//
[2023] QCA 159
General information, not legal advice.
Court of Appeal (Qld)
2023-08-08
Mullins P and Dalton JA and Henry J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Seymour & Anor v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159
PARTIES: ANNE LENIA SEYMOUR / (first appellant) / MICHAEL WILLIAM SEYMOUR / (second appellant) / v / DRILL ENGINEERING & PASTORAL COMPANY PTY LTD / (respondent)
FILE NO/S: Appeal No 8239 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: District Court at Brisbane – [2022] QDC 136 (Porter KC DCJ)
DELIVERED ON: 8 August 2023
DELIVERED AT: Brisbane
HEARING DATE: 3 November 2022
JUDGES: Mullins P and Dalton JA and Henry J
ORDERS: Application for further evidence to be received on special grounds, per r 766(1)(c) Uniform Civil Procedure Rules, refused.Appeal dismissed with costs.
CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the appellants engaged the respondent in a contract to drill a bore on their property – where the respondents successfully sued the appellants in the District Court – where the appellants appeal on various grounds going to the legality of the work done under the contract, the circumstances under which the work ceased, the terms of the contract, the performance of contractual obligations and alleged incompetence of their counsel below – where the appellants apply under r 766(1)(c) Uniform Civil Procedure Rules for further evidence to be received / Criminal Code (Qld), s 668E / District Court of Queensland Act 1967 (Qld), s 118 / Evidence Act 1977 (Qld), s 53, s 79 / Penalties and Sentences Act 1992 (Qld), s 9 / Uniform Civil Procedure Rules 1999 (Qld), r 149, r 150, r 171, r 367, r 765, r 766, r 770 / Water Act 2000 (Qld), s 816 / Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited / Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16, cited / Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139, cited / Browne v Dunn (1893) 6 R 67, cited / CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, cited / Chouman v Margules (1993) 17 MVR 144, considered / Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, considered / Deputy Commissioner of Taxation (Cth) v Luckhardt & Anor [2006] QCA 53, cited / D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited / Faris v Savage [2019] ACTSC 339, cited / Faris v Savage (No 2) [2020] ACTSC 219, cited / Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52, cited / Gilligan’s Backpackers Hotel & Resort Pty Ltd v Mad Dogs Pty Ltd [2016] QCA 304, cited / Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21, cited / Jacobsen v Suncorp Insurance & Finance (No 2) [1992] 1 Qd R 385, cited / Jowett v Kelly [2008] NSWSC 1009, cited / Keefe v Marks (1989) 16 NSWLR 713, cited / Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25, cited / Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited / Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, cited / R v Gerhardt (2019) 3 QR 48; [2019] QCA 283, cited / Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2008] VSCA 244, considered / Russell v Craddock [1985] 1 Qd R 377, cited / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited / Varmedja v Varmedja [2008] NSWCA 177, considered / Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 157 FCR 442; [2006] FCAFC 188, cited / Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, cited / Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48, cited / Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410; [1978] HCA 42, cited
COUNSEL: D R Cooper KC, with S Reidy, for the appellants
SOLICITORS: Creevey Horrell Lawyers for the appellants
MULLINS P: For the reasons given by Dalton JA, I also agree with the orders proposed by Henry J.
DALTON JA: The respondent sued the appellants for the contract price of drilling a bore on their property near Winton in 2017. The contract was made by oral acceptance of the respondent’s written quotation:
“Hi Mick
I have complied all the relevant information for your proposed water bore on Windermere Station and have processed the following quote for your perusal.
Due to the bores being situation in the Great Artesian Sediments these bores are required to be constructed to the Minimum National Construction Standards. This standard stipulates the type and amounts of casing that are to be used and the amount of grouting which must be incorporated into the borehole.
We expect the Bore will be constructed from 1,200 meters approximately.
Our pricing includes mobilisation…and all other drilling relates activities.
Our prices are as follows $265 per meter + GST (6’’ IS Steel Cased Bore).
➢ Please provide accommodation, meals, water access, drill sumps and a clear area.
Should any activity be required or negotiation which is outside the scope of the Principals [sic] original request, proposal or tender document, the Company will charge for such additional work at the current standard hourly rates of personnel and equipment.”
No Abandonment of the Drilling Work
There was a dispute between the parties at trial as to whether or not they agreed to cease drilling, or whether the respondent simply abandoned the job. The trial judge disbelieved the evidence given by the appellants, and believed the evidence given by the respondent about this issue. He found that the first appellant instructed both the drillers on site, and a Mr Riddell, who supervised the respondent’s work from its office off-site, to cease drilling. He further found that drillers employed by the respondent on site did not cap or seal the bore hole as they would normally do in such circumstances because the appellants asked them not to. These findings were the subject of grounds of appeal 2(a), (d) and (e).
The appellants’ case at trial was that the contract to drill the bore was entire, and that because the respondent abandoned the work and had not capped the bore, it was not entitled to payment.
The primary judge heard and observed the witnesses while they were giving evidence. His findings as to the conflict of evidence as to the conversations on 9 and 10 September 2017 was orthodox and logical. He found that there were significant contradictions in the evidence of the first appellant as to this topic – see [53], [56], [57] and [71] of the judgment below. Further, he did not believe her evidence that she had nothing to do with decisions as to the drilling of the bore, but only attended to matters within the house. The primary judge found that these assertions contradicted the contemporary documents which showed the role the first appellant took in relation to the drilling of the bore and the fact that she was in regular, near‑daily, contact with the drillers through the period of drilling – see [72]-[74] of the judgment below. Lastly, the primary judge relied upon the uncontentious facts as to the drillers’ last day on site: the employees of the respondent had coffee with the first appellant and gave her a thank you card and a Gold Lotto ticket. The terms of the card were consistent with the fact that the employees were leaving for good (not taking a break) and the friendly, indeed humorous nature of the card and the coffee occasion was inconsistent with the fact that this was not by agreement.
The trial judge found that the evidence of the second appellant about this topic was “doubtful” and “unsatisfactory” – [66] and [75] of the judgment below. He was slow to be precise about the evidence he gave – [66]. He gave evidence seeking to cast the respondent in a poor light, when that was unjustified – [76]. He gave evidence that when he was informed by Mrs Seymour that the drillers were stopping on 9 September 2017 he drove most of the night to return to discuss matters with the drillers, but then asserted that in these discussions he was never told that the total depth at that point was 1388 m; a fact basic to any discussion of why the drilling was to stop. The trial judge found him evasive on that matter. He found that the second appellant knew the contract contemplated drilling to 1200 m, and that he had researched the expected depths of the available aquifers prior to engaging the respondent to drill the bore. The trial judge found that his evidence in this respect was actively dishonest – [77]. In fact the second appellant denied that the first appellant had told him on 8 or 9 September that the drillers were stopping work – [78]. This is highly inconsistent with his evidence that he drove through the night to speak to them before they left on 10 September.
“…
On 10 September 2017 the DEPCO employees ceased all work, left the property and removed most of the drilling equipment.
As at 10 September 2017, the well depth was 1388 metres.
…
On 9 October 2017, the Seymours received an invoice for the work from DEPCO in the amount of $335,896.00.
As a consequence, the Seymours contacted the department to enquire about any reports logged by DEPCO with the department about the water bore they were drilling. This subsequently led to an investigation and this proceeding.
On 7 November 2017 [the respondent] attended the Property and removed all remaining equipment by 8 November 2017.
DEPCO did not return to the Property to complete the contracted work. The work remains incomplete. The invoice sent by DEPCO to the Seymours remains outstanding.” (my underlining).
The significance of this was said to be that Mr Riddell had admitted that work under the contract had not been completed; as it was an entire contract, there was no right to payment.1
Mr Riddell attended the trial and gave evidence for the respondent. The agreed statement of facts upon which the Magistrates Court sentence proceeded was not put to him in cross-examination. After re-examination, but before Mr Riddell was excused, counsel for the appellants asked to tender a series of documents from the Magistrates Court proceedings under the Evidence Act but expressly said he did not wish to cross‑examine Mr Riddell about them. Mr Riddell was asked to wait outside. The matter was resolved by counsel for the respondent taking instructions and then admitting on the trial that paragraph 33 of the agreed statement of facts should be treated as something which Mr Riddell had said in connection with the sentencing – t 1‑104.
That solution to the failure of the appellants’ counsel to cross-examine with relation to the statement of facts before the Magistrate was reached before Mr Riddell was excused. It would have been competent for counsel for the respondent to not have made the admission and insisted that the matter be put to the witness as cross‑examination. The result was that the statement at paragraph 33 of the agreed statement of facts was admitted into evidence against the respondent. It was a piece of evidence which was inconsistent with Mr Riddell’s oral evidence on this topic.
In the part of his judgment which discusses the issue of whether or not the drilling was completed or abandoned, the trial judge criticised the evidence-in-chief of the first appellant for including statements prepared for use in the Magistrates Court. In the course of that discussion he said that he did not find the events relating to the prosecution “to be of any use in resolving these proceedings” – [52]. It is true that in the course of considering the evidence relevant to this issue the primary judge said nothing specifically about the admission at paragraph 33 of the agreed statement of facts on sentencing. In giving reasons, a judge is not obliged to mention every piece of evidence relevant to every issue in a trial. This was a statement made in an altogether different context where the question of whether or not the work had been completed or abandoned was not legally significant.2 Counsel for the respondent did not care to cross-examine the witness about it. In the scheme of all the other evidence considered by the judge it was relatively minor. I cannot think that the judge’s finding was against the weight of the evidence, or in any other way impeachable, because he did not mention this relatively minor point in giving his reasons.
Illegality
“(b) The learned trial judge failed to appreciate that paragraphs 2(j), (k) and (l) of the Second Amended Defence were pleading a defence that the Contract sued upon by the Respondent was illegal as performed and unenforceable by it;
(c) The learned trial judge erred in law:
i. in failing to direct the Respondent to plead a Defence to the Appellants’ case of illegality; and
ii. in failing to make the necessary directions, including any adjournment, to permit the Court to hear and determine the issue on its merits.”
“(j) On 9 October 2019, in the Magistrates Court at Brisbane, (Sentencing Hearing) Riddell pleaded guilty to, and was convicted on his own confession, and was punished for, an offence under s. 816(1)(a) of the Water Act 2000 (which was a criminal offence under s. 3 of the Criminal Code (Qld)), that during the period between 19 August 2017 and 10 September 2017, he aided one Keith Wall to drill, deepen, enlarge or case a water bore located on Lot 1 on Plan G2497 (Bore Location) at a property known as ‘Windermere’ whilst not the holder of a licence under Chapter 8, part 2B of the Water Act 2000 where the drilling of the Artesian Water Bore was as per an agreement between Depco and the defendants, Michael and Anne Seymour [the Seymour Contract].
Particulars
Complaint and Summons made on 16 August 2018 by the complainant Bradley COOME.
Verdict and Judgment Record (Form 44, Rule 62 Criminal Practice Rules) issued by the Clerk of the Magistrates Court at Brisbane on 29 October 2019.
Riddell was fined $15,000 and ordered to pay costs in the total amount of $15,977.80, payable within 30 days, in default of payment, 2 months imprisonment. No conviction was recorded.
(k) At the Sentencing Hearing on 9 October 2019, the Magistrate sentenced Riddell on the basis of an Agreed Statement of Facts which was admitted without objection and with the consent of Riddell’s counsel and marked Exhibit 2 (Agreed Statement of Facts).
(l) Paragraph 33 of the Agreed Statement of Facts stated:- ‘DEPCO did not return to the property to complete the contracted work. The work remains incomplete. The invoice sent by DEPCO to the Seymours remains outstanding.’” (underlining and strikethrough omitted).
The respondent pleaded to these allegations saying they were immaterial and irrelevant except that it did reiterate its case that there was an agreement to cease work, not an abandonment.
No more needs to be said to understand that the appellant’s pleading did not raise a defence that the contract sued upon was illegal. Nor was any such case advanced in any other way at trial. That is a sufficient answer to these grounds, but it might perhaps be mentioned that it is no part of the trial judge’s function to step into the arena and direct parties as to how they are to plead when no complaint is made as to the pleadings.
