purpose.

(2) Otherwise I would allow the objections for the reasons identified in item 1(1) and (2).

(3) I took the plaintiffs' submission to include the proposition that the impugned sentences were within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the impugned sentences may be admitted for the further limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence

As to paragraph [214], refer to items 1 and 2 above.

As to paragraph [215], this is an expression of Mr Freeman's opinion based upon his relevant expertise.

• As to the first sentence:
  • Macarthur Coal was led by Ken Talbot ([MAC.518.002.8283 at pdf p. 8294]);
  • Mr De Lacy, a former director of Macarthur Coal, gave evidence that on entry into the Joint Venture Agreement "Being able to fund these things was not an issue. We - well, we knew that we had the confidence of the market" (T42-24/6-7). Mr De Lacy also gave evidence as follows (T42-43/1-8):

"Now, you said to me that had you wished to raise the funds, there would've been no difficulty - - -?---Yes.

- - - in raising the funds, I think?---Absolutely.

Is that a fair summary?---Absolutely. If we have a viable project and we wanted to raise the funds, ... That was always my experience with Macarthur Coal. It was - well, it was a well respected company"

• Mr De Lacy also gave evidence that "I'm not aware of any time, when Macarthur Coal needed further capital, that we - that couldn't raise the capital" (T42-45/41-42);
• As to the second sentence, this is an expression of opinion or inference by Mr Freeman.
• As to the third sentence, the report referenced [SAN.054.001.0802] in support of this statement [see also at pdf p. 0833].
• As to the fourth and fifth sentences, these matters are consistent with Mr Wallin's evidence set out in response to the objection to paragraph [25] above. Development of Coppabella within 14 months of discovery is referenced in [MAC.151.028.0007 at pdf p. 0016].

As to the first sentence of paragraph [217], Mr Freeman is giving evidence of his own experience relating to his expertise. As to the second sentence, it is cross-referenced to a document which is in evidence [MAC.151.028.0007].

As to paragraph [218], it is cross referenced to a document which is in evidence [MAC.151.028.0007].

• The first sentence is a summary of the matters referred to above concerning Macarthur Coal's reputation;
• The second sentence is based upon Mr Freeman's first-hand experience;
• The third sentence is based upon Mr Freeman's first-hand experience and is a logical inference from the matters set out in paragraph [219].

Otherwise, refer to the final paragraph of 1 above.

(I took the defendants' position as seeking to support the provisional ruling.)

It is evidence of facts by Mr Freeman who had knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) As to [214], I uphold the objection for the reasons expressed in relation to item 1.

(2) As to [215], I uphold the objection because the paragraph expresses an opinion on what both the Joint Venture and the GPC would do and that is impermissible for reasons expressed in the body of my reasons. Even if such an opinion was admissible, the facts underpinning it are not stated.

(3) As to [216], [217], [218], I uphold the objection for the reasons expressed in relation to item 1 at (1).

(4) As to [219], I uphold the objection for the reasons expressed in relation to item 1 at (1) and (2).

(5) As to the further submissions advanced by the plaintiffs in column 6:

• The plaintiffs' references to Mr Morton's report do nothing to meet the objections as to admissibility.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.

(6) I took the plaintiffs' submission to include the proposition that the impugned sentences were within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the impugned sentences may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence

As to paragraph [226(a)], the reference to the "expertise and achievements of Macarthur Coal" is evidenced by the matters set out in response to the other parts of this Item 2.

As to paragraph [226(b)], evidence in relation to these dates is provided in [SAN.054.001.0226] which is referred to in footnote 34 and in the report of Euan Morton [EXP.020.167.0001] at [98(a)(iv)] which refers to document [SYN.004.001.0713] (which post-dates mid-2005).

Otherwise, refer to the final paragraph of 1 above.

(I took the defendants' position as seeking to support the provisional ruling.)

In the defendants' submissions in reply, the defendants argue the evidence does not fall within the scope of the plaintiffs' fallback argument, because it concerns expression of opinion which could not be characterised as an input by way of opinion into a Stage 2 Feasibility Study in May 2005 ([226(b)] only).

It is evidence of facts by Mr Freeman who had knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

Both Mr Freeman and Mr Morton also took into account competing demand as being relevant to a Stage 2 Feasibility Study.

The evidence something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection for the reasons expressed in relation to item 1(1) and (2).

(2) I also uphold the objection in relation to [226(b)] because it expresses an opinion as to the state of mind of the GPC and that is impermissible for reasons expressed in the body of my reasons. Even if such an opinion was admissible, the facts underpinning it are not stated.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• The plaintiffs' references to Mr Morton's report do nothing to meet the objections as to admissibility.
• The impugned sentences do not themselves express factual evidence of the reputation of Macarthur Coal. That evidence is elsewhere if it is anywhere at all. The impugned sentences and cannot be upheld on that basis.
• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission attempting to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.

(4) I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary in relation to [226(a)]. Accordingly, the impugned subparagraph may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified. The defendants advanced the objection recorded in column 5 in relation to [226(b)]. I agree that the impugned subparagraph cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection in relation to [226(b)]

Mr Freeman provides evidence about the track record of Macarthur Coal and commentary about other mining projects.

Facts underpinning this opinion are not stated or proved by admissible evidence

The reference to the "industry achievements of Macarthur Coal" is evidenced by the matters set out in response to the other parts of this Item 2. Otherwise, refer to the final paragraph of 1 above.

(I took the defendants' position as seeking to support the provisional ruling.)

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in Part C of the 2 November 2018 report relating to port, which contains a summary comparison of opinions. The detailed analysis of the relevance of the reputation of Macarthur Coal is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.71).

It is evidence of facts by Mr Freeman who had knowledge of the reputation of Macarthur Coal in the Australian mining industry at the relevant time: see [216] - [217] of the 2 November 2018 report.

Both Mr Freeman and Mr Morton consider that the reputation of Macarthur Coal was a relevant consideration for the purposes of the Project Feasibility Assessment: see, for example, EXP.500.026.0001_2 at pdf p.8 at item 9.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I rule in the same way as I have in relation to item 1.

Item 3 from the defendants' schedule of objections

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"The Joint Venture was well progressed with discussions with QR in late 2002 and if it had committed to further studies and a viable solution in late 2002, or early 2003, it would have been able to commit to conditional rail capacity and conditional port capacity from late 2003/early 2004."

This is not what the Joint Venture would have done. Rather, it assumes a hypothetical and then states what would flow in respect of matters observable by Mr Freeman within his expertise.

The factual basis is also given, in addition to the documents referenced in footnote [10], A meeting of the "Stage 2 Transport Infrastructure Partnership Group" was held on 6 June 2002 [MON.002.001.0005]. The minutes identify three phases of Queensland Rail's work (p. 0005-0006). Phase A was "a high level investigation of the rail infrastructure options. Estimated cost is $70,000" (p. 0005). Phase B was "an investigation into the preferred corridor options determined in Stage A. Estimated cost is $580,000" (p. 0005) and Phase C was "preliminary designs for civil, track, signalling and telecommunications to deliver a cost estimate of +/- 20% accuracy. The estimated cost is $145,000" (p. 0006). At the meeting, Queensland Rail were instructed to proceed with Phase A (p. 0006). Mr Greenwood gave evidence that Queensland Rail went ahead with Phase A, did not complete Phase B and did not commence Phase C ([TRA.500.021.0001] at T21-43/43-46 and T21-44/1-2).

(I took the defendants' position as seeking to support the provisional ruling.)

In the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

The evidence something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what the Joint Venture could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture would have done.

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Summary Response to Mr Morton's Report (in relation to rail).

The facts on which Mr Freeman relies to say that the Joint Venture was well progressed with discussions with QR in late 2002 are identified in footnote 10 on pdf p.27 of the 2 November 2018 report.

The second part of the sentence contains an assumption, namely "if" the Joint Venture had done something, then, based on that assumption, Mr Freeman expresses an opinion as to what he considers could then have occurred.

As to the facts on which Mr Freeman's opinion is based to opine that the Joint Venture could have committed to conditional rail capacity, see [196] (first sentence) of the 2 November 2018 report. As to the date on which the contract could have been entered, this turns on the facts relating to the discussions being well progressed and the timing of those discussions (which facts are identified in the footnote identified above).

As to the facts on which Mr Freeman's opinion is based to opine that the Joint Venture could have committed to conditional port capacity, this is referred to at [265] of the 2 November 2018 report as being a process by which risk would be managed. As to the date on which the contract could have been entered, this turns on the facts relating to the discussions being well progressed and the timing of those discussions (which facts are identified in the footnote identified above).

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection because the impugned sentence expresses an implicit view as to what QR and GPC would have been prepared to do if the Joint Venture had sought to have them do it. That expression of opinion is inadmissible because:

• it expresses an opinion on what a third party would do and that is impermissible for reasons expressed in the body of my reasons; and
• even if such an opinion was permissible (and in relation to QR I am not presently prepared to rule on the question whether Mr Freeman might be able to give admissible factual evidence on that question), the facts underpinning it are not stated.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• The plaintiffs' references to Mr Morton's report do nothing to meet the objections as to admissibility.
• I adhere to my views about the inadequacy of the statement of the factual underpinning. I took into account the footnote. Insofar as the submissions identify facts or analysis not identified by Mr Freeman, the assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission attempting to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.

(3) I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned sentences cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned sentence may be admitted for the purpose of the plaintiffs' fallback argument.

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"If QR decided not to fund an infrastructure upgrade to the Monto Branch Line, the Joint Venture could have gone to the State and attempted to convince them of the mine's requirements and the need for assistance by QR. I am aware, from my own experience, that the State has been known to advise QR to take a certain course of action on several occasions. Alternatively, the mine could fund the infrastructure upgrades itself if this was the Joint Venture's preference."

This is evidence of what the Joint Venture could have done and not what it would have done in hypothetical circumstances. It is based on statements of fact observable from Mr Freeman's experience.

