Procedure - Exchange of experts' reports - Reports in response - Whether "responsive" or primary evidence - Whether failure to comply with directions for exchange of primary statements of evidence - Applications for orders that party may not lead the evidence at trial

1 ROBERTS-SMITH J: There are before me two chamber summons for directions.

2 The first is an amended chamber summons filed on behalf of the plaintiffs dated 1 February 2002.

3 The second is a chamber summons filed on behalf of the defendant dated 26 February 2002.

4 The plaintiffs' chamber summons seeks orders that the defendant not be permitted to rely at trial upon:

1. an undated report of Raymond Francis Gordon, entitled "Statement of Evidence on Behalf of the Western Australian Planning Commission" (with the exception of pars 41 to 47 inclusive);

2. pages 1 - 9 and the first two paragraphs of p 10 of the report dated October 2001 by Bronwen Keighery of the Department of Environmental Protection ("the DEP"), together with certain documents annexed to it;

3. the summary report and full version of it dated 15 October 2001 prepared by John Dell of the DEP reviewing a report prepared for the Ministry for Planning by Ecologia Environment Consultants in January 2001;

4. the report of Mr J Dell dated 15 October 2001 entitled "Fauna Values of Lot 52 Burns Beach Road" dated 8 October 2001;

5. covering letter written by the Program Manager of Environmental Planning of the (then) Water and Rivers Commission dated 7 June 2001;

6. the first five un-numbered pages of a report prepared by the Manager of Environmental Planning of the Waters and Rivers Commission dated 7 June 2001;

7. the report of Dr K J Atkins of CALM dated 26 March 2001;

8. the report by Kim Taylor of the DEP dated October 2001.

5 The plaintiffs also sought an order that the timetable contained in the order for directions dated 6 August 2001 be amended so that Order No 3 concerning the holding of a conference for non-environmental, non-valuation experts be convened for no later than 27 March 2002. I made an order in those terms when the applications came before me on 6 March 2002.

6 The plaintiffs also sought further and better discovery in the form of a valuation report of Ray White Valuers dated 29 June 1999, but that became otiose except as to costs, as I was informed by Ms Rowley for the plaintiffs that the report had recently been provided.

7 The defendant's chamber summons seeks orders that the plaintiffs not be able to rely at trial upon:

1. the evidence of Mr J Griffiths of Development Planning Strategies as contained in his report dated 10 January 2001 or otherwise and

2. the evidence of Dr M Shepherd of ATA Environmental and of Mr P Mather of Coffey Geosciences Pty Ltd as contained in a report of ATA Environmental dated 10 October 2001.

8 Although described in the hearing before me as reports, the documents to which objection is taken are in fact in the form of statements of evidence. For convenience I shall continue to refer to them as reports.

9 I shall deal first with the plaintiffs' application.

10 The evidence objected to by the plaintiffs is said to fall essentially into two categories. The first is said to be evidence which is primary environmental evidence which ought to have been, but was not, exchanged by 19 January 2001 in accordance with directions earlier made and the second being reports provided by the defendant which purport to be responsive evidence but in fact provide support and review, for the first time, of the defendant's primary evidence.

11 More particular objections falling into both categories are set out in the ninth and tenth affidavits of Linda Elizabeth Rowley sworn on 9 October 2001 and 27 February 2002 respectively.

12 In the general vein, it is contended on behalf of the plaintiffs that the defendant is seeking to introduce further and more extensive primary environmental evidence which was not considered at the expert's conference held in accordance with previous orders and in respect of which a list of issues has been prepared and filed by both parties. It is further submitted that many of those witnesses who it is said now purport to give primary environmental evidence were not present at that meeting, so that if leave is now given to bring that evidence, the plaintiffs will be prejudiced, not only in terms of the need to further consult experts for additional responsive evidence, but also in terms of costs.

13 The plaintiffs' submissions in respect of this are founded on Ms Rowley's ninth affidavit sworn 9 October 2001. The Gordon report is annexure LER 30 to that affidavit.

14 For the moment it is sufficient to note the report deals essentially with karst in relation to the site. The term "karst" is used to describe limestone or dolomite landscapes that are commonly characterised by sink holes, subterranean drainage and both horizontal and vertical caves. The term is applied to a geomorphic area as a whole and not just to the characteristic features of the terrain.

15 Ms Rowley's submission is that the question whether or not there is karst on the subject land ("the land") falls squarely within the province of an environmental scientist. Once the likelihood or otherwise of that has been identified, the issue then moves into the area of technical costing. The plaintiffs have no objection to that part of the Gordon Report which deals with costing. Ms Rowley points out that Mr Gordon's qualifications are geological and that most of the content of his report properly falls under the ambit of environmental considerations and accordingly should have been exchanged with the other environmental reports.