Nor could it be said that the trial judge failed or erred in any respect in relation to the documents relating to the Magistrates Court sentence. These were put before the Court, as part of a bundle which was not evidence. On the first day of trial counsel for the respondent drew the trial judge’s attention to them to foreshadow that he would object to the tender of “most of those” – t 1-14. The trial judge said that counsel for the appellants “may never seek to tender [them] … So we can just go ahead …” – t 1‑14. The only other mention of the documents was made when counsel acting for the appellants apparently realised at the end of Mr Riddell’s re-examination that he had failed to cross-examine about those documents. That issue was resolved in the way described above. Counsel for the appellants did not press the tender of those documents or tell the judge that they were relevant to an unpleaded defence of illegality.
There is nothing in these grounds of appeal. In those circumstances it is not necessary to deal with the respondent’s notice of contention.
Terms of the Contract
Appeal grounds 2(f) and (g) are related. They contend that the primary judge failed to correctly determine the terms of the contract between the appellants and the respondent and failed to appreciate that the appellants’ case was that the drilling contract was an entire contract to tap into a specific aquifer in order to establish a flowing bore, and that the respondent did not do this.
The trial judge found that the contract was constituted by the quotation referred to at paragraph [2] above and an oral acceptance of that quotation. The background to the statement, “We expect the Bore will be constructed from 1,200 meters approximately” is set out in the primary judge’s judgment. Both parties were aware that in the location of the proposed bore it could be expected that there were two aquifers; the Adori at about 850-1100 m below ground level, and the Hutton below that.
At about the time of the contract the appellants obtained a permit to tap the Hutton aquifer. Their evidence was that this was what the officers at the Department of Environment recommended. That is, the appellants’ evidence was that the suggestion of the Hutton was from the department, not from the respondent. In late June 2017 the first appellant applied for a revised permit asking to tap the Adori, not the Hutton. That was granted. Mr Riddell’s evidence was that he asked for that change, as his plan was to target the Adori.
When drilling broke off for a week starting 24 July 2017, the respondent calculated that the bore was at 1212 m. By that stage the respondent would have expected to have encountered the Adori, but had not. This was raised with the department by the appellants. On 4 August 2017 the department sent the first appellant an email which approved the appellants tapping any artesian aquifer, so long as the department was advised of the aquifer which was in fact tapped.
The respondent pleaded that the permits and the more general permission obtained from the department on 4 August 2017, were incorporated as terms of the contract between the parties – paragraphs 7, 17, 27‑41 and 58-69A of the defence. The pleading is not clear. If it is meant to convey that the respondent was to drill in accordance with the permits obtained at all times, then one can accept that, and that the primary judge also accepted that as a premise for his reasoning. Submissions on this appeal were to the effect that somehow these permissions given to the appellants changed the terms of the drilling contract so that the respondent became obliged to tap an aquifer. This must be rejected. The only contractual obligation was to drill to a depth of around 1200 m. Both parties to the contract assumed that by that depth the available aquifers would have been encountered. The contract contained no promise to tap an aquifer and the appellants obtaining permission to do so from a third party could not possibly change the terms of the contract.
Incompetence of Counsel
Ground of appeal 2(h) asserts that the appellants have “suffered a miscarriage of justice because of the incompetence of their counsel in failing to plead an intelligible case for trial and failing to present an intelligible case at trial”.
Counsel for the appellants referred us to several cases where obiter statements are made acknowledging the existence of the power of an appellate court to grant a new trial in a civil matter because incompetence of counsel has caused a mistrial. There was no case in which this was done, and a number of statements to the effect that it would only be done in a clear and extraordinary case. The reasons why are articulated by Keane JA in Deputy Commissioner of Taxation (Cth) v Luckhardt & Anor:
“… the appellant seeks to import into a civil case the stringent rules developed to prevent miscarriages of justice in criminal cases. There are powerful reasons, associated with values of individual autonomy and the finality of litigation, for resisting attempts to import into civil litigation those qualifications upon the adversarial system which have been accepted as necessary to protect the liberty of the subject in the law of criminal procedure.”3
Another reason is that, in civil matters (unlike criminal matters), if the appellants really do have a claim for negligence or breach of contract against their solicitors and barristers, it is a money claim. That the law provides for them to recover against their lawyers is another reason why this Court would be most unlikely to countenance a new trial on the basis advanced.
If it is contended on a criminal appeal that the conduct of defence counsel at trial caused a miscarriage of justice, the appellant would usually waive privilege and make an affidavit. Counsel alleged to have acted incompetently would usually also swear an affidavit. There would often be cross-examination on the appeal. This is because the appellate court needs to be convinced that the reason for the impugned decisions below was incompetence. Nothing of that sort was essayed here and I am not convinced that decisions made by solicitors and counsel, both before the trial and during it, were not based on instructions. Complaint was made, for example, that trial counsel did not cross-examine the respondent’s experts at trial. There may well have been good reason for that. On the application made to adduce further evidence on appeal (see below), counsel for the appellants sought leave to introduce evidence which directly contradicted the evidence which was given by the expert who the appellants did call at trial. In the absence of knowing, and being able to explore in evidence, all the matters which fed into the decisions which are now sought to be criticised, I would not be persuaded that incompetent decisions were made, much less that they led to a miscarriage of justice.
Thus, while there are dicta which support the idea that it is possible for this Court to order a new trial in a civil matter because there has been a miscarriage of justice occasioned by the incompetence of legal representatives for a party, no case was presented which would convince this Court that this was a clear and exceptional case where that very unusual relief should be granted.
Application to Amend the Notice of Appeal
“2(i) The learned trial judge erred in failing to find that the Respondent had not constructed and completed a water bore in accordance with the terms of the contract and the Minimum standards for the construction and reconditioning of water bores that intersect the sediments of artesian basins in Queensland (Minimum Standards). His Honour ought to have found that if the Respondent had performed its obligations in a competent manner and in accordance with the Minimum Standards it would have created a free-flowing bore from the Hutton aquifer.”
Application to Adduce Further Evidence on Appeal
The appellants made an application to adduce evidence of an expert who was deliberately not called by them at trial, and from a driller who had (very soon after the trial) drilled a successful bore on their property. This application ought to be refused.
As to the expert, the appellants were in contact with Mr Whittington in early 2018. At that stage they had engaged solicitors other than those who ran the trial. Those solicitors engaged Mr Whittington to prepare a report, which he did. It was in the appellants’ favour and it was provided in January 2019 for use in the proceeding. A summary judgment application was made in reliance on the report. Unsurprisingly, that application was dismissed.
In April 2020 the appellants engaged new solicitors. They provided them with a copy of the report. The appellants swear that three days before the trial they were contacted by Mr Whittington, who was concerned that he had heard nothing about the trial. They then contacted their new solicitors and were informed that the solicitors (and hearsay, their barrister) had decided not to call Mr Whittington, but to call a Mr Edward Mann instead. The appellants now say that they did not agree with that decision, but they give no evidence at all that they expressed this disagreement to their solicitors. In fact they swear that they contacted Mr Whittington and told him he was not required to attend the trial. I note that it would not have been a sensible decision to call both Mr Whittington and Mr Mann, because their evidence was contradictory in material respects. The trial proceeded on the basis of Mr Mann’s expert evidence. That was rejected by the trial judge.
In my view this Court should not receive Mr Whittington’s evidence. It was available for use at the trial: Clarke v Japan Machines (Australia) Pty Ltd.4 A decision was made not to use it.
Mr Beale is a very experienced water bore driller. He gave the appellants a quotation to drill a bore on their property on or around 14 January 2022. The first appellant swears that the appellants were not in a financial position to accept the quotation at that time. A little later that year, July, they were, and did. They signed an agreement with Mr Beale’s company on or around 7 September 2022. Mr Beale’s company drilled a water bore about 60 m from the location of the failed water bore, which is the subject of this proceedings, and by 16 September 2022 tapped an artesian aquifer at about 1353 m. The point seems to be that, implicitly, the respondent should also have succeeded. That is a difficult argument in terms of logic and in terms of articulation in either a contractual or tortious framework. It is made almost impossible given that the trial judge recorded, “It was accepted by all witnesses that there is no guarantee that a bore will tap a particular artesian aquifer, even if it is drilled near a successful bore”.
Disposition
For the above reasons I agree with the orders proposed by Henry J.
HENRY J: A drilling company was not paid for drilling a bore on a grazing property at Winton. It did not strike water but that was not a condition of the contract. The company successfully sued the property owners, Mr and Mrs Seymour, for $335,896, the amount invoiced under the contract.
The Seymours appeal the District Court Judge’s decision against them. They complain of the incompetence of their counsel and of various alleged errors by the learned primary judge relating to the terms of the contract, the legality of the work, the quality of its performance and the circumstances under which the work ceased. Their complaints lack substance and, in some respects, seek to advance a different case than that run below, contrary to the general principle that parties are bound by the way in which their cases are advanced and argued.5
The contract, the works and the key findings below
There are a number of artesian aquifers in the Winton district. They include the Adori aquifer, which is situated between 850 and 1,100 metres below ground, and the Hutton aquifer, which is deeper. The Seymours wanted to tap such an aquifer. They determined the location on their property at which they wanted the bore to be drilled. After seeking quotations they engaged a company, Drill Engineering & Pastoral Company Pty Ltd (DEPCO), to perform the work.
DEPCO’s quotation letter of 3 May 2017 included:
“I have compiled all the relevant information for your proposed water bore on Windermere Station and have processed the following quote for your perusal.
Due to the bores being situated at the Greater Artesian Sediments these bores are required to be constructed to the Minimum National Construction Standards. This standard stipulates the type and amounts of casing that are to be used and the amount of grouting which must be incorporated into the borehole.
We expect the Bore will be constructed from 1,200 meters approximately.
Our pricing includes mobilisation … and all other drilling related activities.
Our prices are as follows $265 per meter + GST (6” ID Steel Cased Bore). …
Should any activity be required or negotiated which is outside the scope of the Principals original request, proposal, or tender document, the Company will charge for such additional work at the current standard hourly rates of personnel and equipment…. Invoices will be rendered on the completion of the works. …”
Importantly, DEPCO did not promise that artesian water would be struck.
The Seymours applied for a permit for the proposed bore. It was granted on 31 May 2017, with the permit authorising the water bore to be “constructed to tap” the Hutton aquifer and requiring the bore to be constructed in accordance with stipulated minimum standards. In late June the Seymours applied for a revised development permit. It was granted on 4 July 2017 and altered the permitted aquifer from the Hutton to the Adori.
DEPCO commenced the works from the day the second permit was issued, in a location directed by the Seymours. DEPCO’s principal, Mr Wayne Riddell, testified he was then targeting the Adori aquifer because it was shallower. He explained the quoted depth estimate of 1,200 metres was selected to provide some leeway beyond his estimate as to how deep the Adori aquifer lay.
The work proceeded for three weeks until 24 July 2017 when the drilling team took a one week break. By this time it was believed the bore had reached a depth of 1,212 metres. However, sandstone, which usually surrounds artesian water, was yet to be struck. One of DEPCO’s drillers, Mr Lee White, had expected sandstone to have been struck by 1,000 metres. There was concern that the Adori formation may have been bypassed. The Seymours made further application for a development permit to tap the Hutton aquifer.
Drilling operations resumed on 31 July 2017. The bore reached a length of 1,388 metres by 9 September 2017 when DEPCO ceased its operation. The bore had not struck water.
DEPCO issued an invoice to the Seymours dated 9 October 2017, charging a total of $335,896 for having drilled 1,388 metres. This reflected a rate per metre of $220 per metre plus GST, which Mr Riddell deposed was discounted from the quoted rate of $265 per metre plus GST because he felt sorry for the Seymours “in that the bore did not hit sandstone”.
An important issue at trial was whether DEPCO ceased work because it was told to do so by the Seymours, as DEPCO alleged, or DEPCO abandoned the works without completing the bore construction in accordance with its contractual obligation, as the Seymours alleged. The learned primary judge identified what he described as unsatisfactory elements of the Seymours’ evidence as to this issue. He concluded it was the Seymours who had decided to end the drilling, a decision which they communicated to Mr Riddell.