(I took the defendants' position as seeking to support the provisional ruling.)

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. In particular, it would be expected that an expert engaged in the hypothetical Stage 2 Feasibility Study would have reached conclusions about different funding options which the Joint Venture could consider.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I agree that the first and third sentences posit hypothetical courses of action which might have been open to the joint venture.

(2) The second sentence would be capable of being regarded as a statement of fact about a past historical event, if it had any meaningful content. But it does not.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I take the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the first and third sentences may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(4) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

[191] Second and third sentences ('In my experience...')

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

As to [191] and [196], the objection is also on the grounds of relevance: the question of what a prudent producer would have done is not an issue in dispute in the case.

"It is common practice in the Queensland coal industry to seek both below rail and port capacity at the same time even though under UT1 QR did not require proof of port capacity at the time it entered discussions with a producer. In my experience, a producer would be able to receive an allocation of port capacity and continue to negotiate this concurrently with the below rail provider if both rail and port providers were satisfied that the negotiations were progressing at the same pace. In my opinion, a prudent mine producer could have procured both below rail and port capacity subject to certain conditions precedent, by early 2004."

When seen in its full context it is evidence about general industry practice but what would have been done in a particular hypothetical circumstance.

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances.

As to relevance, the statement goes to the infrastructure solutions for the mine, and not what a prudent producer would have done in the circumstances. The evidence concerns options available to a producer in the circumstances.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. In particular, it would be expected that an expert engaged in the hypothetical Stage 2 Feasibility Study would have identified what the Joint Venture would be able to do, namely seek both rail and port capacity at the same time, and then, if it obtained an allocation of port capacity, continue to negotiate in relation to rail. The final sentence identifies what could have been done, that is identifying that an opportunity was available should the Joint Venture wish to take up that opportunity.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I reject the plaintiffs' characterisation of the evidence. Whilst the author might have been able to give admissible factual evidence as to relevant practices of QR and GPC, that is not what he has sought to express. He has expressed a conditional statement of opinion, without identifying a particular practice. The only statement of practice is in the preceding sentence, and no objection is taken to it.

(2) I uphold the objection to the impugned sentences because they express opinions as to what GPC would have been prepared to do if the Joint Venture had sought to have them do it. Such expressions of opinion are inadmissible because:

• they express opinions on what a third party would do and that is impermissible for reasons expressed in the body of my reasons;
• even if such opinions were permissible, the facts underpinning them are not stated.

(3) Insofar as the impugned sentences express opinions as to what QR would have been prepared to do if the Joint Venture had sought to have them do it, I rule in the same way as expressed in relation to item 7(1).

(4) As to the relevance objection, I reject the plaintiffs' characterisation of the evidence. It is expressed as a proposition as to the way in which a "prudent producer" would behave. It is expressed as a proposition as to what the "prudent producer" could achieve. I note that the plaintiffs have not sought to support the relevance of such a proposition and I would uphold the objection on relevance grounds too.

(5) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned sentence may be admitted for the purpose of the plaintiffs' fallback argument.

(4) For the foregoing reasons, I uphold the objection.

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion this is considered a low risk to the Joint Venture as QR would seek to mitigate loss should Stage 2 not proceed, and this procurement could form standard inventory for use across the coal network."

The evidence is about what QR would do in general circumstances about which Mr Freeman has direct experience.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. The expert conducting the feasibility assessment would be expected to consider ways in which timing and cost considerations could be improved, as well as risk of loss minimised for the Joint Venture.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection for the reasons expressed in relation to item 9 at (2) to (3).

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I think it is arguable that the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(4) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

As to [191] and [196], the objection is also on the grounds of relevance: the question of what a prudent producer would have done is not an issue in dispute in the case.

"A prudent producer would be in ongoing discussions with the rail providers to negotiate amendments to the dates for satisfaction of conditions precedent if project timelines were not likely to be met."

This is a statement about general industry practice and/or observable facts in Mr Freeman's experience.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what the Joint Venture could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture would have done.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I reject the plaintiffs' characterisation of the impugned sentence. It is not expressed as a statement about general industry practice. It is expressed as a proposition as to the way in which a "prudent producer" would behave. I note that the plaintiffs have not sought to support the relevance of such a proposition and I would uphold the objection on relevance grounds.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. However, I think it is arguable that the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

[231] Second and third sentences ('In my opinion...')

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion the Joint Venture, understanding this critical resource/path, would have made a calculated investment decision on the timing of a commitment to the Port Agreement to manage this risk."

This is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I reject the plaintiffs' characterisation of the impugned sentences. They are not expressed as statements about general industry practice. The first sentence is expressed as a proposition as to the way in which the joint venture would behave. The second sentence is expressed as a proposition as to the way in which the GPC would behave if the joint venture had taken a certain course. I uphold the objection to the impugned sentences because they express opinions as to what the particular corporations would have done in particular circumstances. Such expressions of opinion are inadmissible because:

• they express opinions on what a third party would do and that is impermissible for reasons expressed in the body of my reasons;
• even if such opinions were permissible, the facts underpinning them are not stated.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned sentence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection

[237] Second and third sentences, ('In my opinion...')

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion, from the known reputation of the Joint Venture parties, conditional arrangements could have been secured. I am also of the opinion that independent mine can manage projects to quick set up."

This is a comment about what the Joint Venture could have done in the circumstances and is drawn from his experience.

Mr Freeman is qualified to give evidence based on facts observed in his experience. The "known reputation" of the Joint Venture parties is evidenced by the matters set out in Item 2 above.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what the Joint Venture could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture would have done.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) The impugned sentences express opinions as to what QR and GPC would have been prepared to do if the Joint Venture had sought to have them do it. I uphold the objection for the reasons expressed in relation to item 9 at (2) to (3).

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• The distinction between "could" and "would" is irrelevant because implicit in both is a statement about the willingness of the other party.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned sentence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion, Stage 2 tonnage would be discussed and secured at the same time as Stage 1 tonnage, potentially with an option provision which would enable the Joint Venture to ramp up to Stage 2 tonnage from a nominated date. Being an existing GPA customer from this time would have allowed the project to be well informed of GPA's plans regarding capacity expansion and competing demand."

This is evidence of facts observable by Mr Freeman in his experience. The opinion is based on the stated assumption that the Joint Venture would have been an existing customer of GPC as a result of Stage 1.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what the Joint Venture could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture would have done.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection for the reasons expressed in relation to item 13.

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In practice, the land acquisition consultation/negotiation process would be done at the time of the Stage 2 Feasibility Study."

This is a statement of fact observable in Mr Freeman's experience about a matter of general industry practice.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I reject the plaintiffs' characterisation of the evidence. Whilst the author might have been able to give admissible evidence as to his experience about the relationship between the timing of the processes to which he refers and the conduct of feasibility studies, that is not how he has expressed himself. Accordingly, I uphold the objection for the reasons expressed in relation to item 13.

(2) As to the further submissions advanced by the plaintiffs in column 6, I would rule as per item 13(2).

[389(b)] Final sentence ('In my opinion it is likely that the Joint Venture...')

Mr Freeman gives an opinion about what the Joint Venture (and others) would have done in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion it is likely that the Joint Venture would have selected option (ii) given the time constraints were manageable, the capital cost would be amortised over the life of the asset rather than being funded upfront, and in my experience, it was an easier and faster process to acquire an easement when undertaken by a statutory Government Owned Corporation."

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances. Mr Freeman is qualified to give evidence based on facts observed in his experience.

(I took the defendants' position as seeking to support the provisional ruling.)

The evidence forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In particular, it would be expected that an expert engaged in the hypothetical Stage 2 Feasibility Study would have identified the preferred option which the Joint Venture could consider.

It is evidence of what could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture and others would have done.

No objection is taken to the evidence on the basis that the facts or assumptions underpinning the statements have not been stated.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I reject the plaintiffs' characterisation of the first clause of the impugned sentence (down to "funded upfront"). The author expressed a view as to what the joint venture would have done and I would uphold objection to that opinion for the reasons already expressed.

(2) As to the remainder of the sentence, whilst the author might have been able to give admissible evidence as to his experience which informed the conclusion expressed, he does not do so but expresses a conclusion without the identification of the facts or assumptions which underpin the statement of comparison.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I take the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(4) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

Paragraphs [18] - [20], [44], [52] and [205] are also objected to on the basis that they rely on Mr Freeman's 'Technical Assessment' (see Item 1 above)

This section summarises Mr Freeman's opinion which is set out more fully in sections 4.3 and 4.8 [EXP.010.005.0001 at pdf pp 0020-0025 and 0035-0052].

At to [18] the first sentence and points (a)-(f) are observable facts or matters within his experience. The second sentence is evidence as to what QR would have done in the circumstances, which Mr Freeman is qualified to give evidence on.

Otherwise to the extent that [18] depends upon factual matters as opposed to matters of opinion, see QR's Project Assessment Report [MON.004.005.1529 at pdf p. 1548].

As to [19] this is not as to what the Joint Venture or any third party would have done, it is a statement of observable fact as to availability of port/rail in the relevant period.

As to [20] this is a statement of whether rail capacity "could have been secured" and does not go to what the Joint Venture or a third party would have done.

AS to [22] this notes that "capacity was available at the time of the Stage 2 Feasibility Study" which is a statement of fact which leads to him positing an opinion not on what a third party would have done but that capacity "would have been allocated to the Joint Venture upon execution of a port agreement" which is also a statement of fact within his expertise having observed that capacity is allocated upon execution of such an agreement.

As to [23] this is also not a statement about what the Joint Venture or a third party would have done, rather it is about what the Joint Venture could have done to be ahead of competing demand.

As to [24] this is also not a statement about what GPC would have done, it is about what, hypothetically, GPC could have done based on his observable experience.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

[19] refers to an opportunity for the Joint Venture to do something during the feasibility period of 2002-2005, being something which the expert would have identified.