16 Mr Monahan for the defendant submits that the starting point must be the proper categorisation of reports generally. In contrast to Ms Rowley's reliance upon dictionary or statutory definitions, he submits the question of categorisation should be addressed rather by the purpose underlying the reasons for the orders of the court, which was to group like categories of evidence with like.

17 Ms Rowley drew attention, inter alia, to p 117 of her fifth affidavit sworn 23 March 2001 which forms part of the recommended environmental conditions in respect of the Clarkson-Butler amendment to the Metropolitan Region Scheme, in the immediate vicinity of the land. That recommended amendment required the landowner to undertake technical site investigations to confirm the nature and extent of karst landform within the relevant area. I accept that it does appear to indicate that the Environmental Protection Authority ("the EPA") and the Minister for the Environment considered such matters to fall within the environmental issues required to be considered, assessed and supervised by the EPA.

18 I also note the observation of Dr Mark Shepherd of the firm ATA Environmental, which is annexure LER 16 to Ms Rowley's fifth affidavit (at p 109), that:

"Karstic phenomena have implications for foundation soundness and also may be associated with subterranean fauna."

19 I think part of the problem of categorisation here is that a particular study or report may be categorised differently, depending upon the purpose for which it is prepared and the specific aspect or issue which it purports to address. Thus, as appears from the quotation to which I have referred from Dr Shepherd's report of 18 January 2001, a discussion about karst may be directed towards its environmental impact in terms of subterranean fauna. It is also apparent it may go to other aspects of environmental impact. On the other hand, as Dr Shepherd also says, it may have implications for foundation soundness. The latter is an aspect addressed in the Gordon report.

20 I have read the Gordon report carefully again in light of the submissions made to me. I note that the plaintiffs have no objection to par 41 to par 47 inclusive. Paragraphs 1 to 14 inclusive deal with Mr Gordon's professional qualifications and experience and his knowledge of the subject site and surrounding areas. In par 15 to par 21 he describes the topography and geology of the land. At par 22 to par 34 he deals with the previous uses of the land, its limestone potential and describes its potential as a limestone quarry. In par 35 to par 40 he describes what he suggests are hazards of Lot 52 associated with, or arising out of karstic problems. In my view, all of the content of his report up to and including par 39 is appropriate and pertinent background to par 41 to par 47, in which he addresses the potential for, or limitations upon, housing development on the land because of the karstic features of it.

21 Mr Monahan says this report is to be relied upon by the defendant only on the issue of valuation and only in respect of geotechnical issues going to the cost of development.

22 I consider the report up to and including par 47 admissible for that purpose and so regarded, it is properly to be characterised as an expert report other than one on environmental issues. It does not go to any issue of intrinsic environmental importance nor the environmental quality of the land.

23 Although Ms Rowley is correct when she points out that par 48 to par 50 specifically refer to the plaintiffs' report from ATA Environmental, which was one of those exchanged as an environmental report, the reference to it by Mr Gordon is limited to observations about karst on the land from the point of view of its suitability for urban development. It is confined to the same issue of housing development. So regarded, it falls within the category contended for by the defendant.

24 The plaintiffs' objection to the Gordon report is rejected.

25 The Keighery Report is a 51 page report written by Ms Keighery of the the DEP. She has already provided primary environment advice. That has been exchanged earlier. Ms Rowley submits that the primary report was made by "desktop analysis" without Ms Keighery having visited the site. The submission is that this was subsequently seen by the defendant to have created a problem and the defendant is now seeking to fill a gap in the primary evidence by adducing this material in the guise of a response.

26 It is said this is done in part by Map 3 and Appendix 3. Map 3 is said to constitute new vegetation mapping which ought to have been exchanged as primary expert environmental evidence on 19 January 2001. It is submitted the same applies to Appendix 3, which records additional flora species sampled on 24 September 2001. Ms Rowley contends that should have been done prior to 19 January 2001.

27 The Keighery attachment Map 2 makes a comparison between the results of the ATA Environment mapping and the Trudgeon Report. The former is a report of Dr Shepherd to the plaintiffs; the latter is a report of Dr Trudgeon to the defendant. Ms Rowley's contention is that to the extent the Keighery report refers to what was put forward by Dr Trudgeon it is "peer review" and impermissible.

28 I am told Mr Dell has already provided primary environmental advice. He has now provided a further five "responsive" reports.