The learned primary judge also rejected an allegation that DEPCO had simply abandoned the borehole uncovered when they ceased works. His Honour accepted the evidence of Mr Riddell that the Seymours asked for the hole to be left open in case they wanted to do further work.
The other main basis upon which the Seymours sought to avoid liability was that DEPCO was contractually obliged to drill “as nearly as possible” to 1,200 true vertical depth (TVD) but the borehole descended at an angle, rather than straight down on a “true vertical” plane. They alleged, despite the bore being 1,388 metres long, it only reached 1,071 metres TVD, which was not as nearly as possible to 1,200 TVD.
“[214] The dispute on the entire agreement is moot. The Seymours accept that Depco had not warranted that it would drill 1200 TVD but rather that it would “as nearly as possible” to TVD. As I have said, as nearly as possible necessarily imported notions of reasonableness and reasonable care and skill. There was never any dispute that Depco drilled well over 1200m, the question was whether they did so while complying with their obligations to drill with reasonable skill (however articulated).
[215] Further, it is a necessary element of the Seymours’ case on the entire agreement argument that Depco abandoned the bore hole without the Seymours’ consent. I have found already that the Seymours initiated the termination of the drilling efforts. It is unnecessary to say any more on this subject.
DISPOSITION OF THE PROCEEDINGS
[216] The consequence of my findings is that Depco has succeeded on its claim under the drilling contract. …”
Consideration of appeal grounds
the legality of the work;
the circumstances under which the work ceased;
the terms of the contract;
the performance of contractual obligations; and
the alleged incompetence of their counsel.
The legality of the work
“(a) The learned trial judge erred in finding that the evidence, which included statements prepared for use in the prosecution of Mr Riddell, were of no use in resolving the proceedings. The learned trial judge failed to appreciate that the factual circumstances giving rise to this conviction were admissible in these proceedings under section 79(2) of the Evidence Act 1977 (QLD);
(b) The learned trial judge failed to appreciate that paragraphs 2(j), (k) and (l) of the Second Amended Defence were pleading a defence that the Contract sued upon by the Respondent was illegal as performed and unenforceable by it;
(c) The learned trial judge erred in law:
i. in failing to direct the Respondent to plead a Defence to the Appellants’ case of illegality; and
ii. in failing to make the necessary directions, including any adjournment, to permit the Court to hear and determine the issue on its merits; …”
The genesis of these grounds arises from the fact Mr Riddell was convicted of carrying out water bore drilling activity on the Seymours’ property without the relevant licence, in breach of s 816 Water Act 2000 (Qld). That event was touched on in the pleadings in the following way.
Various uncontentious allegations were made in para [1] of the amended statement of claim*,* including at [1(c)], that DEPCO had and continued to have Mr Riddell as its director. Paragraph [1] of the second amended defence admitted some of the allegations. Paragraph [2] then commenced by pleading:
“[2] As to the allegations at paragraph 1(c) of the statement of claim:”
“DEPCO did not return to the Property to complete the contracted work. The work remains incomplete. The invoice sent by DEPCO to the Seymours remains outstanding.”
DEPCO’s second amended reply pleaded it could not plead to [2(j)] because its allegations were unnecessary and immaterial to the facts in issue in the proceeding. In response to [2(k) and (l)] it pleaded there was no need to plead to those allegations as it was evidence, immaterial and irrelevant. It went on to plead, inter alia, that DEPCO had left the Seymours’ property because Mrs Seymour had instructed DEPCO to cease work and leave the borehole open.
The Seymours argue the fact of Mr Riddell’s conviction and the content of para 33 in the statement of facts in Mr Riddell’s sentence proceeding each have a significance which was unappreciated and associated with error below. The former is said to be an admission of illegality. The latter is said to be an implied admission that DEPCO had, as the Seymours alleged, abandoned its contractual performance of work. The latter was articulated in submissions in connection with ground (a). It is simplest to deal with it first, before returning to the issue of illegality.
Implied admission of abandonment of contractual performance of work
The Seymours’ submissions relied upon the words in para 33 of a document headed “Statement of Facts”, exhibited in Mr Riddell’s sentence. The words, quoted above, are about DEPCO not returning to the property “to complete the contracted work”. The Seymours in effect submit the truth of the words became an admitted fact in this proceeding below and the words mean that the work which DEPCO contracted to complete, before becoming entitled to payment, was not completed. Neither submission is sustainable.
The statement of facts was exhibited in the sentence proceeding as providing the factual basis upon which Mr Riddell was to be sentenced in that proceeding, on his plea of guilty to a breach of s 816 Water Act 2000 (Qld). According to the statement of facts s 816 required that the drilling work should have been performed or constantly supervised by a driller who held a class 3 licence but Mr Riddell only held a class 2 licence and DEPCO’s Mr Farnsworth, who did hold a class 3 licence, was on site supervising at some but not all times. The apparent foundation for Mr Riddell’s liability was that in directing the performance of some work by drillers who did not hold a class 3 drilling licence and were not always being supervised by Mr Farnsworth, he was an aider to carrying out water bore drilling activity without a class 3 licence.
The statement of facts document was merely an exhibit in the sentence proceeding against Mr Riddell. Quite apart from the distinction that it was Mr Riddell, not DEPCO, who was the relevant party (as defendant) in that proceeding, the content of the statement of facts in that proceeding could not, of itself, constitute an admission of any fact in DEPCO’s proceeding below against the Seymours. Nor did it have the status which s 79 Evidence Act 1977 (Qld) accords to a finding of guilt of an offence.
Section 79 relevantly provides:
“79 Convictions as evidence in civil proceedings
(1)In this section – …
convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.
(2) In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.
(3) In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence. …” (emphasis added)
The Seymours’ appeal ground (a) wrongly assumes s 79 extends to the whole of the factual information which was before a sentencing court. It does not. Section 79 deems a finding of guilt of an offence to constitute evidence in a civil proceeding of the commission of the acts and the state of mind “which at law constitute the offence”, “unless the contrary is proved”.7 Its deeming effect, by proof of the conviction for the offence, is therefore of the constituent elements of the offence, not of the truth of the whole of the factual information placed before the sentencing court.8 The content of para 33 of the agreed statement of facts did not go to prove the fact of conviction or, for that matter, the constituent elements of the offence of which Mr Riddell was convicted.
This Court explained in R v Gerhardt9 that where there is an agreed statement of facts placed before a court on sentence, the inference normally arising is the agreement was made for the singular purpose of informing the court of the factual basis upon which the court is to determine the sentence to be imposed. As the Court explained, to serve that singular purpose a defendant may, for the purpose of being sentenced, make the pragmatic choice to agree to facts the defendant thinks are incorrect.10 The result is that the use to which an agreed statement of facts exhibited in a sentence proceeding might be put in some other proceeding will ordinarily be as fodder for cross-examination of the sentenced person and or potential proof of a prior inconsistent statement or statement against interest of the sentenced person.
The sentenced person was Mr Riddell, not DEPCO. Mr Riddell was called as a witness by DEPCO below but there was no cross-examination of Mr Riddell about the words of para 33 of the statement of facts at all. It was only after re-examination, when the witness was about to be excused, that the Seymours’ counsel announced he “may” need to ask Mr Riddell two questions arising in connection with the statement of facts which he indicated he was seeking to tender. DEPCO’s counsel objected to the tender.
After ensuing exchanges with the learned trial judge DEPCO’s counsel admitted the fact, without conceding its relevance, that in the statement of facts Mr Riddell had said the above quoted words to the sentencing court. This admission makes it unnecessary to consider whether, as the Seymours submit, DEPCO’s manner of pleading to the Seymours’ pleading, constituted a deemed admission that the statement of facts stated the words of para 33. It also makes it unnecessary to resolve whether, as the Seymours submit, the content of the agreed statement of facts could have been evidenced via the aids to proof of legal documents within s 53 (Qld), a section which does not have a deeming effect of the kind discussed in connection with s 79 above and is simply an evidentiary aid to proof of documents.
“DEPCO did not return to the property to complete the contracted work. The work remains incomplete.”
Those words are consistent with the possibility of DEPCO abandoning work of its own volition, which was the Seymours’ position at trial. But they are also consistent with DEPCO’s position at trial, it being factually accurate that having been told to cease work they “did not return to the property to complete the contracted work”. No other content of the statement of facts informs the point. Paragraph 27 of the statement of facts did refer to the fact DEPCO “ceased work” but was silent as to whether DEPCO ceased work of its own volition or was told to do so by the Seymours.
In a similar vein, the use of the words “to complete the contracted work” or the description the “work remains incomplete”, does not compel the inference that the terms of the contract stipulated the bore had to reach a point which, at the time work ceased, had not yet been reached. Such an interpretation is unsupported by the statement of facts having identified some failure to reach a contractual end point for the work. Indeed, the terms of the contract in para 3 of the statement of facts identified no precise end point, stating that the contract was to drill an artesian water bore for an amount of $318,000 plus GST based on an “estimated” bore depth of 1,200 metres at $265 per metre plus GST. An open and more probable inference is that para 33’s words are just a brief way of encapsulating the dual facts that the work DEPCO had been performing in an ongoing way was work performed under the contract and that DEPCO did not complete any further such work.
None of this brevity and ambiguity in meaning is surprising. The rights or wrongs of how the drilling works under the contract actually ended would scarcely have attracted the discerning attention of parties drafting a document to be exhibited in a criminal proceeding concerned with Mr Riddell being a party to unlicensed drilling.
In the end result, the Seymours’ counsel chose not to press his request to ask further questions before Mr Riddell was excused. That was an unremarkable forensic decision. Mr Riddell had already clearly rejected suggestions put to him in cross-examination that the works were abandoned by DEPCO and that he was lying in asserting the Seymours directed that the works should cease. He was not going to change his position if cross-examined about a brief passage in the statement of facts from his sentence, which was ambiguous in its potential relevance to the issue of abandonment.
The learned trial judge was correct to conclude as he did that the events stated in Mr Riddell’s sentence were of no use in resolving the proceeding. Ground (a) fails.
Illegality
“[A] denial of liability based upon an argument that the contract, as performed by [DEPCO], was illegal and unenforceable. In other words it was relevant to an issue in the civil proceedings i.e. illegality.”11
The effect of their argument is that because Mr Riddell’s conviction proved DEPCO’s drilling work for the Seymours was not performed in a lawful manner they should have escaped liability on the ground of illegality.
Rule 150 Uniform Civil Procedure Rules (UCPR) presents as an obstacle to the Seymours’ argument. It relevantly provides:
“150 Matters to be specifically pleaded
(1)Without limiting rule 149, the following matters must be specifically pleaded – …
(g)illegality; …
(2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded. …” (emphasis added)
Illegality was not specifically pleaded. The absence of specific pleading of illegality might not preclude reliance upon it if a case is litigated at trial in a common appreciation that illegality is being advanced as a defence12 or where the illegality of a transaction or conduct relied upon to support a course of action is patent.13 However, given that this case was not litigated in such a way and it was not patent the action relied upon an illegal transaction or conduct, the absence of a specific pleading of illegality is of itself a complete answer to ground (b).
That is not the only difficulty for ground (b). It asserts the learned trial judge “failed to appreciate” that paras 2(j), (k) and (l) of the second amended defence were pleading a defence that the contract sued upon by DEPCO was illegal as performed and not enforceable by it. But those paragraphs did not say that. They merely referred to Mr Riddell being an aider to an offence against s 816 Water Act for which he was sentenced on the basis of an agreed statement of facts which included the above discussed para 33.
Further, those paragraphs were part of an array of miscellaneous information pleaded in accompaniment to an admission to DEPCO’s pleading of the fact Mr Riddell was its director. That was not a context likely to prompt a realisation the Seymours were defending the claim on the basis the contract was illegal as performed and thus unenforceable.