[20] contains an opinion that above rail capacity access "could have been secured" which, again, is something which the expert doing the feasibility study would have identified.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) Many of the statements in the response are superseded by the narrowing of the objection.

(2) I uphold the objections to paragraphs [19] and [20] on the basis that they express opinions as to what QR and GPC would have been prepared to do if the Joint Venture had sought to have them do it. I uphold the objection for the reasons expressed in relation to item 9 at (2) to (3).

(3) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(4) For the foregoing reasons, I uphold the objection.

[27] the words 'would be preferred by the Joint Venture and SunWater as it' and the final sentence ('Further, I disagree...')

Third sentence, from 'however I consider an alternative pipeline route' through to the end of the paragraph

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I agree that the source of water would be Paradise Dam, however I consider an alternative pipeline route would be preferred by the Joint Venture and SunWater as it has a lower infrastructure CAPEX. Further, I disagree with Mr Harradine that the CAPEX is payable upfront, rather it is amortised, applied as a monthly charge and payable under a longer-term Water Transport Agreement."

The first sentence in the quote is a matter of opinion about the CAPEX of Mr Freeman's preferred route which is a matter of opinion. The second sentence is a matter of observable fact about general industry practice as to typical terms in an agreement.

As to the facts underpinning the opinion, these are set out in Mr Freeman's Technical Assessment in sections 6.2 and 6.5 [EXP.010.005.0001 at pdf pp .0094-0095 and 0101-0103].

(I took the defendants' position as seeking to support the provisional ruling.)

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the route of the pipeline, which is relevant to issues relating to both cost and timing. An expert would also provide opinions as to the likely contractual terms on which the infrastructure provider would likely agree to provide the water.

The evidence as to what SunWater would have preferred, and the commercial terms, are things which form part of, or are relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objections to the words in the first sentence on the basis that the words expressed opinion as to the state of mind of the Joint Venture and of SunWater. Such an expression of opinion is inadmissible for reasons expressed in the body of my reasons.

(2) I uphold the objection to the final sentence for similar reasons. It expresses a statement as to what SunWater would have done and does not seek to justify it by first identifying proper evidence of a particular practice in the industry. The latter might have been admissible, but that is not the form of the statement.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I take the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified..

(4) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"SunWater would have been prepared to construct, own and operate the pipeline connecting into the Paradise Dam, and it would have been likely that the Joint Venture would have accepted this proposal."

This is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

As to the facts underpinning the opinion, these are set out in Mr Freeman's Technical Assessment in sections 6.2 and 6.5 [EXP.010.005.0001 at pdf pp .0094-0095 and 0101-0103].

(I took the defendants' position as seeking to support the provisional ruling.)

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes construction, ownership and operation of the pipeline, which is relevant to issues relating to both cost and timing.

The evidence as to what SunWater would have been prepared to do is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection to the impugned sentences because they express opinions as to what and the Joint Venture would have done. Such expressions of opinion are inadmissible because:

• they express opinions on what a third party would do and that is impermissible for reasons expressed in the body of my reasons;
• even if such opinions were permissible, the facts underpinning them are not stated.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I take the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

[31] Third sentence ('Further, I also disagree...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Further, I also disagree that the CAPEX is payable upfront, rather it is amortised, applied as a monthly charge and payable under a Connection Agreement."

This is a fact which Mr Freeman is qualified to give based on his experience. As to the facts underpinning the opinion, these are set out in Mr Freeman's Technical Assessment in section 7.5 [EXP.010.005.0001 at pdf pp 0116-0122].

The sentence expresses an opinion as to what the Joint Venture and a third party would have done. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the likely contractual terms on which the infrastructure provider would likely agree to provide the water.

The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 20(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"The total number of lots to be acquired for this alignment is impractical, likely to be expensive and highly probable not to have been the option favoured by QR after detailed assessment. If QR was to pursue this Hybrid Route Alignment, QR would first have to attempt to acquire these lots itself and DTMR would only resume as a last resort. In addition, land in State Forests or Reserves is not resumed, rather its designation as State Forest must be revoked. Moreover, DTMR could only be convinced to compulsorily acquire if it was for a public purpose and necessary to retain the integrity of the railway. Refer to Section 4.9 of this Response Report for further details."

Mr Freeman is qualified to give evidence as to what QR would have done in the circumstances as well as facts observed by him in his experience.

As to the facts underpinning the opinion, refer also to section 4.9 of the 2 November Report [EXP.010.005.0001 at pdf pp 0053-0063].

The objections to the third sentence are not pressed.

The other sentences express an opinion as to what third parties would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Reserve whether Mr Freeman can give admissible factual evidence about what QR would have done in a hypothetical set of circumstances.

The plaintiffs rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of potential rail solutions, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as QR. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 20(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Mr Morton's conclusion is a BFS required executable above rail, below rail and port agreements to be in place. I am aware that both above and below rail agreements could be entered into on any number of conditions precedent and, with respect to port, GPA was prepared to allocate capacity and negotiate with a producer in order to assist the producer to commit to mine development. Therefore, this does not pose a delay to the Stage 2 Feasibility Study."

This is not evidence about what GPC would have done in the circumstances, rather it is evidence given as observable facts derived from Mr Freeman's experience and a conclusion drawn therefrom.

As to the facts underpinning the opinion, these are set out in Mr Freeman's Technical Assessment in sections 4.3, 4.8, 5.2 and 5.5 [EXP.010.005.0001 at pdf pp 0020-0025, 0035-0052, 0074-0075 and 0082-0087].

The plaintiffs' characterisation of the evidence should be rejected. Evidence as to what GPC was prepared to do is either evidence of GPC's state of mind or evidence of what GPC would have done in hypothetical circumstances. The objection should be upheld on the basis of the state of mind ruling and the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The plaintiffs rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

Mr Freeman is giving evidence of what he has observed from his own experience, including in working for QR, namely that both above and below rail agreements could be entered into with conditions precedent and that GPC/GPA acted in a particular way from his own observations.

An expert preparing a feasibility study who had this type of experience and personal knowledge would be expected to draw upon that experience and knowledge when undertaking a feasibility study including considering whether it was necessary (as Mr Morton opines) for executable contracts to be in place for above rail, below rail and port, or whether there was a prospect that something else (such as a conditional rail agreement) could be entered into and if so, whether that would be sufficient for a bankable feasibility study.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture and others would have done.

(1) Save that in the first clause of the second sentence refers to conduct by QR, and I would reserve whether Mr Freeman can give admissible factual evidence about what QR would have done in a hypothetical set of circumstances, I adopt the defendants suggested ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• The distinction between "could" and "would" is irrelevant because implicit in both is a statement about the willingness of the other party.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, subject to the exception at (1), I uphold the objection.

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion, based on an evaluation of capacity, technical elements, financial benefits and commercial considerations, a rebuild of the existing Monto Branch Line as outlined in this Part B would probably have been QR's preferred solution. 199. The issue of whether QR would fund the upgrade to the Monto Branch Line would have to have been resolved. It is likely that QR would have paid for the upgrade as the Monto Branch Line was part of the rail corridor and on the basis that the extra volume on the line would require corresponding upgrades to the mainline, for example, at Callemondah Yard, earlier than QR had planned thereby benefiting the whole Moura System. If not, the mine could have entered into infrastructure funding arrangements either with QR or with another debt provider as QR had indicated that it was actively pursuing a "Major Venture" financing package specifically for the Monto Coal Project 26 . Many different funding arrangements were in use by QR at the time including upfront contributions and AFDs. 200. The infrastructure upgrades and rollingstock configurations identified in Section 4.6of this Response Report would have been the solution QR would probably have adopted as they were the most operationally efficient, would not have involved a lengthy and costly land acquisition process and could have been achieved within the required timeframe at the lowest capital cost."

These paragraphs are statements of what would have been QR's preferred solution, based on facts observable by Mr Freeman in particular as to the content of common agreements. That is a matter within Mr Freeman's expertise.

The basis for the opinions is identified in the foregoing parts of Section 4.9 [EXP.010.005.0001 at pdf pp 0053-0063].

The evidence expresses an opinion as to what the Joint Venture and third parties would have done. The objection should be upheld on the basis of the hypothetical conduct ruling.

Reserve whether Mr Freeman can give admissible factual evidence about what QR would have done in a hypothetical set of circumstances.

The plaintiffs rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

An expert preparing a feasibility study would identify an issue and potential solutions for that issue, which is what Mr Freeman is doing by this evidence.

The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is evidence of what could have done during the period in which the Stage 2 Feasibility Study was being undertaken, rather than an opinion as to what the Joint Venture and others would have done.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 20(2) and (3).

[227] Third and fFourth sentences ('Both Rolleston and...') ('I do not consider...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Both Rolleston and Gindie Minerva were greenfield developments requiring innovative track and/or rollingstock solutions. I do not consider that these projects would have been considered less challenging than the Monto development."

As to the greenfield nature of the Gindie Minerva and Rolleston projects, see documents at footnotes 58 and 60 of Mr Morton's report ([EXP.020.022.0001_0001 at pdf p. 0042]).

As to the innovative nature of the Gindie Minerva track and/or rollingstock solutions, see [5.3.2(b)] of Mr Hunter's report dated 27 April 2018 ([EXP.020.018.0001_0001 at pdf p. 0043].

As to the innovative nature of Rolleston track and/or rollingstock solutions:

• Rolleston's railway was still under construction at the relevant time ([EXP.500.026.0001 at 5.28(c) pdf p. 0024];
• Development of Rolleston involved "construction of line from Rolleston to Kinrola by Queensland Rail" ([EXP.500.026.0001 footnote 13, pdf p. 0042].

These facts are otherwise observable by Mr Freeman in his experience. The final sentence is a statement of opinion as to the nature of the Monto development as compared to those observed by Mr Freeman.

