Warragamba Winery Pty Ltd v State of New South Wales

Consideration 23In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [112] - [113] the majority of the High Court said this: "[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings." 24The precise or approximate location of the point of origin of the Mount Hall fire has been alive as a significant issue in these proceedings from their inception. The evidence upon which the experts have relied for the purposes of the opinions that they have expressed on that issue has been available for much longer. It was most publicly exposed and examined at the Coronial Inquiry. Its importance lies in the fact that the Hall Ridge track either was, or was not, a safe and available means of access to fight the fire, having regard to the prevailing wind, depending upon whether the lightning struck tree that caused the fire lay to the east or the west of that track. 25The parties' respective cases have long been in the course of preparation. The plaintiffs' relevant expert for the purposes of this issue, Mr Roche, signed off on his views on 11 February 2011. At the time he did so the defendants had themselves also qualified Mr Smith whose contrary opinion had been produced on 30 September 2009. Mr Smith's report is no less than 68 pages and 279 paragraphs. Mr Roche replied to it on 11 February 2011. The defendants complain that Mr Roche's reply should have been produced and provided to them much earlier. 26Mr Woods' two reports and Mr Hehir's report are in evidence before me on this application. The former are quite lengthy but the latter is not. Mr Woods' second report is an effective reproduction of his first report with some corrections and amendments. Part of the introduction to Mr Woods' report is as follows: "2. The plaintiffs' claims are in respect of property damage suffered by them in and around Warragamba, Silverdale and Mulgoa on 25 December 2001, resulting from a bushfire, known as the Mt Hall Bushfire. At the time of the outbreak of the Mt Hall Bushfire in December 2001, I was employed at the NSW Rural Fire Service ("RFS") as a Project Officer, responsible for the establishment of fire investigation capability for the RFS, having been appointed in February 2001. In late January 2002, I recall assigning Inspector Steve WALKER and Inspector Steve SMITH to investigate the cause and origin of a number of fires that had started in December 2001 in and around the Blue Mountains, including the Mt Hall Bushfire. Inspectors Smith and Walker attended the fire scene and then prepared a report into the cause and origin of the Mt Hall Bushfire. In that report, among other things, they reported that a lightning struck tree was suspected as the cause of the Mt Hall Bushfire. Their original report was supplied to NSW Police for inclusion in a Coronial Brief of Evidence which was accepted into evidence at the time of the Coronial Enquiry into the Mt Hall Bushfire. 3. I have been asked to review the original report, along with other documentation and provide my opinion as to whether the RFS investigators correctly identified the area of origin of the Mt Hall Bushfire. The following is my report providing that opinion." 27Mr Woods expresses his conclusions at paragraphs 46 and 47 as follows: "46. In my opinion after conducting the review of the documentation provided to me and relating it to my training, experience and accepted standards concerning wildfire investigation, I do not believe the cause of the Mt Hall Bushfire was the subject lightning struck tree as identified by the Investigation Team of Inspector Walker and Smith; and Sergeant Bransgrove and Senior Constable Olliver. 47. I am of the opinion that the Specific Origin Area (and Point of Origin) of the Mt Hall Bushfire was located further to the north from the subject lightning struck tree identified by the Investigation Team to the west of the Hall Ridge." 28As far as I can determine, none of the information or material that Mr Woods refers to in forming his opinion was not also available to be utilised and examined by Mr Smith for the purposes of his 30 September 2009 report, or at the latest at some time prior to 11 February 2011. This emerges from paragraph 6 of Mr Woods' report. The lightning strike records sourced from the Kattron Company would appear also to have been available during that time even though the information was apparently not obtained for provision to Mr Woods until later than that. 29In this respect it seems to me that the defendants are attempting to augment their case on the issue of the point of origin of the fire by qualifying another expert to say what Mr Smith has either said already or could have said if asked to do so. The defendants acknowledge that Mr Woods is now being asked to report on matters that were plainly on show in Mr Roche's report to which, by reason of their own inadvertence, they have only recently become alerted. They admit that there is no reason why that could not have happened before. In terms of the Aon analysis referred to above, there must come a time beyond which further augmentation of a party's evidence cannot be permitted. I think that time has come in this case. 30There is, however, another reason why I take this view. The defendants have contended that there is nothing new in either the Woods or Hehir reports and that the plaintiffs should be able to meet them. This sentiment is well documented in a letter written by the defendants' solicitor to the plaintiffs' solicitor in the course of the current dispute. Part of that letter, which is dated 23 August 2011, is as follows: "2. We disagree that the report raises a new issue that has not previously been raised. As referred to in the previous subparagraph, Mr Roche specifically refers to the issue of the point of origin of the Mt Hall track and whether it is to the east or west of the Hall Ridge in paragraphs 49 to 65 of his 11 February 2011 report. 3. Given the evidence your clients have already served, 9 weeks is sufficient time for you to respond to Mr Woods' report, if you consider it necessary. At the recent directions hearing...on 8 August last, Mr Nock SC repeated what he had told Mr King SC beforehand, namely that you were obtaining a supplementary report from Mr Roche commenting on some witness statements served for the defendants. Given that Mr Roche has already addressed the issue on the point of origin in his 11 February 2011 report as referred to above, it should be a simple matter to put Mr Woods' report before Mr Roche as part of that exercise, if you wish to do so...