Furthermore, at para 98 of the Seymours’ second amended defence, where they pleaded the reasons why they were not indebted to DEPCO, their reasons went to alleged breach, by reason of the bore’s alleged TVD being only 1,061.37 metres because of its deviation from vertical, and alleged repudiation by reason of abandonment. Neither there, nor in their ensuing denial of liability to an alternative quantum meruit claim, is there any reference to the works having been performed illegally and the contract thus being unenforceable. Indeed, the latter involved a pleading that the contract was “enforceable”.
Additionally, the clear theme of the submissions of the Seymours’ counsel below, consistently with the pleaded defence case, was that the Seymours were not liable because the works were defective and incomplete, in that the bore descended at an angle and did not ever reach approximately 1,200 metres before DEPCO abandoned the works.14 No submission alleged the Seymours were not liable because the contract was unenforceable on account of some illegality in the course of its performance. If ever there was a moment in the trial where such an allegation would have been mentioned, if it was being advanced, it was the during the aforementioned exchanges before Mr Riddell was excused as a witness, when there was focus on the admissibility of the statement of facts from his sentence. There was no reference to such an allegation.
The circumstances under which work ceased
“(d) The learned trial judge erred in finding that Mrs Seymour told Mr Wall on 9 September 2017 that the Appellants had decided to end the drilling after agreeing to that course of action with her husband;
(e) The learned trial judge ought to have found that the Respondent elected of its own volition not to return to the property to complete the contract work, and that work remains incomplete today; …”
The Seymours complain the learned trial judge resolved the issue of how the work ceased as if it was a simple conflict of evidence between each sides’ witnesses and overlooked four other areas of significant evidence.
The first allegedly overlooked area of evidence is the admitted fact that in the sentence proceeding Mr Riddell had said the words of para 33 of the statement of facts to the sentencing court. For reasons already explained this evidence did not assist the Seymours’ case and was not an implied admission of abandonment.
The second allegedly overlooked area of evidence is exhibit MWS-01 to the affidavit of Mr Seymour, a document titled “SUMMARY OF CONCERNS RE DRILLING OF ARTISIAN BORE AT WINDERMERE STATION BY DEPCO DRILLING CO”. Mr Seymour deposed this summary of concerns document was typed by Mrs Seymour for him and was true to his knowledge when typed.
This was a case in which evidence in chief was presented by affidavit. The exhibiting to Mr Seymour’s affidavit of the summary of concerns document, which is in parts unclear as to the source of the information it notes, was a regrettably vague way of advancing the evidence in chief Mr Seymour could purportedly give. It is unlikely to have been what a judge had in mind in making orders allowing evidence in chief by affidavit.
In any event the learned trial judge was clearly aware of the summary of concerns document, for his Honour’s reasons referred to it as constituting part of Mr Seymour’s evidence in chief.19 Moreover, his Honour quoted extensively from it in his reasons when summarising the effect of Mr Seymour’s evidence in chief.20 The complaint that some aspect of this evidence was overlooked appears to be that his Honour “failed to appreciate” Mr Seymour was not challenged in cross-examination about the content of the document.21 That this was a shortcoming, or what its significance was, was not made apparent by submissions.
The potentially important content of the document went to the issue of abandonment. In summary, that potentially important content was Mr Wall and another driller expressed concern about the ability of the rig to continue the job and remove the rods. Mr Wall said he was not going deeper due to concerns about the rig’s ability to go further and the likelihood of bogging the rod and bit in the hole with consequent reputational damage, the drilling rods were removed and drilling equipment was left on site and not collected until later.22 In cross-examination it was put to Mr Seymour:
that he and his wife had made a decision that the drillers should stop work and that his wife should tell them so, on 9 September 2017;
that in his conversation with Mr Wall on 10 September 2017 it was indicated they had stopped work because that is what the Seymours had decided;
that Mr Wall had not said anything about his rig having trouble, or losing gear or losing his reputation as a driller; and
that he had no basis for thinking DEPCO was coming back to complete the job.
By such cross-examination Mr Seymour was adequately challenged about such of the material facts in issue in the case as were referred to by the summary of concerns document.
The third allegedly overlooked area of evidence is that DEPCO failed to decommission the bore by permanently sealing it, as required by chapter 18 Minimum Construction Requirements for Water Bores Australia, the standard referred to in DEPCO’s quote. The Seymours submit this alleged failure is consistent with their “belief that [DEPCO] intended to return to site to continue with the work”.23 Setting to one side that it is the facts they witnessed, not their belief, which is relevant, the submission ignores the learned trial judge’s evidentiary findings. Those findings show his Honour was aware the bore was not permanently sealed but that this was consistent with Mr Riddell’s evidence the Seymours had asked for the hole to be left open.24 His Honour observed this was also consistent with “one of the few contemporaneous documents relating to the work”, namely an entry in DEPCO’s bore log, observing that the borehole had been “plugged for possible future development” (as distinct from cemented over for permanent remediation).25
The fourth area of allegedly overlooked evidence is that DEPCO’s quote stated “Invoices will be rendered on the completion of the works,” and DEPCO did not issue an invoice until 9 October 2017, a month after work ceased. It is not apparent how that fact could have made any material difference to the learned trial judge’s findings. It was a fact, like the fact DEPCO took nearly a month to return and remove the last of its equipment, which was of neutral persuasive influence, being consistent with those aspects of DEPCO’s business being managed without urgency and shedding no light on whether it was DEPCO or the Seymours who determined that work would cease.
None of the alleged oversights have been established. The learned trial judge’s conclusions on the facts relevant to the issue of abandonment were well open on the evidence. Grounds (d) and (e) must fail.
The terms of the contract
“(f) The learned trial judge failed to hear and determine the issues pleaded in paragraphs 7, 17, 27 – 41 and 58 – 69A of the Second Amended Defence regarding the terms of the drilling contract; and
(g) The learned trial judge failed to appreciate that the Appellants’ pleaded case was that the drilling contract was an entire contract to tap into a specified aquifer in order to establish a flowing bore, but the Respondent did not do this;”.
These grounds are advanced in combination, as if the interpretation of the case nominated in (g) arises from the paragraphs of the pleading specified in (f).
The premise of ground (g) is, in effect, that the contract required the bore to strike water in an aquifer, yet the learned trial judge found it was not in dispute that DEPCO made no promise as to whether artesian water would be tapped.26 The Seymours’ argument is that despite there having been no such promise the learned trial judge should nonetheless have inferred that there was an entire contract, complete not only by constructing a bore of about 1,200 metres in depth but also by it tapping into artesian water and establishing a flowing bore.
The path to such a conclusion is said to be via the various pleadings in the paragraphs of the second amended defence alluded to in ground (f), alleging there were a series of variations to the contract which DEPCO alleged was made on the terms contained in the quote of 3 May 2017.
Describing that contract as the original contract, the Seymours’ had pleaded it was an implied term of that contract that “the estimated depth of “1,200 metres” that the bore was to be drilled to was the approximate True Vertical Depth (TVD) of 1,200 metres”. The Seymours pleaded that conditions 2 and 4 of the first development permit of 31 May 2017 became either implied terms of the original contract or were incorporated into it by a so called first variation of early June 2017, occurring on the receipt of the permit (per para 17 of the seconded amended defence). Condition 4 went to the relevant standard to be complied with during construction of the bore. Condition 2 as pleaded by the Seymours was that “at all times the [artesian] water bore must be constructed to [a depth to] tap only the acquifer(s) in the Hutton Sandstone acquifer”. This was alleged (per para 20 of the second amended defence) to have replaced the term of the original contract that the bore was to be constructed for a depth of approximately a TVD of 1,200 metres, although in later pleading to liability issues the seconded amended defence continued to plead in the alternative, in the event the terms of the original contract were not varied.
The second alleged variation (pleaded at paras 27 to 41 of the second amended defence) was that conditions 2, 4 and 6(a) and (b) of the second development permit of 4 July 2017 were either implied terms of the original contract or were incorporated into it by a so called second variation, occurring on the receipt of the permit. Conditions 2 and 4 were to the same effect as in the first development permit except condition 2 named the Adori sandstone aquifer (not the Hutton sandstone aquifer). Conditions 6(a) and (b) went to a process for flushing the bore to ensure the removal of chloride-based fluids.
Those reasons also mean that, even if the absence of express reference in the reasons to the variations were categorised as an error, it was an error without consequence to the correct outcome of the case.
In addition to all of those obstacles there is the further obstacle that the learned trial judge rejected the Seymours’ evidence DEPCO had abandoned the works and found that the Seymours directed DEPCO to cease the works. Even if the Seymours’ case were to be decided on the basis their wishful interpretation of the contract’s terms was pleaded, argued and open on the evidence below, that finding of fact would likely have precluded the Seymours from avoiding liability for payment under the contract and the alternative quantum meruit claim by alleging the contract was not completed.
It follows that grounds (f) and (g) must fail.
The performance of contractual obligations
“(i) The learned trial judge erred in failing to find that the Respondent had not constructed and completed a water bore in accordance with the terms of the contract and the Minimum standards for the construction and reconditioning of water bores that intersect the sediments of artesian basins in Queensland (Minimum Standards). His Honour ought to have found that if the Respondent had performed its obligations in a competent manner and in accordance with the Minimum Standards it would have created a free-flowing bore from the Hutton aquifer.”
To the extent this ground appears to echo the complaint just discussed in respect of grounds (f) and (g) it fails for the reasons just given. However, as argued, this ground raises a different complaint. In essence it is that if DEPCO met its contractual obligation of carrying out the works competently and in accordance with applicable standards, free-flowing water would have been struck and, because such water was not struck, the learned trial judge should have found DEPCO did not meet its contractual obligation.
That complaint is premised on two factual conclusions. The first is uncontroversial, namely that it was an implied condition of the contract that the works were to be performed competently and in accordance with applicable standards. It is the second factual conclusion which is problematic, namely that free-flowing water would have been struck if the works had been so performed.
That factual conclusion was not contended for at trial. Nor was it established by evidence at trial. To the contrary, on the evidence before the Court the depth and form of an artesian aquifer are not uniform. As the learned trial judge found, the fact a bore may strike artesian water when drilled in one location does not mean a bore drilled nearby will strike artesian water. Further, as explained by the Seymours’ own expert witness, Mr Mann, water flows freely from an artesian aquifer because it is under pressure and underground water movement may result in locations which might previously have generated free-flowing water no longer having that quality.
To fill the evidentiary void in support of the above factual conclusion the Seymours applied for leave pursuant to r 766(1)(c) UCPR to rely in the appeal upon the affidavit of William Beale.
Rule 766(1)(c) requires that there be “special grounds” for receiving further evidence on appeal. In this context it was held in Clarke v Japan Machines (Australia) Pty Ltd30 that three conditions must be fulfilled:
“First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”31
Mr Beale deposes he was, in July 2022, engaged by the Seymours to construct an artesian water bore on their property. By 18 September 2022, having drilled into a sandstone formation which stopped at 1,353 m, free-flowing water was coming from the bore. The bore head was about 60 metres from where DEPCO drilled the unsuccessful bore. In his affidavit Mr Beale goes on to express some opinions, as a water bore driller of 27 years’ experience, about some miscellaneous aspects of DEPCO’s performance of its works. Those opinions go to topics about which expert opinions could easily have been acquired prior to trial, with the consequence that the first condition referred to in Clarke cannot be met as to those aspects of Mr Beale’s evidence.
This only leaves for consideration the evidence that Mr Beale was successful in September 2022 in striking free-flowing water some 60 metres from where DEPCO’s unsuccessful attempt occurred. The trial occurred in March 2022 at a time prior to Mr Beale’s successful works. The first and third conditions referred to in Clarke appear to be met in respect of this evidence, in that the evidence of the successful works is credible and it could not have been obtained with reasonable diligence prior to trial because the works had not yet occurred.32 However, the evidence cannot meet the second condition which requires that it would probably have an important influence on the result of the case.