Mr Hunter's report refers to significant delays concerning the Bauhinia Line (which is related to the Rolleston project) ([EXP.020.165.0001_0001 at pdf p. 0030].

The plaintiffs' characterisation of the evidence should be rejected. Evidence as to GPC would have "considered" the Monto development is either evidence of how GPC would have acted in hypothetical circumstances or evidence of GPC's state of mind. The objection should be upheld on the basis of the state of mind ruling and the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The plaintiffs rely on the matters stated in the Response to Objection and on the submissions dated 6 September 2019.

An expert preparing a feasibility study would identify what he considers are relevant considerations from the perspective of the infrastructure provider (which was GPA in this instance), which is what Mr Freeman is doing by this evidence.

The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

Further, [227] forms part of the section of Mr Freeman's 2 November 2018 report relating to port so he is not giving evidence about how QR, Powerlink and SunWater would behave.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection.

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Whilst the Joint Venture may have had to compete for the capacity allocation over 2003/2004, it would have been at least an equal contender for the available capacity from a reputation perspective, even if industry reputation was a criterion for the allocation process, (which it was not)."

This is not a statement of what the Joint Venture or a third party would have done, it is a statement about the reputation of the Joint Venture and industry practice, which are matters observable by Mr Freeman in his experience.

The plaintiffs' characterisation of the evidence should be rejected. It is not evidence of industry practice, but of what the Joint Venture would have been able to do - that is, evidence of what third parties dealing with the Joint Venture would have done or evidence of their states of mind. The objection should be upheld on the basis of the state of mind ruling and the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The plaintiffs rely on the matters stated in the Response to Objection and in the submissions dated 6 September 2019.

An expert preparing a feasibility study would identify what he considers are relevant considerations from the perspective of the infrastructure provider (which was GPA in this instance), and how he considers that the Joint Venture would have been regarded by the GPA, which is what Mr Freeman is doing by this evidence.

The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

Further, [229] forms part of the section of Mr Freeman's 2 November 2018 report relating to port so he is not giving evidence about how QR, Powerlink and SunWater would behave.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Both announced expansions were to deliver additional capacity at or prior to the 1 July 2007 railings commencement. This is supported by the 2004/5 CQPA Annual Report (ALL.001.001.0259) which states that the sharp increase in demand for coal resulted in the State Government's approval to expand RGTCT to 65mtpa and BPCT to 7mtpa, with this increase from 45mtpa occurring by 2007. Given the Monto Stage 1 tonnage would already be handled by GPA, the Joint Venture had an established relationship with GPA, and the Stage 2 contract would have been under discussion during the feasibility period, it would have been probable that the Joint Venture could commit to the port capacity prior to competing demand."

This is not a statement about what the Joint Venture would have done, it is a statement, based on a hypothetical assumption about what the Joint Venture could have done in the circumstances which is a matter within Mr Freeman's expertise.

As to the basis of the pre-existing use of the port, this is addressed in paragraph [215] of the November Report [EXP.010.005.0001 at pdf p. 0069].

The plaintiffs' characterisation of the evidence should be rejected. It is evidence of what the Joint Venture and GPC would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The plaintiffs rely on the matters stated in the Response to Objection and in the submissions dated 6 September 2019.

The first and second sentences of this paragraph relates to public announcements about expansions of the port as well as reference to an Annual Report which is also a public document. Announcements about and the fact of available capacity is something which both experts consider to be relevant to a feasibility assessment: see [244] of the 2 November 2018 report.

An expert preparing a feasibility study would identify what he considers are relevant considerations to port, which includes the capacity of the port, which is what Mr Freeman is doing by this evidence. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

Further, [245] forms part of the section of Mr Freeman's 2 November 2018 report relating to port so he is not giving evidence about how QR, Powerlink and SunWater would behave.

As to the third sentence of the paragraph, the evidence that the Joint Venture could have committed to the port capacity prior to competing demand is identification by Mr Freeman of an opportunity for something to occur, being a conclusion which it would be expected that an expert would reach during a feasibility study.

It is based on Mr Freeman's opinion as to the events which he either assumes would have occurred (that is, Stage 1 tonnage commenced to be shipped through the port) and his evidence as to what would likely have taken place during the Stage 2 Feasibility Study (being discussions with the port, which discussions are referred to in [254] (first sentence) and [265] (in part) of the 2 November 2018 report and to which no objection is taken).

An expert preparing a feasibility study would identify what he considers are relevant considerations to port, which includes the opportunities available to enter into a contract in relation to port and the matters which will bear upon whether that opportunity will be available, which is what Mr Freeman is doing by this evidence. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• The distinction between "could" and "would" and the reference to "opportunity" is irrelevant because implicit in all such language is a statement about the willingness of the other party.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection.

[286] Fifth sentence ('In my opinion SunWater...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion SunWater and the Joint Venture would have considered other routes, the topographically constraints and CAPEX/OPEX outcomes to arrive at an alternative solution."

This is a statement about what Mr Freeman considers, in his opinion, would have been considered by the parties, not what a third party would have done in making a decision.

The plaintiffs' characterisation of the evidence should be rejected. Evidence as to what SunWater and the Joint Venture would have "considered" in hypothetical circumstances is either evidence of how they would have acted in hypothetical circumstances or evidence of their states of mind. The objection should be upheld on the basis of the state of mind ruling and the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the route of the pipeline, which is relevant to issues relating to both cost and timing. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I take the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants did not contend the contrary. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

[288] the words 'however I consider it unlikely that SunWater would have objected to HDPE pie as a suitable product.' ('Second sentence: 'I acknowledge that...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I acknowledge that SunWater generally chose metallic pipes (MSCL or DICL), however I consider it unlikely that SunWater would have objected to HDPE pipe as a suitable product."

This is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what SunWater would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the type of pipe which would likely be used by SunWater (which would in turn affect cost). The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion, with the coverage of a commercial arrangement whereby the project would have been accountable for the costs of any pre-construction activities, SunWater would have commenced preconstruction activities (i.e. design, planning, approvals, etc.) ahead of the Joint Venture's Stage 2 Mining Lease being granted."

This is evidence of observable fact within Mr Freemans experience about SunWater.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what SunWater would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the type of works which he considers would typically be commenced by SunWater ahead of grant of a Mining Lease (which would in turn affect timing). The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Water Transport: The pipeline capital expenditure of $99.69M82 and annual O&M costs in the order of $500,000 per annum would be amortised applied in line with the agreed billing provisions (e.g. quarterly) of the Water Transport Agreement. This would likely be under Part A $10.15M per annum (fixed) and under Part B $118 per ML (variable)."

This is a statement of observable fact as to usual provisions to include in an agreement and otherwise matters of opinion within Mr Freeman's expertise.

The cost estimate is expanded upon in paragraph [312] and Appendix 8 of the November Report [EXP.010.005.0001 at pdf p. 0103].

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what the Joint Venture and third parties would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

This evidence is admissible as evidence of industry practice regarding calculation of water charges. It is of the same nature as paragraphs 327(a), (b) and (d) of the 2 November 2018 report, to which no objection is made.

Further, an expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I do not consider that all capital would require upfront funding, rather the capital costs would be amortised and applied as a monthly or quarterly fixed charge."

This is a statement of a fact observable by Mr Freeman in his experience.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what the Joint Venture and third parties would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

This evidence is admissible as evidence of industry practice regarding calculation of water charges. It is of the same nature as paragraphs 327(a), (b) and (d) of the 2 November 2018 report, to which no objection is made.

Further, an expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I disagree with Mr Harradine that SunWater would not enter into contracts for the supply of water without Monto Coals Stage 2 Mining Lease being granted. In my opinion, with the appropriate commercial arrangements whereby the project would have been accountable for any costs or risks ahead of the grant of the Mining Lease, SunWater would enter into contracts for the supply of water."

This is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what third parties would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005

Further, an expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of water supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged. The evidence is therefore which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

[339] Second sentence ('I do not believe Powerlink...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I do not believe Powerlink would approve Mr Harradine's connection to the Calvale-Tarong transmission as it is a critical piece of Powerlink infrastructure and subject to strict minimum standards."

This is predominately a statement of fact observable by Mr Freeman in his experience. And otherwise is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as Powerlink. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

[342] Third sentence ('In my opinion Powerlink...'

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion Powerlink would not have approved the proposed alignment and connection, due to the proposed tee connection."

This is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as Powerlink. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In paragraph 3.18 [of Mr Harradine's report] the lead times of 24 months commence only post award of the Mining Lease which I consider overly conservative and not what was done during this time. Powerlink would not have required the award of the mining lease and could commit to agreements including early works arrangements with the provision of appropriate commercial provisions whereby the project would have been accountable for any costs or risks ahead of the grant of the Mining Lease. Powerlink would require 16months for construction and would work with the Joint Venture to ensure all planning/approval activities were conducted prior to the final investment decision for the project to enable deliverables by the required dates."

Whilst expressed in terms of what Powerlink "would have" done, it is in truth simply a statement of what Mr Freeman has observed in his experience.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink and the Joint Venture would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

First sentence is admissible as evidence of industry practice.

Further, an expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as Powerlink, and timing and other considerations relevant to possible solutions. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

[348] First sentence ('In my opinion Powerlink...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion Powerlink would not have approved Mr Harradine's solution (EXP.020.017.0001) as he has proposed. To meet Powerlink's standards a new 275kV substation would be required. Whilst I generally agree that the cost proposed by Mr Harradine (i.e. $21.2M) reflects his proposed transmission, the cost could increase to approximately $55M with the inclusion of a new 275kV substation."

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances. The basis for the opinion is set out in the remainder of the paragraph.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink and the Joint Venture would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Except for the first sentence, the evidence is admissible as evidence of equipment required to meet Powerlink's standards and the estimated cost of that equipment.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as Powerlink. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

[351] Second sentence ('This is not my understanding...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"This is not my understanding of Ergon contracts."