(a) Lot 52 Burns Beach Road, Neerabup: Fauna Assessment Survey prepared for Ministry for Planning by Ecologia Environmental Consultants in January 2001;

(b) Lot 52 Burns Beach Road, Neerabup: Fauna Survey prepared by Biota Environmental Sciences in December 2000;

(c) Trandos & Ors v Western Australian Planning Commission review of evidence prepared by Dr Alan Tingay.

30 The plaintiffs do not object to the review of the reports by Biota and Dr Alan Tingay as these two reports are primary evidence prepared on behalf of the plaintiffs. Ms Rowley concedes these reviews may therefore be characterised as responsive evidence. Objection is however taken to the part of the summary report referring to the Ecologia report. Ms Rowley contends that cannot be said to be responsive evidence unless it is accepted that the defendant may respond to its own evidence.

31 The second is a full review of the January 2001 Ecologia report. Objection is taken to that on the same ground, that it is unresponsive "peer review".

32 The third and fourth reviews consist of reports prepared by Mr Dell responding to the Biota and Dr Alan Tingay reports to which there is no objection.

33 The fifth Dell report is dated 8 October 2001 and is objected to on the ground that it is further primary expert environment evidence not exchanged as required by 19 January 2001. The plaintiffs argue that it is apparent this report is the result of a further site inspection made by Mr Dell on 24 September 2001, the need for which ought to have been appreciated by the defendant earlier and undertaken as part of the preparation of its primary evidence.

34 The submissions advanced on behalf of the plaintiffs as to "non-responsiveness" were common to most of the objections taken.

35 I accept the plaintiffs' submission that the criteria by which evidence is to be characterised as either primary or responsive, is the consideration whether the particular report responds to, or answers the other party's primary evidence or whether it attempts to gratuitously assert new evidence. I further accept that must be a matter of factual analysis of the report in question in each case.

36 Ms Rowley further submitted that in preparing responsive evidence, neither party is limited to its experts who have given primary evidence. Mr Monahan expressly agreed with this submission. I accept it.

37 As to the substance of the objection in respect of the Keighery and Dell reports, I consider it would be wrong to take too pedantic an approach to the content or expression of an expert report. Such a report is not a pleading. It is a matter of academic or professional approach. I accept the defendant's submission that if the substance of a report is responsive, then the content of it which goes to more general issues so as to set a proper context or background for the expression of the reporter's opinions and conclusions, is legitimate. The point in such a case may well be a matter of form not substance. It would be wrong, in my view, to deprive the expert of the context and foundation the expert considers necessary to properly set out their own expression of opinion and conclusions. That may properly extend to reference to earlier primary material adduced on behalf of the same party. Ms Rowley characterises this as "peer review" which she says is impermissible. I would agree that if the content of a report were no more than "peer review" or an attempt to lead (unresponsive) primary evidence, then it should not be permitted. But as she submits, it is all a matter of factual analysis of the particular report in the end.

38 Undertaking that analysis in this instance, I accept that the portions of the Keighery report to which objection is taken, appear to have been drafted by the author for the purpose of laying a foundation and context for her response to the plaintiffs' evidence.

39 In his submission Mr Monahan explained that a report dated January 2001 was prepared by Ms Keighery and Mr Dell on behalf of the DEP and exchanged within the time for exchanging expert environmental evidence. The original DEP report was based on data available prior to the date of election to acquire the land viz 5 May 1998.

40 Mr Monahan submits that the expert environment evidence of the plaintiffs subsequently raised issues about the fauna conservation values of the land based on more recent data collected after May 1998. He contends that Mr Dell's report on fauna volumes is responsive to those issues about the current fauna values of the land and provides the DEP perspective on those issues as raised by the plaintiffs' experts.

41 Mr Monahan acknowledges that Mr Dell's summary opinion and report on a review of the Ecologia report is similarly "responsive" in substance in that it provides the DEP perspective on the more recent data collected by Ecologia. The difficulty with this as I see it, however, is that the Ecologia report is a report on behalf of the defendant.

42 Once again, it is a question of substance. In my view there would be no particular difficulty in referring to or relying upon earlier reports adduced by the same party's experts provided that was properly done for the purpose of setting a context or mounting an argument which is itself properly responsive to the other party's evidence.

43 Furthermore, I see nothing inappropriate in Ms Keighery referring to Dr Trudgeon's material (as well as that of the plaintiffs' experts) as a basis for her observations about the conservation value and regional significance of the land. Likewise I have no difficulty with her use of additional information collected by her and Mr Dell on a field visit to the land on 24 September 2001 (see eg LER 1 to the tenth affidavit of Linda Rowley, p 325). Additional or new data may well be legitimately required to properly answer or respond to another party's expert. I accept this applies to Map 3 and Appendix 3 of the Keighery report.