The only material referred to in Mr Woods' report, which has not been discovered or produced previously, is the information provided by Kattron and the lightning data maps created using that information referred to above. That information was obtained by the RFS recently from a commercial provider and is not discoverable. At all times your clients could have approached the same provider and obtained the information. Given that you have now been provided with the information, there should be no reason why it cannot be shown to your clients' experts." 31An examination of the Kattron material referred to in Mr Roche's report, which is also dealt with in more detail by Mr Hehir in his report, appears to suggest that the defendants are proposing to use it to support a very different case on the point of origin issue than has so far been advanced by them or the plaintiffs. All other experts and investigators who have turned their mind to the issue have proceeded upon the basis of observations of the physical characteristics of the damaged tree that is thought to have been struck by lightning thereby causing the fire. There is a dispute about whether or not the tree concerned was struck before or after it was otherwise damaged by fire and whether it was located east or west of the Hall Ridge track. However, as I read the Woods and Hehir reports, they also uniquely direct attention to the question of lightning strikes in the area at the time of the fire in order to provide a basis for suggesting that there was no lightning strike or event at the relevant time in the vicinity of the tree that the plaintiffs suggest was the start of the fire. This analysis attempts to establish that the timing of any possibly relevant lightning strike does not coincide with the plaintiffs' analysis of the location of the point of origin of the fire based on observations of the tree after the fire had passed. For example, Mr Woods' report says this at page 19: "vi. Lightning Strike records recorded a storm passing through this area on the 15 January 2002, resulting in a number of lightning strikes impacting in the general area of Mt Hall. In my opinion the tree identified by the Investigation Team was struck after the fire, more likely than not, during this storm." [Emphasis added]. 32Mr Woods' report also says this at page 20: "i. Lightning was reported in the vicinity of the Blue Mountains prior to 0700 on the 24 December 2001. Some lightning strikes were recorded on the Kattron lightning detection system around this time. Additional strikes were recorded, in the area by the Kattron lightning detection system on the 15 January 2002, well after the outbreak of the fire and prior to the investigation taking place...given the remote location of the fire and the absence of any other likely cause, in my opinion these records confirm the cause of the Mt Hall Bushfire resulting from a lightning strike emanating from the storm that occurred on or before the 24 December 2001. Further the lightning storm of the 15 January 2002 that affected this area more likely than not, resulted in the lightning damage to the subject lightning struck tree as identified by the Investigating Team." 33Assuming that I correctly understand this approach, it is different to anything so far raised on the issue and is new. It relies upon Mr Hehir's expertise as a geographic information systems analyst to interpret lightning strike data. This discipline puts in contest, and depends upon the specific timing and location of, recorded lightning strikes as a cause of the fire, as allegedly supported by new data that have never been referred to before. In this way it also purports to raise doubts about when, and therefore whether, the particular tree inculpated by the plaintiffs was actually struck by lightning, by attempting to isolate and specify the particular time that this must necessarily have occurred. This is in contrast to the experts' uniform approach so far that has simply concentrated upon the location of the tree that was struck by lightning relative to the Hall Ridge track. If, as the defendants suggest, it was always open to the plaintiffs originally to obtain and utilise this material themselves, it follows that the same can be said of the defendants. If they had wanted to promote an hypothesis of this type, they were entitled and obliged to do so in a timely way in accordance with directions that I gave. It is not a proper assessment of where the balance lies for the defendants now to assert that the plaintiffs could also have used this material. They did not. That was their choice. Nor did the defendants attempt to use it until it was, in my opinion, too late for them to do so. The defendants cannot now seek potentially to alter or divert the course of the case on this issue and expect the plaintiffs without complaint to accommodate the change. The defendants' gracious acknowledgement that the plaintiffs should have a reasonable opportunity to do so does not alter my view.

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