This is a statement of fact observable by Mr Freeman in his experience.

The plaintiffs' characterisation of the evidence should be rejected. Read in context, the sentence is evidence of what Ergon would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. In this case, Mr Freeman is giving evidence, based on his own experience, of the likely terms of any contract with Ergon, being a matter which would be addressed in a feasibility study. The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, noting that the relevant context is what is said in the first sentence in [351].

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"In my opinion Powerlink would have entered into such arrangements with appropriate commercial provisions whereby the project would have been accountable for any costs or risks ahead of the grant of the Mining Lease."

This is a statement of fact observable by Mr Freeman in his experience as to the content of commercial agreements not about what Powerlink would have done in a particular circumstance.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of the terms upon which Powerlink and third parties would have entered into hypothetical agreements. That is evidence of what Powerlink and third parties would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. In this case, Mr Freeman is giving evidence, based on his own experience, of the likely terms of any contract with Powerlink, being a matter which would be addressed in a feasibility study.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. However, I think it is arguable that the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Where Powerlink funds the remaining transmission infrastructure (i.e. $21.69M), the capital expenditure and operation and maintenance costs would be amortised over the agreed term of the Connection Agreement (most likely a 20-year term) and require payment of a fixed charge per month."

This is a statement of fact observable by Mr Freeman in his experience.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Powerlink would have required the Joint Venture to enter into a Connection Agreement, the terms and conditions of which would have been based on Powerlink's standard Connection Agreement and negotiated on a reasonable basis with the Connecting parties prior to execution."

This is predominately a statement of fact as to what Powerlink's Connection Agreement terms were and when they were negotiated. Otherwise, this is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

Otherwise, Mr Freeman is qualified to give evidence based on facts observed in his experience. Mr Freeman here gives evidence as to typical terms which may be entered into between mine operators and Powerlink, which is a proper matter for expert evidence based upon Mr Freeman's experience.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged. The evidence is therefore something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

[392] Last sentence ('However, if necessary, Powerlink...')

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"Powerlink's standard practice was to incorporate the early works in the Connection Agreement which would be executed prior to the time of commencing the early works. However, if necessary, Powerlink may have entered into an early works agreement, in order to meet project time requirements."

This is predominately a statement of fact observable by Mr Freeman in his experience. Otherwise this is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The impugned sentence is evidence that Powerlink may have entered into an agreement with a third party. That is evidence of what the third party would do in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the costs which would likely be charged by the third party infrastructure provider and the terms on which those costs would be charged.

The plaintiffs otherwise rely on the matters stated in the Response to Objection column and their submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

[394] First sentence, the words: 'and would not be approved by Powerlink'

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I believe Mr Harradine's solution (EXP.020.017.0001) is technically flawed and would not be approved by Powerlink. In my opinion, having reviewed 10 options, there was a power solution available to the Joint Venture which is technically sound and minimises time and cost blowout risk."

When seen in context this is not about what Powerlink would have done in particular circumstances, it is evidence of opinion about a preferred solution to include in a feasibility study based on knowledge of practice.

The plaintiffs' characterisation of the evidence should be rejected. The words are evidence of what Powerlink would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. An expert preparing a feasibility study would identify what he considers are relevant considerations to the issue of power supply, which includes the merits of one particular solution over another, and why one solution is likely to be adopted or preferred by an infrastructure provider such as Powerlink.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

Mr Freeman purports to give evidence about how QR, GPC, Powerlink and SunWater would have acted in a hypothetical situation.

Facts or assumptions underpinning the opinion not proved by admissible evidence.

"I disagree that Powerlink would not enter into arrangements for the supply of the power infrastructure without the Stage 2 Mining Lease being granted. In my opinion Powerlink would have entered into such arrangements ahead of the Joint Venture's Stage 2 Mining Lease being granted with the coverage of commercial provisions such that if the project did not achieve financial close the arrangements would be terminated and the project would be liable for any costs incurred by Powerlink up to that point."

This is an observation about what Powerlink had done in the past and is a statement of fact observable by Mr Freeman in his experience. Otherwise, this is opinion evidence about general industry practices based on facts observed by Mr Freeman in the course of his experience and what participants in the industry (with whom he has dealt) would be likely to do in particular circumstances.

The plaintiffs' characterisation of the evidence should be rejected. The sentence is evidence of what Powerlink would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience, of the likely terms of any contract with Powerlink, being a matter which would be addressed in a feasibility study.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

Item 5 from the defendants' schedule of objections

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"I disagree with this opinion as capacity was available at the time of the Stage 2 Feasibility Study (i.e. 2002- 2005) and would have been allocated to the Joint Venture upon execution of a port agreement."

These are statement of fact observable by Mr Freeman in his experience.

As to the basis for this opinion, refer to Section 5 of the 2 November Report [EXP.010.005.0001 at pdf pp 0068-0092].

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Executive Summary of the 2 November 2018 report. The detailed analysis of the issues in relation to availability of port capacity (in particular) is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.68).

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development. In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, of the available capacity at the port during the Stage 2 Feasibility Study and whether there was an opportunity to obtain an allocation of capacity during that period, being matters which would be addressed in a feasibility study.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I uphold the objection and agree with the characterisation of this aspect of Mr Freeman's opinions asserted by the defendants. I reject the plaintiffs' characterisation of the impugned sentence as a statement of fact observable by Mr Freeman. In fact it expresses a conclusion as to the outcome of hypothetical conduct by the Joint Venture and by the GPC. Such an expression of opinion is inadmissible for reasons expressed in the body of my reasons. See in particular Sanrus No 5 at [58].

(2) Further I would uphold the objection on the basis that I agree that the assumptions underpinning the opinion are not identified. I do not think the submission made by the plaintiffs as to the basis of those assumptions is sufficient to rectify the defect as to form.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission which attempts to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"I disagree with this timeframe and consider the Joint Venture had until mid-2006 to execute a contract to be ahead of competing demand."

This is a statement of fact observable by Mr Freeman in his experience.

As to the basis for this opinion, refer to Section 5 of the 2 November Report, in particular paragraphs 242-250 [EXP.010.005.0001 at pdf pp 0073-0081].

The objection should be upheld on the basis of the documents review ruling and the assumption identification ruling.

In any event, the context makes clear that the sentence is expressing an opinion as to the time by which the Joint Venture "would have had to sign a port agreement". It is therefore evidence of what the Joint Venture and GPC would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

This evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Executive Summary of the 2 November 2018 report. The detailed analysis of the issues in relation to availability of port capacity (in particular) and timing of execution of a contract with the GPC is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.68).

The plaintiffs rely on the matters stated in the Response to Objection. They also rely on the submissions dated 6 September 2019.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, of the available capacity at the port during the Stage 2 Feasibility Study and the timing by which the Joint Venture would need obtain an allocation of capacity during, being matters which would be addressed in a feasibility study.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission which attempts to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

The statements concerning taking a calculated risk in the secondary market (see [255]), accelerating expansions and undertaking further expansions ([24], [254] and [259]) are irrelevant. Further, Mr Freeman has no demonstrated expertise in planning or constructing port expansions.

"Although I consider port capacity was available for the Joint Venture to secure, I am also of the opinion the port had the ability to expand further to meet growing industry demand. The expansion options available to GPA could have enabled the port to expand to capacity of 100mtpa."

This is evidence of fact observable by Mr Freeman in his experience and his opinion about GPC's capacity, not what GPC would do in a hypothetical situation.

As to the basis for this opinion, refer to Section 5 of the 2 November Report, in particular paragraphs 242-250 [EXP.010.005.0001 at pdf pp 0073-0081].

The objection should be upheld on the basis of the documents review ruling, the assumption identification ruling, the hypothetical conduct ruling, and the statement of reasoning ruling.

The objection should also be upheld on the basis that Mr Freeman does not have the required expertise. The plaintiffs concede that Mr Freeman does not have the expertise necessary to give evidence about the construction or expansion of the terminal: see T63-20/44-46.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Executive Summary of the 2 November 2018 report. The detailed analysis of the issues in relation to port is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.68).

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, and based on his expertise as an infrastructure expert, of the available capacity at the port (which would take into account the prospect of future expansions to port capacity to meet industry demand), being matters which would be addressed in a feasibility study. In terms of an expert being informed of potential port expansions, Mr Freeman identifies in [254] of his 2 November 2018 report that this information would be obtained from GPC during discussions.

The plaintiffs rely on the matters stated in the Response to Objection. They also rely on the submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection by reference to the state of mind ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• The assumption identification rule must be met by the expression of expert opinion. Failure so to do cannot be remedied after the fact by way of a lawyer's submission which attempts to identify the requisite assumptions.
• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(3) For the foregoing reasons, I uphold the objection.

[25] Third sentence ('I am also of the opinion...')

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"I am also of the opinion that given the Stage 1 tonnage would have been already contracted with the port during the Stage 2 Feasibility Study period, Stage 2 would not be considered a "greenfield" mine but rather a mine expansion."

This is a statement of fact observable by Mr Freeman in his experience on a specified assumption and not what GPC would do in a hypothetical situation.

As to the basis for this opinion, refer to Section 5 of the 2 November Report, in particular paragraph [215] [EXP.010.005.0001 at pdf p. 0069].

The objection should be upheld on the basis of the hypothetical conduct ruling and the state of mind ruling.

The evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in the Executive Summary of the 2 November 2018 report. The detailed analysis of the issues in relation to port is provided in Parts A and B of the 2 November 2018 report in relation to port (commencing at pdf p.68).

The plaintiffs rely on the matters stated in the Response to Objection. They also rely on the submissions dated 6 September 2019 in relation to matters addressed in summary sections of the 2 November 2018 report (which is admissible if the facts underpinning the opinion are stated elsewhere, as it is in this case) and Mr Freeman's reliance on documents for the purposes of expressing his opinion.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, of the manner in which the Monto Mine would have been regarded (that is, as an expansion rather than a new mine) during the Stage 2 Feasibility Study period, being a matter which would be addressed in a feasibility study.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

[58] Second sentence, the words: 'In my opinion RGTCT had enough capacity at the time.'