45 I have applied to those Dell reports to which objection is taken, that same analysis to which I have referred above.

46 I uphold the plaintiffs' objection to that part of the summary which deals with the Ecologia report and the fuller Dell review of that report. The first is a summary of the fuller review. That review is not in response to any evidence of the plaintiffs' experts. It does not even purport to be. It is simply a review by Mr Dell of an earlier report obtained by the defendant. The plaintiffs' application succeeds in this regard.

47 I have had some hesitation about Mr Dell's fifth report, that dated 8 October 2001. It does not specifically refer to the material to which it is intended to be a response - nor is it cast in terms as a review or response. On balance, however, I have come to the conclusion that these are stylistic or drafting deficiencies. I am prepared to accept this report as properly responsive. I reject the objection to it.

Letter to Program Manager, Environmental Planning, Waters and Rivers Commission to the Crown Solicitor's Office and attached report

48 The objection is first to the covering letter. That objection was conceded by the defendant at the hearing on 6 March. The objection in that regard is accordingly upheld.

49 The first five pages of the report appear under the heading "Background to Wetland Mapping and Valuation by the Water and Rivers Commission". The plaintiff's contention is that part consists of primary expert environmental evidence which was not exchanged by 19 January 2001, is not responsive evidence and the defendant should not be permitted to lead it. The remainder of the report is under the heading "Present Situation". The plaintiffs concede that is responsive and no objection is taken to it.

50 There was a further objection that the author of the report was not identified. At the hearing, Mr Monahan sought leave to amend the report by the addition of identification of the author and a statement of the author's qualifications. Having regard to the fact that no objection had been taken to the "present situation" part of the report, I gave such leave.

51 I regard the first five pages of the report to be properly contextual in the sense which I have described in respect of the Keighery report. I consider it appropriate for the same reason. The defendant may rely upon it as affording appropriate background and context by the author for the expression of views, opinions and conclusions in that portion to which no objection has been taken. The objection is rejected.

The report of Dr K J Atkins of CALM dated 26 March 2001

52 Dr Atkins did not provide any primary environmental evidence.

53 Again, he does not specifically indicate in terms to what material his report is intended to respond. At the outset, however, he does say that he has reviewed four documents with regard to their technical assessment of the conservation values of the land and identifies those as the Tingay report of January 2001, the Trudgeon report of January 2000, the Ecologia Report and the DEP Report based on information available prior to 5 May 1998.

54 As Ms Rowley points out, the Trudgeon, Ecologia and DEP reports were all provided on behalf of the defendant. The objection therefore is that the bulk of Dr Atkins' report purports to be a review of three reports prepared on behalf of the defendant. It is further submitted that Dr Atkins inextricably mixes comment on Dr Tingay's report with his comment on the other reports and the offending parts cannot be severed; accordingly the objections as to entirety of the report.

55 Having read the report (Annexure LER 7 to the tenth affidavit of Linda Rowley), I am of the view that it is properly responsive to the proposed evidence of Dr Tingay, albeit with reference to material previously provided by the defendant's experts.

56 Mr Monahan submitted that in his report Dr Tingay had summarised the conclusions of others in respect of the flora and fauna of the land and discussed how, for example, CALM would deal with it in terms of its own legislation and procedures. Mr Monahan submitted the defendant is entitled to respond to that. He argues that although Dr Atkins does refer to reports of the defendant's experts, he does so as a means of comparison with Dr Tingay and by way of explanation of his own reasons for differing with Dr Tingay. He further submitted that although Dr Atkins finds his way to his conclusion with respect to Dr Tingay by reference to Dr Trudgeon and the other defendant's reports, that does not change the nature of his report as responsive to Dr Tingay.

57 I accept this submission. I accept that the reference to the defendant's reports by Dr Atkins is a mechanism which he has used to reach his conclusions in response to Dr Tingay.

58 The plaintiffs' objection in this regard is rejected.

59 This is a report by Mr Kim Taylor of DEP dated October 2001. Mr Taylor has not provided any primary expert environmental evidence. The plaintiffs' objection is taken on the basis that the Taylor report purports to set out the views of the EPA. Ms Rowley asserts in her tenth affidavit that at the valuation date Mr Taylor was an officer of DEP which is only one of the agencies which advised the EPA. The EPA consists of five members including a chairman. Mr Taylor is not able to give evidence as to what the EPA would have decided, in the absence of the matter having been put to it at the relevant date. As expressed in the affidavit, the plaintiffs' objection is taken on the grounds that the Taylor report could not contribute anything to the resolution of the questions before the court. As elaborated in argument before me, it became clear that the objection was being put on three bases - first as to relevance, secondly that Mr Taylor is not an expert and his opinion is not admissible and thirdly as to weight.