The significance of this evidence for ground (i) was not elaborated on but it can only be that it somehow proves the factual conclusion that water should have been struck if DEPCO performed its works properly. It proves no such thing. On the evidence before the Court, the fact a bore may strike artesian water when drilled in one location does not mean a bore drilled nearby will strike artesian water. That evidence is not contradicted by Mr Beale’s evidence of a successful bore construction, indeed it renders Mr Beale’s evidence of nearby success neutral. The evidence of Mr Beale’s success is incapable of being used to support the complaint made in support of ground (i). It could not have an important influence on the result of the case. Leave to receive Mr Beale’s evidence as evidence in the appeal should be refused.
The second factual conclusion, that water would have been struck if the works were performed properly, is essential to the reasoning underpinning ground (i). Because it is not open on the evidence ground (i) must fail.
Alleged miscarriage of justice because of incompetence of counsel
“(h) The appellants have suffered a miscarriage of justice because of the incompetence of their counsel in failing to plead an intelligible case for trial and failing to present an intelligible case at trial.”
Ground (h) invites the Court to tread a novel or at least less travelled legal path to appellate intervention in the civil jurisdiction – a miscarriage of justice.
A threshold issue arising in the course of argument was whether, as a matter of policy, civil litigants complaining of incompetent legal representation should be precluded from advancing an appeal ground of miscarriage of justice because they can initiate a claim in professional negligence against their lawyers.
The circumstance in which such a claim may be made is limited by advocates’ immunity. The protective reach of advocates’ immunity, as identified by Mason CJ in Giannarelli v Wraith33 and later endorsed in D’Orta-Ekenaike v Victoria Legal Aid34 and Attwells v Jackson Lalic Lawyers Pty Ltd,35 is to work done in court and work done out of court which leads to a decision affecting the conduct of a case in court.36 That seems to be the type of work which the Seymours complain was incompetently performed, which would make their prospective recourse to a professional negligence claim at least challenging. The dubious availability of an alternative recourse to relief tells against the exclusion for policy reasons of an appeal ground of miscarriage of justice occasioned by counsel’s incompetence. Such a conclusion is reinforced by the policy purpose of advocates’ immunity, namely protecting the finality and certainty of judgments by avoiding the relitigating in collateral proceedings of matters already finally determined by a court.37 This appeal relates to the same, not a collateral, proceeding.
The next issue arising from argument is whether as a matter of law a civil appeal can be founded upon a ground of miscarriage of justice and, if so, what the relevant test is.
The starting point is the relevant statutory provisions. Section 118(2) District Court of Queensland Act 1967 (Qld) confers a right of appeal to the Court of Appeal upon a party who is dissatisfied with a judgment of the District Court (awarding more than the Magistrates Court jurisdictional limit). Section 118(8) provides an appeal from the District Court in its original jurisdiction “is by way of rehearing”. Such an appeal to the Court of Appeal is regulated by chapter 18 , r 765(1) of which likewise provides the appeal “is an appeal by way of rehearing”. Rule 747 requires that the notice of appeal state “briefly and specifically the grounds of appeal” but does not stipulate categories of grounds for appellate intervention. Rule 766(1)(b) confers the Court with the broad power to make any order “the nature of the case requires”.
“770 New trial
(1)If, on the hearing of an appeal, it appears to the Court of Appeal there ought to be a new trial, the Court of Appeal may set aside the decision and order a new trial.
(2)Unless the Court of Appeal considers some substantial wrong or miscarriage happened, a new trial may not be granted merely because—
(a) evidence was improperly rejected or admitted; or
(b) if the proceeding was tried with a jury—
(i) the jury was misdirected; or
(ii) the verdict of the jury was not taken on a question that the judge at the trial was not asked to leave to the jury. …” (emphasis added)
Rule 770 implicitly contemplates that the Court’s wide power to make “any order the nature of the case requires” may include the ordering of a retrial where “a substantial wrong or miscarriage” happened below. It appears to follow that there may be cases in the civil jurisdiction where, by reason of some substantial wrong or miscarriage and notwithstanding the absence of any error on the part of the trial judge, the nature of the case requires a retrial.
That prospect is supported by a line of authority discussed below. Because those authorities draw upon principles advanced in the criminal jurisdiction on a defendant’s appeal against conviction, when defence counsel’s incompetence is alleged to have occasioned a miscarriage of justice, it is convenient to firstly review those principles.
In the criminal jurisdiction, s 668E Criminal Code (Qld) specifies “a miscarriage of justice” as grounding a basis to allow an appeal against conviction. In that jurisdiction the basis for interference because a miscarriage of justice has been caused by counsel’s allegedly incompetent decision making, is tightly constrained. That is not only because of the importance of finality of proceedings. It is also because, as Gleeson CJ explained in Nudd v The Queen,40 the adversarial system could not function without counsel being allowed “a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or seek to have excluded, and what lines of argument to pursue”. Not all forensic decisions turn out to be the best ones. That counsel’s conduct of the trial may in hindsight appear to have worked to the disadvantage of the accused provides no basis for appellate intervention.41 A pre-requisite to the Court’s potential interference is that, objectively considered, there could be no reasonable explanation for the conduct.42 If that pre-requisite is met, the applicable test is whether there is a significant possibility that but for the conduct the accused would have been acquitted.43 While terms such as “flagrant incompetence” or “egregious error” have been used to describe the quality of such conduct, the determinative issue is whether the conduct, however described, has occasioned a miscarriage of justice.44
Turning to the civil jurisdiction, the cases cited by counsel identified the below line of authority as demonstrating a miscarriage of justice occasioned by the incompetence of counsel is a permissible ground of appeal.
“It asserted that his Honour had erred in that, having admitted the P 4 report, he failed to consider a statement in that document that there was an 18-metre skid mark on the road behind the respondent’s vehicle which, by inference, was caused by it.”
“In the Court of Criminal Appeal, it has been recognised that inadvertence on the part of an advocate, or plain incompetence in the presentation of a criminal trial, can in certain circumstances require the intervention of the court in order to avoid the risk of a miscarriage of justice. … This jurisdiction is, however, exercised most cautiously. As Gleeson CJ pointed out in Birks … it is exercised with a full appreciation of the way in which “the system of criminal justice operates”. The mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a conviction to avoid a miscarriage of justice. If that is so in a criminal trial where liberty and reputation are at stake, it is clearly so in civil trials.”46
In concluding there should be a retrial, because of the trial judge’s error in not properly scrutinising the defence of brake failure, Kirby P found it unnecessary to decide whether the appellant was entitled to succeed upon the ground that her then counsel had been “flagrantly incompetent”. In agreeing with the orders proposed by Kirby P, Priestley JA did not refer to the above quoted obiter dictum. Curiously, in his dissent, Cripps JA asserted there had been an abandonment of existing grounds of appeal “in order that the appellant could use the document to found a submission that there had been a miscarriage of justice, that being the only ground pressed on appeal”.47 Notwithstanding the confused state of the decision as to the ground under consideration, it appears the decisions of Kirby P and Priestley JA to allow the appeal and order a new trial resulted from the error of the learned trial judge in not considering the evidence of the 18 metre skid mark.
Chouman was referred to by Brereton J in Jowett v Kelly48 in the context of considering an application to stay orders in a family provision matter pending appeal. In the course of weighing prospects of success and the balance of convenience, his Honour observed that the observations of Kirby P in Chouman suggested the principles of the criminal jurisdiction in respect of professional incompetence are “capable of application in the context of civil litigation although a still more robust approach may be expected in that field”.49 As it turns out, that appeal was resolved by consent orders so the point was not further considered.50
In Varmedja v Varmedja51 one of the appeal grounds before the New South Wales Court of Appeal was that there was a miscarriage of justice due to the appellant not being present in court for certain events, the failure of trial counsel to have the statement of claim struck out or to seek an adjournment and the incorrect admission of tendency evidence. Save for the incorrect admission of tendency evidence, the thrust of the appellant’s submissions was that his trial counsel had been grossly incompetent. Tobias JA, with whom Hodgson JA and McColl JA agreed, referred to some authorities from the criminal jurisdiction before concluding:
“…[E]ven if there was incompetence on the part of counsel which is certainly not self-evident, that of itself is insufficient to attract appellate intervention unless it was so serious, grave or “flagrant” as to have caused an actual miscarriage of justice. In my view it has not been demonstrated that there was any such miscarriage.”52
It is inherent in that observation that a miscarriage of justice occasioned by the incompetence of counsel may constitute a legitimate ground of appeal in the civil jurisdiction.
“However, even in the conduct of a criminal trial, where liberty and reputation are at stake, such jurisdiction must be exercised cautiously, and the mere fact of a mistake or unwise decision made by an advocate will not, without considerably more, justify the setting aside of a conviction to avoid a miscarriage of justice. A fortiori, the jurisdiction must be exercised very sparingly in civil proceedings.”54 (citation omitted)
His Honour went on to reason, in allowing the appeal, that such principles did not need to be applied as stringently in that case because it involved an interlocutory hearing where there had not been a determination on the full merits.
In addition to the above discussed line of authority there also exists two single judge decisions in the ACT Supreme Court – Faris v Savage55 and Faris v Savage (No 2)56 – which cite Chouman, Jowitt v Kelly and Bajramovic v Calubaquib as supporting the proposition that a miscarriage of justice caused by the incompetence of counsel may permit a Court of Appeal to set aside a decision and order a new trial even in civil proceedings. Finally, in Rees v Bailey Aluminium Products Pty Ltd,57 the Victorian Court of Appeal allowed an appeal from a jury’s decision in a personal injuries case, ordering a retrial, because the misconduct of the respondent’s counsel below, albeit that it was not objected to, was so likely to have had a prejudicial effect upon the jury that a miscarriage of justice should be inferred.58
Having regard to the statutory provisions regulating this appeal and the authorities just discussed, an appeal ground of miscarriage of justice occasioned by the incompetence of counsel may form a legitimate, albeit exceptional, basis of appellate interference in the civil jurisdiction.
None of the cases articulate a separate test for such a ground than the test which applies in the criminal jurisdiction as identified above. In the civil jurisdiction the equivalent of the test from the criminal jurisdiction would involve the same pre-requisite, namely that, objectively considered, there could be no reasonable explanation for the conduct in question. If that demanding pre-requisite is met, the applicable test, as adjusted from the criminal to civil jurisdiction, would be whether there is a significant possibility that but for the conduct the appellant would have succeeded below.59
The cases do add the qualification that in the civil jurisdiction the jurisdiction to interfere ought be exercised even more cautiously, robustly or sparingly than occurs in the criminal jurisdiction.60 It is not apparent from the cases whether such a qualification should be applied as some additional test or whether it is inherent in the effect the different standard of proofs as between the criminal and civil jurisdiction would have on demonstrating the significant possibility of a different result below. As to the latter, it is comparatively harder to demonstrate a significant possibility of different result below where a respondent’s case only had to be proved on the balance of probabilities as distinct from beyond reasonable doubt. In any event it is unnecessary to express a concluded view on whether the qualification should apply as some additional test because, for the reasons given below, the argument advanced in support of ground (h) cannot succeed on an application of the equivalent of the test from the criminal jurisdiction.
“HIS HONOUR: So you propose to just tender their reports?
COUNSEL: I do, your Honour, unchallenged.
HIS HONOUR: Well, I don’t think if you read Mr Mann’s evidence that they could be described as unchallenged. …”
His Honour’s comment was quite correct given their opinions were at odds with those of Mr Mann’s on the issue of whether bore holes deviating beyond 5-10 degrees will continue their trajectory and given that their criticisms of his methods had been substantially weakened by Mr Mann’s second assessment using a gyroscope. DEPCO’s counsel did not argue at trial that comment was wrong or complain in light of it that the witness should be specifically challenged by cross-examination.
The Seymours’ counsel now contends their trial counsel’s decision not to require Mr Rossiter and Mr Jordan for cross-examination was incompetent, submitting:
“This constituted an acceptance by the Appellants of the entire content of these reports and the opinions expressed therein (which were directed towards showing that Mann’s reports were of limited value and wrong on the deviation issue). No competent counsel would have acted this way, because the rule in Browne v Dunn required him to challenge Rossiter and Jordan on the basis of Mann’s answering affidavits which refuted their opinions. Clearly this incompetence was not done to achieve a forensic advantage for the Appellants.”