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my opinion RGTCT had enough capacity at the time and QR itself stated in October 2002 (SAN.001.021.0030) that, while RGTCT had a capacity of 45mtpa, QR was railing 36mtpa, which was well below its contracted rail capacity of 42mtpa at that time."

This is a statement of fact observable by Mr Freeman in his experience (and drawn from underlying evidence).

The objection should be upheld on the basis of the documents review ruling and the hypothetical conduct ruling.

The evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in Section 4.4: Summary Response to Mr Morton's Report in the 2 November 2018 report (in relation to rail). The detailed analysis of the issues in relation to rail is provided in Part B of the 2 November 2018 report in relation to rail (commencing at pdf p.32).

The plaintiffs rely on the matters stated in the Response to Objection. They also rely on the submissions dated 6 September 2019 in relation to matters addressed in summary sections of the 2 November 2018 report (which is admissible if the facts underpinning the opinion are stated elsewhere, as it is in this case) and Mr Freeman's reliance on documents for the purposes of expressing his opinion, including the document which he identifies expressly in the impugned paragraph.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and working for QR and his review of documents which he considers to be relevant to his feasibility assessment, of the availability of port and rail capacity, being matters which would be addressed in a feasibility study.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

[59] Third sentence ('In addition, the Stage 1 tonnage...')

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In addition, the Stage 1 tonnage would have been under agreement with the port, further establishing the producer/supplier relationship."

This is an observation about the consequences of a particular assumption and not about what GPC would have done in a particular circumstance.

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances. Otherwise, Mr Freeman is qualified to give evidence based on facts observed in his experience.

As to the basis for this opinion, refer to Section 5 of the 2 November Report, in particular paragraph [215] [EXP.010.005.0001 at pdf p. 0069].

The objection should be upheld on the basis of the hypothetical conduct ruling and the assumption identification ruling.

The evidence summarises one of Mr Freeman's reasons for disagreement with Mr Morton and is contained in Section 4.4: Summary Response to Mr Morton's Report in the 2 November 2018 report (in relation to rail). The detailed analysis of the issues in relation to rail is provided in Part B of the 2 November 2018 report in relation to rail (commencing at pdf p.32).

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity.

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"GPA would negotiate for significantly long periods of time to provide certainty for producers so that producers could commit to mine development."

This is a statement of fact observable by Mr Freeman in his experience. Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances.

As to the basis for this opinion, refer to Section 5 of the 2 November Report [EXP.010.005.0001 at pdf pp 0068-0091].

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, and the assumption identification ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 and if so, during what time frame including by reference to the likely duration of negotiations (being something which Mr Morton also addresses as can be seen from the first part of [62]) and so is relevant to a feasibility assessment.

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my view, the conclusion that Mr Morton's holds is not correct as in my opinion rail capacity could have been available from mid-2007 based on my technical assessment in section 4.8."

This is not a statement about what any party would have done in a hypothetical circumstance it is about a matter of observable fact and within Mr Freeman's expertise, namely the availability of rail capacity.

The basis for this opinion, refer to Section 4.8 of the 2 November Report [EXP.010.005.0001 at pdf pp 0035-0052].

The objection should be upheld on the basis of the documents review ruling and the hypothetical conduct ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his technical assessment in section 4.8 of the 2 November 2018 report, about whether rail capacity could have been made available from mid-2007, being topics which would be addressed in a feasibility assessment. By this evidence, he is not saying that either QR or the Joint Venture would have done something; rather, he is identifying that rail capacity for Stage 2 could have been available from a particular date assuming the willingness of those parties to enter into a contract.

Further, and self-evidently, the evidence does not express an opinion based on the things identified by the defendants such as Mr Freeman's interpretation of documents prepared by GPC.

The plaintiffs otherwise rely on the submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling so far as it refers to the hypothetical conduct ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3). I would add that I reject the characterisation of the witness' evidence that he is "assuming the willingness". His evidence is expressed as a statement of what QR would have been willing to do.

[69] Third sentence ('In my experience, GPA was willing...')

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my experience, GPA was willing to enter into contracts subject to conditions precedent (including the issue of the Mining Lease)."

This is a statement of fact observable by Mr Freeman in his experience.

As to the basis for this opinion, refer to Section 5 of the 2 November Report [EXP.010.005.0001 at pdf pp 0068-0091].

The objection should be upheld on the basis of the state of mind ruling, the hypothetical conduct ruling, and the assumption identification ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, which is based on his own experience and observations, to the effect that GPA/GPC was prepared to enter into conditional contracts, being a topic which would be considered in a feasibility assessment. By this evidence, he is not saying that either GPA or the Joint Venture would have done something as a matter of fact; rather, he is identifying that he has observed that GPA was willing to enter into contracts subject to conditions precedent, being something which, as an expert undertaking a feasibility assessment, would be a matter relevant to that process.

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"I also consider it probable that, regardless of the timing of the rail works in the Callemondah-RGTCT area, the Joint Venture could have secured port capacity for some of Stage 2 volumes at BPCT. In doing this the Callemondah-RGTCT area could have been avoided for some of the Stage 2 volume."

This is not a statement about what the Joint Venture would have done in a hypothetical circumstance, it is rather a statement of observable fact about the availability of port capacity which the Joint Venture could have obtained.

Mr Freeman is qualified to give evidence based on facts observed in his experience. Otherwise evidence concerning the increase in the capacity of BPCT is addressed in paragraph [245] of the 2 November Report [EXP.010.005.0001 at pdf p. 0078].

This increase is also addressed in Mr Morton's report at [80(a)] ([EXP.020.022.0001_0001 at pdf p. _0037].

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, and the assumption identification ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In giving this evidence, Mr Freeman is identifying an alternative port option for the Monto Mine (being Barney Point Coal Terminal) in the event that issues arose with railings to the RG Tanna Coal Terminal.

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"If the project did not proceed after commitment to rail and port agreements, or the tonnage railed was not 10mtpa, there would have been enough demand for capacity such that unutilised tonnage could be traded on the secondary market."

This is not evidence about what a third party would have done in a particular circumstance, it is a matter of observable fact, namely about the tradability of capacity on the secondary market, which is within Mr Freeman's experience.

As to the basis for the opinion, Mr Freeman explains the secondary market in paragraphs [174(b)] (rail) and [299(b)] (port) and agrees with Mr Morton's summary of it in paragraphs [208] and [241] of the 2 November Report [EXP.010.005.0001 at pdf pp 0056, 0098, 0068 and 0077].

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, and the assumption identification ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is something which would be relevant to the risk assessment which would be undertaken by an expert undertaking the Stage 2 Feasibility Assessment, being the identification of a means of minimising exposure under rail and port agreements if the Stage 2 tonnage was not, in fact, achieved (being that it could have been traded on the secondary market).

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my opinion the key criteria for port allocation are notification of project requirements as soon as practicable (to register an interest in the capacity), ongoing discussions, negotiation of contract and commitment to a port agreement. These criteria were on schedule to be met given the project capacity requirements were tabled and documented in 2001. In addition, the relationship would have been established for the Stage 1 capacity, and negotiations could have been held over 2003."

These are statements of fact observable by Mr Freeman in his experience and otherwise is about facts and assumptions underpinning his opinion.

The basis for the opinion regarding the availability of capacity up until 2006 is addressed in paragraphs [248] and [249] of the 2 November Report [EXP.010.005.0001 at pdf pp 0080-0081].

The objection should be upheld on the basis of the hypothetical conduct ruling, and the assumption identification ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 and if so, by reference to criteria which he considers to be relevant and whether that criteria would be met.

The statement in the final sentence that a relationship would have been established by reason of Stage 1 capacity is a conclusion which is based on the initial correspondence with the GPC which is addressed in [251] and [252] of the 2 November 2018 report.

The statement that negotiations could have been held over 2003 is an opinion as to what could have occurred as part of the Stage 2 Feasibility Study and is referred to in more detail in other paragraphs of the 2 November 2018 report, such as [244], [245] (final sentence), [261], [264] and [265].

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection on the basis of the documents review ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In paragraph 98 Mr Morton states "I consider that the Monto Coal Project would need to have been allocated capacity no later than mid 2004". In my opinion this is not a reasonable statement given the environment of competing demand. It was not until late-2006 that additional capacity was contracted by other producers that would have prevented the Monto Coal Project from securing it's full 10mtpa."

This is a statement of fact observable by Mr Freeman in his experience and an opinion which flows from it.

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, and the assumption identification ruling.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;
  • insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 and if so, during what time frame including by reference to the likely duration of negotiations (being something which Mr Morton also addresses as can be seen from the impugned paragraph) and so is relevant to a feasibility assessment.

The plaintiffs otherwise rely on the matters stated in the Response to Objection and the submissions dated 6 September 2019.

(1) I adopt the defendants' suggested ruling, but would also uphold the objection on the basis of the documents review ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3). Although the stated proposition "it was not until late 2006 [...]", was capable of being characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005, I agree that that expression of opinion would be inadmissible because of the assumption identification and statement of reasoning rules.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my opinion capacity was available at the Port of Gladstone and the Joint Venture had the opportunity to negotiate the appropriate agreements within the Stage 2Feasibility Study period (2002-2005)."

This is a statement of fact observable by Mr Freeman in his experience.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 and if so, during what time frame including by reference to the likely duration of negotiations (being something which Mr Morton also addresses as can be seen from the impugned paragraph) and so is relevant to a feasibility assessment. The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(1) I uphold the objection and agree with the characterisation of this aspect of Mr Freeman's opinions asserted by the defendants. I reject the plaintiffs' characterisation of the impugned sentence as a statement of fact observable by Mr Freeman. In fact it expresses a conclusion as to hypothetical conduct by the GPC and as to its preparedness to take a particular approach to the Joint Venture. Such an expression of opinion is inadmissible for reasons expressed in the body of my reasons. See in particular the body of Sanrus No. 5 at [58].