60 On an objection of this kind the issue of weight merges with that of relevance: proposed evidence would be inadmissible for lack of weight only if it were of such a nature that no weight at all could be given to it by the tribunal of fact - however, in that circumstance, the evidence would not be probative and would hence be irrelevant.

61 Unlike some of the other material to which reference has been made, Mr Taylor's report does expressly purport to be a review of chapter 11 of the report of Dr Tingay dated January 2001. It expressly addresses Dr Tingay's contention that not setting aside Lot 52 for conservation purposes would not unreasonably compromise the establishment of adequate conservation reserves in the area. What then follows in Mr Taylor's report is directed to that issue. The report is clearly relevant.

62 It is true that in the body of his report, Mr Taylor uses expressions such as "... I believe the EPA would have decided..." certain things under particular legislative provisions applicable to it, but on a fair reading of the report I think this is the product of infelicity of expression rather than substance. I accept Mr Monahan's submission that Mr Taylor is really expressing an opinion as to the statutory criteria the EPA would have had to have taken into account should the question have come before it. I also accept that he is qualified by his experience as an officer of the DEP and Director, Environmental Impact Assessment, to express the opinions he does.

63 In my view the content of the report is capable of being given some weight and the question of how much weight should be given to it is one which should be left for trial.

64 I reject the plaintiffs' objection to this report.

65 I turn now to the defendant's objections to the plaintiffs' material.

66 Mr J Griffiths is with Development Planning Strategies. His report is dated 10 January 2001.

67 The defendant relies upon the affidavit of Brian Robert McMurdo sworn and filed 26 February 2002.

68 The purpose of the Griffiths report is expressly stated to be to responsively address the planning reports of Mr Phillip Thompson of the City of Joondalup, Mr Neil Foley from the Ministry for Planning and Mr Peter Driscoll of Landvision (all of which are reports provided for the defendant). Mr Griffiths asserts at par 2 that his report is to assist with the determination of the "highest and best use" of the land as at 19 May 1998 had it not been reserved for parks and recreation under the Metropolitan Region Scheme (Omnibus amendment 977/33).

69 Mr Monahan submits that although structured as a response, that is not in fact the content of this report. He contends this is just a restatement of earlier material advanced by the plaintiffs and no more.

70 Having considered the report (Annexure BRM 6 to Mr McMurdo's affidavit) it seems to me that although there is extensive reference to earlier material of the plaintiffs - and in particular that of Dr Tingay - the process is nonetheless a responsive one, albeit involving the mechanism of comparison and contrast with other material to support the conclusions expressed by the author.

72 This is a report of ATA Environmental dated 10 October 2001. It is a report by Dr M Shepherd but incorporates statements made by Mr Mather. The latter has not previously provided any report nor statement. The defendant's submission is that Mr Mather is obviously relying on some qualifications and base of knowledge or data to express the opinions attributed to him but no necessary background of that has been provided. As I understand it, the point sought to be made is that no factual nor other foundation has been provided to support the expression of any opinion by Mr Mather.

73 I note the report itself purports to be a review of the Gordon report. Dr Shepherd writes (BRM 7, p 35) that some of the issues raised in the Gordon report are of a geotechnical nature and for that reason he asked Mr Mather of Coffey Geosciences Pty Ltd to comment upon them. He writes that Mr Mather accompanied him on a visit to the land on 31 August 2001 to "ground truth" some of the data and assertions in the Gordon report.

74 Once again I think it is a question of style and approach. I accept Ms Rowley's submission that the approach taken in this report has been to focus upon and respond to specific points in the defendant's expert material. That, of course, does not directly address the point of the objection.

75 So far as Mr Mather's professional qualifications are concerned, I note that he is a Senior Engineering Geologist whose curriculum vitae is set out at p 40 - 44 of Mr McMurdo's affidavit. He is plainly qualified to express an expert opinion as an engineering geologist.

76 So far as the lack of any particular information relating to the factual matters underpinning his expressions of opinion as set out in the report are concerned, I think it must, in the end, be a question of weight. Under the circumstances, and having regard to the nature of this application, I consider it inappropriate to say more about it at this stage.

77 I reject the defendant's objection to this report.

78 I will hear counsel on the form of the orders which should be made in accordance with the reasons expressed above.