Those submissions cannot be accepted. The conduct could not have “constituted an acceptance” by the Seymours of the reports’ content because, as was well appreciated by the learned trial Judge, their reports were contrary to those of Mr Mann. The submissions’ reliance on the rule in Browne v Dunn67 is misconceived. That rule could only have been potentially relevant in ensuring fairness to DEPCO and to Mr Rossiter and Mr Jordan through them being called in order for Mr Mann’s material opinions to be put to them to allow them a fair opportunity to comment and to alert DEPCO to the Seymours’ reliance upon those opinions. Any assertion of unfairness would be illusory in circumstances where the expert reports of Mr Rossiter and Mr Jordan had been procured by DEPCO in response to Mr Mann’s 2021 reports and DEPCO had evidently decided against procuring supplementary reports from either of them in response to Mr Mann’s further report of 2022. In any event, that illusory unfairness was to the successful party below, DEPCO, and two of its witnesses. It has no potential relevance to the Seymours’ position.
It is obvious the Seymours’ counsel at trial made a deliberate forensic choice not to require Mr Rossiter or Mr Jordan for cross-examination. A dynamic likely informing that choice is that the mild advantage of taking them to task in cross-examination on the live contest regarding the predictability of bore hole trajectories once deviated beyond 5-10 degrees, an issue about which they were unlikely to make concessions, was potentially outweighed by the major disadvantage of giving them a chance in giving oral evidence to raise new issues undermining Mr Mann’s recent gyroscopic assessment and his opinion based on it. In circumstances where there had been no additional report from them doing so, a reasonable explanation for counsel’s conduct is that counsel’s assessment of risk favoured not requiring them for cross-examination. It is not to the point that other counsel, more robust in their approach to risk and more confident in their capacity to control witnesses, may have made a different choice. The point is that there is a reasonable explanation for the counsel’s conduct.
It is a further obstacle for the present complaint that it has not been shown there was anything likely to be gained, from requiring the two witnesses for cross-examination, of such a nature as to give rise to a significant possibility of a different outcome to the case.
Complaint (e) relates to the failure to call Mr Whittington or rely upon his report. The Seymours sought leave pursuant to r 766(1)(c) to rely upon the affidavit of Mr Whittington, which exhibits his report in the appeal.
Mr Whittington is an experienced class 3 driller. He provided a report dated 11 January 2009 at the request of the solicitors who were then acting for the Seymours. Different solicitors were acting for the Seymours by the time of trial and by the time of the filing of the second amended defence on 7 March 2022. That defence deleted paras 93(g) viii. and ix., which contained allegations based upon the report of Mr Whittington. It follows that the incompetence alleged by complaint (e) includes the decision not to plead a case relying upon the expert evidence of Mr Whittington.
Conclusion
All the appellants’ appeal grounds have failed with the consequence the appeal should be dismissed.
This makes it unnecessary to deal with DEPCO’s contention that the decision below should be affirmed because its quantum meruit claim, not the subject of findings below, should be upheld.
Orders
Application for further evidence to be received on special grounds, per r 766(1)(c) Uniform Civil Procedure Rules, refused.
Appeal dismissed with costs.
The ground of appeal as originally drafted relied upon s 79(2) of the Evidence Act 1977 (Qld). This was not pursued at the hearing of the appeal. That was a sound decision given that all s 79(2) does is allow proof of a conviction. The conviction itself was not relevant, the factual statement about completion of work was. ↩
See R v Gerhardt (2019) 3 QR 48, [58] as bearing on the limited relevance the admission at paragraph 33 could have in this proceeding. ↩
[2006] QCA 53, [38]. ↩
[1984] 1 Qd R 404, 408. ↩
Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461. ↩
The Notice of Appeal listed eight grounds, (a) to (h), but at the hearing leave was given to add a ninth ground, (i). ↩
Russell v Craddock [1985] 1 Qd R 377; Jacobsen v Suncorp Insurance & Finance (No 2) [1992] 1 Qd R 385. ↩
Such information usually ranges well beyond the bare conduct constituting the offence, there being a wide range of discretionary considerations which are relevant on sentence – see s 9 Penalties and Sentences Act 1992 (Qld). ↩
[2019] QCA 283. ↩
[2019] QCA 283, [58]. ↩
Seymour & Anor
Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159
(2000) 203 CLR 172
(2016) 259 CLR 1
(2015) 71 MVR 15
(1998) 197 CLR 172
(1993) 17 MVR 144
(2005) 223 CLR 1
(1988) 165 CLR 543
(1989) 166 CLR 486
(1989) 16 NSWLR 713
(1995) 184 CLR 538
(1986) 161 CLR 513
(2006) 80 ALJR 614
(2006) 225 ALR 161
(2008) 21 VR 478
(2002) 212 CLR 124
(2006) 157 FCR 442
(1988) 180 CLR 491
(2003) 200 ALR 447
(1978) 139 CLR 410
(1997) 189 CLR 215
(2009) 76 NSWLR 405
The trial judge thought that Mr Riddell on behalf of the respondent, and the employee drillers (Mr White and Mr Wall) were honest witnesses.
There is nothing in grounds of appeal 2(d) and (e) challenging these credit findings. Indeed, that point seemed to be implicitly conceded in paragraph 41 of the appellants’ written outline of appeal which sought to recast these grounds so that they were not appeals against credit findings per se, but were based on the primary judge having overlooked some of the evidence which supported the appellants’ case below.
One matter advanced in support of this contention was that the second appellant was not challenged in cross-examination about assertions he made in a document annexed to affidavit evidence sworn on the trial, namely, a “Summary of Concerns Re Drilling of Artisian Bore at Windermere Station by DEPCO Drilling Co”. The statements which are particularly relied upon are that when the drillers first arrived on site the second appellant expressed concern about the capability of their rig. I cannot see that that is relevant to the finding that at a depth of 1338 m the parties to the contract agreed to discontinue drilling. The other statements relied upon were that the drillers lost a drill bit in the hole; that on 10 September 2017 the drillers expressed concerns about the ability of the rig to continue drilling beyond a depth of 1388 m; that the drillers told the second appellant they were taking the rig to Rockhampton for repair at the end of the job, and that they had left drilling material on site, which was only collected after the respondent issued an invoice. It was submitted that these matters showed that the “true reason for the termination of drilling” was that the rig was incapable of performing; was damaged, and that the hole had been compromised by the loss of the drill bit. I cannot see that any of these matters was directly relevant to whether or not there was an agreement to cease drilling on 9 or 10 September at a depth of 1388 m. I cannot see that even if the statements were unchallenged in cross‑examination that this prevented the finding the primary judge made.
The judge dealt with the idea that some of the respondent’s equipment was left at the appellants’ property. It was collected two months after the end of drilling. The judge rejected the appellants’ evidence that they inferred that the equipment had been left because the respondent was coming back to make a further attempt at drilling the bore, in circumstances where there was no contact between the appellants and the respondent during the next month as to that topic – [88(d)]. Further, the primary judge regarded the idea that the appellants thought the respondent was returning to continue drilling as quite unrealistic. The appellants knew that the prospect of hitting an aquifer below 1400 m in that region was remote. The respondent had told the appellants that they could not continue drilling, and such an inference was contrary to the tenor of the farewell coffee and thank you card, which the trial judge thought clearly signified that the respondent’s work for the appellants was over – [88].
Further, the judge had reference to the fact that the contemporary note in the drilling log was that the bore was “plugged for possible future development” – [87]. As the judge reasoned, “The language is quite inconsistent with Depco coming back to continue its work; that is not suggested by the idea of possible future work” – [87].
The other matter called in aid of this argument was the subject of an independent ground of appeal, ground 2(a). There was a prosecution of Mr Riddell subsequent to the performance of the work the subject of this litigation. Mr Riddell was charged with an offence against s 816(1)(a) of the Water Act 2000 (Qld), namely that he aided in drilling a water bore while not the holder of a relevant licence. He pled guilty in the Magistrates Court.
The sentence proceeded on an agreed statement of facts. This revealed that the bore could only be drilled by someone with a class 3 licence. An employee with a class 3 licence was on site during the duration of the drilling. However, on or about 20 August 2017 the respondent began drilling 24 hours a day, and the employee with the class 3 licence was only on site 12 hours a day. Thus, for 12 hours a day the drillers were not under the physical supervision of someone with a class 3 licence. The statement of facts records the history of the drilling, paying particular attention to the times when drilling progressed without the supervision of the class 3 licence‑holder. It concludes the narrative:
There is nothing shown which makes out grounds 2(a), (d) or (e).
Mr Beale’s affidavit also gives his opinion (presumably on the basis of experience) that the type of drill rig used by the respondent did not have the capability to drill to a depth of 1358 m. I have doubts as to the material impact of that evidence. First, it seems to be in line with what the respondent’s witnesses said to the Seymours at the time they agreed to stop drilling the bore (at 1388 m). Secondly, it seems irrelevant given that the term of the contract between the appellants and the respondent was that the respondent was to drill to a depth of around 1200 m.
Mr Beale also comments on the respondent’s drillers having taken a break between 24 and 31 July 2017. He said that leaving the bore open without production casing for a week would cause deterioration in the hole which would bear negatively upon the chances of achieving a flowing bore. Again, I see difficulties with the materiality of that potential evidence. Mr Beale’s evidence falls well short of saying that in fact this bore did deteriorate, and that was the reason for it not turning into a flowing bore. In fact, Mr Mann and Mr Whittington both give reasons for the failure of the respondent’s bore to flow which are not associated with the deterioration of the bore hole during this week. Mr Beale does not consider the bore log and does not consider the fact that, seemingly, sandstone (the marker of an aquifer) was not encountered by the respondent in its drilling. He does not consider the matters which the respondent’s experts, Mr Mann and Mr Whittington thought were significant.
I would not allow Mr Beale’s evidence to be received on appeal. First, the trial in this matter took place in March 2022. At that time the appellants were considering engaging Mr Beale. They could have refrained from listing the trial or alternatively, if it had been listed, applied for an adjournment so that it could be heard after the new bore was sunk, see the dicta in Clarke v Japan Machines already referred to. Secondly, for the reasons explained I cannot see that the evidence would have had a material impact on the result of the case. I would therefore dismiss the application to adduce further evidence on the appeal.
There was a factual dispute at trial about the extent of the angle beyond true vertical at which the borehole had descended. The learned primary judge accepted there had been deviation beyond true vertical but not to the extent and at the depth alleged by the Seymours. His Honour concluded the TVD reached by the bore would have materially exceeded the 1,071 metres contended for by the Seymours. His Honour concluded DEPCO’s obligation under the contract was to use reasonable care to keep the hole as vertical as possible within practical limits using appropriate equipment and that there had been no breach of this obligation. Further, the learned primary judge explained his conclusion would be no different on the issue even if premised on the mildly different allegation of the Seymours that the borehole was to be drilled “as nearly as possible” to TVD.
His Honour considered there had been no breach of DEPCO’s obligation to drill with reasonable skill and, further that drilling only ceased at the Seymours’ request. He concluded:
It remains that the admission took the Seymours’ case nowhere without it being relevant in the civil proceeding. The Seymours now argue it was relevant as evidence of an implied admission that DEPCO had abandoned its contractual performance of work. It did not have that effect.
A premise of the argument is that an admission in the civil proceeding of the fact that Mr Riddell stated something in the criminal proceeding is an admission in the civil proceeding of the truth of the content of what was stated. It is not. It is merely an admission of the fact the content was stated in the criminal proceeding. As already explained, without more, the fact it was stated in the criminal proceeding was merely evidence of the agreed factual basis upon which the sentencing judge was to determine the sentence to be imposed.
To transcend that status it would be necessary for it to be the subject of a concession about it in cross-examination of Mr Riddell or for it to be regarded as a statement against interest and thus admissible, in an exception to the hearsay rule, as evidence of the truth of its content. There was no such cross-examination. Further, it fell short of being a statement against interest for three reasons.
Firstly, DEPCO was not the subject of the prosecution, so the statement was not made in the context of Mr Riddell making statements on behalf of DEPCO as its agent or representative mind. If it was a statement against interest, it was a statement by Mr Riddell against his interests, not DEPCO’s.
Secondly, Mr Riddell’s interests in the criminal proceeding went to his offending conduct: the act of being a party to unlicensed drilling. The information about the circumstances under which the drilling works under the contract ended was not material to the offending conduct. It was mere background information, of no significance against Mr Riddell’s interests in the criminal proceeding.
Thirdly, even if the circumstances under which works ended had been pertinent to Mr Riddell’s interests, the words stated in para 33 of the statement of facts are too ambiguous in their potential relevance to the issue of abandonment to be a statement against interest on that issue.
The passage in para 33 relied upon by the Seymours is:
The premise of the complaint that the learned trial judge “failed to appreciate” the Seymours were pleading the contract was unenforceable by reason of illegality is without substance. No such allegation was pleaded or advanced in argument.
For all of these reasons ground (b) fails.
Ground (c) complains that the learned trial judge erred in law by not directing DEPCO to plead a defence to the Seymours’ “case of illegality”. That complaint is unsustainable because, as just explained, such a case was not advanced.
Ground (c) also complains that the learned trial judge failed to make the necessary directions, including any adjournment, to permit the Court to hear and determine the issue of illegality on its merits. It is difficult to see why the learned trial judge should have made any such directions given that no case of illegality was advanced. However, the Seymours in effect argue that the learned trial judge should have recognised such a case could have been advanced and thus made directions to ensure that it would be. This would have involved an impermissible entry into the arena by a trial judge.
Judges have a broad discretion per r 367(1) UCPR to make directions about the conduct of a proceeding. Indeed they have an inherent power to control and supervise proceedings and prevent injustice.15 Rule 367(2) identifies the interests of justice as a paramount consideration in deciding whether to make a direction. The breadth of the discretion is not restricted to defined and closed categories,16 however it is necessarily informed by the nature of the judge’s role as the independent arbiter of legal disputes. That independence would not be compromised by the judge making directions necessary for the orderly litigation of the various cases already raised by the parties, but it would be by the judge identifying and initiating pursuit of an additional new case for or against a party. Such conduct would be an anathema to the independent role of a judge. It would also be at odds with the nature of the adversarial system; a system in which the parties make their own choices as to what cases they seek to litigate.
Such choices may be informed by many considerations unknown to the judge. This includes, for example, a party’s own assessment of the prospect of success of a particular defence and the party’s weighing of competing forensic considerations, such as whether the pursuit of a dubious defence may detract from the force of more credible defences. In a case of alleged statutory illegality, the prospects to be considered may include the prospect of successfully arguing that the statutory intention extends beyond inflicting a penalty for work which happens to be performed pursuant to a contract, to prohibiting the enforcement of the contract itself – see for example Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd.17 In a case of public policy illegality, the prospects to be considered may include the prospect of successfully arguing that the statute discloses an intention that legal rights to payment should be unenforceable in all circumstances, regardless, for example, of the quality of the work or proportion of it which was performed unlicenced – see for example Nelson v Nelson.18 Such arguments would be at least challenging in a case like the present. Competent legal minds may readily have differed in the assessment of whether such arguments’ prospects warranted the pursuit of an illegality defence in a case where other defences were being pursued. That it was not pursued, is readily explicable as matter of forensic choice.
In any event, whether such a defence was pursued was a decision for a party in the case, not the judge presiding over it.
For all these reasons ground (c) must also fail.
The third alleged variation (pleaded at paras 58 to 69A of the second amended defence) was that the terms of the emailed confirmation of 4 August 2017 by the Department of Infrastructure Local Government and Planning (DILGP) was either an implied term of the original contract or was incorporated into it by a so called third variation, occurring on the receipt of the email. The email was allegedly a response to Mrs Seymour’s request to DILGP of 30 July 2017 to change its permission back to the Hutton sandstone aquifer, a request made because of a perceived need to drill deeper. The relevant terms of the email confirmation were that “the driller can proceed in order to find and finalise the appropriate depth for the bore to get a reliable water supply” and that the appropriate way to finalise the development paperwork would be determined once the depth and the aquifer was confirmed. The Seymours pleaded in the alternative that there was from 4 August 2017 an implied obligation “to continue drilling the bore hole … until it tapped into an aquifer that provided a reliable water supply”.
The Seymours argue the relevant permit requirements were incorporated into the contract by implication of law, for DEPCO as driller was required to act in accordance with the permits. The argument is premised on an unsustainable wishful interpretation urged by the Seymours. That wishful interpretation is that the requirement of the first two permits “to tap” a specified aquifer and the emailed confirmation that the driller could find and finalise the appropriate depth “to get a reliable water supply”, meant it was a term of the contract that one of the aquifers had to be tapped into to establish a flowing bore.
Appeal grounds (f) and (g) are in substance a complaint that the learned trial judge failed to consider the paragraphs of the pleading it now contends support their wishful interpretation and thus failed to appreciate the Seymours’ case was advancing such an interpretation. The complaint is misconceived for two reasons.
Firstly, the Seymours’ wishful interpretation is wrong. Their interpretation elevates the object of the work permitted – to tap into an aquifer – to a requirement that the object must be fulfilled. There is no credible factual foundation for such an interpretative leap. For it to have any sensibly arguable support it would have to have been a condition of the permit or emailed confirmation that the work succeed in reaching and tapping the aquifer. There is no suggestion the permits or emailed confirmation contained any such condition.
Secondly, the Seymours’ wishful thinking interpretation was not advanced as part of its case below. The second amended defence did not specifically allege it was a condition of the contract that DEPCO tap an aquifer and establish a free-flowing bore. A matter of such importance to liability would invariably have taken DEPCO by surprise if not specifically pleaded. Rule 149(1)(c) UCPR required it to be specifically pleaded if it was, as now argued, being advanced as part of the Seymours’ case. The highpoint was the Seymours’ pleading that in consequence of the confirmation email of 4 August there was an implied obligation “to continue drilling the bore hole … until it tapped into an aquifer that provided a reliable water supply”. If that pleading was to be understood as raising the wishful interpretation now raised, it is surprising that the matter was not squarely raised in the Seymours’ giving of reasons for their various ensuing denials of liability contained in the second amended defence. In that context, the highpoint was a complaint that the contract was an entire contract and that it was not completed.
Much of the ensuing factual detail pleaded by the Seymours as to what occurred would have given the reader to understand that the contract was allegedly incomplete because the bore had descended at such an angle away from true vertical that it had not reached approximately 1,200 metres TVD by the time DEPCO allegedly abandoned work of its own volition. That appears to have been the learned trial judge’s understanding of the Seymours’ case.27 Importantly, it was also the case argued by the Seymours at trial, as is apparent from their counsel’s written closing submissions.28 Those submissions only referred to the variations as relating to the ultimate approximate TVD required to be achieved to perform the entire contract, a requirement about which the opposing sides did not have materially different positions. The Seymours’ counsel actually submitted below that the alleged variations “do not, as it turns out, assume any great significance in terms of the outcome of the present case”, because it was an entire contract that the bore reach an approximate TVD of 1,200 metres and Mr Mann’s evidence established it did not do so.29 In short the wishful interpretation now raised by appeal ground (g) was not contended for at trial.
It is true that the learned trial judge’s reasons did not expressly consider the variations alleged to in paras 7, 17, 27-41 and 58-69A of the second amended defence. However, without the wishful interpretation of those paragraphs now urged, they carried no particular significance to the case as argued. The absence of express consideration of them could not have constituted error because the wishful interpretation now sought to be derived from those paragraphs:(i)was not pleaded;(ii)was not argued; and(iii)was not open on the evidence.
In an appeal by rehearing the issues and evidence to be considered are not at large, as in a hearing de novo. In an appeal by rehearing the demonstration of legal, factual or discretionary error on the part of the judge at first instance is generally regarded as a condition of a successful appeal.38 Such an approach promotes certainty and finality, by guarding against appeal courts setting aside decisions because of a mere preference for a different result than a reasonably open result reached below. However, ground (h) does not allege error by the trial judge.
Is judicial error an essential prerequisite of a successful civil appeal? The language of the provisions conferring the power to “make any order the nature of the case requires” do not impose a condition of error by the court below. Such provisions, as was observed in CDJ v VAJ,39 should be construed without “the imposition of limitations not found in the words used by the legislature”. Given the absence of such limitations on the present category of appeals it appears such appeals may permissibly include cases in which the trial judge did not err but nonetheless “the nature of the case requires” intervention by the appellate court.
That a miscarriage of justice may give the “nature of the case” that quality is supported by the content of r 770. In expressly providing for the possibility of a new trial being ordered, r 770 relevantly provides:
In Chouman v Margules45 the plaintiff was a passenger in a vehicle struck from behind by the defendant’s vehicle. The defendant successfully defended the case on the ground there had been an unexpected brake failure, yet a police report in evidence recorded an 18-metre skid mark which was not referred to by the parties or trial judge below. The New South Wales Court of Appeal allowed the appeal, ordering a new trial. Kirby P described the ultimately argued ground of appeal as follows:
The incompetence of counsel argument involved the following five complaints:(a)Counsel failed to apply to have the allegations in para 9 of the amended statement of claim struck out under r 171 UCPR because the allegations were not relevant to enforcing the terms of the contract and as a result of pleading to these allegations false and irrelevant issues were further pleaded in response.61(b)The defence pleadings were confused and confusing in the way multiple variations were purportedly pleaded, difficult to understand and replete with allegations of evidentiary matters of no consequence to the defence, in contravention of r 149 UCPR.62(c)Counsel failed to adequately explain to the learned trial judge the reason why the agreed statement of facts was admissible and relevant.63(d)Counsel failed to require two of DEPCO’s expert witnesses, Mr Huw Rossiter and Mr Glenn Jordan, for cross-examination, which had the consequence of accepting the contents of those reports, which were directed at showing the report of the Seymours’ expert witness, Mr Edward Mann, was of limited value.64(e)Counsel failed to rely upon the report of drilling expert Mr Robert Whittington or to call him as a witness to refute the expert evidence of DEPCO’s Mr Riddell, Mr Wall and Mr White about the drilling process.65
Complaints (a) and (b) relate to the state of pleadings. It may be accepted that the pleading of each side’s case could have been clearer and some of what was included was obscure or irrelevant to the case as eventually litigated. The same may be said in many cases. In the approach to trial, legal representatives will often know more about the state of the likely evidence in the case than was known when the pleadings were drafted. By that stage the irrelevance or obscurity of aspects of the pleadings of each side will have become more apparent and legal representatives will often have to grapple with a forensic choice. That choice is whether to incur the additional cost and potential delay of trying to amend their pleadings or strike out those of an opponent or instead await the outset of the trial to deploy the opening and legal argument to ensure the real issues to be litigated are clearly identified.
The making of the latter forensic choice appears to be a reasonable explanation for why counsel did not choose to try and amend or apply to strike out the aspects of the pleadings now complained of. Complaints (a) and (b) therefore cannot meet the relevant pre-requisite for the ground advanced.
It was submitted in support of those complaints that the pleadings’ obfuscation of the real trial issues resulted in pleadings that were so unsatisfactory the learned trial judge should have intervened and directed the parties to deliver amended pleadings drawn conformably with the UCPR. That submission is a distraction. Ground (h) does not complain of judicial error. Rather it complains of a miscarriage of justice because of counsel’s incompetence in failing to plead and present an intelligible case.
If, contrary to the above finding, the relevant prerequisite for this ground had been met in respect of complaints (a) and (b), there is no indication in any event that the state of the pleadings in some way resulted in a miscarriage of justice. Importantly, the state of the pleadings did not preclude the appellant’s trial counsel from running the case he obviously sought to run on their behalf. In summary that case was that DEPCO abandoned performance of the contract and that the bore as drilled deviated so far from TVD that the works were not performed in accordance with the contract. The appellants lost because they were not believed about the alleged abandonment and their expert was not accepted about the extent of alleged deviation from TVD. That was not their counsel’s fault.
Complaint (c) alleges a failure to adequately explain to the learned trial judge the reason why the agreed statement of facts was admissible and relevant. The complaint is erroneous, its premise having already been rejected by these reasons.66 It is apparent from those reasons that the content of the agreed statement of facts was of no material legal consequence at trial and was of such dubious potential forensic utility that it was unsurprising the Seymours’ counsel made the forensic choice not to press its tender or cross-examine Mr Riddell about it.
Complaint (d) relates to the alleged failure to require two of DEPCO’s expert witnesses, Mr Rossiter and Mr Jordan, for cross-examination. This is said to have been incompetent in a context where their reports contradicted aspects of reports of the Seymours’ expert witness, Mr Mann.
The reports of Mr Rossiter and Mr Jordan were received into evidence at the outset of the trial as exhibits. Their reports had been procured to address aspects of the reports of the Seymours’ expert, Mr Mann, of 4 March 2021 and 8 July 2021.
Mr Mann is a wire line engineer, experienced in providing wire line services relating to artesian bores. He carried out a geophysical examination of the bore drilled by DEPCO. His equipment could not descend past a blockage encountered at 797.55 metres. Based on what he could examine, he opined in his report of 4 March 2021 that the bore’s inclination varied from zero degrees vertical at surface to 54 degrees non-vertical at 797.55 metres. Mr Mann opined that when a well bore maintains inclination above 5-10 degrees, the azimuth remains directionally constant. He projected the bore would have continued at an incline at a value greater than 54 degrees to its total drilled depth, which he estimated was 1,061.37 metres below ground level. He explained his process adopted a “false azimuth” because his deviation survey tools used a magnetometer effected by steel casing. He opined the excessive well bore deviation was the reason why the Adori and Hutton sandstone aquifers were not intersected. His report of 8 July 2021 described a process by which he estimated the depths of the Adori and Hutton formations below the bores’ origin location to be 1,095 metres and 1,175 metres respectively.
Mr Rossiter is an engineering geologist with experience in wire line and measurement and logging while drilling. In his report he was critical of the inability of Mr Mann’s deviation sensor to make azimuthal measurements. He suggested a gyroscopic survey would have been appropriate. He opined there is no data to support Mr Mann’s view that once beyond 5-10 degrees from vertical a well bore maintains azimuth, explaining it is common for well bores to walk or turn to the right because of the rotation of the drill bit to the right. He opined the assumed continuance of a consistent hole inclination and azimuth was not supported.
Mr Jordan, a civil engineer with experience in geophysical logging, was critical of Mr Mann’s limited data calibration and collection, including only collecting data on descent and not collecting data to cross-check it against on ascent. He criticised the reliability of inferring an azimuth, opining a gyroscope should have been used. He also disagreed with the reliability of the inference that deviations greater than five degrees will continue their trajectory, noting he had regularly seen bore holes spiral around in circles and return towards vertical from large deviations.
Mr Rossiter’s report was dated 24 November 2021 and Mr Jordan’s report was dated 29 November 2021. It is relevant to the present ground that subsequent to those dates, on 28 February 2022, Mr Mann prepared a further expert report which was received in evidence at trial.
Much of the evidentiary value of Mr Rossiter’s and Mr Jordan’s opinions was neutralised by Mr Mann’s further report of 28 February 2022. Earlier that month he revisited the bore and conducted a further wire line assessment of it. This time he used a gyroscopic tool to determine the azimuth of the accessible section of bore hole, although the limited gyroscopic deviation tool memory only allowed data collection on descent. By the blocked point at 790 metres bore length, he opined the bore had deviated 275.37 metres south-east of its origin. He projected at the bore’s full length of 1,388 metres it would have deviated 760.52 metres from its origin and only have a TVD of 1,061.15 metres.
The upshot is that having repeated his assessment using a gyroscope, his 2022 report reached generally similar conclusions as before. That report went unanswered by any further reports from Mr Rossiter or Mr Jordan, notwithstanding that one of their major criticisms had been the omission of a gyroscopic assessment in 2021. It is against that background that the Seymours’ counsel did not require Mr Rossiter or Mr Jordan for cross-examination at trial. When, on day one of the trial, the trial judge was informed of this and that they therefore would not be called as witnesses, this exchange occurred between DEPCO’s counsel and his Honour:
Mr Whittington opined that because the bore depth reached 1,388 metres the bore intersected the Adori and Hutton aquifers but “due to the extreme static head pressure of the drilling fluid these water bearing formations have been completely sealed off and the mud used during the drilling will have been baked rock hard by the high temperature water”. The effect of his opinion was not that the bore had failed to penetrate the Adori or Hutton aquifers, but that the pressure and temperature caused by DEPCO’s drilling method would have prevented the water in those formations flowing into the bore hole.
His opinion as it related to the allegedly high pressure was premised on him having been informed of what the drilling fluid weight was in the bottom section of the hole by “Bruce Keogh of the Department”. The reliability of that hearsay information and whether it could have been properly proved was not made apparent in submissions. The opinion as it related to the mud being baked rock-hard by the high temperature water appears to have been based upon that outcome occurring “[i]f any Barytes were used”. Whether Barytes were used and, if so, whether that could have been proved by admissible means was not made apparent in submissions.
Mr Whittington also opined that the “loss of the hole on Windermere Station as a productive artesian facility can be fully attributed to the failure of DEPCO’s drillers to abide by basic drilling practices”. He listed some examples in support of that opinion. Those examples included the abovementioned information from Mr Keogh and the abovementioned hypothesis of the consequence of using Barytes if that occurred. Other examples given included not having a comprehensive drill sample collecting in the record system, the loss of a drill bit during the works, and continuing to drill the same hole rather than a new hole after there was a cessation of drilling for a week during the works. However, the causal link between those other examples and the failure to strike water was not expressly identified. In short, while Mr Whittington’s report was critical of a number of the aspects of DEPCO’s conduct of the works, it was the pressure of the drilling fluid and the high-temperature water which it identified as causative of the failure to establish a free-flowing bore.
There are two problems with the factual premise of that causal theory. The first is that it is dependent upon the information from Mr Keogh and the use of Barytes and it has not been demonstrated that either could have been properly proved. But even if they could have been, there remains a problem with the second factual premise, that water would have been struck using proper methods. That premise is at odds with the evidence at trial showing there was no guarantee, using whatever methods were appropriate in the circumstances of the case, that water would be struck in the location at which DEPCO were directed to drill the bore by the Seymours. This is a determinative obstacle for complaint (e).
It has not been demonstrated there is a significant possibility that, but for the conduct alleged by complaint (e), the Seymours would have won below.
Indeed, not even the pre-requisite for potential interference has been met for complaint (e). That is because the challenges each of the two problems likely presented provide reasonable explanations for the decision not to plead and advance a case at trial relying on Mr Whittington’s evidence. An additional consideration in support of that conclusion is that Mr Mann’s evidence provided the Seymours with a different defence than Mr Whittington’s, without foundational problems of the degree plaguing Mr Whittington’s prospective evidence. The forensic risk of detracting from the force of that defence by running a quite different, but more dubiously founded expert theory, is another reasonable explanation for the decision.
Attempted reliance was placed in support of complaint (e) upon an affidavit by Mrs Seymour sworn 30 September 2022, deposing to having been told by her then solicitor on 11 March 2022, three days before the trial, that he and counsel “had decided Whittington’s evidence was not necessary because they intended to call Mr Edward Mann instead”. Mrs Seymour deposes she was not provided “with any advice in relation to that decision or whether we had an option to agree or disagree with it”. It is inherently implausible Mr and Mrs Seymour needed to be told they could express disagreement and tellingly it is not asserted they expressed disagreement. Nor is it asserted the amended statement of claim, filed a week before the aforementioned discussion and already reflecting the decision not to rely on Mr Whittington, was amended contrary to their wishes. In any event the prerequisite is whether, objectively considered, there could be no reasonable explanation for the decision. As already explained, there is a reasonable explanation apparent on objective consideration.
Finally, it is necessary to formally deal with the r 766(1) application for leave to rely upon the affidavit of Mr Whittington. It was necessary for that affidavit to be read before this Court in order for complaint (e) to be advanced and considered by this Court in considering the merits of that complaint. However, that was for the purpose of alleging a miscarriage of justice by reason of incompetence of counsel. If successful, that ground would have required the ordering of a new trial. The evidence of Mr Whittington was not relied upon as evidence as to questions of fact in the context of this Court arriving on a rehearing at a different final judgment than below. Indeed, because it clearly was evidence which was known of and could have been used below, special grounds did not exist for its use in that context. The r 766(1) application for leave to rely upon it should be refused.
Appellant’s outline of argument [5]. ↩
As occurred, for example, in Gilligan’s Backpackers Hotel & Resort Pty Ltd v Mad Dogs Pty Ltd [2016] QCA 304 [13]. ↩
Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 157 FCR 442, 471 [106] per French and Kiefel JJ. ↩
See for example Defendant’s Outline of Closing Submissions [101] (AR Book Vol 1 p 179). ↩
Hamilton v Oades (1989) 166 CLR 486, 502. ↩
Hamilton v Oades (1989) 166 CLR 486, 502. ↩
(1978) 139 CLR 410, 413, 429. ↩
(1995) 184 CLR 538, 613; cited with approval in Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215, 230. ↩
Reasons [61]. ↩
Reasons [62]-[63]. ↩
Appellant’s outline of argument [45]. ↩
Appellant’s outline of argument [46]. ↩
Appellant’s outline of argument [49]. ↩
Reasons [87]. ↩
Reasons [87]. ↩
Reasons [20]. ↩
Reasons [5], [194]. ↩
AR Book 1 Vol 1 pp 146-181. While titled “The Defendants’ Outline of Closing Submissions” that document was no mere “outline” and rather contained 36 pages of comprehensive written closing submissions. ↩
Defendants’ written submissions at trial AR Book 1 Vol 1 [27]. ↩
[1984] 1 Qd R 404. ↩
[1984] 1 Qd R 404, 408. ↩
This conclusion makes it unnecessary to elaborate upon other issues raised in affidavit evidence, from each side, relevant to whether this evidence could have been obtained earlier. ↩
(1988) 165 CLR 543. ↩
(2005) 223 CLR 1. ↩
(2016) 259 CLR 1. ↩
For examples of such work see Keefe v Marks (1989) 16 NSWLR 713, 718; cited with apparent approval by McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 52. ↩
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 49. ↩
Norbis v Norbis (1986) 161 CLR 513, 518-519; Allesch v Maunz (2000) 203 CLR 172,180. ↩
(1998) 197 CLR 172, 201. ↩
(2006) 225 ALR 161, 164. ↩
TKWJ v The Queen (2002) 212 CLR 124, 130. ↩
TKWJ v The Queen (2002) 212 CLR 124, 130, 133, 158, 159. ↩
TKWJ v The Queen (2002) 212 CLR 124, 156. ↩
TKWJ v The Queen (2002) 212 CLR 124, 134, 156. ↩
(1993) 17 MVR 144. ↩
(1993) 17 MVR 144, 149 (case citations omitted). ↩
(1993) 17 MVR 144, 156. ↩
[2008] NSWSC 1009. ↩
[2008] NSWSC 1009 [11]. ↩
Kelly & Anor v Jowett (2009) 76 NSWLR 405. ↩
[2008] NSWCA 177. ↩
[2008] NSWCA 177 [102]. ↩
(2015) 71 MVR 15. ↩
(2015) 71 MVR 15, 15. ↩
[2019] ACTSC 339. ↩
[2020] ACTSC 219. ↩
(2008) 21 VR 478. ↩
(2008) 21 VR 478, 520-521 [141]. ↩
See [151] above. ↩
See [154], [156], [158] above. ↩
Appellants’ outline of argument [72]-[73]. ↩
Appellants’ outline of argument [74]. ↩
Appellants’ outline of argument [77]. ↩
Appellants’ outline of argument [78]. ↩
Appellants’ outline of argument [79]-[81]. ↩
See [69]-[96] above. ↩
(1893) 6 R 67. ↩