(2) Further I would uphold the objection on the basis that I agree that the assumptions underpinning the opinion are not identified.

(3) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5. I agree that the impugned evidence cannot be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.

(4) For the foregoing reasons, I uphold the objection.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

The statements concerning taking a calculated risk in the secondary market (see [255]), accelerating expansions and undertaking further expansions ([24], [254] and [259]) are irrelevant. Further, Mr Freeman has no demonstrated expertise in planning or constructing port expansions.

These paragraphs are largely statements of fact observable by Mr Freeman in his experience and otherwise are summaries of and the drawing of inferences from documents based on Mr Freeman's experience which is a matter on which he is capable of giving evidence.

Paragraph [245] is a statement of Mr Freeman's opinion drawn from the assumptions made.

Paragraph [246] is a statement drawn from Mr Freeman's direct experience.

Paragraph [249] does not say what the Joint Venture would have done but rather what it could have done which is a matter within Mr Freeman's expertise (i.e. to comment on the content of a feasibility study).

Paragraph [253] is a statement of fact observable by Mr Freeman in his experience.

The bases for the opinions are given by reason of the material referred to in the paragraphs.

(I took the defendants' position as seeking to support the provisional ruling.)

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005 ([244] only). They also argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005 ([246] - [249] only).

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 which includes a consideration of the availability of the port capacity, when the Joint Venture would have had to commit to an agreement and other considerations which the expert undertaking the Stage 2 Feasibility Study would have incorporated in the risk profiling of the port capacity strategy: see [243] of the 2 November 2018 report.

As to the objection concerning relevance, the provisional ruling states that those arguments can be addressed in final submissions. However, the plaintiffs understand that the Court now wishes to hear submissions about this topic. The plaintiffs rely on their submissions dated 6 September 2019 in this regard and generally.

(1) I uphold the objection to the impugned paragraphs and, as a general proposition, I agree with the characterisation of these paragraphs which is asserted by the defendants. These opinions as to what the GPC and the Joint Venture would do are inadmissible for reasons expressed in the body of my reasons. See in particular the body of my reasons in Sanrus No. 5 at [58].

(2) As to [244], [245], [247], [248] [249], [251], [252] and [253], I would not uphold objection on the basis of the assumption identification rule. I think the basis for the opinion stated is sufficiently clear. Reference to those paragraphs does, however, provide support for the conclusion I have expressed in the previous paragraph.

(3) As to [246], I would uphold the objection on the basis of the assumption identification rule. Although Mr Freeman references his experience, he does not say what the experience in fact was in any meaningful way. I would uphold the assumption identification rule objection in relation to [253], as the bases are not stated.

(4) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case. I am otherwise not persuaded by the defendants' arguments as to irrelevance, sufficient to rule the impugned evidence out on that basis.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5.
• I agree that some parts of the impugned evidence could not be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Thus [246] falls into that category. So too, [247] and [248], because they are based on documents which would not be available to the expert in May 2005. And as to [253], the defendants have elsewhere pointed out that the plaintiffs concede that Mr Freeman does not have the expertise necessary to give evidence about the reconstruction or expansion of the terminal: see T63-20 lines 44 - 46. Accordingly, I uphold the objection and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.
• However I think it is arguable that the remaining parts of the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, the evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(5) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

The statements concerning taking a calculated risk in the secondary market (see [255]), accelerating expansions and undertaking further expansions ([24], [254] and [259]) are irrelevant. Further, Mr Freeman has no demonstrated expertise in planning or constructing port expansions.

"In my opinion the export capacity of the RGTCT could have been increased, or further expanded by GPA to accommodate additional export volumes."

This is opinion evidence about what the GPC could have done which would be relevant to the preparation of a feasibility study.

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances. Otherwise, Mr Freeman is qualified to give evidence based on facts observed in his experience.

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, the assumption identification ruling, and the statement of reasoning ruling.

The objection should also be upheld on the basis that Mr Freeman does not have the required expertise. The plaintiffs concede that Mr Freeman does not have the expertise necessary to give evidence about the reconstruction or expansion of the terminal: see T63-20/44-46.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

While it is correct that Mr Freeman does not have expertise in planning or constructing port expansions, he is an infrastructure expert who would be expected to take into account of potential capacity increases at the port (based on information obtained by him or provided to him by the GPC) when conducting the Stage 2 Feasibility Study. Both Mr Freeman and Mr Morton regard the topic of "Opportunities for further port expansions in 2005" to be a topic relevant to a project feasibility assessment: see [EXP.500.026.0001_2] at pdf p.6, item 4.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

[255] Second sentence ('Despite the above evidence...'), [256]-[262]

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

The statements concerning taking a calculated risk in the secondary market (see [255]), accelerating expansions and undertaking further expansions ([24], [254] and [259]) are irrelevant. Further, Mr Freeman has no demonstrated expertise in planning or constructing port expansions.

These paragraphs are largely statements of fact observable by Mr Freeman in his experience and otherwise are summaries of and the drawing of inferences from documents based on Mr Freeman's experience which is a matter on which he is capable of giving evidence.

Paragraph [261] is a statement about what a person negotiating supply agreements would do, which is a matter about which Mr Freeman has direct experience.

As to the second sentence of [255], the objection is upheld on the basis of the assumption identification ruling and the statement of reasoning ruling.

At to [256] - [260], the objection is upheld on the basis of the documents review ruling and the hypothetical conduct ruling. The objection should also be upheld on the basis that Mr Freeman does not have the required expertise. The plaintiffs concede that Mr Freeman does not have the expertise necessary to give evidence about the construction or expansion of the terminal: see T63-20/44-46.

As to [261], the objection is upheld on the basis of the hypothetical conduct ruling.

As to [262], the objection is upheld on the basis of the documents review ruling and the hypothetical conduct ruling.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

Other than [259], [260] and [262], the evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

[255] second sentence is directed to identification by an expert performing the feasibility assessment of a calculated risk to be considered by the expert taking into account the fact which is stated in the first sentence of [255]. Notably, the third sentence and following (including reference to publicly available documents) is not the subject of objection.

[256] (first sentence) is a statement of fact based on Mr Freeman's own experience and observations. [256] (second sentence) is a summary statement of opinion as to the measures which can be taken to increase throughput capacity at ports. Mr Freeman is an infrastructure expert with relevant qualifications (including as an engineer). He is able to express this opinion, which would also be a relevant matter to be considered by an expert undertaking the Stage 2 Feasibility Study.

[257] and [258] contain an explanation of the measures by which port capacity can be increased, and identifies, by reference to publicly available documents, how RG Tanna Coal Terminal and Barney Point Coal Terminal have increased capacity over time. This is a relevant consideration for an expert undertaking a feasibility assessment because it necessarily affects whether port capacity could become available at a future date, remembering that Mr Freeman identifies that this is what an expert obtains information about from the infrastructure provider: see [254].

[261] relates to negotiations which Mr Freeman considers would have been undertaken by the expert, and the terms which may have been available to be agreed by the parties, but Mr Freeman can do no more than assume that a concluded agreement would have been reached.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case. I am otherwise not persuaded by the defendants' arguments as to irrelevance, sufficient to rule the impugned evidence out on that basis.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5.
• I agree that some parts of the impugned evidence could not be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Falling into that category are the first clause of the second sentence of [255]; those parts of [257] and [258] as are based on documents which would not have been in existence at the time; [259]; [260] reference to "until present day"; the first sentence of [261]; and [262]. Accordingly, I uphold the objection to that evidence and reject the submission that the impugned evidence may be admitted for the purpose of the plaintiffs' fallback argument.
• However I think it is arguable that other parts of the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Falling into this category are the second clause of the second sentence of [255]; [256]; those parts of [257] and [258] as are based on documents which would have been in existence at the time; [260] except the reference to "until present day"; the second sentence of [261]. Accordingly, that evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"Committing to a port contract and then not proceeding with the project poses a manageable risk in an environment of high demand. It is probable that any relinquished tonnage could be reallocated at no extra cost up to a certain point in time given the volume of expansion tonnage (e.g. 6months post 2005). Aside from these known Blackwater and Moura expansion plans, the DBCT corridor users were also keen to commence increased railings south to counteract congestion and bottlenecks at the port."

This is a statement of observable fact and also a matter within Mr Freeman's experience, regarding reallocation of tonnage and is a matter as to the content of a feasibility study.

As to the potential for coal typically exported using the DBCT to be exported further south at Gladstone, this is addressed in the 2006 Coal Rail Infrastructure Master Plan [AUR.002.001.0085 at pdf p. 0115] (section 5.4).

The objection should be upheld on the basis of the hypothetical conduct ruling and the assumption identification ruling.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is something which would be relevant to the risk assessment which would be undertaken by an expert undertaking the Stage 2 Feasibility Assessment, being the identification of a means of minimising exposure under a port contract if the decision was taken not to proceed with Stage 2.

The plaintiffs rely on the matters stated in the Response to Objection.

The plaintiffs otherwise rely on their submissions dated 6 September 2019.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 40(2) and (3).

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"In my opinion, there was available port capacity for commitment during the Stage 2 Feasibility Study period on the primary market at RGTCT/BPCT coal terminals for the long term mine production. Had the Joint Venture committed to a Port Agreement by mid-2006, it would have secured the port capacity allocation in a market of competing demand."

This is not a statement of what the Joint Venture would have done, it is a conclusion based on a matter of fact within Mr Freeman's experience, namely that there was available port capacity.

Mr Freeman is qualified to give evidence based on facts observed in his experience. The basis for Mr Freeman's opinion as to the availability of port capacity is set out in paragraphs [244]-[249] of the November Report [EXP.010.005.0001 at pdf pp 0077-0081].

The objection should be upheld on the basis of the documents review ruling, the hypothetical conduct ruling, and the assumption identification ruling.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

This paragraph is contained in Part C; Comparison of Opinions and so is a summary section of the more detailed section contained in Part B.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

It is something which would be relevant to the risk assessment which would be undertaken by an expert undertaking the Stage 2 Feasibility Assessment, being the identification of whether there was available port capacity and the time within which an agreement in relation to port would need to be reached with GPC.

The plaintiffs otherwise rely on their submissions dated 6 September 2019 in relation to the defendants' suggested ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3) in relation to the first sentence. Although the second sentence was capable of being characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005, I agree that that expression of opinion would be inadmissible because of the assumption identification and statement of reasoning rules.

• Mr Freeman's interpretation of documents prepared by Gladstone Ports Corporation, which does not required the application of specialised knowledge;
• Speculation as to how Gladstone Port Corporation (and the Joint Venture) would have acted in a hypothetical factual situation, which is a question of fact;
• Mr Freeman's observations, as a non-participating onlooker, of how Gladstone Ports Corporation operates.

Facts or assumptions underpinning the opinion not set out or proved by admissible evidence.

"GPA does not follow a regulated process for capacity allocation, rather it notes the date a request is lodged, liaises with the parties and then negotiates terms and conditions. GPA did not allocate port capacity based on its belief in a project, instead the capacity was allocated once a contract was committed."

This is a statement of fact observable by Mr Freeman in his experience.

Mr Freeman is qualified to give evidence based on facts observed in his experience. The basis for Mr Freeman's opinion as to the availability of port capacity is set out in paragraphs [244]-[249] of the November Report [EXP.010.005.0001 at pdf pp 0077-0081].

Mr Morton also gives evidence that GPA operates on an un-regulated basis ([EXP.020.022.0001_0001 at [117] pdf p. 0049].

This objection is not pressed as to the first sentence.

The objection should be upheld as to the second sentence on the basis of the documents review ruling and the statement of reasoning ruling.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The evidence is something which forms part of, or is relevant to demonstrating, the conclusions which would have been reached in a Stage 2 Feasibility Study undertaken during the Mine 1 Stage Development.

In this case, Mr Freeman is giving evidence, based on his own experience and observations including dealings with GPC and his review of documents which he considers to be relevant to his feasibility assessment, about whether the Joint Venture would be able to get port capacity for Stage 2 which includes identifying the relevant considerations which the GPC would take into account and then having regard to those considerations when assessing feasibility.

This paragraph is contained in Part C; Comparison of Opinions and so is a summary section of the more detailed section contained in Part B.

The plaintiffs otherwise rely on their submissions dated 6 September 2019 in relation to the defendants' suggested ruling.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I have ruled that the plaintiffs may not advance the unpleaded advice case.
• I took the plaintiffs' submission to include the proposition that the impugned evidence was within the scope of the plaintiffs' fallback argument. The defendants advanced the objection recorded in column 5.
• However I think it is arguable that the impugned evidence could be characterised as expressing support for an input by way of opinion into a Stage 2 Feasibility Study in May 2005. Accordingly, that evidence may be admitted for the limited purpose of supporting the plaintiffs' fallback argument referred to in the body of my judgment, but subject to the limitations there identified.

(3) For the foregoing reasons, subject only to the exception stated in the previous paragraph, I uphold the objection.

Item 6 from the defendants' schedule of objections

Item 7 from the defendants' schedule of objections

Agree that this should be limited to statement of assumption.

(I took the defendants' position as seeking to support the provisional ruling.)

(I took the plaintffs' position as seeking to support the provisional ruling.)

(1) The sentence can be admitted on the basis that it is so regarded.

Response Report (Actual Costs) of Jamie Freeman dated 22 November 2018 [EXP.010.007.0001] (Costs Report)

Item 8 from the defendants' schedule of objections

"In my opinion, it is likely that the Joint Venture would have been able to procure both rail infrastructure and port capacity through the Moura System to RGCT/BPCT via the primary market from QR and GPA respectively during the feasibility period of 2002- 2005, to support Stage 2 tonnages of 10mtpa (paragraph 191 of my Response Report)."

This is not a statement of what the Joint Venture would have done in a hypothetical situation, it is a statement of his opinion about the availability of capacity, a matter within his expertise and how that might factor into a feasibility study.

This summarises the 2 November Report. The basis for Mr Freeman's opinion as to the availability of port capacity is set out in paragraphs [244]-[249] of the 2 November Report [EXP.010.005.0001 at pdf pp 0077-0081].

The plaintiffs' characterisation of the evidence should be rejected. It expresses an opinion as to what the Joint Venture would have been able to do. That is evidence of what third parties would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

They argue further that the evidence in the Response Report (Actual Costs) of Jamie Freeman dated 22 November 2019 does not fall within the plaintiffs' fallback argument.

The plaintiffs rely on the matters stated in the Response to Objection.

By this evidence, Mr Freeman is referring back to [191] of the 2 November 2018 report. This evidence is admissible on the same basis as that paragraph of his 2 November 2018 report.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

"In my opinion, there was available port capacity for commitment during the feasibility period on the primary market at RGTCT/BPCT coal terminals for the long term mine production (Section 5.4 of my Response Report). Had the Joint Venture committed to a Port Agreement by mid-2006, it would have secured the port capacity allocation in a market of competing demand."

This is a statement of observable fact from Mr Freeman's experience and a conclusion drawn from those facts about what the Joint Venture would have been able to secure had it committed to a Port Agreement. It is not about what the Joint Venture would have done.

Mr Freeman is giving evidence of observable facts obtained in the course of his experience preparing and advising on feasibility studies.

The basis for Mr Freeman's opinion as to the availability of port capacity is set out in paragraphs [244]-[249] of the 2 November Report [EXP.010.005.0001 at pdf pp 0077-0081].

The plaintiffs' characterisation of the evidence should be rejected. It expresses an opinion as to how GPC and the Joint Venture would have acted in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply category 2, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion that rely on events after May 2005.

Further they argue the evidence in the Response Report (Actual Costs) of Jamie Freeman dated 22 November 2019 does not fall within the plaintiffs' fallback argument. [note: this appears to be a double up from the Annexure]

They also contended the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

The plaintiffs rely on the matters stated in the Response to Objection.

By this evidence, Mr Freeman is referring back to Section 5.4 of the 2 November 2018 report. This evidence is admissible on the same basis as section 5.4 of his 2 November 2018 report.

(2) As to the further submissions advanced by the plaintiffs in column 6, I rule in the same way as item 37(2) and (3).

"I disagree with this opinion as capacity was available during the feasibility period and would have been allocated to the Joint Venture upon execution of a port agreement."

This is a statement of fact observable by Mr Freeman in his experience.

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances. Otherwise, Mr Freeman is qualified to give evidence based on facts observed in his experience.

The basis for Mr Freeman's opinion as to the availability of port capacity is set out in paragraphs [244]-[249] of the 2 November Report [EXP.010.005.0001 at pdf pp 0077-0081].

The plaintiffs' characterisation of the evidence should be rejected. It expresses an opinion as to what the Joint Venture and GPC would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

This evidence should be treated as being evidence as to Mr Freeman's opinion as to what the actual terms of the port contract would have been on the assumption that a port agreement was executed as he had opined would have occurred as part of the Stage 2 Feasibility Study.

(2) As to the further submissions advanced by the plaintiffs in column 6:

• I rule in the same way as item 37(2) and (3).
• Further, the proposition makes no sense. If an agreement had been executed, the terms would be known, an opinion would not be necessary. The "opinion" would only be adding a gloss to the assumption.

"I consider that the Joint Venture could have negotiated a port agreement in 2003-2004, with the costs of the port services stated in the contract in line with that recorded by GPC for 2003. In my experience these would have escalated at CPI throughout the negotiation period until contract execution.

In my opinion a likely term for a port agreement would be 10 years commencing 1 July 2007 with a renewable option for a further 10 years. In my experience port agreements had options to renew at 5-year or 10-year intervals."

These are statements of facts including as to the content of common agreements observable by Mr Freeman in his experience and not about what third parties would have done in particular circumstances.

Mr Freeman is qualified to give evidence as to what participants in the industry would have done in the circumstances.

The plaintiffs' characterisation of the evidence should be rejected. It expresses an opinion as to what the Joint Venture and GPC would have done in hypothetical circumstances. The objection should be upheld on the basis of the hypothetical conduct ruling.

Pursuant to the defendants' submissions in reply, the defendants argue the evidence does not fall within the plaintiffs' fallback argument, and it concerns expression of opinion on events before May 2005.

Pursuant to the defendants' submissions in reply category 3, the evidence in the Response Report (Actual Costs) of Jamie Freeman dated 22 November 2019 does not fall within the plaintiffs' fallback argument. [note: this appears to be a double up from the Annexure]

In the defendants' submissions in reply, the defendants contend the evidence in the port section of the Report of Jamie Freeman dated 2 November 2019 and the Joint Expert Report on 'Port' of Jamie Freeman and Euan Morton -

• they cannot be relied on for the purpose of supporting the unpleaded advice case;
• even if they were so construed, they would be inadmissible because of the assumption identification and statement of reasoning rules;
• they could not be regarded as falling within the scope of the plaintiffs' fallback argument because:
  • insofar as they rely on confidential, internal GPC documents obtained on subpoena they could not reasonably be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005;

insofar as they are directed to proof of the existence of a hypothetical anterior fact, they are not directed towards an opinion which could be read as informing the content of a hypothetical Stage 2 Feasibility Study as at May 2005.

This evidence should be treated as being evidence as to Mr Freeman's opinion as to what the actual terms of the port contract would have been on the assumption that a port agreement was negotiated in 2003-2004 as he had opined would have occurred as part of the Stage 2 Feasibility Study.

(2) As to the further submissions advanced by the plaintiffs in column 6: